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Maritime Update: A Rare Dismissal by 6th Circuit of Jones Act and GML Unseaworthiness Claim

Bill Schwartz - 

Synopsis:

In a rare case, the 6th Circuit Court of Appeals affirmed the dismissal of both the Jones Act negligence and general maritime law unseaworthiness claims of a seaman.

In sum, NCL America LLC (“NCLA”) hired Marvin Allen to work on its cruise ship, Pride of America. On Allen’s first day of work, he twice struck his knee on the leg of a steel table. His injuries were severe and resulted in a total knee replacement. Allen sued NCLA and alleged, in a series of amended complaints, violations of the Jones Act, general maritime law, and federal admiralty law. The district court dismissed Allen’s Jones Act and general maritime law claims three times. Allen opposed the first two motions to dismiss those claims, but not the third. On appeal, Allen argued that the district court erred by dismissing his Jones Act and general maritime law claims. The Court of Appeal disagreed and affirmed the dismissal.

Facts:

NCLA hired Allen, a fifty-nine-year-old retired corrections officer, to work on its cruise ship, the M/S Pride of America. Allen alleged that he was initially hired to work in a “Utility Hotel” position, but that NCLA assigned him without advance notice to work in a “Utility Galley” position. This utility galley position, Allen claimed, required “considerably more physical capacity and/or exertion” than a utility hotel position would require. On Allen’s first day of work, he carried a heavy tub of silverware from the dishwasher to “an elevated steel transfer table.” While lifting the tub onto the table, which he says was at or above his chest level, Allen struck his left knee on the leg of the table. Later, while lifting a stack of plates onto the same table, Allen struck his left knee on the table leg a second time. Allen alleged that these injuries to his knee required a total knee replacement. He further alleged that he suffered “a pulmonary embolism and post traumatic heel burn” as a result of complications from the knee replacement. All told, Allen alleged he incurred large medical bills, faces ongoing medical costs, has suffered and will continue to suffer “great physical pain and mental anguish,” has “been rendered disabled,” has suffered lost earnings and earning capacity, and has lost the ability to work.

The holdings of the District trial court and the Court of Appeals:

Jones Act negligence:

Allen alleged that NCLA was negligent under the Jones Act. The Jones Act “authorizes seamen to maintain negligence actions for personal injury suffered in the course of employment.” Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 907 (6th Cir. 2006). “Proof of negligence (duty and breach) is essential to recovery under the Jones Act.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001). The Jones Act requires ship owners to provide safe workplaces for their seamen. Churchwell, 444 F.3d at 907. Ship owners breach this duty if they neglect to cure or eliminate dangers about which they or their agents knew or should have known. Id. “It is a fundamental principle that, under the Jones Act, an employer ‘must have notice and the opportunity to correct an unsafe condition before liability will attach.’” Perkins, 246 F.3d at 599 (quoting Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir. 1993) ). “‘There must be some evidence from which the trier of fact can infer that the owner either knew, or in the exercise of due care, should have known of the unsafe condition.’” Id. (quoting Havens, 996 F.2d at 218). “Whether an employer is negligent is determined under the ‘ordinary prudence’ standard normally applicable in negligence cases.” Id. at 598.

In his Amended Complaints, Allen alleged a paucity of facts and a plethora of conclusory allegations and legal conclusions masquerading as allegations of fact. His factual allegations, hidden amongst two pages of the latter, were that he was hired for one position, but that upon arrival in Hawaii, NCLA assigned him to a more demanding position and that on his first day in this new position, he struck his knee twice on the leg of a steel transfer table in the galley of the ship while lifting items onto the table.

To survive a motion to dismiss, Allen was required to provide direct or inferential factual allegations respecting all material elements of his Jones Act negligence claim. See Mezibov, 411 F.3d at 716. The district court dismissed Count I because “without some factual basis for the allegation that an elevated table in a galley was defective or that [NCLA] had notice of its dangers, [Allen]’s claim for Jones Act negligence fails as a matter of law.” Allen had “not asserted facts that any instrumentality he was required to use was defective nor [had] he asserted he was instructed to perform his duties in an unsafe manner.” Finally, the district court noted that if it accepted Allen’s conclusory allegation that NCLA “had constructive notice of the dangerous condition,” this “would render the notice requirement meaningless.”

