Gibson v. Ocean Shipholdings, Inc.

Filing 47

ORDER granting 34 Motion for Summary Judgment. OSI is dismissed as a party from this litigation due to the PVA/SAA exclusivity provision, and all remaining claims against the United States are transferred to the Southern District of Alabama pursuant to the PVA venue rules. Signed by Judge Ivan L.R. Lemelle on 10/29/2015. (mmm) [Transferred from Louisiana Eastern on 10/30/2015.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JONATHAN M. GIBSON

CIVIL ACTION

VERSUS

NO. 15-662

OCEAN SHIPHOLDINGS, INC.

SECTION "B"(5)
ORDER AND REASONS

I.

NATURE OF THE MOTION AND RELIEF SOUGHT
Before the Court is a Motion for Summary Judgment filed by

Defendants Ocean Ships, Inc. (hereinafter “OSI”) and the United
States of America (hereinafter “United States”) (Rec. Doc. No.
34),

which

Defendants

was

set

contend

for

that

submission
all

claims

on

October

against

OSI

14,

2015.

should

be

dismissed as OSI is not a proper party defendant and that all
claims

against

the

United

States

should

be

dismissed

for

improper venue. Plaintiff, Jonathan Gibson, filed an opposition
(Rec. Doc. No. 40) and the Defendants filed a Reply Memorandum
(Rec. Doc. No. 46).
IT IS ORDERED that Defendants’ Motion for Summary Judgment
is GRANTED.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of an injury suffered by Plaintiff
while employed on the USNS Watkins (hereinafter “Watkins”), a
ship owned by the United States, Department of Defense, Military
Sealift Command (hereinafter “MSC”) and operated by OSI as a
1

member of the MSC’s fleet. (Rec. Doc. Nos. 34-2 at 1; 40-3 at
1). At all pertinent times, Plaintiff was employed by OSI. (Rec.
Doc. Nos. 34-2 at 1; 40-3 at 1). Plaintiff alleges violations of
the

Jones

Act,

46

U.S.C.

App.

§688,

the

Public

Vessels

Act

(“PVA”), 46 U.S.C §31101, et seq, and, in the alternative, the
Suits in Admiralty Act (“SAA”), 46 U.S.C. §30901, et seq. (Rec.
Doc. Nos. 1 at 1; 20 at 2).
Plaintiff served on the Watkins as a chief steward and was
allegedly preparing meals for the ship’s crew when injured on or
about April 28, 2013. (Rec. Doc. No. 1 at 2). According to
Plaintiff,

steam

coils

in

the

galley

had

been

leaking

for

several weeks despite repeated requests for them to be repaired.
(Rec. Doc. No. 1 at 2). He contends that the steward department
could not “eliminate the water and constant moisture on deck.”
(Rec. Doc. No. 1 at 2). While performing his duties, Plaintiff
allegedly slipped due to the dampness of the floor, causing his
knee to give way. (Rec. Doc. No. 1 at 2). The fall resulted in
injuries to his leg, knee, and spine. (Rec. Doc. No. 1 at 2).
Plaintiff

alleges

that

the

injuries

led

to

a

total

knee

replacement and persistent back pain, which have prevented him
from returning to sea. (Rec. Doc. No. 1 at 2).
Plaintiff’s

original

complaint

alleged

that

Ocean

Shipholdings, Inc.’s negligence and the unseaworthiness of the
Watkins were the proximate causes of his accident in violation
2

of the Jones Act. (Rec. Doc. No. 1 at 1-2). However, this Court
permitted Plaintiff to amend his complaint to substitute Ocean
Ships,

Inc.

for

the

improperly-named

defendant,

Ocean

Shipholdings, Inc., and to add the United States as a defendant.
(Rec. Doc. No. 19). In Plaintiff’s amended complaint, he realleged his Jones Act claims against OSI and added new claims
under the PVA and the SAA against the United States. (Rec. Doc.
No. 20 at 2). Plaintiff seeks $7,000,000 in compensatory damages
for past and future medical expenses, past and future mental and
physical pain and suffering, past and future lost wages, loss of
enjoyment of life, and, importantly, maintenance and cure. (Rec.
Doc. No. 20 at 3).
III. THE PARTIES’ CONTENTIONS
In

the

Motion

for

Summary

Judgment,

Defendants

seek

dismissal of all claims on the grounds that: (1) OSI is not a
proper party defendant, because Plaintiff’s exclusive remedy is
against the United States; and (2) Plaintiff’s suit can only be
brought

against

the

United

States

in

the

district

where

Plaintiff resides, which is allegedly the Southern District of
Alabama. (Rec. Doc. No. 34-1 at 3).
In response, Plaintiff relies on two 1980s district court
opinions,

one

from

this

Court

and

another

from

the

Middle

District of Florida, to support his claim that OSI should not be
dismissed due to the presence of a maintenance and cure claim.
3

