DECEMBER 2014 / $4

EARN MCLE CREDIT

THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

Los Angeles lawyers Kevin Boyle (left)

and Robert Glassman evaluate what effect

Purton v. Marriott International, Inc., may

have on respondeat superior litigation

page 18

PLUS

Legal ResearchTechniquespage 27

Taming theGray Marketpage 10

Proper JudicialNoticepage 15

LACBA Counselfor Justicepage 44

The Party’s Over

SeafarerProtection

page 34

SeafarerProtection

page 34

Legal ResearchTechniquespage 27

18 The Party’s Over BY KEVIN BOYLE AND ROBERT GLASSMAN

In the wake of Purton v. Marriott International, Inc., employers sponsoring holidayparties should consider minimizing the risk of respondeat superior liability

27 Re-SearchingBY RYAN METHENY

Although it may seem counterintuitive, a good place to begin legal research isoften a secondary print sourcePlus: Earn MCLE credit. MCLE Test No. 241 appears on page 29.

34 Sea WorthyBY CARLOS FELIPE LLINÁS NEGRET

The Jones Act, the Seaman’s Wage Act, and the duty of maintenance and careguard the rights of seafarers

F EATU RE S

Los Angeles Lawyer

the magazine of

the Los Angeles County

Bar Association

December 2014

Volume 37, No. 9

COVER PHOTOGRAPH:TOM KELLER

Cover location: Montage Beverly Hills

12.14

8 On DirectMike FeuerINTERVIEW BY DEBORAH KELLY

9 Barristers TipsEstate planning guidance in a marital dissolutionBY ZACHARY S. DRESBEN AND

JESSICA GHIRARDO GORDON

10 Practice TipsStrategies for combating the gray market problemBY JULIA KORNILOVA AND KUMAR MAHESWARI

DE PARTM E NTS

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly,except for a combined issue in July/August, by the Los AngelesCounty Bar Association, 1055 West 7th Street, Suite 2700,Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paidat Los Angeles, CA and additional mailing offices. Annual sub-scription price of $14 included in the Association membershipdues. Nonmember subscriptions: $28 annually; single copyprice: $4 plus handling. Address changes must be submittedsix weeks in advance of next issue date. POSTMASTER: AddressService Requested. Send address changes to Los AngelesLawyer, P. O. Box 55020, Los Angeles CA 90055.

15 Practice TipsUnderstanding Rule 201 of the FederalRules of Evidence BY LUCAS A. MESSENGER

44 Closing ArgumentIntroducing the LACBA Counsel for JusticeBY ANDRES C. HURWITZ

43 CLE Preview

42 Index to Advertisers

34 Los Angeles Lawyer December 2014

THE MARITIME INDUSTRY employs inexcess of 1.2 million crew members whoassist with the transportation of approxi-mately 90 percent of global trade.1 The workof these men and women is the main enginethat drives economic activity in ports acrossthe United States; however, the work of aseafarer2 has always been difficult and ex-tremely dangerous, requiring long stays work-ing away from home and exposure to theperils of the sea. Under conditions that havebeen described as a jail with the chance ofdrowning,3 seafarers are vulnerable to ex-ploitation and abuse, nonpayment of wages,noncompliance with contracts, exposure topoor diet and living conditions, and evenabandonment at foreign ports.4 Thus, fromthe earliest times, special protections havebeen enacted relating to seafarers, with theseprotections in the United States and Britaingoing back over 200 years.5

In Isbrandtsen Company v. Johnson, theU.S. Supreme Court explained why our his-toric national policy, both legislative andjudicial, has made seafarers a protected classfor over two centuries:

Whenever congressional legislation inaid of seamen has been consideredsince 1872, this Court has emphasizedthat such legislation is largely remedialand calls for liberal interpretation infavor of the seamen….Our historicnational policy, both legislative andjudicial, points the other way (fromburdening seamen). Congress has gen-erally sought to safeguard seamen’srights. The maritime law, by inveteratetradition has made the ordinary sea-farer a member of a favored class. Heis a “ward of the admiralty,” often ig-norant and helpless, and so in need ofprotection against himself as well as

others….The ancient characterizationof seamen as “wards of admiralty” iseven more accurate now than it wasformerly.6

Since the foundation of the republic, there-fore, “[t]he policy of Congress, as evidencedby its legislation, has been to deal with [sea-men] as a favored class.”7 In 1790, the FirstCongress enacted laws to prevent shipown-ers from indiscriminately withholding a sea-farer’s wages.8 These laws were subsequentlystrengthened in scope for the benefit of sea-farers in amendments passed in 1872, 1898,and 1915.9 Congress also enacted the Mer-chant Marine Act, also known as the JonesAct,10 in 1920 to give seafarers a cause of

Carlos Felipe Llinás Negret is a maritime attorneywith Lipcon, Margulies, Alsina & Winkleman, P.A.,where his practice focuses on complex commercialvessel litigation.

