Blog Updates

Know Your Limitations - Recent Jurisprudence Under The Limitation Of Liability Act

Despite perennial complaints from lower and appellate courts that the Limitation of Liability Act (“LLA,” 46 U.S.C. §§30501 et seq.) is “now hopelessly anachronistic” (Cont’l Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1376 (5th Cir. 1983) and that “such a law no longer makes sense” Delta Country Ventures, Inc. v. Magana, 986 F.2d 1260, 1266–67 (9th Cir. 1993), the LLA continues to be a powerful procedural and (when successfully invoked) substantive tool for shipowners. This is despite the fact that virtually every high profile maritime casualty (at least as to limitable personal injury/property claims, as opposed to non-limitable pollution issues) raises public controversy and calls for legislative repeal/restrictions of the century-and-a-half old  “relic of the clipper ship era in which it was launched”[1]  – from the sinking of the TITANIC all the way to the DEEPWATER HORIZON disaster (which prompted an eventually abandoned bill to repeal the LLA), the tragic loss of the EL FARO and the recent catastrophic duckboat incident in Missouri that killed 17. (more…)

Dippin’ Dots, Quilt Museums and the Intricacies of Maritime Federal Venue - Southern District of Texas Considers Forum Selection Clauses under FELA and the Jones Act

Many folks across this great country might not be familiar with Paducah, Kentucky. As a public service, the Court provides some basic background information about this relatively small community first settled as Perkin in 1821 and renamed Paducah in 1827 by William Clark (of the famed Lewis & Clark expedition). Paducah is located in the far western part of Kentucky at the confluence of the Tennessee and Ohio rivers, halfway between St. Louis and Nashville. Approximately 25,000 men, women, and children reside in Paducah. Designated by UNESCO as a Creative City of Crafts and Folk Art, the city is home of the National Quilt Museum and, as the local convention and visitor’s bureau likes to boast, “a haven for creative thinkers and doers who find inspiration here.” There is a laundry list of famous people who grew up in Paducah, including Alben W. Barkley (the 35th Vice President of the United States during the presidency of Harry S. Truman), John Scopes (the teacher accused for teaching the theory of evolution in the legendary Scopes trial) and PGA golfer Kenny Perry. Saving the best for last, Paducah is also the corporate headquarters for Dippin’ Dots, a favorite treat of this judge and his family.

With this opening paean to Paducah, the U.S. District Court for the Southern District of Texas addressed an intriguing legal question in In the matter of Complaint of Marquette Transportation Company Gulf-Inland LLC: can a limitation of liability action in federal court, filed in response to a Jones Act claim in state court, be transferred to a different venue than the pending state court action under a contractually bargained for forum-selection clause? See 2018 WL 4443141, 3:18-cv-00074 (S.D. Tex. 2018). (more…)

Unsmooth "Operator" - Fifth Circuit Holds Tug Owner Liable Under OPA as "Operator" of Non-Owned "Dumb" Oil Barge

In an important decision of first impression construing the Oil Pollution Act of 1990 (“OPA,” 33 U.S.C. §§2701 et seq.), the Fifth Circuit has held the owner and operator (“Nature’s Way”) of a “dominant mind” tugboat liable under OPA as the “responsible party” for a spill emanating from a non-self-propelled “dumb” tank barge in its tow, even though the barge was owned by a third party (Third Coast Towing, “TCT”). Specifically, the Fifth Circuit conducted a res nova interpretation and application of 33 U.S.C. §2702(a), which provides that a designated “responsible party” shall be strictly liable, in the first instance and even without fault, for cleanup/removal costs and damages resulting from an oil spill; and further defines “responsible party” with respect to a “vessel” as “any person owning, operating or demise chartering the vessel.” (more…)

With the eddies still spinning in the wheelwash of its landmark en banc opinion in In Re Larry Doiron, Inc., the Fifth Circuit in In re Crescent Energy Servs., L.L.C., 2018 WL 3420665 (5th Cir. July 13, 2018), — F.3d —, has quickly answered one of the application-specific questions left open by Doiron, as noted previously on Striding the Quarterdeck’s discussion of Doiron: is a contract to decommission an offshore platform a maritime contract or a contract governed by state law?  Specifically, under the newly launched Doiron analysis, courts must consider two factors in determining whether a contract is maritime: (1) whether “the contract [is] one to provide services to facilitate the drilling or production of oil and gas on navigable waters”; and if so, (2) whether it “provide[s] or [whether] the parties expect that a vessel will play a substantial role in the completion of the contract.”  Under the first factor, the issue of whether deconstructing a well/platform can be deemed “services to facilitate the drilling or production” of the well remained to be decided after Doiron. (more…)

