Cruise Ship Law

NOOR BEGUM KARIM, Wife of; FAZAL KARIM, Plaintiffs -Appellants - Cross-Appellees v. FINCH SHIPPING COMPANY, LTD.; ET AL, Defendants;FINCH SHIPPING COMPANY, LTD., Defendant - Appellee - Cross-Appellant

No. 00-30683
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
22001 U.S. App. LEXIS 19657
September 5, 2001, Decided
September 5, 2001, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Eastern District of Louisiana. 95-CV-4169. Eldon E Fallon, US District Judge.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: In a maritime personal injury case, plaintiff seaman and defendant shipping company appealed a judgment of the United States District Court for the Eastern District of Louisiana which contained a number of rulings, including a ruling that the shipping company was entitled to limitation, but not exoneration, of liability.

OVERVIEW: Plaintiff seaman was seriously and permanently injured at sea. The district court conducted a trial on defendant shipping company's action under the Limitation of Liability Act of 1851, 46 U.S.C.S. ß 181 et seq. The parties cross-appealed. The court held: (1) jurisdiction was proper because the shipping company consented to jurisdiction; (2) there was nothing unreasonable about the district court's conclusions regarding forum non conveniens; (3) the district court did not err in making a determination of quantum under Bangladeshi law by applying English and Indian precedent; (4) it did not err in setting the amount of general damages under Bangladeshi law to be $160,000, (5) it did not err in determining that the general maritime law of Bangladesh was inapplicable; (6) it did not err in granting summary judgment in favor of the shipping company on the seaman's claim under the United States penalty wage statute; (7) the maintenance claim was not properly before the court; (8) it did not abuse its discretion in setting the initial date of interest accrual; and (9) there was no error in the awarding of litigation costs, including fees.

OUTCOME: The judgment of the district court was affirmed.

Posted by Lipcon Law Firm at 11:39 PM | Permalink

In re: MARINE ASBESTOS CASES; Plaintiffs-Appellants, v. AMERICAN HAWAII CRUISES,INC.; GREAT INDEPENDENCE SHIP COMPANY; GREAT HAWAIIAN PROPERTIES CORPORATION;GREAT HAWAIIAN CRUISE LINE, INC., dba American Hawaii Cruises, Defendants-Appellees.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 20136
February 13, 2001, Argued and Submitted, San Francisco, California
September 10, 2001, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-97-77777-HG. Helen Gillmor, District Judge, Presiding.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: The United States District Court for the District of Hawaii granted summary judgment to defendant shipbuilders in plaintiff seamen's claims for exposure to asbestos in the course of employment on board the vessels. The seamen appealed.

OVERVIEW: The seamen argued that summary judgment was improper. The seamen argued that their claim for recovery fell under the Jones Act, 46 U.S.C.S. ß App. 688 (2000), which granted seamen a claim for personal injury caused by an employer's negligence. The seamen maintained that the Jones Act permitted recovery for medical monitoring. The seamen failed to raise a genuine issue of material fact as to whether any increased risk of disease made medical monitoring reasonably necessary, or whether early detection would provide any clinical benefit. It was not shown that a treatment existed, or that there was clinical value to administering any such treatment before the onset of symptoms. There was no evidence that a single examination would yield any clinical benefit. The seamen failed to establish that they suffered an injury that was cognizable under a theory of unseaworthiness. They were not sick and uninjured, therefore there was no recovery under the doctrine of cure. The denial of the seamen's Fed. R. Civ. P. 56(f) motion was not an abuse of discretion because all of the facts needed to raise a genuine issue of material fact were within the control of the seamen.

OUTCOME: The judgment was affirmed.

Posted by Lipcon Law Firm at 11:39 PM | Permalink

DAWN RANNALS, Plaintiff-Appellant, v. DIAMOND JO CASINO, Defendant-Appellee.

