Jones Act Maritime Lawyer : Houston Jones Act & Maritime Injury Lawyer & Attorney : Arnold & Itkin Law Firm : Offshore Injury, Maritime Law : Texas, Louisiana, Alabama, Mississippi, Florida

The United States District Court for the Eastern District of Texas recently issued a memorandum opinion in which it determined that an injured seaman's suit under the Jones Act, general maritime law, and the Longshore and Harbor Workers' Compensation Act should be taken up in the Southern District of Texas.  That venue, the court ruled, was clearly more convenient than the litigation venue originally selected by the plaintiff.

In Vargas v. Seamar Divers Int'l, LLC, No. 10-CV-178 (E.D. Texas), the district court considered a defense motion to transfer venue from the Eastern District to the Southern District of Texas.  The suit was filed by a plaintiff seaman based on injuries sustained while employed by Seamar Divers International, LLC, and related defendants.  Plaintiff Esteban Vargas's complaint alleged causes of action for negligence, unseaworthiness, and breach of the duty of maintenance and cure.

At the time of the incidents giving rise to his suit, Vargas lived in the Houston, Texas area, within the Southern District of Texas, and it appeared that he received most of his associated medical treatment from various doctors and medical facilities in the Houston area.  He later moved to Tyler in east Texas, where he ultimately filed suit in the federal district court for the Eastern District.

The court summarized its decision by stating that, "[c]onsidering all of the private and public interest factors, the defendants have met their burden of showing that the Southern District of Texas is 'clearly more convenient' than the Eastern District of Texas.  Four factors weigh in favor of transfer: the relative ease of access to sources of proof; the availability of compulsory process to secure the attendance of non-party witnesses; the cost of attendance of willing witnesses; and the local interest in the litigation. On the other hand, only one factor weighs against transfer: the practical problem that transfer will result in a delay in the trial of the case" (citation omitted).

In particular, it appeared that the vast majority of the documentary evidence in the form of Seamar's records and Vargas's medical records were located in the Houston area, significantly more third party witnesses resided in and around Houston and within the subpoena power of the Southern District of Texas, and the balance of witnesses would find it more convenient to attend trial in Houston.

The court thus transferred the action to the United States District Court for the Southern District of Texas, Houston Division, for further proceedings.

-----------------------------------------------

For a free consultation, call our maritime accident lawyers 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The United States District Court for the Eastern District of Louisiana recently addressed a challenge by offshore drillers to the federal government’s asserted delay in processing nine Gulf of Mexico deepwater drilling permit applications.  The court on May 10th issued an order in Ensco Offshore Co. v. Salazar, No. 10-1941 (E.D. La.), in which Ensco Offshore Co. and others (Ensco) sought to compel administrative action on the permit applications after the government suspended deepwater drilling in the Gulf based on the catastrophic Deepwater Horizon oil spill.  Ensco challenged the government’s delay in processing the drilling permit applications as unreasonable, among other claims.

In addressing the merits of Ensco's claim, the court emphasized the national policy set out in § 706(1) of the federal Administrative Procedure Act, which requires a reviewing court to compel agency action unlawfully withheld or unreasonably delayed.  That requirement applied here, where the Outer Continental Shelf Lands Act and the Administrative Procedure Act established a non-discretionary duty on the part of the Department of the Interior to act, whether favorably or unfavorably, on drilling permit applications within a reasonable time.

That reasonable time, the court said, was thirty days.  The court therefore held that agency action on the permit applications for deepwater drilling in the Gulf of Mexico is non-discretionary and that a thirty-day timeline is reasonable.

In Ensco’s case, all of the permit applications at issue had been delayed from four months to over a year, with the result that the government had unlawfully and improperly delayed a non-discretionary function under § 706(1).

The federal district court refrained from directing what action the Department of the Interior should take on the pending deepwater drilling permit applications, but instead ordered that the government had to act in some fashion on the applications.

The federal government was given thirty days to act on the six applications that remained pending, and to report back to the court on the status of the applications.

