General Maritime Law

Subscribe to General Maritime Law via RSS

If a tree falls in the woods…..

Or, if a worker is killed on land but his injury is caused by an Outer Continental Shelf activity, can he recover under the Outer Continental Shelf Lands Act?

The Ninth Circuit just released this case which addresses the applicable standard for determining application of the Outer Continental Shelf Lands Act.  The opinion is in the case of Valladolid v. Pacific Operations Offshore and can be downloaded here.

As the Court begins:

In this case, we consider whether an employee must be injured on the outer continental shelf to be eligible for workers’ compensation benefits under the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq.

The two other circuits that have considered this question have reached conflicting conclusions.

Conflicts between the circuits.  Signal one for a good case to go to the Supreme Court.  Ninth Circuit decision.  Signal two.

Facts: Roustabout was killed onshore, while working on activities related to an offshore oil platform.  Widow files for state worker’s compensation benefits, benefits under the Outer Continental Shelf Lands Act and the Longshore Harbor Workers Compensation Act.  The OCSLA and LHWCA benefits are denied.

Proceedings: As required by federal law, the claim was adjudicated by an Administrative Law Judge with an appeal to the Benefits Review Board.  This appeal followed.  The proceedings below:

The ALJ denied Petitioner’s OCSLA claim on the grounds that Valladolid’s injury had occurred outside the geographic situs of the outer continental shelf. The ALJ denied the LHWCA claim on two grounds: (1) Valladolid was not engaged in maritime employment, and (2) he was not injured on a maritime situs. The Benefits Review Board (“BRB”) upheld the ALJ’s denial of the OCSLA benefits under the “situs-of-injury” test, and affirmed the denial of LHWCA benefits on the maritime situs ground. The BRB did not reach the maritime employment issue.

The compensation scheme is as follows:

Under the OCSLA workers’ compensation provision, LHWCA benefits are extended to:

[the] disability or death of an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf.

43 U.S.C. § 1333(b). The outer continental shelf is comprised of “all submerged lands lying seaward and outside of the area of lands beneath navigable waters”—that is, submerged lands lying outside the territorial jurisdiction of the states. Id. § 1331(a); see id. § 1301(a)(2). State jurisdiction over offshore lands generally extends three miles from the coast line, though in certain cases not relevant here, it may extend further. See id. § 1301(a)(2).

Precedent:

In Curtis v. Schlumberger Offshore Service, Inc., 849 F.2d 805 (3d Cir. 1988), the Third Circuit rejected the situs-of-injury test and held that a claimant need only satisfy a “but for” test in establishing that the injury occurred “as the result of” operations on the outer continental shelf. Id. at 809-11. Accordingly, an employee injured in a car accident on his way to meet a helicopter that would take him to an offshore platform was eligible for OCSLA disability benefits. Id. at 806, 811.

However, in Mills v. Director, Office of Workers’ Compensation Programs, 877 F.2d 356 (5th Cir. 1989) (en banc), the Fifth Circuit adopted a situs-of-injury requirement for OCSLA claims. Under Mills, an OCSLA claimant must show that the injury occurred on an outer continental shelf platform or on the waters above the outer continental shelf, in addition to satisfying the “but for” test. Id. at 362; see also Becker v. Tidewater, Inc., 586 F.3d 358, 366-67 (5th Cir. 2009); Pickett v. Petroleum Helicopters, Inc., 266 F.3d 366, 368 (5th Cir. 2001); Sisson v. Davis & Sons, Inc., 131 F.3d 555, 558 (5th Cir. 1998). Thus, a welder injured during the onshore construction of a platform destined for the outer continental shelf was not eligible for OCSLA disability benefits. Mills, 877 F.3d at 357, 362.

Result:  I’ll spare you the 10 pages of discussion of persuasive but not binding precedent, the legislative history (Shh, don’t tell Justice Scalia – per his concurrence in Jerman v. Carlislehe doesn’t like it), and the canons of statutory construction.  The Ninth Circuit rejected Mills and held that the OCSLA did not require the situs of the injury to be on the Outer Continental Shelf.

One to watch. 