SeaWORTHY

To protect seafarers, Congress and the federal courts have created a strong set of common law rights and privileges

by Carlos Felipe Llinás Negret

MCH

AEL

CA

LLO

WA

Y

action for negligence against employers andshipowners who fail to provide a safe workenvironment to their crewmembers.

From the beginning, federal courts, actingsimilarly to Congress, have remained guardiansof seafarers.11 The Fifth Circuit explained inCastillo v. Spiliada Maritime Corporation:“We are convinced that federal courts mustremain vigilant in protecting the rights ofseamen, whether foreign or domestic, in theirrelationship with their employer. This pro-tection comports with our nation’s long his-tory of concern and solicitude for seamenwith employment disputes.”12

In conjunction with their historic role,federal courts have produced a rich body ofcommon law rights and privileges specifi-cally applicable to seafarers under the gen-eral maritime law of the United States. As theSupreme Court has stated, “‘Drawn fromstate and federal sources, the general mar-itime law is an amalgam of traditional com-mon law rules, modifications of those rules,and newly created rules.’”13 This includes anemployer’s duty to pay maintenance andcure, as well as the shipowner’s duty to pro-vide a seaworthy vessel.

Maintenance and cure is the policy ofproviding a seafarer who is disabled by injuryor illness while in the service of the ship withmedical care and treatment and maintenanceduring convalescence.14 Under the doctrine ofunseaworthiness, the vessel, the owner, andthe vessel’s operator are liable for injuriesreceived by a seafarer in consequence of theunseaworthiness of the ship or a failure tosupply and keep in order the proper appli-ances appurtenant to the ship.15

A maritime worker who suffers injurymust assert and provide “seaman” status inorder to secure special remedies for negli-gence, unseaworthiness, and maintenanceand cure.16 Anyone who works at sea in theservice of a ship, contributing to the functionof the vessel or to the accomplishment of itsmission, qualifies as a seaman. The definitionthus comprises not just the officers andcrewmembers who aid in the navigation of thevessel but also any other crewmembers onboard, including, but is not limited to, cooks,waiters, security personnel, housekeepers,life guards, singers, nurses, dancers, and cus-tomer service representatives.

The leading cases in this regard are Mc-Dermott International, Inc. v. Wilander17

and Chandris, Inc. v. Latsis.18 Under Wilanderand Chandris the Supreme Court establisheda specific test of seaman status. First, anemployee’s duties must contribute to the func-tion of a vessel or to the accomplishment ofits mission.19 Second, to qualify as a seaman,an employee must have a connection to avessel in navigation (or to an identifiablegroup of such vessels) that is substantial in

terms of both duration and nature.20 In otherwords, the nature of the work must be sub-stantially connected to sea-based (as opposedto land-based) work.21 What is a substantialconnection? In Chandris, the Supreme Courtcited with approval the following rule ofthumb: “[F]or the ordinary case…a workerwho spends less than 30 percent of his timein the service of a vessel in navigation shouldnot qualify as a seaman.”22

The Jones Act

The Jones Act, enacted in 1920 by Congressto grant qualified seafarers—foreign anddomestic—a cause of action against employ-ers for negligence, provides:

A seaman injured in the course ofemployment or, if the seaman dies fromthe injury, the personal representativeof the seaman may elect to bring a civilaction at law, with the right of a trialby jury, against the employer. Laws ofthe United States regulating recoveryfor personal injury to, or death of, arailway employee apply to an actionunder this section.23

Thus, the Jones Act grants seafarers whosuffer personal injury in the course of theiremployment the right to seek damages in a jurytrial against their employers in the same man-ner as railroad employees may under theFederal Employers Liability Act (FELA).24 Justas provided under FELA, the employer underthe Jones Act is liable in damages for injury ordeath resulting in whole or in part from thenegligence of its officers, agents, or employ-ees.25 This means that if a qualified seafarer isinjured by the negligent act of a fellow crewmember or the captain, the employer is vicar-iously liable.26 Further, under the Jones Act, theemployer has a fundamental duty to providea seafarer with a reasonably safe place towork.27 The duty to provide a reasonably safeplace to work is absolute and nondelegable.28

