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Recent Developments in Admiralty and Maritime Law

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Recent Developments in Admiralty and Maritime Law Recent Developments in Admiralty and Maritime Law Kirby Aarsheim, Jeanne L. Amy, Michael T. Amy, Attilio Costabel, Megen Madison Gold, Danielle T. Gauer, Chase Alexandra Jansson, Brian P. Maloney, Nicole M. Matteo, Donald A. Mau, Matthew A. Moeller, Kelly E. Mulrane, Casey M. O’Brien, Pamela L. Schultz, Allison N. Skopec, Thomas W. Snook, and W. Benjamin Woody I. Introduction .................................................................................270 II. Seamen’s Claims ...........................................................................271 A. Jones Act and Unseaworthiness ............................................271 B. Maintenance and Cure ..........................................................271 C. Seamen Status and Other Issues ...........................................273 III. Longshoremen Claims .................................................................274 IV. Passenger Claims .........................................................................275 Kirby Aarsheim ([email protected]) is a partner at Farrell Smith O’Connell, LLP, in Boston, MA; Jeanne L. Amy ([email protected]) is an associate at Jones Walker LLP in New Orleans, LA; Michael T. Amy ([email protected]) is an associate at Deutsch Kerrigan LLP in New Orleans, LA; Attilio Costabel (costabelpa@ bellsouth.net) is a solo practitioner specializing in maritime law and is a professor at St. Thomas University School of Law; Megen Madison Gold ([email protected]) is an associate attorney at Kubcki Draper, P.A. in Miami, FL; Danielle T. Gauer, LL.M, Esq. is an associate attorney in the maritime litigation group at MG+M The Law Firm in Miami, FL; Chase Alexandra Jansson ([email protected]) is an associ- ate at Kennedys CMK LLP in Miami, FL; Brian P. Maloney ([email protected]) is an associate at Seward & Kissel LLP, in New York, NY; Nicole M. Matteo (nmatteo@ PierceAtwood.com) is an associate at Pierce Atwood LLP in Providence, RI; Donald A. Mau ([email protected]) is an attorney at Miguel A. Elias, APLC in Kenner, LA.; Mat- thew A. Moeller ([email protected]) is the principal of The Moeller Firm LLC in New Orleans, LA; Kelly E. Mulrane ([email protected]) is an associate at Benesch, Friedlander, Coplan & Aronoff LLP, in Columbus, OH; Casey M. O’Brien (COBrien@ hillrivkins.com) is an associate at Hill Rivkins, LLP in New York, NY; Pamela L. Schultz ([email protected]) is a partner at Hinshaw & Culbertson LLP in California; Allison N. Skopec ([email protected]) is a law clerk (admission pending) at Winston & Strawn LLP in New York, NY; Captain Thomas W. Snook, USCG (Ret.) (Thomas@ snookadr.com) Snook Dispute Resolution, Florida; W. Benjamin Woody (ben.woody@kpm law.com) is an associate at Kalbaugh, Pfund & Messersmith, P.C., in Fairfax, Virginia. 269 TIPS_54-2.indd 269 6/21/19 1:39 PM 270 Tort Trial & Insurance Practice Law Journal, Spring 2019 (54:2) V. Salvage .........................................................................................276 VI. Oil Pollution Act (OPA) ..............................................................277 VII. Contract .......................................................................................279 VIII. Marine Insurance .........................................................................282 IX. Cargo ...........................................................................................284 X. Maritime Liens, Attachment, and Ship Mortgage Act ................286 A. Maritime Liens ......................................................................286 B. Attachment ............................................................................291 XI. Criminal .......................................................................................293 XII. Limitation of Liability ................................................................294 XIII. Admiralty Jurisdiction .................................................................296 XIV. Practice, Procedure, and Uniformity .........................................297 XV. Arbitration ...................................................................................300 XVI. Regulations Update .....................................................................301 A. Revision of the America’s Marine Highway Program Regulations—46 CFR Part 393. ...........................................301 B. Maritime Security Program—46 CFR Part 296. .................301 C. Requirements to Document U.S.