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 Deepwater Horizon disaster should be a lesson that the industry needs better laws to protect offshore workers, say Houston maritime lawyers Kurt Arnold and Jason Itkin.

Federal officials continue to negotiate proposed changes to safety regulations governing the oil industry a year after the BP Deepwater Horizon disaster ended, according to a recent article in the New Orleans Times-Picayune.

Michael Bromwich, head of the Department of Interior’s Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), said that broad changes to the laws are needed to create safer drilling and prevent future catastrophes.

Among others, the changes include strengthening requirements for the construction of subsea blowout preventers – the same equipment that malfunctioned in the Deepwater Horizon incident and triggered the largest oil spill in the history of the petroleum industry.

Houston maritime attorneys Kurt Arnold and Jason Itkin say they applaud Bromwich’s effort.

“Eleven offshore workers died in that spill, and even more were injured,” says Arnold, whose law firm represents workers who are injured in maritime accidents. “Although the BP disaster was the most highly publicized, scores of other Gulf Coast oil workers put themselves at risk for serious and fatal accidents every day.”

Working on rigs is an inherently dangerous job.  It's the responsibility of owner-operators and contractors to make sure the best equipment and procedures are in place to prevent accidents and preserve human life, adds Itkin, who also handles cases involving injured offshore workers.

“But sadly, proper maintenance sometimes falls by the wayside in an effort to save money,” Itkin says. “It’s the workers and their families – not the oil companies – who are left to suffer the everyday consequences when those preventable accidents happen.”

In some cases, offshore workers’ injuries may be covered under the Jones Act, a federal law that protects seamen who are injured or killed on the job due to the negligence of their employers.

“Jones Act claims are similar to workers’ compensation claims in many ways, but the amount awarded to successful claimants is often much higher than you would find in a workers’ comp case,” Arnold says.

Itkin says that Jones Act settlements can help families cope with the injuries and pain and suffering caused by an accident and help Gulf Coast workers begin to rebuild their lives.

“Hopefully BOEMRE will be able to find common ground among members of Congress and industry representatives so that more stringent requirements prevent offshore workers from injuries altogether,” Itkin says.

The Gulf Coast offshore injury lawyer adds that the key to coming up with a good compromise will be making sure that independent, impartial parties conduct investigations when offshore accidents happen.

“Attorneys need the best, most unbiased research they can find when collecting information for clients who are injured in Gulf Coast oil rig accidents,” he explains.

“Political infighting will be an obstacle that BOEMRE will have to overcome in order to develop and enhance safety regulations for its workers, but the ultimate outcome could assist attorneys who want to make sure that their injured clients receive compensation for offshore accidents.”

Arnold says that contacting an experienced personal injury attorney is crucial for families and offshore workers who have suffered in offshore accidents.

“Laws governing the oil industry are complex, and they are on the cusp of some potentially serious changes,” Arnold says. “Clients will be best served by having lawyers who have their fingers on the pulse of the oil industry.”

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 at Arnold & Itkin LLP for a free consultation using the form on this page, or call our maritime law office toll free at 866-222-2606.

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Reduced wages earned in non-combat zone were best measure of worker’s earning capacity where injury occurred during voluntary hiatus from hazardous war zone employment.

Luttrell v. Alutiiq Global Solutions, BRB No. 10-0555 (June 20, 2011) (per curiam)

Michael Luttrell was injured while working as a security officer on a United States Army Atoll in the South Pacific.  For the previous twelve years, Luttrell had worked overseas in various jobs involving security and police functions.  At the time of his injury, however, he was on a temporary break from employment in hazardous areas.

In proceedings before an administrative law judge (ALJ) on Luttrell’s claim for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq., the only issue was determining Luttrell’s average weekly wage for purposes of establishing the amount of his temporary total disability benefits.

The ALJ concluded that the proper rate of pay was the amount that Luttrell was earning under his employment contract at the time of his injury on the Atoll.  The ALJ noted that Luttrell was injured while working under a one-year contract at a different type of job than his former employment and “under drastically different conditions, than he had done earlier, or than he might have done later.”