The Jones Act also benefits from FELA’s“featherweight” standard of causation. Re-cently reaffirmed by the Supreme Court in thematter of CSX Transportation, Inc. v.McBride, under the featherweight standard,employers are liable for employee injuriesresulting from the negligence “no matter howsmall” of the carrier.29 Under this standard,if negligence by the carrier is proved andshown to have played even the slightest partin producing the injury, the carrier is liable fordamages whether or not the injury was prob-able or foreseeable. That the injury may beattributable to other causes is not relevant.30

The Jones Act also provides for a claim forthe failure to treat medical claims. Theshipowner or employer has a duty to take allreasonable steps to provide a seafarer whoqualifies as a seaman with prompt, proper,and adequate medical care.31 A seafarer’s

cause of action for “failure to provide prompt,adequate or proper medical treatment” is anegligence claim against the employer.32

Under these principles, a shipowner is vicar-iously liable for the negligence of a physician(whether a shipboard or shore side doctor)selected by it to treat an injured or sick qual-ified seafarer.33

A Jones Act lawsuit may be properly filedonly against the seafarer’s employer.34

Although the employer and the shipowner areusually the same, in some cases a seafarer maybe employed by a company other than theshipowner. In such a case, the shipowner isliable in rem.35 Resolving who constitutesthe proper Jones Act employer is a mixedquestion of law and fact, within the provinceof the jury upon instructions by the trialcourt.36 The questions of fact include ascer-taining 1) who had the power to engage theseafarer, 2) who determined the wage to bepaid, 3) who had the power of dismissal,and 4) who had the right to control the sea-farer’s on-the-job conduct.37 Thus, a seafarermay have “more than one Jones Act employer,and under the borrowed servant doctrine aseafarer may sue a number of employers,forcing these to argue their culpability to thejury.”38 In that respect, the borrowed ser-vant doctrine is the functional rule that placesthe risk of a worker’s injury on his or heractual rather than nominal employer.39 Therationale for the rule is to prevent the use ofnominal employers (entities that exist only onpaper) to hide or shield the workers’ actualemployer. Otherwise, real employers couldsimply form shell companies with no assetsas fronts, leaving the seafarer without theability to recover.

The Seaman’s Wage Act

To shield qualified seafarers against unfairconduct by shipowners, Congress enactedspecial wage protection statutes and did notlimit this statutory coverage to Americanseafarers who qualify as seamen; rather,Congress extended protection to all quali-fied seafarers who serve on a foreign vesselwhen located in a U.S. harbor.40 Two relevantportions of the Seaman’s Wage Act governwhen a shipowner must pay a seafarer’swages: “At the end of a voyage, the mastershall pay each seafarer the balance of wagesafter he or she is discharged, whichever is ear-lier.”41 If a shipowner withholds a seafarer’swages and lacks “sufficient cause” for with-holding them, “the master or owner shall payto the seafarer 2 days’ wages for each day pay-ment is delayed.”42 Under Section 10313(f)of the act, a qualified seafarer is entitled toreimbursement of all wages unlawfully with-held by the shipowner, and Section 10313(g)authorizes payment of additional penaltywages if the withholding is found to be

36 Los Angeles Lawyer December 2014

without sufficient cause.Once the seafarer establishes a wrongful

deprivation of his or her wages, the burdenof proof shifts to the shipowner to demon-strate that its failure to pay the wages was jus-tified.43 If the defendant shipowner fails tomeet its burden to show that the withholdingwas made with sufficient cause, “the un-adorned language of the statute dictates thatthe shipowner ‘shall pay to the seaman’ thesums specific for each and every day duringwhich payment is delayed.”44

A withholding is without sufficient causewhen it is premised on bad faith, or a negligent,willful, unreasonable or arbitrary attitudeupon the master or shipowner in refusing topay earned wages.45 In the seminal statutorypenalty wages case, Griffin v. Oceanic Con-tractors, the Supreme Court explained thestatutory intent behind the penalties, statingthat “Congress has chosen to secure promptpayment of seamen wages through the use ofpotentially punitive sanctions designed to deternegligent or arbitrary delays in payment.”46

