Seattle Maritime Law Blog : Seattle Maritime Lawyers & Attorneys : Mikkelborg Broz Law Firm : Collision and Salvage, Fisheries, Jones Act : Seattle, Washington

The U.S. Supreme Court issued its decision today in the matter of CSX v. McBride, and affirmed by a 5 to 4 majority that the longstanding rule, recognized by most jurisdictions, of minimal causation personal injuries under under the Jones Act, remains unchanged. The seaman’s burden of proving causation is satisfied if the employer’s negligence played a part – no matter how small – in bringing about the injury. The case involved a claim of a railroad worker under the Federal Employer’s Liability Act (FELA), the liability standards of which are adopted under the Jones Act. Accordingly, the same rule of causation continues to apply to a seaman’s claims against an employer under the Jones Act.

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By Lafcadio Darling

Recently, U.S. Senator John McCain introduced the "Open America’s Water Act" which will repeal the portion of the Jones Act requiring American coastwise trade to be performed by U.S. flagged vessels owned by Americans.  In the news release on the Senator's website, McCain argued that this U.S. flag requirement  is harmful to the U.S. economy and that repealing the Act will have a net economic benefit.  The Senator also stated that this rule is hampering foreign vessels from assisting with the cleanup of the BP DEEPWATER HORIZON oil leak.

Assuming that Senator McCain is correct about the overall economic benefits of repealing the U.S.-flag requirement, it is unclear whether opening American ports to foreign flagged vessels would be harmful to the U.S. maritime industry, which is already hurting from current economic conditions.  Moreover, opening U.S. ports and coastwise trade to more foreign vessels may cause new environmental, safety and security problems along American coasts, since those vessels would not have to follow the rigorous and consistent regulatory framework that applies to American vessels.

As to Senator McCain's stated concerns about prevention of foreign vessels from assisting with the BP Gulf oil leak, those concerns appears to be misplaced or exaggerated.  According to Maritime Executive Magazine, the Gulf National Incident Command reports that numerous foreign vessels are currently assisting with the Gulf cleanup and that there have been "no incidents" of foreign vessels being barred from assisting in the cleanup operation.  In fact, the massive Taiwanese skimming vessel A WHALE has, to much fanfare, arrived in the Gulf and  started skimming operations.

Since the U.S.-flag rule of the Jones Act may appear on its face to help U.S. business, Senator McCain's point about the Act actually hurting the economy is interesting and worthy of debate.  However, his suggested repeal of the Jones Act does not appear to be based on the right considerations and seems to lack an adequate factual basis.

A longer article on this bill can be found on our website.

The text of the proposed Open America's Waters Act can be found on the Senator's website.

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By Jess G. Webster and Lafcadio Darling

Legislation currently working its way through Congress, called the “Securing Protections for the Injured from Limitations on Liability Act” (or “SPILL Act”) proposes significant changes to several old and established maritime stattues.  In brief, the proposed SPILL Act amends the Death on the High Seas Act and the Jones Act to allow for non-pecuniary damages under certain circumstances.  It also expands the scope of the Death on the High Seas Act, extending it to 12 miles offshore, instead of the current 3-mile limit.  The proposed Act also has provisions requiring more transparency regarding discharges of pollutants in U.S. waters, and restrictions upon bankruptcy trustees to sell assets of a debtor that may be liable under the Oil Pollution Act of 1990.

There are two ways to view this proposed legislation.  One perspective is that the changes to the DOHSA and Jones Act simply bring those statutes in line with the law of most states.  As to the Limitation of Liability Act, federal courts rarely grant limitation in practice, so its repeal would have a limited effect on the rights of litigants.

On the other hand, it can be argued that this legislation represents a significant change.  The changes to the DOHSA and Jones Act will undoubtely increase the amount of damages that can be claimed by seaman and others injured or killed at sea.  Also, limitation of liability under federal law, whether or not it is granted, is a powerful tool that often drives consolidation and settlement of claims and its removal may cause more cases to be taken to trial.

Another factor to consider is perception.  It is well known that foreign insurers and maritime businesses are notoriously fearful of American litigation, with its attendant costs and reportedly large verdicts.  Although this fear is probably overblown, these legislative changes may feed these concerns and cause certain insurers or businesses to reconsider doing business in U.S. waters. 

Whether these changes are a good or bad idea depends on who you ask, and is probably an unanswerable policy question. 

In any event, vessel owners and maritime employers would be well advised to monitor this legislation and, if it passes, revisit their liability insurance coverage with their insurance brokers.

A more detailed explanation of the proposed SPILL Act can be found on our firm's website, where  full text of the proposed SPILL Act can also be found.

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By Jess Webster

Harrington v. Atlantic Sounding Co., Inc., Case No. 07-4272-CV (2nd Cir., April 16, 2010).

Harrington, as seaman, suffered back injury while working on vessel owned by defendant Weeks Marine. Upon Harrington requesting financial support for prescribed back surgery, defendant weeks sent Harrington a “Claim Arbitration Agreement,” under which defendant agreed to advance Harrington 60 % of his usual wages as an advance against settlement provided Harrington agreed to arbitrate all claims.

Harrington brought suit in U.S. District Court and the defendant moved to dismiss the lawsuit, or stay the lawsuit pending arbitration pursuant to the arbitration agreement. The District Court denied the defendant’s motion finding the arbitration agreement to be unenforceable as matter of law under Section 6 of the Federal Employer’s Liability Act (“FELA”), 45 U.S. C. 56.

Court of Appeals noted Jones Act, 46 U.S.C. 30104, incorporated FELA and the case law interpreting FELA, and noted the body of case law invalidating agreements restricting an injured employee’s right to bring suit in an eligible forum, such as agreements restricting the employee’s choice of venue. Over a strong dissent, the majority of the court distinguished this body of law to find the arbitration agreement at issue to be enforceable. In doing so, the majority of the court relied largely upon the strong federal policy favoring arbitration under the Federal Arbitration Act (“FAA”), despite the fact that the FAA expressly excludes agreements for the employment of seamen.

While arbitration clauses in seamen’s employment agreements are prohibited, maritime employers and their insurance adjustors will likely rely upon this decision and increase efforts to secure post-injury arbitration agreements from injured seamen.
 

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A King County jury recently awarded an injured seaman $1.5 million in damages, which included $1.2 million in punitive damages against his employer, Icicle Seafoods of Seattle.  The plaintiff Dana Clausen argued, and the jury found, that Icicle had failed to pay for necessary treatment and had withheld a medical report substantiating the need for this treatment.  The jury found that the company "callously" refused to pay for this medical care, which justified a punitive damages award.

This case is notable in that it  comes shortly after the U.S. Supreme Court's decision of Atlantic Sounding Co. v. Townsend (previously discussed on the Seattle Maritime Blog), which held that that a seaman can recover punitive damages on a maritime maintenance and cure case if there is a showing of “willful and wanton” conduct by the defendant.

The jury's finding in this case appears to follow the logic of Atlantic Townsend in justifying punitive damages in a maritime injury claim, but it will be interesting to see whether Icicle will challenge this award or seek further clarification of this punitive damages rule from the appellate courts.

A brief story about this verdict was recently published by the Seattle Times.

Lafcadio Darling specializes in maritime and commercial litigation, representing a wide variety of business and consumer clients. In addition to being licensed in Washington and California, Lafcadio also holds an LL.M. from University College London and is a licensed solicitor in England & Wales

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