Cruise Ship Law

ROSE SCHLESSINGER et al., Plaintiffs and Appellants, v.HOLLAND AMERICA, N.V., Defendant and Respondent.

B166213
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,DIVISION SEVEN
2004 Cal. App. Unpub. LEXIS 5458
June 9, 2004, Filed

OPINION: Rose Schlessinger, Virginia Adams and Renee Ladenheirn sued Holland America N.V. (HAL) for damages caused by failure to warn and negligence after they became ill during a seven-day Alaskan cruise on a passenger ship operated by HAL. The trial court granted HAL's motion to dismiss the complaint based on a forum selection clause in the cruise ticket contract that required all disputes relating to the cruise to be litigated in courts[*2] located in the State of Washington. Schlessinger n1 appeals on the ground she had insufficient notice of the forum selection clause. We affirm.

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NICHOLAS J. MUSACCHIA, JR. VERSUS HILTON NEW ORLEANSCORPORATION, NEW ORLEANS PADDLEWHEELS, INC., QUEEN OF NEW ORLEANS, INC., QUEENOF NEW ORLEANS AT THE HILTON JOINT VENTURE, NEW ORLEANS PADDLEWHEELS (TEXAS),INC., HILTON HOTELS CORPORATION AND HILTON HOTELS PARTNER I, INC.

NO. 2003-CA-1100
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2003-1100 (La.App. 4 Cir, 06/02/04);
2004 La. App. LEXIS 1524
June 2, 2004, Decided

PROCEDURAL POSTURE: Defendants, a casino gaming vessel and an individual, appealed a judgment from the Civil District Court, Orleans Parish (Louisiana), which, in a bench trial under general maritime law, awarded damages to plaintiff patron for personal injuries sustained aboard the vessel.

OVERVIEW: The elevator in the vessel was not operational when the patron visited. The patron, who used a wheelchair, received assistance from the vessel's employees in boarding and leaving the vessel. He was injured when he fell from his chair. The court affirmed the judgment in favor of the patron, concluding that the vessel owner was negligent in instructing its employees to carry wheelchair patrons up and down flights of stairs when safer means could have been used. The vessel owner breached its duty to provide a safe means of ingress and egress. Comparative negligence could not be imputed to the passenger because he allowed the vessel's employees to assist him in boarding or because he did not give them instructions in how to do so. Although it was probable that the individual defendant participated in the effort to carry the patron, his involvement was minimal; hence, the allocation of a small percentage of fault to him was not demonstrably wrong. Based on the medical testimony given, the injuries caused the patron to endure great pain and suffering. Accordingly, the court found that a substantial award of damages did not constitute a clear abuse of the trial court's discretion.

OUTCOME: The court affirmed the judgment in favor of the patron.

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CHRISTINA TORREJON, INDIVIDUALLY AND AS PERSONALREPRESENTATIVE OF THE ESTATE OF JOSEPH TORREJON VERSUS MOBIL OIL COMPANY,INDIVIDUALLY AND AS SUCCESSOR TO SOCONY VACUUM OIL COMPANY AND SOCONY MOBIL OILCOMPANY; BABCOCK & WILCOX COMPANY; COMBUSTION ENGINEERING, INC.; THE FLINTKOTECOMPANY; FOSTER WHEELER CORPORATION ; GARLOCK INC.; ET AL.

NO. 2003-CA-1426
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2003-1426 (La.App. 4 Cir, 06/02/04);
2004 La. App. LEXIS 1517
June 2, 2004, Decided

PROCEDURAL POSTURE: Defendant employer appealed a judgment from the Civil District Court, Orleans Parish (Louisiana), which, in a maritime wrongful death case, granted a judgment notwithstanding the verdict (JNOV) in favor of plaintiff, the personal representative of a deceased employee's estate.

