The bedrock principle behind the AEA is that in order to properly invoke jurisdiction under pursuant to the AEA, the injury must emanate from a vessel in navigable waters. The party who invokes jurisdiction must allege vessel negligence, which relates to a defective appurtenance or negligent navigation as well as tortious conduct of the crew that results in an injury on land. Furthermore, the AEA applies only to a vessel and her appurtenances and does not include those performing actions for the vessel such as the manner in which workers load and unload cargo and equipment.Excerpt from Article written by Maritime Law Attorney, Matthew Moeller, Esq for the American Bar Association.
Beyond Navigable Waters: A Look at the Concept of an Appurtenance and Jurisdiction Under the Admiralty Extension Act
If you serve as an in-house counsel or serve in the capacity of corporate or general counsel in private practice, sooner or later you’re going to be asked by your employer or your client if they can fire someone with disabilities, known or unknown, without putting the company in legal jeopardy. By the same token, you’re also at another time likely to be asked if the company can refuse to hire an apparently qualified employee with disabilities. That determination can be difficult and certainly becomes even more complicated when the employee or prospective employee is covered by the Americans with Disabilities Act (“ADA”). It is important for in house or outside general counsel to understand the different standards for acting under the direct threat doctrine when advising the company of taking action that could violate the ADA.Excerpt from Article written by Business Litigation Attorney, Matthew Moeller, Esq for the American Bar Association.
View an excerpt below. Click here to download the Article PDF.
Few amendments to the Federal Rules have garnered as much notoriety and attention as the recent amendments to Rule 26 of the Federal Rules of Civil Procedure regarding the scope of discovery. As courts begin issuing decisions based on the new amendments, attorneys and clients are beginning to get a sense of the limits and scope of discovery in a new world. A recent ruling by Judge David Campbell based on analysis of relevancy and proportionality under the new rule precluded an attempt to discover electronically stored foreign communications in multidistrict litigation over allegedly faulty medical devices. The ruling is significant because Judge Campbell chaired the Rules Committee when the 2015 amendments were passed. There is no better source of guidance for attorneys learning to practice in the new universe of relevancy and proportionality than a ruling from the chairman of the committee, and this decision is certain to be given much deference as courts struggle to define the new scope of discovery.
The Moeller Firm’s Matthew Moeller will be speaking at the 2nd Annual Southeast Construction Defect & Dispute Conference in New Orleans, Louisiana on October 12, 2016.
He will be speaking on the Engagements, Deficiencies and Fraud: Examining the Scope of LA. R.S. 9:2772.
The presentations is scheduled for Wednesday, October 12 at 10:05 AM at Hilton Garden Inn New Orleans Convention Center, located at 1001 S Peters St, New Orleans, LA 70130.
Jones Act employers have long been frustrated by their inability to recover these benefits when they’re later deemed to be illegitimate. Boudreaux v. Transocean Deepwater Inc. appeared to have closed the door on the possibility of recovery, but a recent ruling in Louisiana may have reopened it. First, some background: In Boudreaux, the plaintiff sued for damages from an on-the-job back injury. Transocean established a McCorpen defense (McCorpen v. Central Gulf Steamship Corp.) to liability and counterclaimed to recover maintenance and cure benefits already paid. Such a defense can be used when the employer requires a medical exam as part of the hiring process and can prove three conditions: (1) that the seaman intentionally hid pertinent medical history; (2) that the history in question was material to the company’s decision to hire the seaman; and (3) that there was a causal link between a concealed, pre-existing condition and the on-the-job injury.Excerpt from Article written by Maritime Law Matthew Moeller, Esq. for Workboat.com.
In Boone Coleman Construction, Inc. v. The Village of Piketon, the defendant contracted for a roadway and improvements project and agreed to pay Boone $683,300 to complete the work. 50 N.E.3d 502 (Ohio 2016). The contract required substantial completion within 120 days and contained a liquidated damages provision that provided for the payment of $700 for each day beyond the substantial completion date. Boone did not complete the project until well over a year after a previously extended substantial completion date. Boone brought suit against Piketon alleging that it failed to pay money due under the contract, and Piketon counterclaimed for liquidated damages. The trial court granted summary judgment in favor of Piketon, awarding $277,900 in liquidated damages. Boone appealed, however, asserting that the trial court erred in awarding Piketon liquidated damages. Upon review, the appellate court agreed, reversing the trial court’s liquidated damages award and remanding the case for further proceedings. Relying on Samson Sales, Inc. v. Honeywell, Inc., 465 N.E.2d 392 (Ohio 1984), the appellate court held that upon reviewing the contract as a whole in its application, it was clear that “the amount of damages [was] so manifestly unreasonable and disproportionate that it [was] plainly unrealistic and inequitable.” Boone Coleman Constr., 50 N.E.3d at 507. The court concluded that the liquidated damages provision constituted “an unenforceable penalty.” Id., citing Samson Sales, 465 N.E.2d at 392.Excerpt from Article written by Construction Law Attorney, Matthew Moeller, Esq for the American Bar Association.
The basic relationship between a vessel owner/operator and a charterer is usually controlled by a master time charter agreement. It provides the basic framework for the relationship and outlines the obligations of each party.Excerpt from Article written by Maritime Attorney, Matthew Moeller, Esq. for Workboat.com.
But charterers often bring third-party contractors aboard vessels, and the master time charter may not cover the risk associated with it. What controls the relationship between the owner/operator and third-party contractor?
It is common practice for owners to request that third-party contractors execute a vessel boarding agreement (VBA, or access agreement) to manage the risks. The VBA is usually a simpler document than the master time charter. It incorporates the key risk management provisions needed to provide the owner and third-party contractor protection and predictability in the event of personal injury or property damage on the vessel involving property or personnel belonging to either party.
The critical provisions of VBAs include:
- Indemnity: While an industry standard “knock for knock” is almost always preferable, some form of indemnity should be obtained in order to gain some level of predictability and insurability concerning risks posed by the presence of the third-party contractor.
- Insurance requirements: Both the owner and third-party contractor should request and confirm that each has sufficient coverage and limits, and that the insurance be endorsed with full waivers of subrogation naming both as additional insureds on the other’s policy.
- Possible deletion of the watercraft exclusion: The exclusion should be examined in order to determine whether a request for deletion should be made. Not all watercraft exclusions are created equal, and it can be difficult under some circumstances to obtain deletion.
A recent Seventh Circuit decision demonstrates the importance of experts being able to logically connect the dots between their opinions and the studies they relied on in forming those opinions. In C.W. ex rel. Wood v. Textron, Inc., 2015 WL 5023926 (7th Cir. Aug. 26, 2015), the parents of two children sought recovery for injuries allegedly caused by the children’s exposure to vinyl chloride. The substance allegedly escaped from a facility owned by Textron, seeped into the groundwater, and contaminated the plaintiffs’ well. While exposed, the children allegedly experienced gastrointestinal, immunological, and neurological symptoms, and these illnesses coincided with their exposure. Once the family moved away, the children’s health improved, but allegedly they remained at risk of future illness. The plaintiffs filed suit alleging negligence, negligence per se, and negligent infliction of emotional distress. Damages were sought for both the children’s illnesses and a significantly increased risk of cancer and other negative health effects. Textron moved in limine to exclude the parents’ three expert witnesses. The district court granted the motion. Without the experts, the plaintiffs could not carry their burden on causation, requiring summary judgment.Excerpt from Article written by Commercial Law Attorney, Matthew Moeller, Esq for the American Bar Association.