[B]Case Name: [/B]Michael S. Powell v. American President Lines, Ltd, et al.
[B]Date Decided: [/B]December 1, 2009
[B]Court: [/B]U.S.D.C. Western District of Washington, at Seattle
[B]Judge: [/B]Judge Pechman
[B]Citation: [/B]2009 WL 4571831 (W.D.Wash.) [B]Background:
[/B]Plaintiff, Michael S. Powell (“Powell”), filed this action under the Jones Act and general maritime law against defendant, American President Lines (“APL”).
Powell was employed as a licensed deck officer aboard the APL Singapore. While he was aboard the vessel, his employment was governed by the terms of a written collective bargaining agreement between APL and the International Organization of Masters, Mates, and Pilots (MMP) with whom Powell was a union member.
Throughout Powell’s employment, the Captain of the APL vessel had given warnings regarding failing to follow the Captain’s direct and standing orders and lack of common seamanship, failure to observe safe practices, and other performance deficiencies on the night watch.
Powell had previously brought an action under the Jones Act against his previous employer for wrongful injury, wages due, and personal injury suffered aboard one of its vessels.
The Captain testified he learned of the previous lawsuit and injury after he had already decided to terminate Powell’s employment.
Powell then filed a grievance with his union over his discharge. The MMP’s vice president advised Powell that they would not support his position at arbitration because there was an “inadequate basis to pursue [his] grievance beyond this point”. The MMP’s General Executive Board (GEC) agreed with the MMP’s vice president. Finally, after the Offshore Advisory Council (OAC) refused to pursue the matter further, Powell filed this action in the Western District of Washington.
[/B]Did Powell succeed in his Jones Act and general maritime law claims alleging his employer, Captain, and vessel owner were negligent and wrongfully discharged him?
The Jones Act authorizes seamen to maintain actions for negligence against their employers in the event they are injured in the course of their employment. The Captain contended that Powell has failed to produce any evidence of an injury while serving aboard the APL vessel. Moreover, this Court found that Powell failed to allege correctly that he was injured, and that the defendant was his employer at the time of injury.
Moreover, Powell claimed that his termination was wrongful. Under the Jones Act, a “wrongful termination” occurs when a seaman is discharged in retaliation for pressing Jones Act personal injury claim against that employer.
However, Powell merely claimed that he may have been terminated because he brought a Jones Act claim against a different employer. The Captain has never met the other employer’s captain, and his decision to terminate Powell was reached at least 2 days before learning of the claim.
Powell also alleged that the Captain “unreasonably harassed” and “embarrassed” him on board the vessel. However, as in FELA claims, the harassment must manifest itself into a physical injury. Powell does not claim to suffer any physical injury as a result of the conduct complained of.
This Court found that Powell failed to meet his burden to establish a claim against the Captain for wrongful termination or “unreasonable harassment”.
Finally, Powell brought a claim for unseaworthiness. However, all of the unseaworthiness “defects” the plaintiff alleged, did not contribute to any kind of injury or actual or imminent accident.
Accordingly, this Court granted defendants’ motions for summary judgment.
In [I]Smith v. Atlas Off-Shore Boat Service, Inc. [/I]653 F.2d 1057 (5th Cir. 1981), the Court recognized a “wrongful” termination action under the Jones Act where a seaman was allegedly discharged in retaliation for pressing a Jones Act personal injury claim against that employer. [/B]
[B]It is important to realize that termination based upon the pursuit of a Jones Act claim is actionable itself. This is meant as a safeguard to protect the rights of employees who are injured during the course of employment. [/B]
[B]Steve Gordon [/B]