(Rec. Doc. No. 40 at 2-5). While seemingly conceding that the
PVA’s exclusivity provision bars all other claims against OSI,
Plaintiff requests that this Court refuse to dismiss OSI in
order to allow adjudication of his maintenance and cure claim.
(Rec. Doc. No. 40 at 4-5). Plaintiff contends that there is no
adequate remedy against the United States for his maintenance
and

cure

claims,

and

thus

dismissal

under

the

exclusivity

provision of the PVA would be improper. (Rec. Doc. No. 40 at 27). Regarding the venue issue, Plaintiff fails to present any
argument as to why venue is proper in the Eastern District of
Louisiana over his claims against the United States. (Rec. Doc.
No.

40

at

relating

to

6).
OSI,

Instead,

Plaintiff

which

not

are

focuses

at

issue,

on
and

venue
only

issues
makes

a

conclusory statement that “[i]f this Court finds venue in the
Eastern

District

of

Louisiana

is

not

appropriate,

then

alternatively Plaintiff requests that the case be transferred
and

not

dismissed.”

(Rec.

Doc.

No.

40

at

6).

Other

than

generally stating that it would be in the interest of justice,
Plaintiff provides no grounds as to why transfer rather than
dismissal is the proper remedy if venue in this district is
inappropriate. (Rec. Doc. No. 40 at 7).
IV.

LAW AND ANLAYSIS

Under Federal Rule of Civil Procedure 56, “summary judgment
is

proper

‘if

the

pleadings,
4

depositions,

answers

to

interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any, show that there is no genuine issue as to
any

material

fact

and

that

the

moving

party

is

entitled

to

judgment as a matter of law.’” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A genuine issue exists if the evidence
would

allow

a

reasonable

nonmoving party.
248

(1986).

pleadings,

jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

The

movant

depositions,

must

point

answers

to

to

“portions

of

‘the

interrogatories,

and

admissions on file, together with affidavits’ which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If and when the movant carries this
burden, the non-movant must then go beyond the pleadings and
other evidence to establish a genuine issue.

Matsushita Elec.

Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence,
thus shifting to the non-movant the burden of demonstrating by
competent

summary

judgment

proof

that

there

is

an

issue

of

material fact warranting trial.” Lindsey v. Sears Roebuck and
Co., 16 F.3d 616, 618 (5th Cir. 1994). Conclusory rebuttals of
the

pleadings

are

insufficient

to

avoid

summary

judgment.

Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d 1203, 1207
(5th Cir. 1993). Accordingly, the primary issues are whether,
5

based on the uncontested facts, Plaintiff can maintain his suit
against OSI at all, and whether Plaintiff can maintain his suit
against the United States in this district.
a. Application of the PVA and the SAA
Plaintiff filed suit against his private employer, OSI, and
the United States. Typically, when a seaman is injured due to
the alleged negligence of a private employer, the Jones Act and
general maritime law provide remedies. See Miles v. Apex Marine
Corp., 498 U.S. 19, 33 (1990). However, when the United States
owns the vessel and it is a non-merchant vessel—a public vessel—
the PVA also applies. The PVA waives the sovereign immunity of
the United States for “damages caused by a public vessel of the
United States” 46 U.S.C. §31102. In this case, it is undisputed
that the Watkins is a public vessel owned by the United States
and operated as part of the Military Sealift Command. (Rec. Doc.
Nos. 34-2 at 1; 40-3 at 1). See also River and Offshore Services
Co., Inc., v. United States, 651 F. Supp. 276, 277 (E.D.La.
1987)

(finding

operated
Sealift

by

a

Command

that

a

private
is

a

ship

owned

company
public

for

by

the

United

service

in

vessel

subject

States

the
to

but

Military

the

PVA).

