Personal Injury and Death Flashcards
Federal question statute
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States
Diversity jurisdiction requirement
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — citizens of different States
Saving to suitors clause
The district courts shall have original jurisdiction, exclusive of the courts of the States, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
• “saving to suitors” – traditional common law remedies. Practically, means you can file a maritime claim in state court.
- doesn’t mean you can keep the case in state ct. If there’s diversity, can remove a case from state ct.
Are Jones Act cases removable based on federal question?
Jones Act cases not removable to fed ct because of FELA, which has always provided that they can file in state ct.
Run-down of admiralty jurisdiction (checklist)
Location & Nexus.
1. Location: Satisfied by either the initial impact test or the Admiralty Extension Act test. Since both tests have a navigable waters requirement, that issue is examined separately.
a. Navigable Waters:
(1) Body of water;
(2) In its “permanent” state, is capable of supporting interstate commerce
b. Initial Impact Test: If the injury was initiated on navigable waters (generally a ship on navigable waters), then locality test is met.
c. Admiralty Extension Act: If a vessel on nav waters causes injury or damages on land then admiralty jurisdiction applies. Satisfied if an appurtenance of the ship causes injury
2. Nexus – 2-Part Test (Sisson, Grubart):
a. Does the alleged wrong bear a significant relationship to traditional maritime activity?
• Application – Does “general character” of activity giving rise to the incident show a substantial relationship to traditional maritime activity?
b. Does the alleged wrong have the potential to disrupt maritime commerce? Application – An intermediate level of generality: Do incidents similar to this have potential to disrupt commerce?
3. Issues: Nexus & AEA: issue as to whether nexus is required in an AEA case; Multiple D’s: As long as one tortfeasor satisfies test, nexus met; OCSLA: Federal court jurisdiction under OCSLA is concurrent, not exclusive, with state courts.
Does a state court have jurisdiction over OCSLA claims?
Yes, state courts have jurisdiction over OCSLA claims. Federal statute, but using state law as a surrogate federal law.
Are personal injury damages subject to income taxation?
No, personal injury damages aren’t susceptible to income taxation. All tax free.
- An exception is like a back pay award under a civil rights statute.
Substantial relationship to traditional maritime activity
- Katrina case - 5th Cir. Bad dredging of the 17th Street Canal. Ps argue AEA - bad dredging on nav waters, harm on land. Ct. said not trad. maritime activity - related to drainage, not maritime activity. Dittman says wrong.
- beating up a seaman on a boat - yes, sufficient connection to maritime activity
- getting contagious disease on a vessel is within admiralty jd
- admiralty jd for cruise passenger that gets bad medical treatment.
Locus examples
- crane on land knocks guy into water where he is injured - no admiralty jd bc cause of incident was land-based crane.
- permanently moored vessel - no admiralty jd. But, if it moves around, admiralty jd.
- fixing bridge based on a barge - court said barge was like scaffolding on land, maritime location merely fortuitous - no admiralty jd. Bad case.
- grandma killed on land by insane grandson with hatchet. Court stretched AEA and found admiralty jd bc he was rendered crazy aboard the vessel and did his damage on land. Like a defective component of the vessel
Types of recovery (causes of action) for seamen
a. Maintenance and Cure (Close to strict liability)
b. Jones Act (Fault based)
c. Unseaworthiness (Strict liability)
Types of recovery (causes of action) for longshoremen
a. Longshore and Harbor Worker’s Compensation Act (LHWCA) (No fault/federal)
b. State Workers Compensation
Types of recovery for for recreational non-seafarer
a. State Workers Compensation
b. Death on the High Seas Act (DOHSA)
Who can a seaman file a Jones Act claim against?
Employer
Who can an injured person file an unseaworthiness claim against?
The owner of the vessel (whether same as employer or not)
Who can a seaman sue for maintenance and cure?
Employer
Test for seaman status
- An employee’s duties must contribute to the function of the vessel or accomplishment of its mission.
- A seaman must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration and its nature. “I.G. of V” = Common ownership or control. (those that are regularly exposed to the hazards of the sea.)
- Duration = whole work life w/ the particular employer. When a worker’s basic assignment changes (putting him mostly off a vessel permanently), he can change status, no longer JA seaman.