OVERVIEW: The employee died of mesothelioma. The parties stipulated that the disease was caused by asbestos exposure. The employer argued that the particular asbestos exposure that caused the mesothelioma could have occurred elsewhere. The jury found that the employer was negligent in exposing the employee to asbestos, but the jury also found a lack of causation. The court, in affirming the trial court's grant of JNOV to the estate, concluded that the jury's finding of lack of causation was completely absent of evidence, inferences, and pertinent law to support it. The court noted that a featherweight standard of causation was applicable in Jones Act cases. Although some manufacturers of asbestos had entered into a settlement agreement with the estate, the trial court did not err in finding that the employer was wholly liable, having failed to establish liability on the part of the settling manufacturers. The trial court acted within its discretion in clarifying its reasons for judgment to delete an improper reference to loss of society damages, which were not available in a Jones Act case; hence, the trial court did not err in denying the employer's motion for new trial.

OUTCOME: The court affirmed the judgment in favor of the estate.

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GEORGE MICHAEL ORR VERSUS OTTO CANDIES, INC., ET AL.

04-60
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
04-60 (La.App. 3 Cir, 06/09/04); 2004 La. App. LEXIS 1477
June 9, 2004, Decided

PROCEDURAL POSTURE: Plaintiff merchant marine filed suit for damages after he sustained injury on defendant company's property. The Sixteenth Judicial District Court, Parish of Iberia, Louisiana, found in favor of the company and ruled that any fault for the fall was to be apportioned between the marine and his employer.

OVERVIEW: The merchant marine's ship docked at an unimproved portion of the landowner's property to take on water. When the captain approached the docking area, the landowner gave them permission to dock but advised them of the washouts, or holes in the landscape, and advised them to be careful. The merchant marine was injured when he left his employer's ship to disconnect a water hose and stepped into a "washout" on the landowner's property and sustained serious injuries. The trial court held that the landowner had fulfilled any duty that it had by informing the captain of the ship of the "washout" conditions where they docked. The appellate court affirmed. The appellate court held that given that this was an area where the landowner did not regularly conduct business, the landowner advised the ship's captain to be careful of the washout areas, and it was dark enough at the time that the merchant marine was injured that he could not see his steps, the landowner acted reasonably and fulfilled his duty.

OUTCOME: The judgment of the trial court was affirmed.

Posted by Lipcon Law Firm at 5:36 PM | Permalink

KENTRELL DORSEY VERSUS J. RAY MCDERMOTT, INC.

2003 CA 2264
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2003 2264 (La.App. 1 Cir, 06/25/04);
2004 La. App. LEXIS 1634
June 25, 2004, Judgment Rendered

PROCEDURAL POSTURE: In plaintiff claimant's suit against appellee employer for injuries sustained offshore, the 23rd Judicial District Court, in and for the Parish of Assumption (Louisiana), dismissed his unseaworthiness and Jones Act, 46 U.S.C.S. § 688, negligence claims, but ordered the employer to pay his maintenance and cure until he reached maximum medical cure. The trial court then entered a judgment establishing the amount of cure owed. Both parties appealed.

OVERVIEW: Much of the claimant's complaint was grounded in the allegation that the material barge was mis-rigged. Specifically, the claimant challenged the placement of the eye of the rope, or line, on the material barge rather than on the lay barge. However, the overwhelming evidence supported the conclusion that having the eye of the line on the material barge was not indicative of the line being mis-rigged. Additionally, handling lines was "manual work," and the fact that the claimant's duties as a rigger required physical straining did not equate to a negligent or unseaworthy condition. Furthermore, although the claimant maintained that his injury was caused by there being insufficient personnel on board and because his supervisors failed to recognize his need for assistance in lifting the polypropylene line from the water, the claimant admitted that he did not request assistance from anyone. Thus, the record clearly supported the trial court's conclusion that (1) the employer was not negligent in causing the claimant's injury and (2) the vessel was seaworthy. Therefore, the claimant was not entitled to damages under the Jones Act or the doctrine of unseaworthiness.

OUTCOME: The appellate court affirmed the trial court's judgment.

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WENDY PETERSON, Plaintiff v. SCOTIA PRINCE CRUISES LIMITED,Defendant

Docket No. 03-174-P-H
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2004 U.S. Dist. LEXIS 9987
June 2, 2004, Decided

PROCEDURAL POSTURE: Plaintiff former passenger sued defendant ferry operator for assault and battery, negligent and intentional infliction of emotional distress, conversion, common law misrepresentation, and breach of a contract of carriage and absolute vicarious liability. The operator moved for summary judgment on those claims, and on any claim for punitive damages. The case was referred to a magistrate for a report and recommendation.