Accordingly, the PVA subjects the United States to suit for the
injuries suffered by Gibson on the Watkins.
However, the PVA also incorporates the provisions of the
SAA, 46 U.S.C. §30901, et seq, except where inconsistent. 46
6

U.S.C. §31103; Walls Industries, Inc. v. United States, 958 F.2d
69, 70 (5th Cir. 1992). Section 30904 of the SAA provides that
[i]f a remedy is provided by this chapter, it shall be exclusive
of

any

other

action

arising

out

of

the

same

subject

matter

against the officer, employee, or agent of the United Stations .
. . whose act or omission gave rise to the claim.” 46 U.S.C.
§30904. It is uncontested that OSI was Gibson’s employer, and
thus it was OSI’s alleged omission that gives rise to the claim.
(Rec.

Doc.

Nos.

34-2

at

1;

40-3

at

1).

Therefore,

the

applicability of the exclusivity provision turns on whether OSI
qualifies

as

an

agent

of

the

United

States

and

whether

the

claims against both defendants arise out of the same subject
matter.
1. Whether OSI Qualifies as an Agent of the United States
In terms of the agency prong, Plaintiff’s Memorandum in
Opposition does not clearly indicate whether Plaintiff contests
the

agency

issue.

Plaintiff

states

that

he

“wholeheartedly

disagrees” with Defendant’s position that Plaintiff’s exclusive
remedy is against the United States under the SSA and PVA due to
the fact that OSI “was merely acting as an agent of the United
States.” (Rec. Doc. No. 40 at 2). This would seem to indicate
that Plaintiff contests the agency issue, but he goes on to cite
case

law

that

indicates

the

converse.

Plaintiff’s

primary

argument for retaining OSI in this litigation is that OSI is a
7

proper

party

pursuant

to

the

holdings

in

Shields

v.

United

States, 662 F. Supp. 187 (M.D. Fla. 1987), and Henderson v.
International Marine Carriers, 1990 A.M.C. 400 (E.D. La. 1989).
Yet, both cases found that the contract operator was an agent of
the United States, concluding that the PVA and SAA did not bar
suit against the contract operator/agent for other reasons. Even
if Plaintiff does contest agency, established law indicates that
OSI qualifies as an agent of the United States.
The

relevant

jurisprudence

provides

overwhelming

support

for the proposition that a contract operator of a public vessel
is, by definition, an agent for the purposes of the exclusivity
provision. See, e.g., River and Offshore Services Co., Inc. v.
United States, 651 F. Supp. 276, 278 (E.D. La. 1987) (“A long
line of cases establishes that a contract operator of a naval
vessel such as MTL is an agent of the United States for purposes
of SAA §745.”); Saffrhan v. Buck Steber, Inc., 433 F. Supp. 129,
133

(E.D.

La.

1977)

(noting

that

“when

a

public

vessel

is

operated by a private corporation under contract with the United
States, the private operator becomes the agent of the United
States.”). Moreover, the United States Court of Appeals for the
Fifth Circuit decided a

very

operator,

to

acting

subject

similar case, finding that the
the

government’s

overall

control

through the MSC, was an agent of the United States. Favorite v.
Marine Personnel and Provisioning, Inc., 955 F.2d 382, 388 (5th
8

Cir. 1992). Furthermore, Plaintiff has pointed to no evidence
that rebuts Defendant’s evidence of an agency relationship.
However,

one

opinion

from

this

Court

required

a

more

thorough inquiry into the parties’ contractual obligations to
determine

whether

the

United

States

had

any

degree

of

operational control. Levene v. United States, No. CIV. A. 020242, 2002 WL 1468018, at *2 (E.D. La. July 8, 2002). Such an
examination is unnecessary here, though, as it is undisputed
that the ship was a part of the fleet of the MSC and thus
subject

to

extensive

governmental

control.

Accordingly,

the

agency prong is met.
2. Whether All Claims Arise Out of the Same Subject Matter
In

Plaintiff’s

amended

complaint,

he

re-alleges

all

original allegations, causation, and damages against the United
States and OSI. (Rec. Doc. No. 20 at 1-2). As Plaintiff makes
the same allegations against both parties, both claims seemingly
arise out of the same subject matter. Yet, Plaintiff’s primary
argument for retaining OSI in this suit rests on the allegedly
unrelated subject matter of certain aspects of his claims for
which the SAA/PVA provide no remedy. (Rec. Doc. No. 40 at 2-4).
More specifically, Plaintiff points to the opinions in Shields
and Henderson for the proposition that a Plaintiff may still
bring suit against an agent of the United States, despite the
applicability

of

the

SAA’s

exclusivity
9

provision,

when

a

Plaintiff alleges arbitrary and willful denial of maintenance
and cure. See generally Shields v. United States, 662 F. Supp.
187

(M.D.