Did an unsecured barge cause the New Orleans levee break during Hurricane Katrina?  The questions answered here are: who should pay to defend it?  And, does the terminal owner’s insurance company cover it?

A new maritime insurance case from the Second Circuit Court of Appeals answers some of the above (the insurance stuff anyway). The case…

On March 24, 2010, the Supreme Court heard oral argument in the case of Kawasaki Kisen Kaisha v. Regal Beloit Corporation and Union Pacific Railroad Company v. Regal-Beloit Corporation.  The oral argument transcript can be downloaded here.  My earlier post with briefs and decision below here.

This issue is which liability framework applies to cargo that is transported under a bill of lading but has some damage while on U.S. railways.  COGSA and the bill of lading is one framework.  The Carmack Amendment which governs rail carrier liability is another.

While the issue is a bit for the admiralty/interstate commerce wonks among us, the transcript yielded some gems:

Best “Canons of Statutory Interpretation in a Nutshell” Quote: 

MR. BALLENGER: Well, Your Honor, we don’t think that it is necessary for this Court to read the statute in a countertextual way. You just have to do what this Court has always done and read the statute as a whole, including giving some weight to that provision which is in the text of the statute and reading the rest of the statute in light of it.

Best “Random Thoughts of the Chief Justice” Quote:

CHIEF JUSTICE ROBERTS: This may not have anything to do with anything. Is there a reason the STB doesn’t appear on your brief?

Best “Those Darn Publishers of the U.S. Code” Quote:

JUSTICE SCALIA: Okay. Wait a minute now.

MR. YANG: I’m sorry –

JUSTICE SCALIA: The paragraphing you say is wrong?

MR. YANG: From 5a to 6a, you will see 5a is the 1978 version of Carmack that was enacted in the 1978 codification.

JUSTICE SCALIA: Right. MR. YANG: The current version is reflected on the facing page. There was no paragraph indentation in 1978. And in 1995 when Congress changed the text, it did include a paragraph indentation, but the committee report — the conference report is very clear that Carmack was not changed. Also –

JUSTICE SCALIA: So all — you are saying that — I think what you are saying is that all we have to use the statutory statement that “nothing was meant to be changed or” is to say, well, that paragraphing in 3 is just wrong, right?

MR. YANG: Well, I don’t know — you mean the indentation?

JUSTICE SCALIA: The indentation.

MR. YANG: The indentation was inadvertent. And I would actually direct the Court to 73a, which is the other part of Carmack that now exists for motor transportation and freight forwarders. There is no indentation. The current version of the other half of Carmack does not provide the indentation. The indentation is inadvertent. And in ’95 — the ’95, which –

JUSTICE SCALIA: I’m losing you. 73a?

Best “Foreign Law-Phobes Watch Out! I see a Cite to Europe Law Coming” Quote:

JUSTICE SOTOMAYOR: I think Justice Breyer asked you why it made sense that there would be two rules in effect for what happens on the ocean and what happens on land; and if we had it, wouldn’t it create great difficulty. I think — you may correct me.

JUSTICE BREYER: Your point was –

MR. FREDERICK: That’s how the world –

JUSTICE BREYER: — if it creates such difficulty, why were the railroads in favor of it before?

MR. FREDERICK: Correct. And that’s how -that’s how Europe operates. Europe has separate conventions for rail and road that apply to damage that occur on land and the European nations have acceded to the various versions of Hague rules –

JUSTICE BREYER: Anything here that says on land? Anything in Carmack that says on land?

Best “I hope Chief Justice Roberts Nodded at Justice Sotomayor” Quote:

CHIEF JUSTICE ROBERTS: And that’s a different question with respect to liability and claims than with respect to venue.

MR. FREDERICK: Correct. And let me address that if I might.

JUSTICE SOTOMAYOR: Could I just — just briefly before you answer the Justice — the Chief.

MR. FREDERICK: Sure.

[The Chief Justice reminded counsel of his question later on.]

Best “Don’t Show Me No Stinkin’ Letter Briefs” Quote:

JUSTICE SCALIA: Wait. You say we have to defer to a letter brief in another case?