Luttrell appealed, arguing that the ALJ's computation did not accurately reflect his earning capacity.  Luttrell assertethat he was actually offered post-injury employment in Bahrain at a much higher average weekly wage than the amount he earned at the time of his injury.  The record below also indicated that he had earned over $82,000 per year during the 52 weeks preceding his work injury.

The Benefits Review Board (BRB) concluded that Luttrell’s average weekly wage was properly computed by the ALJ.  Among other things, the ALJ’s average weekly wage finding was consistent with BRB opinions embracing the notion that a claimant’s higher wages for work in a combat zone are a proper framework for calculating average weekly wages under LHWCA § 910(c).

The purpose of LHWCA § 910(c) is to arrive at a sum that reasonably represents a claimant’s annual earning capacity at the time of his injury, the BRB observed.  In this instance, the facts of Luttrell’s case were the “mirror image” of war zone cases.  Unfortunately for Luttrell, this made it appropriate to determine his average weekly wage based on his lower-paying work overseas, which he took after voluntarily choosing to leave his higher-paying work in the Middle East.

The BRB therefore affirmed the ALJ’s finding that the wages Luttrell earned in the South Pacific, a non-combat zone, were the best measure of his earning capacity at the time of his injury.

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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District Director’s findings on injured worker’s average weekly wage and disability had no preclusive effect in worker’s suit alleging maritime tort.

Landry v. G.C. Constructors, No. 10-CV-25 (S.D. Miss. July 18, 2011) (Guirola, Jr., C.J.)

Brian Landry was an injured worker covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA).

When Landry reached maximum medical improvement, his employer, G.C. Constructors, and its insurance carrier applied to the District Director for relief under 33 U.S.C. § 908(f) regarding Landry’s permanent total disability benefits.

Under LHWCA’s aggravation rule, if an employment injury aggravates or otherwise combines with a worker’s previous underlying condition, the employer is liable for the full scope of the employee’s total resulting disability.  When certain conditions are met, however, Section 8(f) limits the employer’s compensation liability, with any additional compensation being paid from the “special fund” established under LHWCA.

Here, C.G. Constructors and its insurance carrier were able to demonstrate that Landry had a pre-existing permanent partial impairment to his body, which contributed to his current permanent and total disability.  The District Director therefore found that § 8(f) applied and the special fund would have liability for Landry’s benefits after a specified date.  The District Director issued a Compensation Order - Award accordingly.

In his later maritime negligence action against G.C. Constructors, Landry sought a determination that certain facts were established when the District Director issued the Compensation Order - Award under Section 8(f). These included the amount of Landry’s average weekly wage and that he was totally and permanently disabled.

The United States District Court for the Southern District of Mississippi disagreed.

The issue was the preclusive effect of findings made in LHWCA proceedings.  There was no case law addressing the matter, the court said, but it found two cases somewhat helpful.  In one of the cases, a Louisiana federal district court refused to accept findings from a LHWCA benefits hearing as preclusive on the scope of a worker’s injuries.  In the other case, the United States Court of Appeals for the Fifth Circuit  concluded that an injured seaman’s settlement of his LHWCA benefits claim barred his later claim against the vessel that served as his employer.

An important distinction was that neither of those cases involved a Section 8(f) application, the court said here.  In a Section 8(f) proceeding, the employee and employer are not adversaries to the degree that would be expected in a traditional benefits proceeding.  The worker’s interest is minimal and can even align with that of the employer, who seeks recovery of special funds versus the Director’s goal of protecting the special fund from spurious claims.  This ultimately meant that facts in a Section 8(f) proceeding might not be truly “litigated and decided,” an important characteristic for findings that are to be accepted as the basis for issue preclusion in a later adjudication.

Based on its analysis, the district court denied Landry's request that the District Director's findings in the earlier LHWCA special fund proceeding govern for purposes of his maritime tort case.

