Informational document on specific Jones Act and Maritime Law cases and their outcomes. For more information contact http://terrythweatt.com

1. RECENT MARITIME LAW DEVELOPMENTS: FIFTH,
NINTH & TENTH CIRCUITS
Joseph D. Terry
Terry & Thweatt, P.C.
Houston, Texas
Jones Act Personal Injury Attorney
Facebook.com/TerryandThweatt

3. Mr. Clausen worked onboard the F/V BERING STAR as 2/E when he injured his
lower back, neck, and hand while lifting a 122-pound piece of steel.
After reporting the injury to Icicle, he went ashore in Alaska for initial medical care
and was eventually sent home to Louisiana for further care and was unable to work.
Plaintiff encountered persistent difficulties in getting Icicle and its adjusting firm to
meet its obligation to pay him maintenance and cure during his recovery, which
amounted to $20 a day.
Plaintiff resorted to living in a recreational vehicle with a leaking roof and with no
heat, air conditioning, running water, or toilet facilities.

5. • Additionally, Icicle delayed or refused to pay for treatment that
Plaintiff‟s doctors recommended, despite the fact that the adjusting firm
confirmed to Icicle that the injuries were likely career-ending and
recommended settlement before Plaintiff secured legal representation.
• Plaintiff‟s doctor wrote Icicle advising of need for ESIs and was a
candidate for back surgery, but letter was never disclosed to Plaintiff.
• Icicle subsequently filed suit in federal court to terminate M&C alleging
Plaintiff impeded their right and obligation to investigate claim.
• Plaintiff retained counsel who filed suit in state court seeking damages
for Icicle's negligence under the Jones Act, unseaworthiness, and
wrongful withholding of maintenance and cure.

6. The jury found Icicle negligent under the Jones Act, awarding Plaintiff
$453,100 in damages. The jury also found that Icicle was callous or willful
and wanton in its failure to pay maintenance and cure, awarding Plaintiff
$37,420 in compensatory damages for maintenance and cure plus $1.3
million in punitive damages for Icicle's willful misconduct. The trial court
awarded $387,558.00 in attorney fees and $40,547.57 in costs.
The Court noted that the “egregious conduct” of the vessel owner included
the fact that Icicle refused to pay for medical care and surgery that Icicle‟s
own “hand-picked” doctor had recommended and that Icicle provided only
$20 per day in maintenance when it knew Plaintiff was living in a
dilapidated recreational vehicle.

7. The award of punitive damages was at approximately a 3:1 ratio to the
compensatory damages award. The Court found that an award of punitive
damages for wanton and willful failure to pay maintenance and cure is not
capped at the 1:1 ratio of punitive damages to compensatory award
approved by Exxon v. Baker and that the culpability of the vessel owner‟s
conduct may justify an award that results in a higher ratio.
Icicle‟s conduct was deemed not just reprehensible, but egregious and the
size of the award was required because Icicle needed deterrence not to treat
other workers in the same way.

8. Are punitive damages available under the Jones Act and/or general
maritime law in the context of a wrongful death/survival action, or a
personal injury action, for seamen who were killed or injured in Louisiana
territorial waters after the decision of Atlantic Sounding Co., Inc. vs.
Townsend?
Both In re Osage Marine Services, 2012 U.S. Dist. LEXIS 28483 (E.D. Mo.
2012) and Wagner v. Kona Blue Water Farms, 2010 AMC 2469 (D. Hi.
2010) held that punitive damages were recoverable in unseaworthiness
causes of action.
On March 9, 2011, the barge Estis Rig 23 was operating in Louisiana, when
a pipe in the derrick shifted as the crew was attempting to straighten the
twisted monkey board in the derrick, causing the derrick and rig to fall over,
leaving one crew member dead and three more injured.

10. Defendant filed a Rule 12(b) (6) motion regarding the Plaintiff‟s claim for
punitive damages.
Plaintiffs argued that Townsend left open the question as to whether
punitive damages are available under the Jones Act, while Exxon Shipping
Co. v. Baker made punitive damages available under general maritime law
(unseaworthiness).
Plaintiffs also argued Townsend, which abrogated the en banc decision of
Guevara v. Maritime Overseas Co. reinstated the holding of In Re Merry
Shipping as controlling precedent, permitting the recovery of punitive
damages.