——————————-

For a free consultation, call our maritime accident lawyers 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Billiot v. Key Energy Services, No. 09-01023 (W.D. Louisiana, April 27, 2011) (memorandum ruling)

John Billiot, Jr., brought a Jones Act suit against his employers, including Key Energy Services, and he alleged that jurisdiction for the action arose under the federal district court's general maritime law and admiralty jurisdiction pursuant to 28 U.S.C. § 1333.  He also sought a trial by jury.  Key Energy maintained that Billiot was not a seaman under the Jones Act and that jurisdiction did not exist under general maritime law.  Instead, Key Energy contended that jurisdiction existed based on diversity of citizenship.  Even so, Key Energy did not demand a jury trial.

In a subsequent amendment to his complaint, Billiot designated his claim under Rule 9(h) of the Federal Rules of Civil Procedure.

Billiot stated that he made claims under 46 U.S.C. § 30104, namely the Jones Act, and the general maritime law of the United States.  Key persisted in its position that no jurisdiction existed under the general maritime law, and asserted that Billiot could not proceed under Rule 9(h).

Billiot later sought to "strike" his jury demand, and his motion was opposed by Key Energy and also by other entities that had been named as new defendants.

The motion went before a magistrate judge, who ultimately ruled that Billiot's motion to withdraw his jury demand should be granted.

The parties hotly disputed whether Billiot lost his status as a seaman when he was allegedly re-assigned to a land-based rig.  According to the defendants, the alleged accident occurred on land, so that maritime jurisdiction did not attach and Billiot could not invoke Rule 9(h).

The court admonished, however, that admiralty jurisdiction exists as a basis for a Jones Act seaman to bring a claim against his employer even if the injury did not occur on navigable waters, and the statutory right to a jury trial does not negate that jurisdictional grant.

If the defendants ultimately were correct that Billiot lost his seaman status when he was assigned to a land-based position, it might mean that he had no cause of action against his employers.  It did not mean, though, that the court was divested of subject matter jurisdiction.  That is, the question of whether Billiot was entitled to proceed under Rule 9(h) was distinct from the defendant’s position that somehow the court did not have subject matter jurisdiction under 28 U.S.C. §1333.

Here, Billiot's claims were not cognizable only in the admiralty or maritime jurisdiction of the court.  As plaintiff and "master of his complaint," Billiot's simple statement asserting admiralty or maritime claims was sufficient to make a Rule 9(h) election, the court said.  Once the election was made, there was no right to a jury trial for the defendant even though diversity of jurisdiction might be present.  That election removed any doubt as to how the case ought to proceed where Billiot initially made a demand for trial by jury.

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 for a free consultation or call our maritime law office toll free at 866-222-2606.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

OSHA injury prevention sheet explains how shipyard employers and workers can avoid common rigging hazards.

The Houston maritime accident and injury lawyers of Arnold & Itkin LLP encourage shipyard employers and workers to review new guidance on rigging injury prevention from the federal agency charged with overseeing workplace safety.

The recently issued Safety and Health Injury Prevention Sheet (SHIPS) on rigging from the Occupational Safety and Health Administration (OSHA) provides important information about all too common causes of falls, shocks, amputations, crushing injuries and fatalities in the maritime industry.

It also explains steps that shipyard employers can take to prevent such catastrophic injuries from occurring when workers use ropes and cables for the handling of heavy cargo and equipment.

“Riggers and others in the maritime industry know that even the slightest mistake or lapse in judgment in rigging operations can lead to tragedy,” said Kurt Arnold, an experienced Houston maritime injury attorney and co-founder of Arnold & Itkin LLP.

“That’s why it’s important for employers to review this injury prevention sheet from OSHA and to work with shipyard employees on establishing and executing procedures that avoid rigging accidents,” Arnold said.

“Negligent or reckless indifference to proper safety measures too often leads to unsafe conditions and practices and exposes workers to the risk of serious maritime injury or death,” said Jason Itkin, an Arnold & Itkin co-founder and veteran Houston maritime accident lawyer.