Carriers,

Fla.
1990

1987);

A.M.C.

Henderson

400

(E.D.

v.

La.

International

1989).

Whether

Marine
such

an

argument holds water has been disputed.
Shields
exception
“arbitrary

first

to

the

claims

articulated
SAA’s

the

exclusivity

handling

is

an

maintenance
provision,

entirely

and

finding

different

cure
that

subject

matter from the negligent conduct for which the SAA provides a
remedy” and “that the SAA was not designed to preclude recovery
for arbitrary claims handling.” Shields, 662 F. Supp. 187, 190
(M.D Fla. 1987). However, the United States Court of Appeals for
the Eleventh Circuit ultimately rejected the holding in Shields,
concluding that the SAA’s exclusivity provision precludes any
action for maintenance and cure against the contract operator
and imposes liability solely on the United States. Kasprik v.
United

States,

87

F.3d

462,

465-66

(11th

Cir.

1996).

After

acknowledging the reasonableness of the conclusion in Shields,
the court ultimately reached its holding by determining that the
willful denial of maintenance and cure arose out of the same
subject matter as the seaman’s entitlement to the maintenance
and cure, which arose from the initial injury.1 Id. at 466.

At the time of the decision, the SAA exclusivity provision used the language
“by reason of the same subject matter” rather than the “arising out of the
same subject matter” language adopted in 2006. Yet, courts have interpreted
1

10

While the Fifth Circuit has yet to speak on this issue, a
number of district court opinions in this Circuit have addressed
it. In March of 1989, in an opinion by Judge Duplantier, this
Court expressly rejected Shields:
We are not persuaded by the analysis of the
Shields court. While Plaintiff’s maintenance
and cure claims may not arise out of the
same act or omission as his claims for
negligence
and
unseaworthiness,
they
certainly are ‘by reason of the same subject
matter.’ We decline to give the PVA’s
exclusivity
provision
the
limited
construction adopted by the Shields court.
Farnsworth v. Sea-Land Service, Inc., civ. A. No. 87-5954, 1989
WK 20544, at *5 (E.D. La. March 7, 1989). However, later that
same year, this Court took a different route in an opinion by
Judge Feldman, which followed the path laid out in Shields to
hold

that

maintenance
provision.

claims
and

for

willful

and

cure

fall

outside

Henderson,

1990

A.M.C.

arbitrary
of
at

the
400.

failure

SAA’s
The

to

pay

exclusivity

Fifth

Circuit

affirmed both decisions without opinion.
Two more recent cases out of this Circuit have chosen to
follow Farnsworth. In both Stiward v. United States, No. Civ. A.
05-1926, 2005 WL 3543736, at *4-6 (E.D. La. Oct. 13, 2005), and
Pinckney v. Am. Overseas Marine Corp., LLC, No. 2:15-CV-30, 2015
WL 5123406, at *2-3 (S.D. Tex. Aug. 31, 2015), the courts found
the provision consistently despite the change. See Pinckney v. American
Overseas Marine Corp., LLC, No. 2:15-CV-30, 2015 WL 5123406, at *2 (S.D. Tex.
Aug. 31, 2015); Reece v. Keystone Shipping Co., No. C09-1610JLR, 2010 WL
2331068, at *3 (W.D. Wash. Mar. 25, 2010).

11

that

all

maintenance

and

cure

claims

against

the

contract

operator were barred by the SAA’s exclusivity provision. Both
relied heavily on three circuit court opinions that rejected the
Shields

approach:

Kasprik,

87

F.3d

at

465-66,

O’Connell

v.

Interocean Management Corp., 90 F.3d 82, 85 (3d Cir. 1996); and
Manuel v. Int’l Carriers, 50 F.3d 1252, 1260 (4th Cir. 1995).
Additionally, Pinckney cites related Fifth Circuit and Supreme
Court

opinions

parcel”

of

a

that
claim

find
for

punitive

damages

compensatory

to

be

damages

“part-and-

rather

than

a

separate subject matter. Pinckney, 2015 WL 5123406 at *3 (citing
Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995)
and Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009)).
These cases prove most persuasive.
The

weight

addressing

this

declaration
compensatory

of

the

issue,

regarding
damages,

in

the

existing
addition

circuit

court

to

Guevara

relationship

indicate

that

the

the

between
Fifth

opinions
court’s

punitive
Circuit

and

would

likely deem all maintenance and cure claims within the scope of
the SAA’s exclusivity provision. Accordingly, all claims against
OSI are dismissed as the PVA/SAA exclusivity provision does not
permit Plaintiff to retain his claims against OSI.
b. Proper Venue under the PVA
While Plaintiff is permitted to maintain his action against
the United States, the PVA and SAA both contain specific venue
12

provisions that limit where Plaintiff may pursue his claims. 46
U.S.C.
amended

§31104;