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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The United States District Court for the Eastern District of Louisiana recently issued new orders in the multi-district litigation arising out of the fiery sinking of the BP Deepwater Horizon drilling rig in April of 2010.

One of the Court's July 15 orders dismissed Racketeer Influenced and Corrupt Organizations Act (RICO) claims asserted against the BP defendants in the litigation.  Certain plaintiffs accused BP of defrauding government regulators "in connection with the safety of its drilling operations, its ability to respond to any oil spill, and its response to the spill at the Macondo Well."  According to the Plaintiffs, the oil spill, and their resulting injuries, stemmed from BP's fraud against government regulators.

Presiding federal district judge Carl J. Barbier agreed with the BP defendants' argument that the RICO claims were not supported by proximate causation.  The Court ruled that the Plaintiffs failed to allege a sufficient link between BP's alleged defrauding of regulators and the economic harms that the Plaintiffs ultimately suffered.

The dismissal of the RICO allegations does not affect the numerous other claims that remain pending against BP after the horrific accident, which resulted in deaths and injuries among the Deepwater Horizon's crew and the worst marine oil spill in U.S. history.

Also on July 15, the Court granted BP's motion to stay proceedings on claims asserted against the company by one of its partners in the Deepwater Horizon Macondo Well, Anadarko.  The Court concluded that an arbitration provision in the joint operating agreement between BP and Anadarko applied, and that BP had not waived its right to compel arbitration.  Thus Anadarko's claims against BP had to be stayed for the time being to allow arbitration proceedings to go forward.

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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The Benefits Review Board concludes that a LHWCA claimant's earnings from illegal activity are not evidence of suitable alternative employment, but that a claimant who fails to report such earnings faces forfeiture of benefits.

Young v. Newport News Shipbuilding and Dry Dock Co., BRB No. 10-0678 (June 22, 2011) (per curiam)

Randolph Young injured his knees in the early 1980s while working for Newport News Shipbuilding and Dry Dock Company.  An administrative law judge (ALJ) awarded permanent total disability benefits.

Years later, an ALJ issued a stay of compensation order because Young had been incarcerated, apparently after pleading guilty to drug charges.

After Young was released from prison in early 2004, an ALJ lifted the stay of payments, finding that Young still suffered symptoms from his work-related knee injuries.  The ALJ rejected the employer's argument that Young's testimony about his symptoms was not credible in light of his criminal conduct.  The ALJ distinguished Young's discredited, inaccurate testimony about his criminal activities from his testimony about his medical symptoms, which the ALJ found reliable.

When evaluating Young's physician-imposed work restrictions, the ALJ rejected an assertion by Newport News that Young's illegal activity (in addition to his maintenance job while in prison and his singing in churches at funerals) constituted suitable alternate employment.  The ALJ ultimately awarded Young permanent total disability benefits under LHWCA through June 2007, when Newport News established suitable alternate employment.  Thereafter Young received an award for partial disability.

The ALJ rejected Newport News's contention that Young's benefits were subject to forfeiture under LHWCA Section 8(j) on the ground that Young failed to report as "income" the earnings from his criminal activity between 1993 and 1996.  According to the ALJ, any "income" from such activity did not have to be reported on the LS-200 Report of Earnings form because it was not earnings from employment or self-employment, and it was not included in the regulatory definition of "earnings" found at 20 C.F.R. § 702.285(b).

On appeal to the Benefits Review Board (BRB), the BRB concluded in pertinent part that the fact of a criminal conviction does not negate a claimant's right to benefits or require an ALJ to discredit the claimant's testimony in its entirety.  Rather, evidence of a claimant's conviction may be offered to impeach credibility in the customary way.

Here, the ALJ was within his discretion in finding Young's testimony about his knee symptoms credible, where medical records showed that over a span of more than 25 years Young had consistently complained about his knees.