MR. FREDERICK: No –

JUSTICE SCALIA: I think most of my colleagues would not defer to a letter brief in this case. And you are saying that we owe deference to a letter brief in another case?

MR. FREDERICK: That is what this Court held –

JUSTICE SCALIA: Which I didn’t agree with, it seems to me.

Best “What Does “In” Mean” or “How Do You Politely Read a Statute to a Justice” Quote:

JUSTICE BREYER: Can we go back one more second? Can you just give me the citation in Carmack -not COGSA, but Carmack — that would get our intermodal shipment out of the board’s jurisdiction? Because what I’m thinking about is the intermodal shipment and the boat sinks near Hawaii. Okay? Now, on your reading of Carmack, not COGSA, what gets that shipment sunk in Hawaii — or Midway or Guam or someplace — what gets them out of Carmack? Which words?

MR. FREDERICK: Well, the — on 62A, the petition appendix defines the general jurisdiction.

JUSTICE BREYER: And it includes transport just as you defined it between the United States and another place — United States and a place in a foreign country.

MR. FREDERICK: Yes.

JUSTICE BREYER: So that’s what this is. This is a shipment between Shanghai and San Francisco.

MR. FREDERICK: And at (a)(2) — will you look at (a)(2), please? (A)(2) says jurisdiction under paragraph 1 applies only to transportation in the United States.

JUSTICE BREYER: Oh, sorry, between a place in — oh, transportation in the United States.

MR. FREDERICK: In the United States.

JUSTICE BREYER: Between a place in.

MR. FREDERICK: Exactly.

JUSTICE BREYER: Thank you.

MR. FREDERICK: Yes, thank you.

(Laughter. )

The Court of Appeals for the Second Circuit just published a decision that presents the question of what happens when two federal policies (protection of merchant seamen and preference for arbitration) run headlong into the other.  The policies are codified in the Jones Act (46 U.S.C. s. 688) and the Federal Arbitration Act (9 U.S.C.

On Tuesday, President Obama issued an Executive Order relating to the Somalia piracy situation.  The Executive Order took effect immediately.  It purports to “block” payments, transfers or donations of property to several classes of individuals related to the crisis in Somalia.

The text of the Executive Order, the concurrently released message to Congress and the Annex are provided below.  When reviewing the legality of such an Executive Order, the starting point is to identify the statutory authorization for such an action.  As President Truman found out during the Korean War, the Executive Branch of the federal government is constitutionally constrained by its inability to legislate and any actions which purport to legislate are unconstitutional.  See Steel Seizure Case.

In this case, as you would expect, the President does have wide authority in the realm of international financial transactions and national defense.  See 50 U.S.C. s. 1702.  The maritime community is abuzz about this E.O. (hat tip to the Maritime Law Association of the U.S. for sending me the attached documents). Stay tuned.

The E.O. states:

I, BARACK OBAMA, President of the United States of America, find that the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia, which have repeatedly been the subject of United Nations Security Council resolutions (including Resolution 1844 of November 20, 2008; Resolution 1846 of December 2, 2008; Resolution 1851 of December 16, 2008; and Resolution 1897 of November 30, 2009), and violations of the arms embargo imposed by the United Nations Security Council in Resolution 733 of January 23, 1992, and elaborated upon and amended by subsequent resolutions (including Resolution 1356 of June 19, 2001; Resolution 1725 of December 6, 2006; Resolution 1744 of February 20, 2007; Resolution 1772 of August 20, 2007; Resolution 1816 of June 2, 2008; and Resolution 1872 of May 26, 2009), constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.

