by Matthew H. Ammerman on April 29th, 2017

This case may go to the en banc Fifth Circuit at the urging Judge Eugene Davis. The judge seeks to cure the lack of predictability arising from the fact-parsing required by the Davis & Sons maritime contract-or-not test. Recall Judge Davis authored 2009's Grand Isle opinion that sought to do the same - leave behind a messy, fact-specific, maritime-contract-or-not test relevant to work on the Outer Continental Shelf. And that case changed the law such that offshore shelf contracts are now interpreted by the locus of the contract rather than the location of the injury. And, taking their cue from Judge Davis, several losing parties indeed filed a motion for hearing en banc in the Doiron case on March 9, 2017, that is currently pending.

Now to the meat of the Doiron case. The issue was whether maritime or Louisiana law applied to the master service contract (MSC) under which the work was conducted. If Louisiana's law applied, the Louisiana Oilfield Indemnity Act would void the indemnity agreement. Indemnity, however, would be valid under maritime law.

Apache contracted with Specialty Rental Tools & Supply (STS) to perform a flow-back operation to clear out debris from a well situated on a fixed platform in the inland waters of West Lake Verret. STS employee Peter Savoie was hurt on a crane barge owned by Larry Doiron while rigging down the crane during the flow-back job. Doiron's crane barge was needed to help lift heavy equipment needed for the flow-back operation. Savoie sued Doiron and others for his injuries. Doiron sought indemnity from STS, which STS rejected.

Judge Southwick applied the Davis & Sons test, assessing the first prong that there was no case on all fours with a flow-back job. Next, the judge moves on to the next prong, analyzing the six Davis & Sons factors and holds that the contract was maritime. The crux of that holding was whether execution of the contract "required the use of a vessel," which it did. Savoie and his co-worker were unable to pull off the job the day earlier without heavy equipment. That is why the crane barge was hired -- to move the heavy equipment on and around the fixed platform.

Four of the six Davis & Sons factors support finding the MSC, and, more specifically, the oral work order arising out of the MSC, was a maritime contract. The MSC includes language that contemplated the use of a vessel, the STS workers relied on Doiron's crane barge to do their work, the operation at issue related to the mission of the vessel of lifting heavy equipment, and Savoie was hurt while working on the crane affixed to the barge. Therefore, the contract was maritime and Doiron's indemnity claim against STS was not voided by LOIA.

Judges Davis and Southwick concurred in the result but urged re-hearing en banc because "It is time to abandon the Davis & Sons test ... " that engenders a lack of predictability and consistency. The losers in the panel opinion, STS and others, took them up on it a few weeks later. We wait to see if the court grants re-hearing en banc.

Larry Doiron, Inc. v. Specialty Rental Tools & Supply, L.L.P. (In re Larry Doiron, Inc.), 849 F.3d 602, 603 (5th Cir. February 23, 2017)(pet. en banc pending).

by Matthew H. Ammerman on April 23rd, 2017

William Bell died of mesothelioma alleged to have been caused by asbestos exposure working as an engineman, machinery repairman, and machinist mate aboard various U.S. Navy ships in the 1960s. His exposure occurred on land at a training facility in Idaho, in territorial waters, and on the high seas. Bell and his survivors, including his girlfriend and brother, sued several companies that manufactured pumps, valves, condensers, compressors, and turbines on the vessels upon which Bell served.

Several defendants moved for partial summary judgment to knock out some of the plaintiffs' damages claims.

Bell was a seaman. Non-pecuniary damages – those measurable in dollars and cents -- are not recoverable by seamen. But wait. Pain and suffering are non-pecuniary damages, right? Wrong. The Jones Act adopted FELA’s limitation to pecuniary damages. But pain and suffering damages were customary to an injured FELA worker, and, consequently, are recoverable under the Jones Act as well. The same applies for a seaman’s estate’s claim for pre-death pain and suffering. Therefore, Judge Lance Africk holds that William Bell’s pre-death pain and suffering are considered pecuniary damages “in the maritime context,” and those damages may be recoverable in the survival claim of the estate.