As to the extent of Young's disability, the ALJ correctly found that Young's illegal activities did not constitute suitable alternate employment.  The illegal activities were not work available on the open labor market.  In Licor v. Washington Metro. Area Transit Auth., 879 F.2d 901 (D.C. Cir. 1989), the court held that any illegal income a claimant may have earned was not an appropriate basis for determining wage-earning capacity.  Thus it was proper for the ALJ to determine that any illegal income Young earned was not indicative of suitable alternate employment available on the open labor market.

The ALJ erred, however, in concluding that Young did not have to report any earnings from his illegal activities.  For purposes of an employer's request that a claimant report post-injury earnings under Section 8(j), earnings is defined in the supporting regulations as all monies received from any employment, including all revenue from self-employment.  That definition was sufficiently broad to include any earnings from a LHWCA benefits claimant's illegal activity.

The court distinguished Licor, observing that that case concerned the extent of a claimant's loss of wage-earning capacity using jobs found on the open market of legal employment, as opposed to earnings from illegal conduct.  Licor could not be extended to Section 8(j).

Because the ALJ made no finding about Young's earnings from his illegal activities, the action had to be remanded for findings of fact on that issue, and whether Young's benefits were subject to forfeiture under Section 8(j).

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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Audiograms administered to former employee were presumptive evidence of injury due to hearing loss in support of claim for LHWCA Special Fund relief.

Director, Office of Workers Compensation Programs v. Matson Terminals, Inc., No. 09-72979 (9th Cir. July 12, 2011) (Memorandum Opinion)

The Department of Labor Benefits Review Board (BRB) granted partial Special Fund relief to employer Matson Terminals, Inc., under the Longshore and Harbor Workers' Compensation Act (LHWCA).  According to the BRB, Matson was entitled Special Fund relief for a portion of its compensation liability owed to George Kunihiro, a former employee.  The compensation liability pertained to Kunihiro's injury due to loss of hearing.

The Director, Officer of Workers' Compensation Programs (OWCP) petitioned for review of the BRB's decision, contending that the BRB's decision was unwarranted under the LHWCA provisions governing Special Fund relief.

In an unpublished opinion, the United States Court of Appeals for the Ninth Circuit disagreed and thus denied the OWCP's petition for review.

LHWCA Section 8(f)'s enabling regulations set out the procedures for determining whether Section 8(f) applies to claims for injury arising from loss of hearing.  In pertinent part, 20 CFR § 702.321(a)(1) provides that if the injury is loss of hearing, the pre-existing hearing loss must be documented by an audiogram which complies with the requirements of § 702.441.  The administrative law judge below concluded that Matson had provided reliable and probative evidence of Kunihiro's hearing loss under Section 8(f), namely audiograms Matson administered to the former employee.  The OWCP, for its part, conceded that the audiograms met the sole, governing regulatory provision that expressly set out the requirements for audiograms:  § 702.441(b).

The plain language of LHWCA made it clear that where an employer meets the statutory and regulatory guidelines, the employer ensures that an audiogram will constitute presumptive evidence of hearing loss for purposes of Section 8(f).

That was what Matson did here.  The undisputed audiogram evidence demonstrated that Kunihiro suffered a hearing loss.

As a result, the Ninth Circuit denied the OWCP's petition for review in its entirety.

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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On July 8, Judge Carl J. Barbier presided over the most recent status conference in the Deepwater Horizon oil spill litigation pending before the United States District Court for the Eastern District of Louisiana.  Given the breadth of the litigation, a wide range of issues were taken up during the conference.  The court later published its minute entry, which highlights the matters discussed.

On the same day, the Court issued certain pretrial orders relating to settlement negotiation confidentiality and sample testing.  The Court's Pretrial Order 38: Order Relating To Confidentiality Of Settlement Communications essentially declares confidential all written and oral communications relating to the settlement of any claims or defenses arising out of the Deepwater Horizon catastrophe.  By the Court's order, a party who receives such communications must keep them confidential and may not disclose them to persons outside the associated settlement negotiations.  The order provides, however, that it does not limit the federal government or any state government from complying with public participation requirements and policies by publishing a final settlement agreement for public comment.  Settlement communications cannot be released by the federal government or a state government pursuant to the Freedom of Information Act, absent a finding of good cause by the Court, the pretrial order says.