11. The Court opined that Townsend:
“does not hold that punitive damages are recoverable under the Jones
Act”
“does not call into question Miles’ holding concerning the damages
limitations applicable to the Jones Act”
“does not … cast doubt on the [Miles] Court‟s holding that the Jones Act
incorporated FELA‟s „pecuniary limitation on damages.‟”
The Court, citing the Miles v. Apex decision, also held that notwithstanding
federal statutory schemes including the Clean Water Act and the Jones Act,
that punitive damages are a viable remedy afforded under the general
maritime law only for (1) a maritime tort suffered by non-seamen and (2)
the failure to pay maintenance and cure to seamen.
Punitive damages are not available in an unseaworthiness claim.

12. In November 2006, Plaintiff worked for Defendant as a licensed engineer
aboard the dive vessel M/V JILLIAN MORRISON.

13. In January 2008, Plaintiff, aboard another dive vessel owned by Defendant,
left it abruptly and was hospitalized for ulcerative colitis, diabetes, and a
liver condition. He did not return to work.
Plaintiff brought Jones Act, unseaworthiness, and maintenance and cure
claims against Defendant for his injuries.
Prior to trial, the district court granted Plaintiff‟s motion in limine to
exclude evidence as to reduced charges paid by his insurer to satisfy his
medical bills.
Following trial, the district court ruled against Plaintiff‟s Jones Act/general
maritime law claims but awarded maintenance and cure and attorneys‟ fees
for obtaining that relief.

14. In an issue of first impression, Defendant challenged the application of the
collateral-source rule to determine the amount of cure awarded and argued
on appeal the cure award should not have included the difference between
the amount Plaintiff‟s medical providers charged and the lesser amount
they accepted from his insurer as full payment.
While noting the collateral-source rule‟s widely accepted application to
prohibit reduction of compensatory damages in tort actions, the Court
observed that no-fault maintenance and cure is an implied term of contract
such that normal rules of damage are not strictly applied.

15. Nevertheless, the Court cited to its opinion in Gauthier v. Crosby Marine
Serv., Inc. for an exception to the relaxed-damages standard: “[w]here a
seaman has alone purchased medical insurance, the shipowner is not
entitled to a set-off from the maintenance and cure obligation moneys the
seamen receives from his insurer.”
Though Defendant could cite no pertinent case law, nor could the Court
find any, the Court referenced prior precedent limiting recovery of
maintenance and cure to “expenses actually incurred,” then held that the
appropriate award of cure was “that [amount] needed to satisfy
[Manderson‟s] medical charges.” The district court erred by awarding the
higher amount charged by the providers rather than the amount negotiated
by Plaintiff‟s insurer.
This reduced the award of cure from $169,691.06 to $71,085.79.

16. Loss of consortium available to injured seaman?

17. Plaintiff was employed as a longline deckhand on the F/V ZENITH, which
experienced numerous Freon leaks from April 2008 into the early season of
2009 due to blown and damaged hoses.
Despite higher than normal readings of Freon levels, the Captain ordered
the crew to continue working for several days before returning to port.
It was determined that Plaintiff had suffered permanent damage to his
lungs in the form of chronic dyspnea.

18. Plaintiff‟s wife filed a loss of consortium claim under her husband‟s
unseaworthiness claim, and Defendant filed a motion to dismiss this claim
under Rule 12(b)(6), arguing that loss of consortium was not a cognizable
claim for suits brought under the general maritime law.
The Court allowed the seaman‟s wife to recover for loss of consortium,
reasoning that under Townsend such remedies as were traditionally
available under maritime law could be recovered on maintenance and cure
and unseaworthiness claims.
The Court found that because unseaworthiness was a well-established cause
of action prior to the enactment of the Jones Act, nothing in the Jones Act
displaces such a claim nor limits the remedies available therein, thus the
Jones Act does not preclude recovery for the loss of consortium claim.

19. Spar considered a vessel under the Jones Act?

20. Mendez, an Anadarko employee, was injured while working on the RED
HAWK spar, which is a floating gas-production platform moored to the
ocean floor by large anchors in the seabed some 5,000 feet below and
located approximately 210 miles from Sabine Pass, Texas.