No. 99-4267
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2001 U.S. App. LEXIS 20297; 2001 FED App. 0320P (6th Cir.)
January 26, 2001, Argued
September 12, 2001, Decided
September 12, 2001, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 98-07545. David A. Katz, District Judge.

DISPOSITION: REVERSED and REMANDED.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant shipowner, alleging that the shipowner was liable under the Jones Act for injuries incurred by the seaman in a fall while attending a training program off the ship. The seaman appealed the judgment of the United States District Court for the Northern District of Ohio which granted summary judgment to the shipowner.

OVERVIEW: The seaman worked as a deckhand on the shipowners' riverboat casino, and the seaman was injured by a fall in an icy parking lot of the facility in another state where she was attending a firefighting training program. The shipowner paid for the training, and the seaman's wages during the training, but the seaman was not required to attend the training. The appellate court held that the seaman raised genuine issues of fact concerning whether her injuries were incurred during the course of her employment, and were caused by unreasonably dangerous icy conditions of which the facility, as the shipowner's agent, should have known. The training was required for supervisory positions, and the shipowner's encouragement to attend indicated that attendance was within the scope of the seaman's employment. Further, any negligence of the facility was imputed to the shipowner, since its duty to provide a safe workplace was non-delegable. Also, the continued existence of the icy conditions during the day was sufficient to permit an inference of constructive notice. Finally, the common law preclusion of liability for a natural accumulation of ice did not apply to claims under the Jones Act.

OUTCOME: The judgment granting summary judgment to the shipowner was reversed.

Posted by Lipcon Law Firm at 11:38 PM | Permalink

REX R. SPRIETSMA. Adm'r of the estate of Jeanne Sprietsma,Deceased, Appellant, v. MERCURY MARINE, a Division of Brunswick Corporation,Appellee.

Docket No. 89492-Agenda 17-March 2001.
SUPREME COURT OF ILLINOIS
2001 Ill. LEXIS 1039
August 16, 2001, Filed

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Appellant survivor filed a wrongful-death action against appellee manufacturer, among others. The circuit court of Cook County (Illinois) granted the manufacturer's motion to dismiss, finding the claims to be impliedly preempted. The appellate court affirmed, holding that the common law claims for failure to install propeller guards were expressly preempted. The supreme court granted the survivor's petition for leave to appeal.

OVERVIEW: The issue was whether the Federal Boat Safety Act of 1971 (FBSA), 46 U.S.C.S. ß 4301 et seq. (1994), preempted state common law causes of action based on the manufacturer's failure to install propeller guards on its boat engines. The survivor's decedent fell from a motor boat and was struck by the motor's propeller blades. Although the survivor's claims bore upon state and federal concerns, the supreme court ruled that federal concerns predominated. Therefore, the supreme court did not apply a presumption against preemption. The supreme court addressed whether the FBSA expressly preempted the survivor's common law tort claims. The inclusion of a savings clause prohibited a broad reading of the express preemption provision, so there was no express preemption. However, the supreme court found that implied preemption was warranted in order to continue the line of uniformity laid down by the federal courts that found preemption under the FBSA. Several federal district courts and courts of appeal found preemption, express or implied, in similar propeller guard cases.

OUTCOME: Judgement was affirmed.

Posted by Lipcon Law Firm at 11:38 PM | Permalink

RAYMOND HAGUE and MARY RUTH HAGUE, Plaintiffs, - against -CELEBRITY CRUISES, INC., FANTASIA CRUISING, INC., ESSEF CORPORATION, PAC-FAB,INC., ESSEF MANUFACTURING FSC, INC., and SFG, Defendants.

95 Civ. 4648 (BSJ) (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10824
August 1, 2001, Decided
August 1, 2001, Filed

DISPOSITION: [*1] Defendants' Rule 50 motion in instant case denied without prejudice. Defendants' motion for new trial denied.