The defendants also challenged the claim of Bell’s brother, John Bell, arguing the Death on the High Seas Act (DOHSA) only permits a survival claim by the personal representative of the estate. William’s girlfriend, Vickie Campos, was the personal representative of his estate. But the judge held that DOHSA did not apply. First, state law applied to William’s alleged injurious exposure to asbestos when working on land. Second, general maritime law – not DOHSA – applies to William’s exposure on ships.

When an indivisible injury to a seaman occurs due to exposure in territorial waters and the high seas, DOHSA does not apply. The survival claim for exposure on water was governed by general maritime law, and, consequently, not barred by DOHSA. Also, John had a wrongful death claim under the general maritime law for John’s alleged pecuniary losses from his brother’s passing. But the general maritime law precludes non-pecuniary damages. Therefore, John had no claim for mental anguish, loss of society, and affection from the death of his brother – those damages being considered indeed non-pecuniary (unlike pain and suffering).

Last, the defendants scored a partial win by knocking out Campos’ claim in her personal capacity. Campos was not related to William. Therefore, she had no claim in her personal capacity under either state or general maritime law.

To sum it up: Vickie can sue on behalf of the estate, John can sue in his personal capacity, and no one gets non-pecuniary damages under general maritime law. But pre-death pain and suffering are pecuniary in the maritime context.

Bell v. Foster Wheeler Energy Corp., No. 15-6394, 2017 U.S. Dist. LEXIS 31119 (E.D. La. March 6, 2017)

by Matthew H. Ammerman on April 15th, 2017

Skye Sonnier was killed and three other crew members claimed injuries when a truck-mounted rig toppled over on the barge supporting it in Bayou Sorrell, a navigable waterway in Louisiana. Sonnier's estate, daughter, and the allegedly injured men sued their employer and rig owner, Estis Well Service, under the Jones Act and general maritime law.

This is the second trip to the Fifth Circuit for the McBride case, the first having been ultimately decided en banc that punitive damages were not recoverable arising out of an unseaworthiness claim under general maritime law. A one-week bench trial ensued, and the damages award included $400,000 in pre-death pain and suffering to Sonnier's estate, plus lost support for Sonnier's daughter. Touchet was awarded $55,185 in future medical expenses. The total award to the Sonnier plaintiffs and Touchet was nearly $1.9M not including prejudgment interest.

The appellate court's opinion can primarily be chalked up to the limited standard of review -- factual findings are reviewed for clear error.

Estis appealed, arguing that Sonnier was unconscious and, therefore, there was no basis for pre-death fear and pain and suffering to Sonnier's estate. The pathologist who performed the autopsy testified, however, that it was more likely than not that Sonnier was conscious for 1-2 minutes before he died. Estis also claimed the district judge's finding on lost monetary support to Sonnier's daughter was erroneous because it was too speculative and should have been limited to rescinded child support. The trial court based its finding on Sonnier's prospective earnings on a potential career path for Sonnier derived from his existing job skills, and also found he supported his daughter. The Fifth Circuit affirmed.

Touchet, who survived the incident, was awarded $55,185 in future medical expenses after maximum cure. Estis cried foul because seaman's right to cure terminates when the seaman has reached maximum cure. That is correct. But a seaman is also entitled to claim future medical damages, which are not subject to the maximum cure limitation (though subject to reduction for the seaman's comparative negligence).

The Fifth Circuit affirmed the district court's judgment on all points.

McBride v. Estis Well Serv., L.L.C., 853 F.3d 777 (5th Cir. 2017).

by Matthew H. Ammerman on March 1st, 2017

A court in the U.S. District Court for the Eastern District of Louisiana holds that punitive damages are not available in a general maritime law negligence claim against a 3rd party. Wade v. Clemco Indus. Corp., et al., 2017 U.S. Dist. LEXIS 13580 (E.D. La. February 1, 2017).