The appellate court agreed with the district court. “Manifestly, a presumption of negligence does not arise upon mere evidence of an injury sustained.” Cincinnati, N.O. & T.P. Ry. Co. v. South Fork Coal Co., 139 F. 528, 533 (6th Cir. 1905). Even a lengthy recitation of conclusory allegations and legal conclusions presented as facts will not defeat a motion to dismiss. See id. As the district court noted, Allen alleged no facts showing what was dangerous about a steel table in a ship galley, elevated or otherwise. Allen did not allege that any other seaman had been injured by lifting items onto the table; neither did he allege any facts to support his conclusory allegation that NCLA negligently failed to discover and correct a “latent and/or patent defect[ ] and/or dangerous condition[ ]” relating to the steel table. Because Allen did not allege facts necessary to support his Jones Act negligence claim, the appeals court held the district court did not err by dismissing it.

Unseaworthiness:

Allen alleged that NCLA violated the seaworthiness doctrine under general maritime law. “Under the seaworthiness doctrine, there is an absolute duty to maintain a seaworthy ship, the breach of which imposes liability without fault.” Perkins, 246 F.3d at 602. “A ship[ ]owner has an obligation to ‘furnish a vessel and appurtenances reasonably fit for their intended use.’” Id. (quoting Havens, 996 F.2d at 217). But, “a vessel need not be ‘free from all possibility of mishap, for the seaworthiness of a ship is a relative concept, dependent in each instance upon the circumstances.’” Id. (quoting Brown v. Dravo Corp., 258 F.2d 704, 706 (3d Cir. 1958)). Ships may be unseaworthy if they have defective or missing gear, or have an unfit or understaffed crew. See Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 383 (6th Cir. 2008). Ships may also be unseaworthy where the crew is instructed to use unsafe work methods. Id.

Allen’s unseaworthiness claim relied on the same factual allegations as those on which his Jones Act negligence claim relied. The district court dismissed Allen’s unseaworthiness claim because Allen failed to allege “plausible facts demonstrating defective equipment, inadequate staffing[,] or unsafe instruction.” Once again, the appeals court agreed and affirmed the district court.

To survive a motion to dismiss, Allen was required to provide direct or inferential factual allegations respecting all material elements of his unseaworthiness claim. See Mezibov, 411 F.3d at 716. Allen added no new factual allegations for this claim. Instead, he reiterated the same conclusory allegations and legal conclusions masquerading as factual conclusions on which he relied for his Jones Act negligence claim, along with two additional paragraphs of conclusory allegations and legal conclusions cast as factual conclusions. And once again, these may not defeat a motion to dismiss. See id. As the district court noted, Allen alleged no facts which demonstrated that the steel table was defective or that the Pride of America’s crew was unfit or understaffed. In support of his unsafe work methods theory, Allen alleged that he “was required to carry a large, hard-to-handle[,] and excessively heavy tub of silverware from the dishwasher and lift it onto an elevated steel transfer table, within strict and unrealistic time constraints.” As the district court noted, “[a]ll jobs have time constraints,” but Allen had failed to allege any facts demonstrating “why or how his time constraints were unreasonable.” And although he alleged that the tub of silverware was heavy and hard-to-handle, “he does not say he could not lift it without assistance nor does he allege he required or asked for assistance to lift the tub.” Finally, although Taylor requires that an unseaworthiness claim must allege that the seaman was “instructed” to use unsafe work methods, see 517 F.3d at 383, Allen never alleged that he was instructed to lift in an unsafe way. In fact, Allen says that “he was given no training” for his galley duties at all. Because Allen did not allege facts necessary to support his unseaworthiness claim, the district court did not err by dismissing it.

The district court was found to have given Allen ample opportunity to cure the factual insufficiency of his complaints. It twice dismissed Allen’s Jones Act negligence and unseaworthiness claims for failing to state a claim, but twice allowed Allen to file amended complaints with sufficient facts to support his claims. Allen’s first attempt to add additional facts fell short, and he did not even attempt to add additional facts the second time. Because Allen failed to provide sufficient facts to support his claims, despite ample opportunity to do so, the district court was found to have not erred by dismissing those claims and the 6th Circuit affirmed the judgment of the lower court.

The case can be found here.

If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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