PROCEDURAL POSTURE: A jury awarded damages to plaintiffs, a passenger who contracted Legionnaires' Disease from a cruise ship whirlpool and his wife, in the sum of $350,000 for past pain and suffering, $15,000 for future pain and suffering, $100,000 for past loss of society, and $15,000 for future loss of society. Defendants moved for judgment as a matter of law to strike the damages for loss of society and for a new trial on damages or remittitur.

OVERVIEW: The cruise line and other defendants' motion to strike the loss of society damages was denied without prejudice to modification based on the determination of whether such damages were available in admiralty in another, pending bellwether case. The award for past pain and suffering did not shock the conscience of the court given the seriousness of the passenger's illness. However, the award for future pain and suffering for the injuries, and derivative damages to wife, was seriously erroneous and warranted a new trial. According to the medical testimony, the illness was acute but had no demonstrable permanent effects. Also, the award for loss of society to the wife up to the date of trial was excessive. In the court's view, given the limited period of incapacity, the evidence justified a maximum award of $25,000.

OUTCOME: The court denied the cruise line and other defendants' motion for new trial, provided that the passenger and his wife accepted a judgment of $350,000 for past pain and suffering, $25,000 for past loss of society, and prejudgment interest.

Posted by Lipcon Law Firm at 11:37 PM | Permalink

RONNIE J. KONIKOFF, Plaintiff, v. PRINCESS CRUISES, INC.,LISTON BRADSHAW d/b/a LISTON RELIABLE TAXI SERVICE, and THE WEST INDIAN COMPANY,LTD., Defendants.

Civ. No. 1999-224
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGINISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN
2001 U.S. Dist. LEXIS 14034
August 13, 2001, Decided

DISPOSITION: Princess Cruises, Inc.'s motion for summary judgment GRANTED. Princess Cruises, Inc. DISMISSED as a defendant in this action.

PROCEDURAL POSTURE: Defendant cruise line moved for summary judgment in plaintiff passenger's action for personal injury damages.

OVERVIEW: The passenger was on a ship owned and operated by the cruise line. While the ship was docked, she disembarked and used a taxi. As she later exited the taxi, she fell and sustained injuries. She sued the cruise line and others for damages. She alleged that she was the intended third-party beneficiary of a contract or agreement between the cruise line and the taxi to provide tour and taxi services. The cruise line moved for summary judgment based on the statute of limitations. The court held that the passenger could not be an intended beneficiary of the alleged third-party contract, whose expressed intent would be to benefit passengers, without also being a passenger subject to the ticket contract. Because she was subject to the ticket contract, she was subject to its terms. One of those terms was to timely file a action against the cruise line, which she failed to do.

OUTCOME: The motion for summary judgment was granted and the cruise line was dismissed as a defendant in the action.

Posted by Lipcon Law Firm at 11:37 PM | Permalink

TRICO MARINE ASSETS, INC., ET AL VERSUS DIAMOND B MARINESERVICES, INC., ET AL

CIVIL ACTION NO. 99-0951 C/W NO. 99-0984, C/W NO. 99-1346 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 13257
August 17, 2001, Decided
August 21, 2001, Filed, Entered

DISPOSITION: [*1] Diamond B's motion to enjoin further prosecution of Texaco's third party demand in state court DENIED. Diamond B's motion to hold Texaco and its attorneys in contempt DENIED. Texaco's motion to recognize Texaco's rights to Diamond B's insurance proceeds DENIED.

PROCEDURAL POSTURE: In two limitation proceedings consolidated with an admiralty suit, defendant shipowners moved for an injunction and sanctions against intervenor employer for the employer's alleged violation of an order enjoining the commencement and further prosecution of any action against the shipowners pursuant to 46 U.S.C.S. ß 181 et seq. The employer moved for an order recognizing its contractual rights to the shipowners' insurance proceeds.