23. The spar had been moored in Red Hawk Field at Garden Banks blocks 876
and 877 since 2004.
The mooring lines were permanently taut so that the spar could not move
laterally. There was also an underwater infrastructure of flow lines and
export pipeline systems, as well as umbilicals extending from the spar to the
subsea wellheads.
The Coast Guard classified the spar as an "industrial vessel" and the
Certificate of Inspection stated that the spar was "considered a floating
facility with passive ballast systems."

24. Plaintiff filed Jones Act claim in state court, which Defendant removed to
federal court under OCSLA, arguing that the Jones Act claim did not
prevent removal because Plaintiff did not qualify as a seaman
District court denied motion to remand after determining Plaintiff was not
a Jones Act seaman and granted Defendant‟s motion for summary
judgment on the same ground and entered final judgment in favor of
Defendant.

25. The Fifth Circuit opined that the spar was not a Jones Act vessel because
the spar was permanently affixed to the sea floor and could only be moved
after detaching the substantial moorings and pipelines that were joined to
its structure.
A relocation study showed at most that the spar was theoretically capable of
maritime transportation but not practically capable, as the Defendant had
no plans to move the spar, but doing so would take approximately 50 days
and cost over $42 million.

26. Cruise line have unlimited duty to warn passengers?
During the time that the cruise ship was anchored in Cabo San Lucas on
Mexico's Baja Peninsula, Plaintiff and his family visited nearby Lover‟s
Beach on their own upon suggestions of ship‟s staff.
Plaintiff was seriously injured by turbulent wave action while in the Pacific
Ocean at Lover‟s Beach.

28. Plaintiff sued Defendant alleging the cruise line breached its duty to warn
him of the dangers associated with swimming at the beach.
According to Defendant, approximately 96,000 passengers sailed on their
ships calling on Cabo San Lucas in 2008, no injuries reported.
Plaintiff retained two experts to provide evidence that swimming in the
water on the Pacific Ocean side of the beach was commonly known
throughout the cruise-line industry to be dangerous.

29. The district court struck Plaintiff‟s experts and granted summary judgment
holding Defendant had no duty to warn Plaintiff because the conditions
were open and obvious and because there was no evidence of particularly
hazardous conditions or of prior accidents at that location.
Ninth Circuit opined it was not an abuse of discretion to strike experts'
declarations because one expert was unable to provide any materials from
the cruise-line industry to support his statement and he did not contact any
other comparable cruise lines to inquire whether they warned passengers
while the other expert failed to specify in her declaration what information
she relied on in reaching her conclusions.
The Court further opined that Defendant had no duty to warn Plaintiff
about swimming at the location because it had neither actual nor
constructive notice of a dangerous condition.

30. United States v. California State Lands Commission, No. 10-56568 (9th Cir., June 12,
2012)
Exercise of eminent domain by federal government extinguishes the state‟s
public trust rights.
Ceres Gulf v. Plaisance, No. 11-60456 (5th Cir., June 4, 2012)
While the petitioner in a LHWCA claim enjoys a presumption in favor of the
validity of his claim, he always bears the burden of proof once the employer
introduces substantial evidence to overcome that presumption.
Gulf Restoration Network v. Salazar, No. 10-60411 (5th Cir., May 30, 2012)
Environmental advocacy groups could not challenge Dept. of the Interior‟s
approvals of deepwater drilling since they did not participate in
administrative proceedings i.e. public comment period.
Atchafalaya Basinkeeper v. Chustz, No. 11-30471 (5th Cir., April 25, 2012)
Private causes of action brought by citizens for alleged violations of a federal
statute are not to be inferred and are only allowed if clearly authorized by
Congress.

31. Joe Terry, co-founder of Terry & Thweatt, P.C.,
where he focuses his national practice on
representing individuals involved in maritime
and offshore accidents, 18-wheeler accidents,
burn and brain injury matters as well as
serious personal injury and wrongful death
matters.
Joe has extensive trial experience and has
obtained a number of substantial verdicts and
settlements for his clients, including numerous
multi-million dollar recoveries.