I hereby order:

Section 1. (a) All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, including any overseas branch, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:

(i) the persons listed in the Annex to this order;

and

(ii) any person determined by the Secretary of the Treasury, in consultation with the Secretary of State:

(A) to have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia, including

but not limited to:

(1) acts that threaten the Djibouti Agreement of August 18, 2008, or the political process; or

(2) acts that threaten the Transitional Federal Institutions, the African Union Mission in Somalia (AMISOM), or other international peacekeeping operations related to Somalia;

(B) to have obstructed the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia;

(C) to have directly or indirectly supplied, sold, or transferred to Somalia, or to have been the recipient in the territory of Somalia of, arms or any related materiel, or any technical advice, training, or assistance, including financing and financial assistance, related to military activities;

(D) to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, the activities described in subsections (a)(ii)(A), (a)(ii)(B), or (a)(ii)(C) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(E) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

(b) I hereby determine that, among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia. (c) I hereby determine that, to the extent section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) may apply, the making of donations of the type of articles specified in such section by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to subsection (a) of this section would seriously impair my ability to deal with the national emergency declared in this order, and I hereby prohibit such donations as provided by subsection (a) of this section.

(d) The prohibitions in subsection (a) of this section include but are not limited to:

(i) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order; and

(ii) the receipt of any contribution or provision of funds, goods, or services from any such person.

(e) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.

Sec. 2. (a) Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate any of the prohibitions set forth in this order is prohibited.

(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.

Sec. 3. For the purposes of this order:

(a) the term “person” means an individual or entity;

(b) the term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;

(c) the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States;

(d) the term “Transitional Federal Institutions” means the Transitional Federal Charter of the Somali Republic adopted in February 2004 and the Somali federal institutions established pursuant to such charter, and includes their agencies, instrumentalities, and controlled entities; and

(e) the term “African Union Mission in Somalia” means the mission authorized by the United Nations Security Council in Resolution 1744 of February 20, 2007, and reauthorized in subsequent resolutions, and includes its agencies, instrumentalities, and controlled entities.

Sec. 4. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.

Sec. 5. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA, as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order.

Sec. 6. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to submit the recurring and final reports to the Congress on the national emergency declared in this order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and section 204(c) of IEEPA (50 U.S.C. 1703(c)).

Sec. 7. The Secretary of the Treasury, in consultation with the Secretary of State, is hereby authorized to determine that circumstances no longer warrant the blocking of the property and interests in property of a person listed in the Annex to this order, and to take necessary action to give effect to that determination.

Sec. 8. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 9. This order is effective at 12:01 a.m. eastern daylight time on April 13, 2010.

BARACK OBAMA

The White House issued a message to Congress re Somalia regarding this Executive Order and also published the Annex with the names of the individuals now “blocked.”

New admiralty case from the First Circuit Court of Appeals.  Side note:  Justice David Souter participated in this panel by designation, following Justice Sandra Day O’Connor’s pattern of an active retirement.

This is a case about maritime lien asserted by a subcontractor whose materials were eventually installed on a vessel. The court did not allow the lien to…

New admiralty case from the Eleventh Circuit Court of Appeals.  Maritime attachment has certainly been in the news these days.  Well, in the admiralty news world anyway.  This case sets out the standard for vacating attachment, in an interesting (slow news day) case involving oil pipelines, unpaid divers, and Mexican District Attorneys.  The case is …

I am on the redeye to Los Angeles tonight, but wanted to get this news release posted.  Apparently, there has been some concerns about starting and finishing canoe regattas in the various harbors and the Coast Guard and State of Hawaii Department of Land and Natural Resources are crafting policy to address the issue.

The…

New Longshore case from the First Circuit Court of Appeals.  The case is Bath Iron Works Corp. v. Fields  and can be found here.

This case turns on the employer’s burden of proof to rebut the work connection to an injury:

Section 20(a) of the LHWCA provides that certain disabilities are presumed to be work-related “in the absence of substantial evidence to the contrary.” 33 U.S.C. § 920(a). Relying on that provision, the Benefits Review Board affirmed an award of disability benefits for respondent Clair Maynard Fields.

Fields’s employer Bath Iron Works (“BIW”), a ship manufacturing facility based in Bath, Maine, now petitions for review of the Board’s decision, arguing that it produced “substantial evidence” to rebut the statutory presumption and, alternatively, that the Board exceeded the scope of its authority in vacating an earlier decision of the ALJ that rejected Fields’s claim for benefits. We disagree on both points and therefore deny the petition.

The opinion is fact heavy, but it does show that the presumption is a potent tool in claimant’s arsenal.