In Seaboard Spirit LTD, et al. v. Antwon Hyman, et al.,No. 15-12953, an unpublished opinion issued by the Eleventh Circuit on December 5, 2016, the Court of Appeals reversed a District Court’s opinion that had expanded a vessel owner’s liability to a longshoreman that has traditionally existed under 33 USC § 905(b) to also include a separate cause of action under 33 U.S.C. § 933. This decision fosters the precept that when a vessel is involved with an injury with one covered by the Longshore and Harbor Workers’ Compensation Act, 33 USC § 901 et seq. (LHWCA) the injured plaintiff’s cause of action is solely governed by 33 USC § 905(b).

Court: United States District Court for the Eastern District of LouisianaPlaintiff Frank P. Ragusa Jr. filed an asbestos-related lawsuit in Civil District Court for the Parish of Orleans alleging he was exposed to asbestos in 1972, and from 1975 to 1976, while working at the Avondale Shipyard. He alleged that as a result of his occupational exposure to asbestos he developed mesothelioma.Defendant Avondale moved for summary judgment, seeking dismissal of the plaintiff’s claims as barred and preempted by the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 905(a) and 933(i). The LHWCA is a federal workers’ compensation statute that provides covered maritime workers with “medical, disability, and survivor benefits for work-related injuries and death.” MMR Constructors, Inc. v. Dir., Office of Workers’ Comp.Programs, 954 F.3d 259, 262 (5th Cir. 2020). A claim under the LHWCA must first meet the status and situs requirements to apply.The status requirement limits application of the LHWCA to employees in “traditional maritime occupations,” including “any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and shipbreaker.” New Orleans Depot Servs. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 389 (5th Cir. 2013) (citing 33 U.S.C. § 902(3)). The status test is satisfied when the person is “directly involved in an ongoing shipbuilding operation.” IngallsShipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977). The situs requirement requires that the injury oc

SeeBarrosse v. Huntington Ingalls, Inc., No. 20-2042, 2021 WL 4355415 (E.D. La. Sept. 24, 2021); Krutz v. Huntingon Ingalls, Inc., No. 20-1722, 2021 WL 5893981 (E.D. La. Apr. 22, 2021); Hulin v Huntington Ingalls, Inc., No. 20-924, 2020 WL 6059645 (E.D. La. Oct. 14, 2020); Dempster v. Lamorak Ins. Co., No. 20-95, 2020 WL 5071115 (E.D. La. Aug. 26, 2020); and Cobb v. Sipco Servs. & Marine, Inc., No. 95-2131, 1997 WL 159491 (E.D. La. Mar. 27, 1997).Second, the court reiterated that the LHWCA provides that the “liability of an employer prescribed in … this title shall be exclusive and in place of all other liability of such employer to the employee.” 33 U.S.C. § 905(a)(emphasis added). Here, it is plain that the plaintiff’s allegations of take-home exposure through his brother, Daniel, “stand entirely apart from plaintiff[‘s] employment” with Avondale, and that the take-home exposure “would have occurred exactly as it did even if plaintiff[] had never worked for [Avondale].”

Specifically, Seckinger supports the proposition that federal common law/jurisprudence recognizes and enforces contractual indemnity agreements within their terms. Moreover, the Longshore Harbor Workers Compensation Act (“LHWCA,” 33 U.S.C. 905(c)) statutorily validates indemnity agreements between OCS platform owners/operators and vessel operators; and thus, arguably, by implication, supports the general proposition that federal law recognizes and enforces indemnity on the OCS. Indeed, the one substantive footnote in the Newton decision specifically contemplates that “state law might be inconsistent [- even absent an on-point federal law -] with a federal law addressing a different issue.”

[co-author: William Pardue]*This Fifth Circuit decision addressing a court’s personal jurisdiction over a foreign company proceeds from the U.S. District Court for the Southern District of Texas. In 2014, Jose Carmona, a longshoreman, was injured when a bundle of pipes he was rigging for discharge from the hold of a vessel broke free and fell, injuring his ankle and lower leg. Carmona sued the ship’s manager, Leon Ship Management (“LSM”), in state court in Houston pursuant to 33 USC 905(b) of the Longshore and Harbor Workers’ Compensation Act, alleging that LSM breached its duty to: (1) properly stow the pipes; (2) minimize hazards associated with falling pipes; (3) take precautions to protect workers; (4) provide a safe work environment; (5) turn over the vessel in a safe condition for discharging cargo; (6) warn of hidden dangers; and (7) intervene. LSM was a Philippine company with no business presence in Texas. It had contracted with the ship’s ownership interests to provide crew in addition to other necessities.Following removal, the district court subsequently dismissed the case for lack of personal jurisdiction.

The plaintiff worked on a decommissioning project for a BP platform in the Gulf of Mexico in early 2007. He and others contended that they were injured by exposure to radioactive dust and liquids and brought personal injury claims for negligence under the Jones Act, 33 U.S.C. section 905(b). Following a removal and procedural wrangling, the plaintiff moved for certification.