“Employers owe it to shipyard workers to take a close look at this guidance from OSHA and, more importantly, to follow this guidance,” he said.

According to an OSHA news release, the new SHIPS on rigging provides descriptions of actual cases involving shipyard workers who were injured or killed in rigging accidents. The descriptions are accompanied by illustrations that demonstrate unsafe rigging practices.

The SHIPS helps to establish the basic duties that maritime employers owe workers who are involved in rigging. When an employer fails to fulfill those duties, it is essential for workers or their loved ones to contact an experienced Houston maritime accident and injury lawyer to learn about their legal options, Arnold said.

“Taking legal action after a worker or a family member has suffered a serious or fatal rigging injury allows one to recover compensation for medical expenses, lost wages, pain and suffering and other damages,” Arnold explained.

“Legal action also helps to reinforce the responsibilities that maritime employers have for protecting their workers, and it helps to make the maritime industry safer.”

The Houston maritime accident lawyers of Arnold & Itkin LLP provide legal guidance on all aspects of maritime law and the benefits offshore workers and their families 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) 399-9818 or using the online form on this page.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Gold v. Director, Office of Workers' Compensation Programs, No. 10-60686 (5th Cir. April 29, 2011) (per curiam, unpublished)

Michael Gold was working for Dolphin Services, L.L.C. as an offshore rigger when he woke up with back pain.  Although he reported his injury to a supervisor and filled out an accident report, he did not see an on-board medic, and he returned to work.  He continued work, with varying amounts of back pain, until he was terminated in January 2008 for reporting to work with alcohol in his system.  He finally went to an emergency room some two months later, reporting back and neck pain.

After Gold filed for employee compensation, the case went before an administrative law judge, who concluded that no injury occurred for purposes of the Longshore and Harbor Workers' Compensation Act (LHWCA).  In the alternative, the ALJ concluded that even if Gold could show he suffered an injury, the evidence did not show that there was a work-related accident, exposure, event, or episode that occurred that could have caused the injury.  The ALJ thus denied Gold's benefits claims under LHWCA.

The Benefits Review Board (BRB) affirmed, but only after concluding that Gold's medical test results arguably showed that he suffered a "harm."  The BRB concluded, however, that even if this were the case, Gold didn't show that he suffered an accident at work, or that working conditions existed which could have caused his back condition.  The BRB thus affirmed.

Gold claimed two errors on appeal:  The ALJ and BRB erred by failing to order the authorization and payment for Gold's choice of physicians, and they incorrectly determined that the presumption afforded claimants under 33 U.S.C. § 920(a) did not apply.

In its unpublished decision, the Fifth Circuit rejected the notion that Gold's right to freely choose his own treating physician vested when Gold gave verbal notice of his injury to his employer.  It was true that the LHWCA gives an injured employee the right to choose an attending physician to provide medical care, but that right remains subject to a burden of persuasion to prove coverage.  Gold failed to meet that burden, the court said.  Rather, he had to show proof that he was "injured" as defined by the statute, meaning that he suffered accidental injury arising out of and in the course of employment.   Simply claiming injury was insufficient, the court admonished.

The same held true regarding Gold's claim regarding the LHWCA presumption under § 920(a).  Often called the "Section 20 presumption," the section comes into play once a claimant can prove that he suffered a harm and a condition of the workplace could have caused, aggravated, or accelerated the harm.  When properly invoked, the presumption shifts the burden to the employer to rebut the employee's prima facie claim of injury through facts showing that the harm was not work-related.  Here, Gold failed to establish a prima facie case of injury and, alternatively, he failed to show that any such injury was work-related.

The court emphasized that the LHWCA requires compensation not because of the mere existence of a physical impairment, but only when the injury arises "out of" and "in the course of" employment.

Having failed to establish a prima facie case under the LHWCA, Gold's benefits claim simply failed.

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

If you or a family member has suffered a maritime injury, call us toll free at (866) 222-2606 or contact us online. 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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link