Rose Wade, widow of a seaman, sued an equipment manufacturer, a silica company, and Chevron, all 3rd parties, for exposing her husband to asbestos through negligently-designed or marketed products resulting in her husband's death. She claimed the defendants were negligent under general maritime law and sought punitive damages. Judge Eldon Fallon dismissed her punitive-damage claims, holding they were not available under general maritime law.

Wade had no claims for punitive damages against her husband's employer for Jones Act negligence or unseaworthiness, that issue having been settled by the 5th Circuit in McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014)(en banc).

But what about a general maritime law claim against non-employer 3rd parties? That issue has been the subject of conflicting federal district court opinions.

There is no Jones Act negligence claim against a non-employer 3rd party. That means that the widow's general maritime law claims for negligence stood on their own with no accompanying Jones Act negligence claim.

Judge Fallon reasoned that the uniformity principle espoused by the U.S. Supreme Court decades ago in the Miles case was reaffirmed by the 5th Circuit in the en banc McBride decision in 2014 and still applied. Therefore, 5th Circuit's past cases based on the Miles uniformity principle were still good law. In one such opinion from 2004, the 5th Circuit held that a seaman's widow may not recover nonpecuniary damages from a non-employer 3rd party under general maritime law. Consequently, Judge Fallon held Mrs. Wade's claims for non-pecuniary damages, here, punitive damages arising from a maritime negligence claim, must be dismissed.

The reasoning in Wade should also apply to other general maritime law negligence claims, such as vessel negligence asserted through Section 905(b) of the Longshore & Harbor Workers' Compensation Act.

by Matthew H. Ammerman on March 1st, 2017

This is old news. But it is a follow-up to a previous post reporting on the panel opinion in McBride.

In an opinion issued on September 25, 2014, and penned by Judge W. Eugene Davis, the en banc Fifth Circuit holds that punitive damages are not available in a seaman's claim for unseaworthiness. McBride v. Estis Well Serv., L.L.C., 768 F.3d 381 (5th Cir. 2014)(en banc).

An unseaworthiness claim, which arises under general maritime law, is a claim that the vessel owner failed to furnish a vessel and appurtenances reasonably fit for their intended use.

In McBride, the en banc 5th Circuit reasoned that the U.S. Supreme Court's 1990 holding in Miles -- that a seaman's survivor may not recover non-pecuniary loss-of-society damages -- extended to a claim for punitive damages by both an injured and deceased seaman's survivor. Pecuniary losses in this context are money damages to compensate the plaintiff for "'actual loss" instead of damages fulfilling a punitive purpose.

This issue arises because in 2009 the Supreme Court reversed the Fifth Circuit and held that punitive damages were available for an employer's willful and wanton failure to pay maintenance and cure to a seaman. A maintenance-and-cure claim also arises under general maritime law, and, so the reasoning went, punitive damages should be available for an unseaworthiness claim as well.

The Fifth Circuit says no dice. The Supreme Court, when holding that punitive damages were available for egregious denial of maintenance and cure, clearly states the uniformity principle of Miles is sound. The limitation on non-pecuniary damages derived from FELA and incorporated into the Jones Act precludes punitive damages arising from a general maritime law claim of unseaworthiness.

by Matthew H. Ammerman on February 5th, 2016

Administrative Law Judge Larry Price issued a decision and order in Grabert v. Besco Tubular[1] only a month before the Board’s Boudreaux case described in an earlier  post. Judge Price rejected OCSLA coverage of a car wreck.

Grabert was hurt in an automobile wreck while riding in his supervisor’s personal vehicle on the way from the employer’s company office to Cameron, Louisiana, to catch a boat to take the crew to work on a platform on the OCS.

Judge Price rejected the trial judge’s reasoning in the Boudreaux case because it essentially would be adopting the defunct but-for test used by the Third Circuit in Curtis v. Schlumberger Offshore Service, Inc., which was rejected by the Supreme Court in 2012's Valladolid case.

Judge Price also differentiates the status-based reasoning used by Grabert because the Supreme Court in Valladolid held that OCSLA coverage was causation-based by adopting the substantial-nexus standard. Specifically, the judge found that focusing on the type of work performed by the injured worker was the wrong inquiry. Instead, the proper focus was whether the worker’s injuries were “substantially causally linked” to his employer’s on-Shelf extractive operations in Judge Price’s view.