Pretrial Order No. 39 Relating To Testing Of Samples authorizes any party to the Deepwater Horizon multi-district litigation to perform analytical testing on samples within the party's possession, subject to a previously-established protocol for analytical testing.  In pertinent part, destructive testing on oil, dispersant, or sediment samples can be carried out subject to additional restrictions, including the limitation that a sufficient amount of the sample should be preserved to ensure that another party can repeat the testing.  If insufficient material is available to allow for testing and subsequent testing by another party, extracts must be preserved to allow for repetition of the final steps of analytical testing.  A multi-district litigation party alternatively can notify all liaison counsel and then perform testing in keeping with any agreement reached should there be any objections lodged.

The Court further handed down an order on a motion by BP in which the oil giant sought confirmation that it could dispose of various items without violating its duty to preserve evidence in the case.  Accompanying are a number of appendices setting out the items at issue.

The Court scheduled the next monthly status conference in the litigation for the morning of August 12.

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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Becker v. Murphy Oil Corp., No. 2010-CA-1519 (La. App. 4th Cir. July 7, 2011) (Belsome, J.)

Peter Becker and over forty other plaintiffs brought suit against Murphy Oil Corporation for hearing loss that resulted from long-term occupational noise exposure at the company's Meraux refinery, located in a suburb of New Orleans on Louisiana's Gulf Coast.  Becker's claim, along with the claims of five other former Murphy workers, were tried together as a first "trial flight" among the larger group of plaintiffs.

The plaintiffs at trial were long-term employees of Murphy who began working for the company as young men and continued there until retirement.  Each was exposed to loud noise in his job with Murphy.  An expert in neuro-otology opined that each of the men suffered hearing loss for which employment with Murphy was the most significant factor.

After a bench trial, the trial court found in favor of Becker and all but one of the other plaintiffs.  The court rejected Murphy's argument that the men's claims were precluded because they knew about their noise exposure and injury more than a year before filing suit.  The court reasoned that hearing loss is a gradual and insidious occupational disease with a long latency period because it stems from exposure to loud noise in the workplace over many years.  Given that the men were not routinely afforded hearing protection or hearing tests, the court applied the doctrine of contra non valentem, thereby refusing to allow Murphy to "close the courthouse door" on the theory that the men knew or should have known the cause of their hearing loss was exposure to occupational noise during their work lifetime.

The court likewise rejected Murphy's asserted defenses on the issue of noise exposure, in which the company:  sought to avoid the results of its own refinery noise surveys; claimed that the plaintiffs had to establish a requisite "dose" noise level, and that noise below federally regulated levels could not give rise to a cause of action in negligence; and asserted that case authority held that noise exposures below a certain level were "safe."  The court further concluded that the plaintiffs established causation for their hearing loss against Murphy, and that their claims were not precluded as compensable injuries under the Louisiana Workers' Compensation Act (LWCA).

The court awarded each of the prevailing plaintiffs $50,000 in damages, which was an amount stipulated by the plaintiffs for jurisdictional purposes.

The Louisiana Court of Appeal affirmed.

The court disagreed with Murphy's first two claims on appeal, namely that the trial court erred in excluding evidence of noise exposure at other refineries and in finding that noise exposure at Murphy's facility was the cause of the plaintiffs' hearing loss.  Evidence of noise that workers might encounter at different facilities was not sufficiently similar to evidence of noise workers encountered at the Murphy facility.  The evidence also amply supported causation where it included sound survey evidence produced by Murphy (for the earliest periods at issue Murphy had failed to take noise readings and retain records as mandated by OSHA), workers often worked longer hours and in proximity to more pieces of loud machinery than reflected on "dose projections" as part of Murphy's sound surveys, and expert evidence related each plaintiff's condition to well-understood mechanisms of permanent hearing loss.  Likewise, Murphy failed to comply with OSHA regulations of the Hearing Conservation Amendment of 1971 and failed to implement a hearing protection program for its workers for many years.

