Reversed and Remanded and Majority and Concurring Opinions filed
November 13, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00442-CV

     HELIX ENERGY SOLUTIONS GROUP, INC., HELIX SUBSEA
    CONSTRUCTION, INC., AND HELIX WELL OPS INC., Appellants

                                        V.
                       MATTHEW HOWARD, Appellee

                    On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-67699


                 CONCURRING OPINION
      Appellee Matthew Howard asserts, and the trial court impliedly found, that
general maritime law provides a unique remedy to seamen when they sue their
employers in state or federal court to recover maintenance and cure (hereinafter the
“Remedy”). According to Howard, the Remedy allows the trial court to grant a
pretrial motion to compel the employer to pay maintenance and cure to the seaman
until the maintenance-and-cure issues are finally decided by summary judgment or
at trial, even if, as in today’s case, the claims will be tried to a jury. The Remedy is
unusual in that it compels the employer to pay maintenance and cure to the seaman
before trial and without evidence conclusively proving the seaman’s entitlement to
this relief.

       The Remedy is like the unicorn—a mystical creature whose nebulous
existence is recognized in some places and renounced in others. If it exists, the
Remedy would be available to the seaman even if the seaman is judgment-proof
and even if, upon the employer’s success on the merits at trial, the seaman would
have no basis for receiving these interim payments and would have no recovery
against which to offset any potential refund judgment. The majority concludes
that, even if seamen have the right to this valuable remedy in federal court under
general maritime law, it is a procedural right rather than a substantive right.
According to the majority, applying Texas law, which does not provide the
Remedy, does not work material prejudice to a characteristic feature of general
maritime law. Rather than determine that the Remedy is procedural, this court
should base its judgment on the conclusion that general maritime law does not
provide the Remedy.

       Before addressing what the Remedy is, it is appropriate first to address what
it is not.

     The Remedy is not an injunction that preserves the status quo of the
      litigation’s subject matter pending a trial on the merits to avoid irreparable
      injury to the seaman in the interim.1


1
  Howard did not seek, and the trial court did not grant, such an injunction. Even if Howard had
sought this relief, federal courts have held that this relief generally is not available. See Carline
v. Cap. Marine Supply, Inc., 81 F.R.D. 710, 711–12 (E.D. La. 1979); Billiot v. Toups Marine
Transp., Inc., 465 F.Supp. 1265, 1268–69 (E.D. La. 1979).

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       The Remedy is not a summary judgment. Howard did not file a motion for
        summary judgment, under which he would have had the burden of
        submitting summary-judgment evidence conclusively proving his
        entitlement to maintenance and cure.2 Such a motion, if successful, would
        obviate the need for trial regarding the seaman’s entitlement to maintenance
        and cure.
       The Remedy is not a bench trial. Howard did not seek an expedited bench
        trial on his maintenance-and-cure claims while still pursuing a jury trial on
        his Jones Act negligence and unseaworthiness claims. Instead, Howard
        sought and obtained the Remedy from the trial court, even though Howard
        has demanded a jury trial on his maintenance-and-cure, Jones Act
        negligence, and unseaworthiness claims.3