46

complaint,

U.S.C.
he

§30906.

asserts

his

According
claims

to

against

Plaintiff’s
the

United

States primarily under the PVA. (Rec. Doc. No. 20 at 2). Only in
the alternative does he seek relief under the SAA. (Rec. Doc.
No. 20 at 2). Thus, the venue provisions of the PVA apply.2 Under
the PVA, venue is proper “in the district in which the vessel or
cargo is found within the United States.” 46 U.S.C. §31104(a).
“The district where the vessel is found is the district in which
the vessel is physically located at the time the complaint is
filed.” Wade v. Bordelon Marine, Inc., 770 F. Supp. 2d 822, 826
(E.D. La. 2011) (citing Sherman v. United States, 246 F. Supp.
547, 548 (D. Mich. 1965)). However, “[i]f the vessel or cargo is
outside of the territorial waters of the United States[, then]
the action shall be brought in the district court . . . for any
district in which any plaintiff resides or has as an office for
the transaction of business.” 46 U.S.C. §31104(b)(1).
In this case, it is undisputed that the Watkins was not in
the United States when the Plaintiff filed suit. Rather, at all
relevant times, the ship was located in Diego Garcia, the site
of a U.S. Naval base in the Indian Ocean. (Rec. Doc. Nos. 34-2
Even if the complaint were construed to seek relief under both Acts
simultaneously, the Supreme Court has held that claims within the scope of
the PVA remain subject to its terms even if the SAA applies as well. United
States v. United Cont’l Tuna Corp., 425 U.S. 164, 181 (1976). And, as
discussed above, the PVA only incorporates the SAA to the extent they do not
conflict.
2

13

at 1; 40-3 at 1). Thus, because the Watkins was not within the
territorial waters of the United States, venue is only proper in
districts where Gibson resides or has a business office.
The facts do not indicate that Gibson has any sort of a
business office. In fact, the complaint indicates that he is too
injured to work; hence, it is highly unlikely he has any sort of
office. Therefore, venue is proper under the PVA only in his
home district. Plaintiff’s complaint only states that he is a
domiciliary of Alabama. (Rec. Doc. No. 1 at 1). It does not
reveal

exactly

where

he

resides.

Nevertheless,

Defendants’

Motion for Summary Judgment contends that Plaintiff resides in
or

around

Mobile,

Alabama.

(Rec.

Doc.

No.

34-1

at

9).

Plaintiff’s opposition does not refute this,3 and thus, if true,
venue would be proper only in the Southern District of Alabama.
As venue is improper in the Eastern District of Louisiana,
this Court must choose between transferring the case to a court
of

proper

venue

or

dismissing

it

outright.

According

to

28

U.S.C. §1406(a), “[t]he district court of a district in which is
filed a case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have
been brought.” As Judge Fallon pointed out in Wade v. Bordelon
Plaintiff’s opposition simply asks that if the Court finds venue here
improper, that it transfer rather than dismiss the case. However, Plaintiff
does not specify where, perhaps indicating that Defendant correctly asserted
that Plaintiff’s home district is the Southern District of Alabama.
3

14

Marine, when potential statute of limitations issues may arise
due to dismissal, it is in the interest of justice to transfer
rather than dismiss the case. Wade, 770 F. Supp. 2d at 828, n.4
(noting that, because the accident occurred over two years ago,
it

is

best

for

the

Court

to

transfer

the

case

rather

than

dismiss it and “inject a statute of limitations issue” into the
case). As the SAA/PVA statute of limitations is only two years,
46 U.S.C. §30905, and this accident allegedly occurred on April
28, 2013, it is recommended that the case be transferred to the
Southern District of Alabama in the interest of justice.
V.

CONCLUSION

For the foregoing reasons,
IT IS ORDERED that the Motion is GRANTED. OSI is dismissed
as party from this litigation due to the PVA/SAA exclusivity
provision, and all remaining claims against the United States
are transferred to the Southern District of Alabama pursuant to
the PVA venue rules.
New Orleans, Louisiana, this 29th day of October, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

15