OVERVIEW: The passenger alleged that she was robbed and assaulted by a crewmember while travelling on the ferry. The allegations were investigated at the time the passenger reported the incident, and no arrest or other action was taken. The passenger's failure to file a response to the operator's statement of material facts or a statement of additional material facts in her own behalf meant that there was no evidence in the summary judgment record to support the necessary factual predicate for all of the counts at issue -- that she was assaulted by an employee of the operator. The passenger had not produced sufficient facts to establish the presence of a trial worthy issue. The operator could not be held liable for punitive damages unless the employee at issue was a managerial agent, the operator authorized or ratified the tortious behavior, the operator had reason to suspect or was aware of the misconduct before it took place, or the operator failed to take appropriate action after learning what had happened. The summary judgment record did not include any evidence that would have allowed a reasonable factfinder to conclude that any of these conditions were met.

OUTCOME: The magistrate recommended that the court grant the motion.

Posted by Lipcon Law Firm at 5:35 PM | Permalink

PATRICIA MACKLIN - DUCRE, ON BEHALF OF MONIKA MACKLIN, MINORVERSUS RENTAL SERVICE CORP., ET AL CIVIL ACTION NO: 03-3559 SECTION: "A" (3)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 10284
June 3, 2004, Decided
June 4, 2004, Filed
June 7, 2004, Entered

PROCEDURAL POSTURE: Plaintiff, on behalf of two minors, sued defendants, including the United States, the United States Department of the Navy, and a vessel, alleging that plaintiff's decedent was fatally injured during an accident on the vessel. The United States moved to dismiss the action or for summary judgment due to lack of subject matter jurisdiction.

OVERVIEW: The decedent allegedly was fatally injured while working onboard a vessel being built for the United States Department of the Navy. The complaint asserted that the court had jurisdiction over plaintiff's action pursuant to 28 U.S.C.S. § 1331(1); the Public Vessels Act, 46 U.S.C.S. app. §§ 781-790; the Suits in Admiralty Act, 46 U.S.C.S. app. §§ 741-752; 33 U.S.C.S. § 905(b); and 33 U.S.C.S. § 933(a) of the Longshore & Harbor Worker's Compensation Act. The United States moved to dismiss or for summary judgment on all claims against it, the Department of the Navy, and the vessel because the United States had not waived sovereign immunity from liability for such claims, and consequently, the court lacked subject matter jurisdiction over the federal defendants. The court agreed. The Public Vessels Act and the Suits in Admiralty Act applied only if the court had admiralty jurisdiction over the dispute. A ship under construction, even one that was nearly finished, was not a "vessel" for maritime jurisdiction purposes, and it was undisputed that the vessel the decedent was working on was not yet complete when the fatal accident occurred.

OUTCOME: The court granted the United States' motion.

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WENDY PETERSON, Plaintiff v. SCOTIA PRINCE CRUISES LTD.,Defendant

Docket No. 03-174-P-H
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2004 U.S. Dist. LEXIS 10457
June 9, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed a personal injury action against defendant ferry carrier alleging that she was assaulted while she was a passenger on the ferry. Both parties filed motions in limine to exclude all or part of the testimony of an expert witness named by the opposing party.

OVERVIEW: The ferry sought to exclude all of the testimony from the passenger's expert, who was going to offer an opinion about the safety and security requirements for the ferry. The ferry contended that the expert's opinions were not reliable or helpful, in part, because they did not meet the Daubert standard. The court held that the ferry's emphasis on scientific principles and replicable experiments or studies was misplaced when the case involved an alleged assault and robbery. The court found that the passenger's designated expert could potentially assist the jurors with industry standards of safety and security. The passenger sought to exclude medical testimony from the ferry's expert who would testify that the passenger was not raped or assaulted and that her injuries could be explained by her intoxication. The court denied the passenger's motion to exclude the testimony because there was no showing that the opinions would mislead the jury or cause the passenger undue prejudice. The physician provided evidence that he was qualified, and the physician had demonstrated his methodology and the reliability of the opinion. The opinions were not speculative or conjectural.

