RECENT DEVELOPMENTS IN ADMIRALTY AND MARITIME LAW

• Published in: Tort trial & insurance practice law journal Vol. 58; no. 2; pp. 147 - 174
• Main Authors: Amy, Jeanne L, Amy, Michael T, Drouyor, Jason W, Jansson, Chase Alexandra, Kuebel, Sara B, Luther, Ilsa H, Noonan, Jeanne E, Packer, Holli, Weiland, Abigail
• Format: Journal Article
• Language: English
• Published: Chicago American Bar Association 22.03.2023
• Subjects: Agreements; Coronaviruses; COVID-19; District courts; Heart transplants; Maritime law; Ships; Surveys; Louisiana; United States > US; Mississippi River; Kentucky; Pennsylvania
• ISSN: 1543-3234; 1943-118X

The United States District Court for the Western District of Kentucky considered whether a state's CÖVID-19 statute could work as a defense to a claim of negligence under the Jones Act where a seaman contracted, and subsequently died from, COVID-19.2 Defendants' affirmative defense cited a Kentucky State statute that provided "immunity or limitfed] liability for claims for injury, death, damages or loss arising from or relating to the Coronavirus/Covid-19." The court highlighted the Second Circuit's recognition of a distinction between treatments that effectuate further cure, and those that are aimed at preventing relapse.15 A seaman treating pursuant to the latter category of treatments may nonetheless have achieved maximum cure.14 Ultimately the court analogized that the plaintiff's condition is similar to that of a diabetic seaman who requires access to life-saving medications to manage his condition.15 The court reasoned that serious medical conditions can be diagnosed, treated and managed to avoid serious adverse medication complications, but nevertheless are not subject to further cure.16 Thus, the court concluded the plaintiff's post-transplant condition has progressed to the point of stability, and the plaintiff had achieved maximum medical cure.17 C. Other Issues AffectingJones Act Seamen In Long v. TowLine River Service, Inc., 568 E Supp. 3d 535, 537 (W.D. Pa. 2021), the court struck down a seaman's settlement agreement.18 The alleged oral settlement agreement between injured seaman and vessel owner to settle seaman's claims under Jones Act and general maritime law purportedly occurred during mediation but was not entered into by seaman voluntarily and with a full understanding of his rights as a seaman and was not judicially approved as required by local rule of Western District of Pennsylvania.1" Accordingly, the United States District Court for the Western District of Pennsylvania refused to enforce the agreement and denied summary judgment in favor of the vessel owner. The United States District Court for the Eastern District of Virginia granted a motion to dismiss, finding that the plaintiff was not entitled to recover pre-death pain and suffering or medical expenses in a maritime wrongful death action.20 The plaintiff sought recovery for the wrongful death of Herbert H. Mullinex, Jr. under general maritime law, contending the decedent was exposed to asbestos aboard Navy ships, and that the defendant, a manufacturer of gaskets and gasket packaging, failed to warn about the asbestos risk associated with the use of their products.21 The defendant filed a motion to dismiss, arguing that in accordance with the Death on the High Seas Act (DOHSA), 46 U.S.C. 30301-30308, the plaintiff was not entitled to survival damages.22 23 In response, the plaintiff alleged that there is a survival remedy for seaman under the general maritime law, in accordance with the Jones Act, 46 U.S.C. 30101-30106.2? "25 Second, neither the Jones Act nor DOSHA require survival damages be awarded for pre-death pain and suffering or medical expenses in a wrongful death claim by a seaman brought against a non-employer.26 And third, the district court found there were no policy considerations that warranted survival damages under the general maritime law, as the plaintiff could have pursued a claim under state law.27 In a district court decision following Sanchez v. Smart Fabricators of Texas, LLC, 997 E3d 564 (5th Cir. 2021), the Eastern District of Louisiana in Meaux v. Cooper Consolidated, LLC, 2022 A.M.C. 165 (E.D. La. 2022) held that a flagger working aboard a crane barge was not a Jones Act seaman, because his duties did not take him to sea and his assignment to any vessel was limited to the performance of discrete tasks.28 The plaintiff, an employee of a temporary labor service company, was assigned to work for Cooper Consolidated, LLC (Cooper), a stevedore providing midstream cargo loading and unloading services in the Mississippi River at three locations.