Recent Fifth and other Circuit Decisions

For a more detailed review of a particular case's holding and facts, please click on any of the citations highlighted below.

• The Fifth Circuit Limits the Dutra’s Expansive Definition of “Vessel” For Jones Act Seamen Set Forth In the
  Supreme Court’s Dutra Decision.  Rocky H. Cain v. Transocean Offshore USA, Inc., et. al., (requires Adobe Acrobat Reader)
   

• The Fifth Circuit recently ruled that prompt remedial action may protect the company even if it does not immediate stop alleged harassment. Kreamer v. Henry's Towing (requires Adobe Acrobat Reader)
  
  
• Fifth Circuit holds Jones Act seaman not entitled to recover non-pecuniary damages from non-employer third parties. Scarborough v. N. Assurance Co., et al. (requires Adobe Acrobat Reader)
  
  
• The Fifth Circuit Court of Appeals holds that a platform owner can rely on Chapter 95 of the Texas Civil Practice & Remedies Code for the first time in its post-trial motion as to a plaintiff’s claims for premises liability. Cause No. 04-40230 (5th Cir. Feb. 9, 2005). Arsement v. Spinnaker Exploration Co., L.L.C., et. al.
  
  
• Fifth Circuit holds that courts must look at subject matter jurisdiction before addressing the merits of forum non conveniens. Beatriz Dominguez-Cota et al. v. Cooper Tire & Rubber Co., ____ F.3d ____, No. 03-60802 (5th Cir, January 7, 2005). Beatriz Dominguez-Cota et al. v. Cooper Tire & Rubber Co.
  
  
• The facts—that Plaintiff had sustained back injuries prior to completing Defendant’s medical questionnaire, that Plaintiff knew at the time he completed the questionnaire that these injuries constituted “back trouble” in the eyes of a past employer (that terminated him for lying about his prior back problems), and that Plaintiff habitually lied about his prior injuries—were established by Defendant at trial. The jury nonetheless found that Plaintiff had not intended to conceal his medical condition from Defendant. On appeal, the Fifth Circuit reversed the district court and found that the jury erred in finding that it was unreasonable for Defendant to withhold benefits, because Defendant’s refusal was based on a reasonable defense: that Plaintiff had willfully concealed his medical condition. Brown v. Parker Drilling Offshore Corp., No. 03-30782, ___ F.3d ___ (5th Cir. Jan. 6, 2002).
  
  
• In a bill of lading between a U.S. shipper and a U.S. carrier, the Spanish Hague-Visby Rules will be applied for determination of the carrier’s liability. Foster Wheeler Energy Corp. v. AN NING JIANG MV, Fifth Circuit No. 03-30038 (Sept. 13, 2004).
  
  
• Award of attorneys’ fees to Plaintiff for filing motion to remand not proper when Defendant had objectively reasonable grounds for believing that the removal was proper. Hornbuckle v. State Farm Lloyds, Fifth Circuit No. 03-10938 (5th Cir. Sept. 10, 2004).
  
  
• The Fifth Circuit enforces an arbitration agreement contained in a seaman’s employment contract pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. C.A. No. 03-20226 (5th Cir. 2004)
  
  
• The United States Court of Appeals for the Fifth Circuit has held that the general maritime law "cautiously" recognizes the tort of negligent misrepresentation as applied to classification societies. Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., No. 02-30842 (5th Cir. Oct. 8, 2003).
  
  
• The Fifth Circuit determines that a crane operator injured while attempting to moor a derrick barge to a cargo vessel is a Jones Act seaman. Stevens Shipping & Terminal Co. v. Japan Rainbow, II M.V.Stevens Shipping & Terminal Co. v. Japan Rainbow, II . 334 F.3d 439, 2003 AMC 1647 (5th Cir. 2003)
  
  
• A sovereign government cannot be forced to arbitrate a dispute between a production company, wholly owned by the sovereign government, and an Argentine corporation when the government was neither defined as a party to the agreement nor signed the agreement unless the sovereign government was the alter ego of the production company. Bridas S.A.P.I.C. v. Government of Turkmenistan, et al., ___ F.3d ___, 2003 WL 22077651, No. 02-20929 (5th Cir. Sept. 9, 2003).
  
  
• The Fifth Circuit Court of Appeals holds that state court claims for loss or damages to goods arising during interstate transportation by a common carrier are pre-empted by the Carmack Amendment.Hoskins v. Bekins Van Lines, ___ F.3d ___, No. 01-21236, September 10, 2003 . Hoskins v. Bekins Van Linese Endeavor Marine, Inc., 234 F. 3d 287 (5th Cir. 2000).
  
  
• The First Circuit Court of Appeals holds that a marina owner claiming damages under the Oil Pollution Act is entitled to a jury trial but not punitive damages. South Port Marine, L.L.C. v. Gulf Oil Ltd., 234 F. 3d 58 (1st Cir. 2000).
  
  
• As a matter of first impression, the Fifth Circuit determines whether the Harter Act is compulsorily applicable to the inland portion of carriage pursuant to a through bill of lading. Mannesman Demag Corporation v. M.V. Concert Express, 225 F. 3d 587 (5th Cir. 2000).
  
  
• In this case, the Seventh Circuit holds that a certificate of insurance does not amend the coverage provided in a comprehensive general liability policy, even when specific exclusions are not referenced on the certificate. T.H.E. Insurance Co. v. City of Alton, 227 F.3d 802 (7th Cir. 2000).
  
  
• The Seventh Circuit holds that a Total Pollution Exclusion contained in a commercial general liability policy excludes coverage for injuries caused by the ingestion of lead in paint from the walls of a housing authority dwelling. Auto Owners Ins. Co. v. City of Tampa Housing Auth., 231 F.3d 1299 (7th Cir. 2000)
  
  
• * The Fifth Circuit Court of Appeals affirms an award of damages to a barge owner, which had been engaged to transport reconstituted fuel oil, for alleged contamination and loss of use of its barge. Canal Barge Company, Inc. v. Torco Oil Company, 220 F.3d 370 (5th Cir. 2000).
  
  
• The Fifth Circuit, interpreting the Limitation of Liability Act and the Administrative Procedures Act, holds that U.S. Coast Guard administrative proceedings to adjudicate charges arising from the enforcement of its drug and alcohol testing regulations are exempt from exoneration or limitation proceedings under the Limitation of Liability Act. In re: In the Matter of the Complaint of Transporter Marine, Inc., 217 F 3d. 335 (5th Cir. 2000)<
  
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