and the district court granted a summary judgment for Cajun.
The Fifth Circuit first rejected Romero's challenge to federal jurisdiction, stating that a brief hiatus from service for routine repairs did not terminate the boat's "vessel in navigation" status.
>The Court next observed that a vessel owes narrow duties under Section 5(b) to maritime workers. Here, Cajun did not owe Romero a "turnover duty" to warn him of the slippery conditions on the vessel, since the hazard was open and obvious. When turning his vessel over to a stevedore or marine contractor, the owner has no duty to warn of, or remedy, an open and obvious hazard.
However, a genuine issue of material fact existed as to whether Cajun owed Romero an "active control" duty under Section 5(b) and breached such duty. The vessel may be held liable "for injury caused by hazards under the control of the ship." The vessel has a duty to exercise due care to avoid exposing longshoremen and marine workers to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel. It is no defense that the hazard was open and obvious. The key issue is whether the work area in question has been "turned over" to the contractor. For an "active control" duty to arise, "the vessel must exercise active control over the actual methods and operative details of the longshoreman's work."
Here, Romero's testimony created a genuine issue of fact as to whether Cajun had active control of part or all of the vessel. Romero's testimony suggested that Cajun's owner closely oversaw and directed "operative details" of his work and made decisions affecting the safety of his work area (e.g., denying Romero's request to weld the barricade to the deck). Romero had to traverse greasy and wet areas which had not been turned over to his employer in order to reach his work site.
[Topic 5.2.1 Third party liability – Generally]
B. Benefits Review Board
There were no published Board decisions under the LHWCA in January 2009.
Benefits Review Board
In A.H.A. v. Eastern Coal Corp., BRB No. 08-0476 BLA (Jan. 30, 2009) (unpub.), a survivor's claim with no autopsy evidence of record, the Board held that collateral estoppel applies to findings of clinical as well as legal coal workers' pneumoconiosis made in support of a final award in the miner's claim. Here, an administrative law judge concluded that legal coal workers' pneumoconiosis was established in the miner's finally awarded claim, but x-ray evidence did not demonstrate the presence of clinical pneumoconiosis. Thus, in the survivor's claim, Employer was collaterally estopped from re-litigating the existence of legal coal workers' pneumoconiosis which, in turn, affected the weighing of medical opinions addressing the cause of the miner's death.
[collateral estoppel, applicable to clinical and legal pneumoconiosis]
In B.S. v. Itmann Coal Co., BRB No. 08-0309 BLA (Jan. 29, 2009) (unpub.), the Board reiterated that, prior to considering digital x-rays as evidence of the presence or absence of pneumoconiosis, the administrative law judge must determine whether "the proponent of the evidence has established that digital x-rays are ‘medically acceptable and relevant to establishing or refuting a claimant's entitlement to benefits' as provided in 20 C.F.R. § 718.107(b)." From this, the Board held that it was error for the judge to "determine[] that because the digital x-ray readings in the treatment records were performed for diagnostic purposes, they are implicitly medically acceptable," while discrediting the digital x-ray readings developed for purposes of litigation based on a party's failure to "satisfy the requirements of 20 C.F.R. § 718.107(b)." The Board reasoned:
. . . the relevant inquiry concerns the medical acceptability and relevance of digital x-ray technology as it pertains to the diagnosis of pneumoconiosis. It does not concern the identity of the reader or the purpose for which the digital x-ray reading was performed.
Slip op. at 6.
[ digital x-rays and the requirements at § 718.107(b) ]
In F.L. v. Zeigler Coal Co., BRB No. 08-0302 BLA (Jan. 29, 2009) (unpub.), Employer moved to dismiss the black lung claim on grounds that there was no "proper party-in-interest to proceed with its adjudication." Counsel for Claimant maintained that the "miner's grandson ha[d] an interest in protecting the award of benefits because there were costs incurred by the miner in pursuing the claim, there could be outstanding benefits due the miner's estate, and there could be a claim against the miner's estate for the overpayment of benefits." Counsel also asserted that Illinois law did not require probate of the miner's estate such that the grandson "did not have letters of administration to submit to the administrative law judge."
Nonetheless, the judge subsequently "advised claimant's counsel to provide her with a copy of the death certificate and the letters of administration that authorized the miner's grandson to represent the miner's estate." In response, the administrative law judge noted receipt of the death certificate, obituary, and "a letter from a law firm that referenced a trust agreement that was not in the record." In particular, the law firm's letter provided that there "was no probate administration of the miner's estate because all of the miner's assets at the time of his death were held by his grandson as the trustee of a revocable living trust agreement." The Board noted that "[a]lthough the administrative law judge determined that this documentation was lacking in some respects regarding the authority of the miner's grandson to represent the miner's estate, she found that the miner's estate would remain the named party in the case." The Board upheld the judge's finding and concluded that, under 20 C.F.R. § 725.360, "it was not unreasonable for the administrative law judge to find that the miner's estate qualified as a party to the claim . . .."
[ death of the miner, establishing a party qualified to pursue claim ]
[ENDNOTES]
1 Citations are generally omitted with the exception of particularly noteworthy or recent decisions.
2 The Court noted that fixed platforms are treated as islands for almost all purposes, and that it treats the Saturday Island facility as "land" (n.17).
3 The Court noted in dicta that the storage of fully processed oil in the storage tanks on the platform can "quite plausibly" be understood to be part of the loading process (n.23), and that "it is at least arguable that a facility integral to the conversion of material into cargo suitable for maritime transport, such as the platform's separators, has a role in loading a vessel" (n.24).
4 The Court noted that if it were to address this issue de novo, it might have found no situs. Instead, the Court applied the "substantial evidence" standard of review, as it was "bound" by its own "somewhat quizzical" holding in Winchester that the determination of suits by an ALJ is one of fact (n.10).
5 Holding that a room used to store gear located blocks away from the nearest gate to a terminal and outside the property line of the port constituted a covered situs.
6 Notably, Claimant's counsel did not present evidence that the requested rate was the rate that she normally charged clients for workers' compensation cases.
7 Romero received no-fault worker's compensation benefits under the LHWCA fro his employer.