OVERVIEW: Plaintiff vessel owners sued the shipowners after their vessels collided. Both of them then petitioned for exoneration and/or limitation of liability. The court consolidated the three actions and issued the order enjoining commencement and prosecution of other actions against the shipowners. Passengers on the shipowners' vessel filed claims in both limitation actions. The passengers worked for the employer, and the employer intervened in the limitation actions. The passengers also sued in state court, naming as defendants the captains of the vessels, a mate of one vessel, and the employer. The employer then filed a third-party demand against the shipowners. That action, the shipowners argued, violated the instant court's injunction. The instant court disagreed. The employer's third-party demand arose from a personal contract between the employer and the shipowners; thus, the claims fell outside of the Limitation of Vessel Owner's Liability Act, 42 U.S.C.S. app. ß 181 et seq., and the court's injunction. For the same reason, the court lacked jurisdiction to recognize the shipowners' obligation to the employer under their contract.

OUTCOME: The court denied all three motions.

Posted by Lipcon Law Firm at 11:37 PM | Permalink

ASSOCIATION FOR DISABLED AMERICANS, INC., DANIEL RUIZ, andLUIS RODRIGUEZ, Plaintiffs, v. CONCORDE GAMING CORPORATION and GOLDCOASTENTERTAINMENT CRUISES, INC., Defendants.

Case No. 99-1058-CIV-HIGHSMITH
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2001 U.S. Dist. LEXIS 12774; 14 Fla. L. Weekly Fed. D 495
August 20, 2001, Decided
August 20, 2001, Filed

PROCEDURAL POSTURE: Plaintiffs, disabled individuals and an organization supporting the disabled, sued defendants, a gaming corporation and a cruise line, alleging that defendants' gaming vessel failed to accommodate the disabled persons, in violation of Title III of the Americans with Disabilities Act of 1990 (Title III), 42 U.S.C.S. ß 12181 et seq. The court conducted a trial.

OVERVIEW: The disabled individuals were wheelchair-bound, and alleged that during their cruise on defendant's gaming vessel they were confined to the lower deck and they were unable to use the restrooms, the craps table, the bar, the restaurant, and the cashier counter. The court first held that the disability organization lacked standing to assert a Title III claim on behalf of its members, and the gaming corporation was not subject to Title III liability since it was not the vessel owner or operator. Further, with the exception of the restrooms, the disabled individuals failed to show that the areas of the vessel which constituted public accommodations were subject to reasonable modifications to permit access by the disabled individuals. The disabled individuals failed to proffer readily achievable alternatives for services or facilities available only on the upper decks, and unreasonable time and expense precluded installation of an elevator. Further, wait service was available for the bar and restaurant, the height of the cashier counter was required for security reasons, and the proposed modifications to the craps tables would fundamentally alter the nature of the game.

OUTCOME: The cruise line was directed to modify its restrooms to accommodate disabled individuals, but the disabled individuals' claims were otherwise denied.

Posted by Lipcon Law Firm at 11:36 PM | Permalink

DANIEL L. JOHNSON, Plaintiff, -against- SEA-LAND SERVICE,INC., Defendant

99 Civ. 9161(WHP)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 11447
August 8, 2001, Decided
August 9, 2001, Filed

PROCEDURAL POSTURE: In a Jones Act action filed by plaintiff seaman who claimed that he was injured while employed by defendant, the seaman brought a letter-motion seeking to preclude the employer from using at trial an e-mail that was claimed to be privileged, and that was inadvertently produced in discovery.

OVERVIEW: The employer opposed the motion, arguing that the seaman waived any privilege as to the document, that the document did not contain a privileged communication, and that any claim of privilege was overcome because the document fell within the crime-fraud exception to the attorney-client privilege. The court granted the seaman's request to preclude the use of the document. The document was an e-mail sent from the seaman to his attorney, and was sent in response to counsel's inquiry for background information. Therefore the document was covered under the attorney-client privilege. The e-mail did not demonstrate probable cause to believe that either the seaman or his doctor engaged in, or was prepared to engage in, a fraud, and there was nothing that suggested that it was a communication seeking advice on how to perpetuate or cover up a fraud. Thus, the crime-fraud exception did not apply. Under the circumstances, the production of the e-mail was inadvertent and did not waive the attorney-client privilege. The failure to see and withhold the e-mail was, at most, careless, but its production did not evince such extreme carelessness to permit waiver of privileged communications.