Applying this reasoning, the Supreme Courtordered a statutory penalty of $302,790.40, toan employer who had failed to pay $412.50 for4 years.47

The Duty to Provide Maintenance and Cure

In Flores v. Carnival Cruise Lines, the Elev-enth Circuit explained the maintenance andcure policy as follows:

The seaman’s action for maintenanceand cure may be seen as one designedto put the sailor in the same position hewould have been had he continued towork: the seamen receives a mainte-nance remedy because working seamennormally are housed and fed aboardship; he recovers payment for medicalexpenses in the amount necessary tobring him to maximum medical cure;and he receives an amount representinghis unearned wages for the duration ofhis voyage or contract period.48

“Maintenance” represents a per diem sub-sistence allowance designed to provide the sea-farer with compensation sufficient to cover hisor her food and lodging until the time of“maximum medical improvement.”49 It isintended to encompass the cost of food andlodging comparable to that received aboardthe vessel.50

“Cure” represents the cost of medical andnursing care during the seafarer’s affliction,again until the point of maximum medicalimprovement. This includes the cost of med-ical attention, including the services of physi-cians and nurses as well as the cost of hospi-talization, medicines, and medical apparatus.51

A shipowner’s obligation to provide cureto an injured seafarer is an implied term of a

maritime-employment contract and does notdepend on any determination of fault. Thus,an owner of a vessel is almost automaticallyliable for the cost of medical treatment whena seafarer in its employ is injured.52 In otherwords, a seafarer is entitled to maintenanceand cure even if the seafarer is unable toestablish that an injury was the result of anynegligence on the part of the employer or anunseaworthy condition existing on the vessel.Indeed, the cause of injury or sickness is irrel-

evant, and tort rules of contributory negli-gence, comparative fault, assumption of therisk and unseaworthiness do not apply.53

The shipowner’s obligation to pay for theseafarer’s maintenance and cure, however, isgenerally not indefinite. Instead, the seafareris entitled to receive maintenance and curefrom the date of departure from the vesseluntil the seafarer reaches the point of “max-imum possible cure” or “maximum medicalimprovement” under the circumstances—thepoint at which no further improvement in theseafarer’s medical condition is to be reason-ably expected from medical treatment.54

“Maximum medical improvement” is amedical determination, not a legal one. As amatter of procedure, therefore, the rule re-quires the shipowner to seek a written dec-laration stating that the seafarer has reachedthe point of maximum medical cure fromthe seafarer’s treating physicians. The oblig-ation usually ends when a qualified medicalopinion provides that maximum possiblecure has been effected.55

The duty of payment is imposed on the sea-farer’s employer.56 The determination of who

is the seafarer’s employer for the purpose ofclaiming maintenance and cure is the same asfor liability under the Jones Act.57 Therefore,even though the employer and the shipownerare usually the same, in cases in which the sea-farer is employed by a person or companyother than the shipowner, the ship is liable formedical costs in rem.

Additionally, the Supreme Court in At-lantic Sounding v. Townsend recently reaf-firmed a qualified seafarer’s right to an award

of punitive damages and attorney’s fees dueto a shipowner’s willful, callous, or arbitraryrefusal to provide maintenance and cure.58

The Duty to Provide a Seaworthy Vessel

Under the maritime doctrine of seaworthinessthe vessel, its owner, and the vessel’s opera-tor are liable for injuries received by a seafarerin consequence of the unseaworthiness ofthe ship, or a failure to supply and keep inorder the proper appliances appurtenant tothe ship.59 The duty of seaworthiness isabsolute and independent of negligence.Indeed, unseaworthiness is fundamentally adefective condition, not the result of an iso-lated negligent act.60

The test for an unseaworthy condition iswhether the vessel, equipment, or appurte-nances were reasonably fit for their intendeduse.61 In order to state a cause of action forunseaworthiness, the seafarer must allege hisor her injury was caused by a defective con-dition of the ship, its equipment, or appur-tenances. This description extends to the hullof the ship, the ship’s cargo handling machin-ery, hand tools aboard the ship, ropes and

Los Angeles Lawyer December 2014 37

tackle, and all kinds of equipment eitherbelonging to the ship or brought on board by stevedores.62 It also includes the ships’stores—provisions of food, water, furniture,apparel—on board for the crew’s consump-tion or use, as well as the materials in whichthe ships’ stores are wrapped.63