Overall, the Court of Appeal observed, the trial court's credibility determinations with regard to expert witnesses or factual findings with regard to causation were not manifestly erroneous or clearly wrong.

Murphy also argued on appeal that claims alleging damaging noise exposure before July 1, 1983, were barred, as occupational hearing loss before that time was compensable under the LWCA, regardless of the cause of injury.  To the contrary, the court said, Louisiana courts have acknowledged that gradual hearing loss is not a compensable injury under the LWCA (as generally opposed to hearing loss caused by an isolated event that qualifies as an "accident").  Murphy's case authority in support of its position was inapposite, and it offered no case where an employee was granted workers' compensation benefits for gradual hearing loss due to occupational exposure, nor any which held that gradual hearing loss is a compensable "accident" under the LWCA.

The court declared that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an "accident" under any version of the LWCA.

Finally, the court rejected Murphy's contention that three of the plaintiffs' claims had prescribed and that the trial court erred in applying the doctrine of contra non valentem.  Among other things, the court observed that case authority with regard to occupational exposure to asbestos was instructive.  Like asbestos exposure, it is incredibly difficult, essentially a "herculean task," to determine precisely when a cause of action accrues with respect to occupational noise exposure.

Absent any reversible error on the trial court's part, the Court of Appeal affirmed the judgment in favor of the prevailing plaintiffs on their claims for hearing loss due to occupational hearing exposure.

Judge Tobias concurred in part and dissented in part, writing that the affirmation of the award to one of the prevailing plaintiffs was error because, under the particular facts of his claim, the claim was prescribed.

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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Neither the Louisiana Workers' Compensation Act nor the Louisiana Constitution bar Jones Act claims against the State brought by an injured, state-employed seaman, the Louisiana Supreme Court rules.

Fulmer v. State of Louisiana, No. 2010-C-2779 (La.Sup.Ct. July 1, 2011) (Kimball, C.J.)

Desi Fulmer worked for the Louisiana State Department of Wildlife and Fisheries, where he was assigned to the crew of a state-owned vessel in navigation.  After being injured in an accident on the vessel, Fulmer sued the State of Louisiana, alleging personal injury claims under the Jones Act and general maritime law.

The trial court ultimately granted a motion to dismiss filed by the State of Louisiana in light of Kuebel v. Dept. of Wildlife & Fisheries, 08-1018 (La. App. 4 Cir. 4/15/09), 14 So.3d 20, which held that seamen employed by the State could not sue their employer under the Jones Act or general maritime law in state court because Louisiana had not expressly consented to such suits nor had it waived its sovereign immunity as to such suits.

In October 2010, a divided panel of the Fourth Circuit Court of Appeal overruled Kuebel and reversed the trial court's decision.

The Louisiana Supreme Court then took up the issue when it granted the State's application for a writ of certiorari.

The Louisiana Supreme Court characterized the issue for decision as whether Louisiana had consented to suit or otherwise waived its sovereign immunity regarding suits such as Fulmer's.  The court concluded that it had.

The Louisiana Constitution provides, in Article XII Section 10, that “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”  This was an unequivocal, self-executing waiver of sovereign immunity as to suit and liability in contract and tort cases, the court observed.

To the extent that Section 10(C) of the Louisiana Constitution had been amended in 1995 to allow the legislature to limit or provide for the extent of liability of the State, that was merely permissive and did not, of its own accord, override the mandatory prohibition against sovereign immunity found in Section 10(A), the court said.

Nor did anything in the language of the LWCA, read on its face or in conjunction with Section 10(C), reflect the legislature's intent to limit the State’s liability to suits under the Jones Act brought by a state employee.  To the contrary, the court admonished that La. R.S. 23:1035.2 specifically excluded from LWCA compensation coverage "any employee" covered by the Jones Act.  That provision was a clear statement indicating that if “any employee,” not only a private employee, was covered by the Jones Act, the LWCA did not provide compensation.