OUTCOME: The court denied both parties' motions in limine to exclude testimony from the opposing parties' designated expert.

Posted by Lipcon Law Firm at 5:34 PM | Permalink

DELMA J. DAIGLE VERSUS L & L MARINE TRANS. CO.

CIVIL ACTION NO. 02-2325 SECTION "L"(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 10958
June 14, 2004, Decided
June 14, 2004, Filed
June 15, 2004, Entered

PROCEDURAL POSTURE: Plaintiff, a former ship employee, sued defendants, a ship owner and its insurer, under, inter alia, the Jones Act, 46 U.S.C.S. app. § 688 et seq., and general maritime law for damages he sustained when a captain's chair collapsed under him. The owner filed a third-party complaint against third-party defendants, the captain's chair pedestal's seller and its manufacturer. A bench trial ensued.

OVERVIEW: The seller claimed that it was not strictly liable for the faulty chair pedestal because it was merely a middle-man seller. The court initially held that the owner was liable to the employee under the Jones Act because it had actual or constructive notice, through its employees, of the unsafe condition of the ship's captain's chair and failed to correct the unsafe condition, and that the owner was not entitled to limit its liability to the amount of the vessel because it failed to prove lack of privity and knowledge of the unsafe condition. The court further held that the employee established his unseaworthiness claim against the owner because the captain's chair collapsed when put to its normal and intended use causing injuries to the employee, but that the owner was entitled to indemnity from the seller and the manufacturer. The court then held that the seller was liable for the majority of the employee's damages because it failed to warn of the dangers involved in adjusting the leveling mounts on the pedestal, and that the manufacturer was comparatively liable for the employee's damages due to its expertise concerning metals and construction.

OUTCOME: The employee was entitled to joint and several recovery for his damages and pre- and post-judgment interest from the owner, its insurer, the seller, and the manufacturer.

Posted by Lipcon Law Firm at 5:34 PM | Permalink

MARTHA A. DOWNS CALLASSO, as Personal Representative of theEstate of William Seaman Smith, Plaintiff, vs. MORTON & CO., NICARAGUA LINECO., and ARIANE SHIPPING CORP., LTD., Defendants.

Case No. 03-21136-CIV-MOORE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2004 U.S. Dist. LEXIS 11205
June 15, 2004, Decided
June 15, 2004, Filed

PROCEDURAL POSTURE: Plaintiff, a personal representative of a decedent, sued defendants, a vessel owner, the vessel's technical manager, and a charter corporation, alleging wrongful death under the Jones Act, 46 U.S.C.S. app. § 688 et seq., unseaworthiness based on general maritime law, and for negligence and unseaworthiness under the Death on High Seas Act, 46 U.S.C.S. app. § 761 et seq. The owner and manager moved to dismiss based on forum non conveniens.

OVERVIEW: The owner and manager claimed that the representative was collaterally estopped from challenging a previous state court order dismissing the representative's claims based upon forum non conveniens. The court initially held that the representative was barred by the doctrine of collateral estoppel from challenging the legal and factual findings of the state court order. The court then held that the owner and manager did not have sufficient contacts with the United States (U.S.) because the decedent's fatal accident occurred on the vessel docked in Nicaragua, the vessel was an Antiguan flagged ship, neither the decedent nor the representative were U.S. citizens, the owner was not registered to do business in the forum, the place of contract was Nicaragua, and Nicaragua was an accessible forum. The court further held that the representative failed to show that Nicaragua was an inadequate forum because the owner and manager consented to jurisdiction of the Nicaraguan courts, satisfactory remedies were available to the representative, the private and public interest factors weighed in favor of a Nicaraguan forum, and Nicaraguan law would most likely have to be applied to decide the case.

OUTCOME: The motion to dismiss under the doctrine of forum non conveniens was granted. The motion to dismiss under the doctrines of abstention and res judicata was denied as moot.

Posted by Lipcon Law Firm at 5:33 PM | Permalink

DAMON L. RENFROW, Plaintiff, v. SILVER SPRAY SEAFOODS,L.L.C., Defendant.