Members of the crew are also warrantedas seaworthy, and there may be liability of theshipowner for crew assaults, brutality, negli-gent orders, or utilizing an understaffed or ill-trained crew.64 Thus, a vessel is unseaworthyif facts show that a crew member has a sav-age and vicious nature, a propensity to evilconduct, or a wicked disposition.65

All in all, while seaworthiness is a relativeterm, the general rule is that the vessel mustbe staunch, strong, well-equipped for theintended voyage, and manned by a competentand skillful master of sound judgment and dis-cretion.66

Traditionally, the doctrine of seaworthi-ness only protected maritime workers whocould claim seaman status under the law.Thus, persons who came aboard a vessel,such as passengers and visitors, could notbenefit from the doctrine because they werenot “seamen.”67 In Seas Shipping Co. v.Sieracki,68 the Supreme Court expanded thescope of the class to whom the duty of sea-worthiness was owed. In Sieracki, the Court

accorded a longshoreman not directly em-ployed by the vessel seaman status because hewas facing the hazards of seamen and per-forming a function essential to maritime ser-vice aboard ship.

In 1972 Congress amended the Long-shore and Harbor Workers’ CompensationAct (Longshore Act),69 prohibiting harborworkers from asserting causes of actionunder Sieracki for unseaworthiness. Despitethe statutory prohibition, however, in Apa-racio v. Swan Lake70 the Fifth Circuit heldthat persons excluded from the LongshoreAct (because they are beyond its territoriallimits, federal employees, or other personsotherwise not covered) may qualify as sea-men under Sieracki for the warranty of sea-worthiness.

In simple terms, the Sierkacki seamandoctrine protects workers in limbo: thosewho do not fall under the traditional defini-tion of seaman—a worker who spends morethan 30 percent of his or her time in the ser-vice of a vessel in navigation—and who arealso excluded from the Longshore Act.71

Seafarer’s Wrongful Death and Survival

If a seafarer dies in the service of the vessel,his estate and survivors can bring a claimfor wrongful death under the Jones Act.72 Theappropriate party to bring suit for wrongful

death under the Jones Act is the personalrepresentative of the deceased. The benefi-ciaries are the surviving spouse and chil-dren.73 Damages for wrongful death under theJones Act are limited to pecuniary losses. Asa result, the decedent’s beneficiaries cannotrecover damages for loss of society and con-sortium.74 Instead, their damages are limitedto financial support and contribution, mon-etary value of services around the home,funeral expenses, lost past and future wages,and predeath medical expenses. Survivalrecovery is also allowed under the Jones Act.This gives the personal representative theopportunity to seek damages for the dece-dent’s conscious pain and suffering beforedeath.75

The hazards of working and living on aship have not changed much in the last cen-tury. Seafarers still work 6- to 10-month con-tracts, isolated and far away from the scrutinyof governments and regulators. In Aguilar v.Standard Oil Company, the Supreme Courteloquently described the unique nature ofmaritime work:

From the earliest times, maritimenations have recognized that uniquehazards emphasized by unusual tenureand control, attend the work of sea-men. The physical risks created bynatural elements and the limitations ofhuman adaptability to work at seaenlarge the narrower and more strictlyoccupational hazards of sailing andoperating vessels. And the restrictionswhich accompany living aboard shipfor long periods at a time combinewith the constant shuttling betweenunfamiliar ports to deprive the sea-farer of the comforts and opportunitiesfor leisure, essential for living andworking that accompany most landoccupations. Furthermore, the seafar-er’s unusual subjection to authorityadds the weight of what would beinvoluntary servitude for others tothese extraordinary hazards and lim-itations of ship life.76

The laws enacted by Congress and thegeneral maritime law doctrines developed bythe federal courts—maintenance and cureand unseaworthiness—seek to amelioratethese problems with the aim of creating fairemployment practices and safer working con-ditions for seafarers. n

1 See International Labour Standards on Seafarers, In-ternational Labour Organization. http://www.ilo.org.2 In general, the gender-neutral term “seafarer” has beenused in the narrative instead of the legal term “seaman,”which is found in the statutes and much of the case lawcited herein. However, since the establishment of sea-man status, as defined in law, is an essential prerequi-site to the legal rights under discussion, the term isapplied when application of the legal theory is required.

38 Los Angeles Lawyer December 2014