–Flag Fishing Industry Vessels of 100 Feet or Greater in Registered Length— 46 CFR Part 356 ...................................................................301 D. Consolidated Cruise Ship Security Regulations— 33 CFR Parts 101, 104, 105, 120, and 128 ...........................302 E. Inland Navigation Rules; Technical Amendment— 33 CFR Part 83 .....................................................................302 F. UN Body Continues to Address Greenhouse Gas Emissions—New Regulations Effective as of March 1, 2018 ...............................................................303 I. Introduction This article discusses noteworthy and interesting admiralty and maritime decisions issued by federal and state courts in the United States between October 1, 2017, and September 30, 2018. The selection includes cases involving seamen, longshoremen, passengers, maritime liens and attach- ments, oil pollution, salvage, marine insurance, marine contracts, and many cases addressing other issues that arise in the practice of maritime law. Of particular note, the Ninth Circuit affirmed the availability of punitive dam- ages to seamen in unseaworthiness actions in a case that is now pending before the U.S. Supreme Court. In In re: Larry Doiron, Inc.,1 the Fifth Cir- cuit set forth a new two-prong test to determine whether a contract is maritime in nature. 1. 879 F.3d 568, 575-76 (5th Cir. 2018) (en banc); writ denied 138 S. Ct. 2033 (May 21, 2018) (Mem). TIPS_54-2.indd 270 6/21/19 1:39 PM Recent Developments in Admiralty and Maritime Law 271 II. Seamen’S Claims A. Jones Act2 and Unseaworthiness3 In an issue “of considerable importance in maritime law,” the Ninth Cir- cuit addressed the availability of punitive damages for unseaworthiness in Batterton v. Dutra.4 The Ninth Circuit held that punitive damages are awardable to seamen for injuries in general maritime unseaworthiness actions.5 The Ninth Circuit determined that not only did Miles v. Apex Marine Corp.6 not implicitly overrule the its previous decision in Evich v. Morris,7 which permitted punitive damages for unseaworthiness in death cases, but also that Atlantic Sounding Co. v. Townsend8 made clear that the statutes which restricted compensation for pecuniary losses did not apply to punitive damages claims.9 In Knudson v. M/V AMERICAN SPIRIT, the Eastern District of Michi- gan likewise held that a seaman plaintiff can be awarded punitive damages in an unseaworthiness claim against the vessel owner. 10 The court reasoned that since Congress has not legislated to limit recovery of nonpecuniary loss in a seaman’s action for non-fatal injuries, the plaintiff could seek puni- tive damages for personal injuries in his unseaworthiness claim.11 B. Maintenance and Cure12 In Joyce v. Maersk Line Ltd, the Third Circuit, sitting en banc, broke with its own precedent and adopted the majority position regarding the 2. The Jones Act, originally passed in 1920, grants seamen who suffered personal injury in the course of their employment the right to seek damages in a jury trial against their employ- ers. Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21 (5th ed. 2017 Update) (cit- ing The Jones Act, formerly codified at 46 U.S.C. § 688, since 2008 the Jones Act is codified in 46 U.S.C. § 30104). The elements of a Jones Act claim are (1) that the claimant is a seaman; (2) that he or she suffered injury or death in the courts of his or her employment; (3) that the seaman’s employer was negligent; and (4) that the employer’s negligence caused the injury at least in part. Id. 3. Unseaworthiness is the concept “that the vessel and her owner are . liable . for injuries received by a seaman in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.” Schoenbaum, supra, at § 6-25 (citing The Osceola, 189 U.S. 158 (1903)). In order to state a cause of action for unseaworthiness, a plaintiff must allege his injury was caused by a defective condition of the ship, its equipment or appurtenances. Id. 4. 880 F.3d 1089, 1090 (9th Cir. 2018). 5. Id. at 1096. 6. 498 U.S. 19 (1990). 7. 819 F.2d 256 (9th Cir. 1987). 8. 557 U.S. 404 (2009). 9. Id. at 1096. 10. Knudson v. M/V AMERICAN SPIRIT, 14-14854, 2017 WL 4786135, at *2 (E.D. Mich. Oct. 24, 2017), reconsideration denied sub nom. Knudson v. M/V Am. Spirit, 14-14854, 2017 WL 5499710 (E.D. Mich. Nov. 16, 2017). 11. Id. 12. Maintenance and cure is the obligation of a shipowner who employs seamen to care for them if they are injured or become ill while in the service of the ship. Schoenbaum, supra, at TIPS_54-2.indd 271 6/21/19 1:39 PM 272 Tort Trial & Insurance Practice Law Journal, Spring 2019 (54:2) enforceability of maintenance rates in collective bargaining agreements.13 Every other circuit to consider the issue has held that a union contract including rates of maintenance, cure, and unearned wages that is freely entered into by a seafarer will not be reviewed piecemeal by courts unless there is evidence of unfairness in the collective
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