including personal injury, premises liability and wrongful death defense, business and commercial litigation, and employment law. He also defends clients from claims arising under Texas' workers' compensation laws, the Federal Employer Liability Act, the Jones Act, the Longshore Act (and its extensions), and other land transportation and maritime personal injury claims. 2001 Bryan Street, Suite 4000 Dallas, Texas 75201 214.572.2254 Phone 214.748.4530 Fax aschreck@downsstanford.com www.downsstanford.com waterways often face exposures under the Longshore and Harbor Workers' Compensation Act (LHWCA) and the Jones Act. This article provides a brief review of recent federal cases affecting jurisdiction under these laws. Supreme Court had finally answered this question in Stewart v. Dutra Construction Company, 543 U.S. 481. Dutra's dredge SUPER SCOOP is a floating platform. It removes silt from the ocean floor and dumps it into adjacent scows (small barges). Stewart was injured and sued Dutra claiming he was a seaman. The dispositive issue was whether the dredge was a vessel. The court defined a "vessel" as "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Although the dredge's primary purpose was not navigation or maritime dredge was a vessel because it was "capable of being used as means of transportation on water." This year, the Court decided Lozman v. City of Riviera Beach, Florida, 133 S.Ct. 735 (2013). Lozman's floating home was a plywood house-shaped structure, stored at a marina owned by the City of Riviera Beach. The City filed suit seeking dockage fees. Lozman moved to dismiss for lack of admiralty jurisdiction. The district court found the structure to be a vessel. The 11 it was "capable of moving over the water" despite Lozman's subjective intent to have the structure remain moored indefinitely. Lozman appeared to move away from the Stewart test, reasoning that a contrivance or watercraft may be a vessel when a "reasonable observer looking at its physical characteristics and activities could conclude that it was designed to any practical degree for carrying people or things on water." status is obvious. Outlier cases, including structures used in the offshore energy industry, will create challenges under the Dutra and Lozman tests for vessel status. In Mendez v. Anadarko Petroleum Corporation, 2012 U.S. App. LEXIS 6405 (5 claims, ruling the spar structure Mendez was working on was not a "vessel." The spar, RED HAWK, was a floating gas production platform moored 5,000 feet in ocean water, 210 miles from Sabine Pass, Texas. Since 2004, it was secured to the ocean floor by six anchor moorings. Under the Jones Act, a plaintiff must first establish that he has a "connection to a vessel in navigation (or an identifiable group of such vessels) ..." The court noted from Stewart that "a watercraft is not capable of being used for maritime transport in any meaningful sense if it had been permanently moored or otherwise rendered practically incapable of transportation or movement," and held the RED HAWK was not a vessel because it was permanently moored. Moving the spar would take two months, involve detaching all moorings, severing In Employer Liability Claims |