OUTCOME: The seaman's application to preclude the employer from using the e-mail at trial of action was granted.

Posted by Lipcon Law Firm at 11:36 PM | Permalink

SEAN REED vs. WEEKS MARINE, INC.

CIVIL ACTION NO. 01-CV-0759
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2001 U.S. Dist. LEXIS 12847
August 21, 2001, Filed

PROCEDURAL POSTURE: Plaintiff seaman sued defendant employer pursuant to the Jones Act, 46 U.S.C.S. ß 688 et seq., for injuries he received while working as a crewmember of the employer's vessel. The employer moved to dismiss the complaint for insufficient service of process or, in the alternative, to transfer venue to another district court.

OVERVIEW: The court denied the motion to dismiss for failure to effectuate proper service because the employer had received a copy of the summons and complaint by certified mail that was delivered to its principal place of business in another state and the seaman had had a second copy of the summons and complaint hand delivered to the employer's office. Since the employer had not challenged the authority of the person who had accepted the certified mail on its behalf and had not argued that the receptionist who accepted the hand-delivered copy was not the person in charge of its place of business at the time she received the copy, it was clear that the seaman's service was effective pursuant to Fed. R. Civ. P. 4(e)(1). Moreover, venue was proper because the balance of interests did not tilt strongly in favor of moving the action to a district that was simply across the river. In other words, the other district was no more convenient to the parties or the witnesses. Therefore, the court declined to disturb the seaman's choice of forum.

OUTCOME: The motion to dismiss was denied.

Posted by Lipcon Law Firm at 11:35 PM | Permalink

Riverway Harbor Service, St. Louis, Inc., In the matter ofthe complaint of; as owners and/or operators of; in a cause of action forexoneration from or limitation of liability - Bucyrus Erie 30-B Super CraneBarge - M/V Arkie II, Petitioner-Appellee, Fredrick Webber, Claimant-Appellant,Cargo Carriers, a Division of Cargill Marine & Terminal, Inc., Claimant,Riverway Harbor Service, St. Louis, Inc., - M/V Arkie II - Bucyrus Erie 30-BSuper Crane, Third Party Plaintiff, v. Bridge & Crane Inspection, Inc., ThirdParty Defendant-Appellee.

No. 00-1415
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
2001 U.S. App. LEXIS 18728
November 16, 2000, Submitted
August 20, 2001, Filed

PROCEDURAL POSTURE: The claimant, an individual, appealed the final order entered in the United States District Court for the Eastern District of Missouri following the denial of his motion to dissolve a permanent injunction issued by the district court prohibiting state court proceedings in an admiralty tort action against defendant harbor service.

OVERVIEW: The claimant was involved in an accident at the harbor service in which a crane malfunctioned and struck the claimant, knocking him into the water. The harbor service filed a complaint invoking admiralty jurisdiction in federal court pursuant to the Limitation of Vessel Owners Liability Act, 46 U.S.C.S. ßß 181-196, seeking exoneration or limitation of liability for the accident. The same day, the claimant filed in state court, seeking damages for personal injury under 46 U.S.C.S. ß 688(a). As required by the injunction, the claimant filed a claim in district court in the limitation proceeding. The claimant moved to dissolve the federal court injunction. The district court denied his initial motion to dissolve and held that his stipulations were inadequate. The claimant filed an amended motion to dissolve, including a supplemental stipulation in conformity with the district court's order. The district court again refused to dissolve the injunction in a final order. On appeal, the court reversed and remanded because the claimant's stipulations fulfilled the single-claimant exception permitting limitation of liability and thereby satisfied the limitation statute's requirements.

OUTCOME: The order was reversed and remanded.

Posted by Lipcon Law Firm at 11:34 PM | Permalink