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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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