The 5th Circuit, in Thomas v. Hercules Offshore Services, L.L.C.[1], concluded per curiam that the Occupational Safety and Health Administration (“OSHA”) safe workplace regulations had been preempted by the United States Coast Guard (“USCG”) regulations for injuries occurring on the Outer Continental Shelf (“OCS”) on a foreign-flagged jack-up drilling rig (or as the opinion described the rig, a “mobile offshore drilling unit” (“MODU”) in the parlance of the USCG’s OCS regulations at 33 CFR Subchapter N and 46 CFR Subchapter I-A).  As a result, the owners of the MODU were not negligent for injuries sustained by a galley hand who tripped and fell over a raised doorsill that was constructed in compliance with the USCG’s specific regulations for accommodation space specifications (46 C.F.R. §§108.197, 205).[2] (more…)

Steady, helmsman! Steady. This is the sort of weather when brave hearts snap ashore, and keeled hulls split at sea. Moby Dick, Herman Melville, Chap. XL

Since the Supreme Court’s (Justice Thomas’s) landmark decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009) holding that punitive damages are available in a seaman’s general maritime law (GML) cause of action for willful failure to pay maintenance and cure, several pitched battles have been raging around the country on an issue expressly left unanswered in Townsend (see 557 U.S. at 424, n.11): whether punitive damages are recoverable by a seaman in the separate and independent GML cause of action for unseaworthiness. (more…)

The Fifth Circuit’s recent decision in Sangha v. Navig8 Shipmanagement Private Limited,  No. 17-20093, — F.3d —-, 2018 WL 706518  (Feb 5, 2009) has continued the recent jurisprudential renaissance of personal jurisdiction decisions in a maritime ruling that has implications for jurisdictional disputes in all substantive areas.  (more…)

As previously reported here, the Fifth Circuit in September ruled that the Bureau of Safety and Environmental Enforcement (BSEE) has no criminal jurisdiction under its current regulations over offshore contractors (USA v. Moss, 872 F.3d 304 (5th Cir. 2017)). A companion case regarding BSEE’s civil jurisdiction over offshore contractors (Island Operating Co. v. Jewell et al., Case No. 16-145 (W.D. La. Dec. 23, 2016)) technically remained pending on appeal before the Fifth Circuit after the court’s rejection of BSEE’s criminal jurisdiction. As this blog noted, however, the Moss court’s opinion was very broad and “expressly acknowledged that while it was only squarely faced with the question of whether BSEE’s criminal indictments in the case were valid, this question necessarily implicated whether BSEE’s regulations even applied at all (criminally or civilly) to offshore contractors.” Thus, while the civil jurisdiction case in Island Operating technically remained pending, the writing was essentially on the wall. (more…)

The Fifth Circuit en banc (In re Larry Doiron, Inc., 2018 WL 316862, at *7 (5th Cir. Jan. 8, 2018)) has handed down an historic re-working of the test for determining whether oilfield contracts are maritime or non-maritime in nature. Harkening back to the United States Supreme Court’s eminently practical, simple maritime contract test in Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 22 (2004) that considers whether “the situation presented … [has] a genuinely salty flavor,” the en banc decision in In Re Larry Doiron, Inc. simplifies decades’ worth of confusing and often inconsistent jurisprudence to give a more streamlined and hopefully predictable rule for determining whether oilfield contracts are maritime or not. (more…)

In another recent case on the Scindia duties,[1] the Fifth Circuit Court of Appeals in Manson Gulf, L.L.C. v. Modern American Recycling Service, Inc.,[2] remanded a case dismissed by the District Court for the Eastern District of Louisiana on summary judgment against the vessel owner on the grounds that there was a material dispute of fact as to whether a hole in a decommissioned oil platform (and decommissioning work has become a semiregular theme on this blog) was open and obvious or a danger that a “reasonably competent stevedore” should have anticipated. Notably the Court also addressed whether the West exception for independent contractors injured by the conditions/defects they were hired to repair or inspect applied to a stevedore retained to remove an oilfield structure for scrap metal. The Court found that the narrow West exceptions do not apply in this case. (more…)