Borrowing language from the Board’s Baker case that held a land-based injury was not covered by OCSLA, Judge Price found that Grabert’s auto wreck was “‘geographically, temporally[,] and functionally distant from  operations conducted for the purpose of extracting natural resources from the [Shelf].”[2] He found that OCSLA did not apply, and Grabert’s sole remedy was under state compensation law.

[1] Grabert v. Besco Tubular and American Interst. Ins. Co., 2015-LHC-00925 (November 17, 2015)(Price, J.).
[2] Id., Slip Op. at *7, citing Baker v. Gulf Island Marine Fabricators, LLC, 49 BRBS 45 (2015).

by Matthew H. Ammerman on February 5th, 2016

The Benefits Review Board took on the inevitable issue of whether OCSLA applied to an offshore worker hurt in a car on his way to work in the Boudreaux case decided December 21, 2015. [1]

James Boudreaux, a field-testing supervisor, was hurt in a car accident on August 3, 2012, traveling from his home in Church Point, Louisiana, to pick-up area at a dock in Freshwater, Louisiana, from which he would have been transported to the Outer Continental Shelf (OCS). Boudreaux worked 89.2% of his time offshore in the year prior to his accident and regularly traveled by his personal car to specific locations at specific times to be transported to offshore sites. He typically carried the equipment in his personal vehicle that he would use offshore, and he received mileage reimbursement and compensation for his travel time from his employer, Owensby & Kritikos, Inc. His mileage payment, however, was a block reimbursement determined by the customer and a pre-determined distance chart prepared by his employer rather than actual mileage.[2]

Travel to and from work is not typically covered activity pursuant to the “coming-and-going” rule. But the Board affirmed the administrative law judges’ finding that Boudreaux was hurt in the course and scope of his employment citing the trip-payment exception to the coming-and-going rule. Boudreaux transported equipment he would use offshore, was paid pre-set mileage and for his travel time to job site on the OCS on the date of his car accident.

With regard to the substantial-nexus issue, the administrative law judge found that Boudreaux’s duties examining offshore facility storage tanks for defects directly furthered operations at the offshore facility. The Board affirmed that finding, re-stating a key sentence from the Supreme Court's Valladolid case that workers onshore may receive OCSLA benefits if they can show a “‘substantial nexus’ between their injuries and employer’s extractive operations on the OCS.” The Board reasoned the substantial-nexus test was satisfied because: (1) the injury occurred in the course of Boudreaux’s employment; (2) he was traveling with work equipment; (3) he was traveling to meet a crew boat to be transported to the OCS; and, (4) his work on the OCS related to extractive operations. In dicta, the Board rejected the employer’s argument that there was no unique, OCS-related risk associated with traveling on land in a personal vehicle because that inquiry would add “unwarranted complexity.”

Citing the trial judge’s “broad discretion” in applying the substantial-nexus test, the Board affirmed the finding that there was a significant causal link between Boudreaux’s injuries from the car accident and his employer’s on OCS-extractive operations. The Board remanded the case to the administrative law judge on a procedural issue because a full compensation order had not been issued awarding benefits.

However, if a car wreck on the way to work in your personal vehicle is covered -- where is the logical end to such coverage? The carrier in the Boudreaux case is contemplating a repeat appeal to the Board following issuance of a complete compensation order, and, thereafter, to the U.S. Court of Appeals for the Fifth Circuit.

[1] Boudreaux v. Owensby & Kritikos, Inc. and Louisiana Workers’ Compensation Corp.,
2015 DOLBRB LEXIS 268, BRB No. 15-0117 (December 21, 2015)(pending publication); Available here:

[2] Boudreaux v. Owensby & Kritikos, Inc. and Louisiana Workers’ Compensation Corp., 2014-LHC-00489 (December 12, 2014)(Administrative Law Judge Clement Kennington).

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