- must have SOME time on vessel. Can’t get hired, then get injured before embarking, then claim seaman status
Requirements for Jones Act
- seaman
- injured in course of his employment
- against employer
- need proximate cause (negligence)
- can be brought by personal representative if seaman dies
- *Right to a jury trial. But, if brought in fed ct in admiralty, no jury
Test for vessel status
Vessel Requirement for JA – the craft must be a vessel in navigation.
- if not a vessel, then no JA claim
1. In Navigation: A vessel does not cease to be a vessel when she is not voyaging. At some point, repair operations become significant enough that the vessel can no longer be considered in navigation.
2. Is the Craft a Vessel: Any contrivance “used or capable of being used” as a means of transportation on water. Look at whether there are navigational aids, a raked bow, lifeboats, bilge pumps, crew quarters, registration with the CG, intention of owner to move it regularly (but see Lozman) length of time it has remained stationary. Is it a work platform or is it used for actually transporting ppl and cargo over water? Is any transportation function incidental to its primary use as a work platform? Is it transportation or housing? Lozman - reas observer, looking to its characteristics, wouldn’t consider her designed to any practical degree for moving ppl or things on water.
Seaman Status – Is the Injured Party a Seaman? Run-down of tests
A seaman is a “master or member of a crew of any vessel.” LHWCA § 2(3)(g). “It is odd but true” that the definition of JA seaman comes from the LHWCA, a result of the mutual exclusivity of the two remedies.
- Seaman status is normally a decision for jury. Senko (US 1957).
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The judicially-created test for seaman can be generally broken into 2 parts:
1. seaman status requirement
2. vessel requirement
Does a person who meets the seaman test that works on many different vessels meet the JA requirements?
Not unless the vessels are in common ownership. Must have a connection to a vessel in navigation OR a group of vessels under common ownership.
What can you recover for INJURY under Jones Act?
a. Pecuniary Losses –
(1) Past wages – from time of accident until trial.
(2) Future wages – see below for calculating.
(3) Pain & suffering, mental anguish (non-pec)
(4) Medical costs.
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Calculating Future Income:
a. Generally: Determined using tables & experts to show current earning capacity & work-life expectancy. Total is reduced for present value (time value of money) & increased for inflation – these 2 factors are combined and called the “discount rate”. U.S. Approach: Let jury decide.
There is a question of fact as to the discount rate. In almost all cases, the parties stipulate the rate, usually between 2 & 4%.
Definition of pecuniary damages
one that is readily calculable to a dollar and cent amt. Medical costs, wage loss
Definition of non-pecuniary damages
Based on intangible factors. Loss of enjoyment of life, pain, suffering.
Survival action - definition and who gets it
- Damages possessed by the decedent that he would have had up to the time of death.
- Pre-death conscious pain and suffering, future wage loss.
- JA seamen (but NO future wage loss)
- in state waters - state survival statutes
- in state waters - perhaps a GML survival action
- NOT on high seas
Loss of support
Number that is calculable that has to do with loss of services. Economic. Pecuniary. Calculate the decedent’s own consumption and show how much of the paycheck went to support family.
Is a member of a drilling crew a JA seaman?
- seaman status is a mixed question of law and fact
- can argue it both ways - things to look at (assuming it’s a vessel, not a fixed platform):
- first, it must contribute to the function of the vessel, so - what is the function of the vessel? If he’s a driller, and the vessel’s function is getting oil, then can argue he contributes.
- make the argument that he is exposed to the same risks of the sea as traditional seamen.
- you can be an oil worker and a seaman - don’t need to be an aid to navigation
- Welders move from fixed platforms to floaters, usually employed by subcontractor. So, look at the whole work history w/ employer and see how much time he spends on floaters.
905(b) action
- LHWCA tort claim against vessel owner
- you can plead LHWCA in the alternative to the Jones Act, in case found to be not a seaman bc statute of limitations on LHWCA is running
Problem with the fleet doctrine
- can make seaman status fail when the vessels are time chartered, so not under common ownership or control
- welder spends 90% of his time working on vessels in navigation - he works for a welding company that provides services to a well owner. Well owner time charters jack-up rigs fro many different companies.
- they are not a fleet under common ownership or control. They are owned by different companies. The crew on board belongs to shipowner, not to the well owner. If it was a bareboat charter, would have argument for common control.
- impt to ask who owns the boats, whose crew is on them, how many boats are there, etc.
- the welder still has a 905(b) action against the vessel owner