2
    See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).
3
  In his concurring opinion, Justice Busby states that it is useful to consider the category of cases
in which a seaman seeks some type of expedited determination by the trial court of maintenance
and cure before other issues in the case are resolved—a category that includes the Remedy. See
post at p. 2 (Busby, J., concurring). Justice Busby then discusses cases that he says address
“expedited court determination of maintenance and cure.” See id. at pp. 2–4. He states that
federal decisions make it clear that expedited court determination of maintenance and cure is
available in cases involving a bench trial but is not available in cases involving a jury trial. See
id. Justice Busby concludes that, because a seaman’s ability to obtain an expedited determination
of maintenance and cure in federal court varies depending on the procedural posture of the case,
expedited determination is a procedural rather than a substantive feature of federal maritime law.
See id. But, the cases upon which Justice Busby relies in this analysis do not address the
availability of the Remedy or the availability of an “expedited court determination of
maintenance and cure”; instead these cases address the availability of an expedited bench trial.
See Tate v. American Tugs, Inc., 634 F.2d 869, 871 (5th Cir. 1981). Justice Busby relies upon
the Tate court’s suggestion that a seaman may seek an expedited bench trial as to maintenance-
and-cure claims as a basis for concluding that the Remedy is procedural rather than substantive.
See id. But, the Tate court did not address the Remedy, which is obtained, if it exists, before trial;
rather, the Tate court addressed the option a seaman has to obtain an expedited bench trial on the
maintenance-and-cure claims. See Tate, 634 F.2d at 870–71. The only case Justice Busby cites
that applies the Remedy does not address the issue of whether the Remedy exists; this case does
not state that the Remedy is limited to situations in which the seaman elects not to try the
maintenance-and-cure claims to a federal-court jury along with the Jones Act negligence claims.
See In re Petition of RJF Int’l Corp., 261 F. Supp. 2d 101, 102–06 (D. R.I. 2003), aff’d, 354 F.3d
104 (1st Cir. 2004). The parties have not cited and research has not revealed any case in which
the court addresses whether the Remedy is available in a case in which the seaman’s claims will
be tried to a jury. Further, if federal cases held that the Remedy is not available if the seaman’s
claims are to be tried to a jury, these cases would establish that the Remedy is not available in the
case under review, and it would not be necessary to address whether the Remedy is procedural or
substantive.

                                                  3
       The parties have not cited and research has not revealed any case from the
Supreme Court of the United States or any Texas court addressing whether, under
general maritime law, a seaman is entitled to the Remedy, either in state court or in
federal court. Thus, stare decisis does not answer this question. Nonetheless,
courts in a number of other jurisdictions have addressed this issue. Various courts
have concluded that a seaman is not entitled to the Remedy.4 A few courts have
determined that general maritime law does provide the Remedy to seamen. 5 In a
few other cases, courts have provided the Remedy to a seaman, without addressing
whether general maritime law provides the Remedy. 6 In any event, across all
courts in the United States of America, there are not many cases addressing
whether the Remedy is available to a seaman under general maritime law, and a
majority of the courts that have addressed this issue have concluded that general
maritime law does not provide the Remedy.7



4
 See Blake v. Cairns, No. C–03–4500 MJJ, 2004 WL 1857255, at *1 (N.D.Cal. Aug. 16, 2004);
Bloom v. Weeks Marine, Inc., 225 F.Supp.2d 1334, 1336 (M.D. Fla. 2002); Billiot v. Toups
Marine Transp., Inc., 465 F.Supp. 1265, 1267 (E.D.La.1979); Sanfilippo v. Rosa S., Inc., No.
85–3915–Me, 1985 WL 4565, at *2 (D.Mass. Dec. 9, 1985); Claudio v. Sinclair Ref. Co., 126
F.Supp.154, 154 (E.D.N.Y.1954); Rio Miami Corp. v. Balbuena, 756 So.2d 258, 258 (Fla. Ct.
App. 2000); Perry v. Allied Offshore Marine Corp., 618 So.2d 1033, 1035–36 (La. Ct. App.
1993).
5
  See Gouma v. Trident Seafoods, Inc., No. C07-1309, 2008 WL 2020442, at *1–3 (W.D. Wash.
Jan. 11, 2008); Dean v. The Fishing Company of Alaska, 300 P.3d 815, 820–24 (Wash. 2013).
6
 See Connors v. Iqueque U.S.L.L.C., No. C05-334JLR, 2005 WL 2206922, at *1–3 (W.D.
Wash. Aug. 25, 2005); In re Petition of RJF Int’l Corp., 261 F. Supp. 2d at 102–06; Sefcik v.
Ocean Pride Alaska, Inc., 844 F.Supp. 1372, 1373–74 (D. Alaska 1993).
7
   See cases cited in footnotes 4–6. A reader of Justice Busby’s concurring opinion might
conclude that the term “expedited court determination of maintenance and cure” means the
Remedy and that a substantial number of federal courts have concluded that this relief is
available under certain circumstances. This conclusion would not be correct. The opinion in
Johnson v. Marlin Drilling Company contains very little information regarding the procedural
history of the case in the trial court. See 893 F.2d 77, 77–80 (5th Cir. 1990). Nonetheless, the
Johnson court never states that the plaintiff sought the Remedy or that the plaintiff filed a pre-
trial motion to compel payment of maintenance and cure. See id. The Johnson court states the
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       This court should follow the reasoning of the line of cases rejecting the
proposition that the Remedy is available to a seaman under general maritime law
and should conclude that general maritime law does not allow a seaman who
brings a maintenance-and-cure claim to obtain a pretrial, interim order requiring
payment of maintenance and cure before an adjudication of the merits of any
claims either at trial or by summary judgment.8 Inasmuch as general maritime law
does not provide the Remedy, there is no need to decide whether any such remedy
would be a substantive remedy that state courts would have to apply under the
“reverse-Erie” doctrine which applies to maritime claims filed in state courts.9