Rejecting the State's arguments to the contrary, and noting case authority from the Louisiana Third Circuit Court of Appeal that came to a different conclusion than the Fourth Circuit on the undelrying issue, the Louisiana Supreme Court resolved the matter in plain terms:

For the reasons set forth above, we find that claims against the state under the Jones Act brought by state-employed seamen are not prohibited under the LWCA or the Louisiana Constitution.  Louisiana has consented through Article XII Section 10 to suits for personal injury, and has not limited that waiver for suits brought by state employees under the Jones Act.  We further find the court of appeal was correct in finding that plaintiff has stated a valid cause of action against the State under the Jones Act.

The court thus affirmed the ruling of the court of appeal below.

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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Crane operator injured on offshore oil platform failed to qualify as Jones Act seaman where transport vessel served as nothing more than supply boat.

Teaver v. Seatrax of Louisiana, Inc., No. 11-30084 (5th Cir. June 23, 2011) (per curiam) (unpublished)

Seatrax of Louisiana, Inc., hired Robert Teaver as a crane operator/installer.  In his first work assignment, Teaver and several other Seatrax employees were tasked with disassembling a portable crane on an offshore platform owned by Mariner Energy, Inc.

The Seatrax employees were to board the M/V Cheramie #34, travel to the platform, disassemble the crane, load the crane onto the Cheramie, and return to shore.

The Cheramie was a chartered vessel not operated by Seatrax employees. Due to unsuitable conditions in the living quarters on the platform, the Seatrax employees would be eating and sleeping aboard the vessel.

After boarding the Cheramie, Teaver inspected equipment and tools that had already been loaded on the vessel, participated in a meeting regarding the project, ate, slept, and participated in another meeting. Following the second meeting, on the next morning Teaver disembarked the Cheramie and operated a crane on the platform to offload the tools and equipment the Seatrax employees needed to disassemble the crane.  The remaining Seatrax crew members then moved to the platform, and they began disassembling the crane.  About thirty minutes into the project, less than twenty-four hours into his employment with Seatrax, Teaver fell from his position on a gang box and was permanently paralyzed as a result of his injuries.

Teaver filed suit against Seatrax and Mariner in Louisiana state court, alleging a Jones Act claim against Seatrax and a state law negligence claim against Mariner.

Mariner removed the suit to federal district court, claiming federal jurisdiction under the Outer Continental Shelf Lands Act and contending that the Jones Act claim did not bar removal because Teaver did not qualify as a seaman.

The district court ultimately granted Seatrax’s motion for summary judgment on the ground that Teaver could not establish his status as a Jones Act seaman.

The United States Court of Appeals for the Fifth Circuit agreed.  The court characterized the pertinent issue on appeal as whether Teaver could possibly establish that he was a Jones Act seaman.

The Fifth Circuit concluded that Teaver's case was governed by Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340 (5th Cir. 1999), in which the court pronounced that workers aboard vessels that transport them to their work stations on offshore drilling platforms are not seaman, even when the transportation vessel also serves as a “floating hotel” during the work assignment.

In Teaver's case, the court reasoned that the Cheramie served the same function as any supply vessel where it provided transportation and lodging services for Seatrax employees and their equipment, and the employees were nothing other than passengers on the vessel.  Teaver did not contend, for instance, that he was a member of the vessel's crew, that he took direction from the Cheramie's captain, or that he was a borrowed servant under an agreement between Seatrax and the Cheramie's operator.

Unfortunately for Teaver's Jones Act claim, the court reasoned that because he neither contributed to the work of the vessel nor had a substantial connection to the vessel, there was no reasonable possibility that he could demonstrate seaman status under the Jones Act.  Thus, in pertinent part, the district court did not err in granting summary judgment in favor of Seatrax.

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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