Civil No. 03-6039-TC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2004 U.S. Dist. LEXIS 11947
June 17, 2004, Decided
June 17, 2004, Filed

OVERVIEW: Defendant, in a motion for summary judgment, asserted the affirmative defense of limitation of liability pursuant to the Limitation of Liability Act. The court found that the defense was timely raised, but ruled that the defense would be considered, if necessary, after the jury had considered the merits of plaintiff's claims and determined damages. Order of October 15, 2003 (# 22). The jury having reached a verdict for plaintiff, and having awarded damages in excess of the value of the vessel on which he served and its cargo at the time of his injury, n1 it is now the court's obligation to consider whether the limitation of liability defense should be applied.

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JOHN MULLETT v. SABINE TRANSPORTATION CO., Owner and/or Operator of SS SAG RIVER

CIVIL NO. 02-12014-RGS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2004 U.S. Dist. LEXIS 11262
June 21, 2004, Decided

PROCEDURAL POSTURE: Plaintiff merchant seaman sued defendant employer, the operator of a cargo vessel, for Jones Act negligence, unseaworthiness, and maintenance and cure. The employer moved for summary judgment asserting that the seaman could not prove that a defect or condition of the ship played a part in his accident, that his claim for maintenance and cure was satisfied, and that the foundation of the Jones Act claim rested solely on conjecture.

OVERVIEW: The seaman was injured when, just as he was trying to put the eye of a mooring line over a bollard, the Bulgarian crew members let go of the line, causing it to jerk the seaman's arm that was, at that moment, through the eye. The seaman's account, which began with the line being held fast by the Bulgarians and ended with the line suddenly in free play, was sufficient to warrant a jury, if it credited his testimony, in finding negligence on the part of the Bulgarian crew members. If the jury also found that letting go the line caused the seaman's injury, the employer was liable. The employer argued that by claiming that the accident was caused by human error, the seaman admitted that no physical condition caused his injury, and thus, no basis existed for a claim for unseaworthiness. While the evidence depended largely on the seaman's opinion of the seamanship of the Bulgarians, if the seaman persuaded the jury that the employer had employed an inexperienced crew who could not understand the operating language of the ship, it could also have found that the employer was responsible for a defect in the ship wholly apart from the momentary negligence that resulted in his injury.

OUTCOME: The court denied the employer's motion for summary judgment on the Jones Act negligence claim and the claim for unseaworthiness; the claim for maintenance and cure was deemed waived.

Posted by Lipcon Law Firm at 5:32 PM | Permalink

NOOR BEGUM KARIM, Etc.; ET AL., Plaintiffs, FAZAL KARIM,Plaintiff-Appellee, versus FINCH SHIPPING COMPANY LTD.; ET AL., Defendants, andTHE LAW OFFICE OF PAUL C. MINICLIER, Appellant. In Re: In the Matter of FINCHSHIPPING COMPANY LTD., Owner and Operator of the M/V Loussio for Exonerationfrom or Limitation of Liability; NOOR BEGUM KARIM, Etc.; ET AL., Claimants,FAZAL KARIM, Claimant-Appellee, versus THE LAW OFFICE OF PAUL C. MINICLIER,Appellant.

No. 03-30069
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2004 U.S. App. LEXIS 11815
June 16, 2004, Filed

PROCEDURAL POSTURE: Appellant, the attorney who represented appellee seaman pursuant to a contingency fee agreement, sought review of an order of the United States District Court for the Eastern District of Louisiana, asserting that the court erred when it modified the terms of the contingent fee agreement to be more beneficial to the seaman, who was absent from the jurisdiction. The ultimate issue was whether the district court abused its discretion.

OVERVIEW: The seaman, a Bangladeshi national, was injured at sea and taken to New Orleans to recuperate. The attorney advanced many of the seaman's expenses, for which he had been reimbursed. When the vessel owner eventually paid the judgment in favor of the seaman, he had long since been deported. Rather than pay the judgment to the attorney, as the attorney demanded, the owner paid the judgment into the court, which exercised its protective role for the seaman, as a ward of the court. It modified the fee agreement from the contract terms, whereby the attorney would have received 40 percent of the gross judgment, which would have left the seaman with no recovery. The attorney appealed, arguing the district court lacked jurisdiction and lacked the legal authority to alter the fee agreement. The court of appeals affirmed. The district court, sitting in admiralty, had the equitable power to reform the contingent fee agreement, particularly to the benefit of an absent seaman, and was not limited to paying out the funds. The fact that the court applied Louisiana and Bangladeshi law in the case did not alter the admiralty jurisdiction. There was no abuse of discretion by the district court.