trial court rendered judgment based on the briefs alone and refused the plaintiff’s request for an
evidentiary hearing. See id. at 78–80. It appears that the trial court in Johnson rendered a final
judgment on the merits based on briefs and without an evidentiary hearing or trial. See id. The
Johnson opinion does not address whether general maritime law provides the Remedy to a
seaman. See id.
8
  See Blake, 2004 WL 1857255, at *1; Bloom, 225 F.Supp.2d at 1336; Billiot, 465 F.Supp. at
1269; Sanfilippo,1985 WL 4565, at *2; Claudio, 126 F.Supp. at 154; Rio Miami Corp., 756
So.2d at 258 ; Perry, 618 So.2d at 1035–36. This conclusion should be the same whether the
pretrial motion is cast as a motion to compel payment of maintenance and cure or as a motion to
reinstate payment of maintenance and cure.
9
 The “saving to suitors” clause of title 28, section 1333(1) of the United States Code allows state
courts to adjudicate in personam maritime claims, but in such cases, the extent to which state law
may be used to remedy maritime injuries is constrained by the so-called “reverse-Erie” doctrine
which requires that the substantive remedies afforded by the states conform to governing federal
maritime standards. See28 U.S.C. 1333(1); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207,
222–23, 106 S. Ct. 2485, 2494, 91 L.Ed.2d 174 (1986); Schlumberger Technology Corp. v.
Arthey, 435 S.W.3d 250, 253, n.12 (Tex. 2014); Texaco Refining & Marketing, Inc. v. Estate of
Dau Van Tran, 808 S.W.2d 61, 64 (Tex. 1991).

                                                5
       For the foregoing reasons, I respectfully concur in the court’s judgment, but
I do not join the majority opinion.10




                                             /s/       Kem Thompson Frost
                                                       Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.
(Christopher, J., majority) (Busby, J., concurring).




10
  If a temporary-injunction order fails to comply with the requirements of Texas Rule of Civil
Procedure 683, it is subject to being declared void and dissolved, but the “void” character of the
order does not mean that the trial court lacked jurisdiction over the case or that the appellate
court lacked jurisdiction over the appeal. See Qwest Communications Corp. v. AT&T Corp., 24
S.W.3d 334, 337 (Tex. 2000) (per curiam); InterFirst Bank San Felipe, N.A. v. Paz Constr. Co.,
715 S.W.2d 640, 641 (Tex. 1986) (per curiam). Therefore, the majority should not rely upon the
Coronado case. See ante at p. 7 (citing Freedom Communcations, Inc. v. Coronado, 372 S.W.3d
621, 623 (Tex. 2012) (per curiam)).

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