OUTCOME: The judgment of the district court was affirmed.

Posted by Lipcon Law Firm at 5:32 PM | Permalink

Amerada Hess Corporation, et al., Third-PartyPlaintiffs-Appellants, v. G. Marine Diesel Corp., Third-PartyDefendant-Respondent, FCE Industries Ltd. (Inc.), Third-Party Defendant.

2598
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2004 N.Y. App. Div. LEXIS 6500
May 4, 2004, Decided
May 4, 2004, Entered

PROCEDURAL POSTURE: Defendants, a barge owner and its operator, appealed a judgment of the Supreme Court, New York County (New York), which after a jury trial, awarded plaintiff administratrix over $7 million in damages in her suit, filed individually and as administratrix of a decedent's estate, to recover damages for a fatal injury decedent incurred while working as a rigger on defendants' barge.

OVERVIEW: The administratrix filed a suit against defendants, seeking to recover for the fatal injury decedent incurred while working as a rigger on defendant's barge. Defendants filed a third-party action against decedent's employer. After claims based on the Jones Act and N.Y. Lab. Law § 240 were dismissed because the decedent did not qualify as a seaman and federal maritime law preempted state law, the jury awarded damages after finding the barge unseaworthy and defendants negligent. On appeal, the court reversed and remanded for a new trial, first finding that the trial court erred when it submitted the issue of seaworthiness to the jury. The court found that because decedent was covered under the Longshore and Harbor Workers' Compensation Act and received federal workers' compensation benefits from his employer, the administratrix was limited to a claim of negligence against defendants; therefore the issue of seaworthiness should not have been presented to the jury. The court then found that the trial court erred in its instructions on negligence because it improperly placed primary responsibility for safety on the vessel owner and its agents, rather than on decedent's employer.

OUTCOME: The court reversed and vacated the judgment to the extent that it awarded the administrator damages and remanded the matter for a new trial.

Posted by Lipcon Law Firm at 5:31 PM | Permalink

WILLARD E. BARTEL and DAVID C. PEEBLES, ADMINISTRATORS ofthe ESTATE of ROLF L. LINDSTROM, Plaintiffs, v. JOHN CRANE, INC., Defendant.

CASE NO. 1:98 CV 13222
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
2004 U.S. Dist. LEXIS 8132
May 3, 2004, Filed

PROCEDURAL POSTURE: Plaintiffs, administrators of the estate of a deceased merchant seaman, sued defendant corporation and asserted claims for negligence under the Jones Act, 46 U.S.C.S. app. § 688 et seq., the general admiralty and maritime law, and traditional product liability law. After the seaman's death, the complaint was amended to include wrongful death and survival claims. The parties consented to the case being tried before the court.

OVERVIEW: The seaman claimed that his exposure to the corporation's asbestos-containing products was a substantial factor in causing his peritoneal mesothelioma. After the seaman's death, the administrators were substituted as plaintiffs in the suit against the corporation. The court found that the administrators had not met their burden of proving that the corporation's gaskets or packing was a substantial factor or a proximate cause in the seaman's peritoneal mesothelioma because the seaman was exposed to lots of other asbestos-containing material on board ship during his 30-year career, the corporation's gaskets and packing contained only chrysotile asbestos, and it was generally accepted that it took a far greater exposure to chrysotile fibers than to amphibole fibers to cause mesothelioma, and the chrysotile asbestos in the corporation's packing and gaskets was at least partially encapsulated. Moreover, there was no evidence that the corporation did not take reasonable care in designing or manufacturing its products, and the corporation had no duty to warn, because there was no information available suggesting there was any condition that required a warning.

OUTCOME: The court entered a verdict in favor of the corporation.

Posted by Lipcon Law Firm at 5:30 PM | Permalink

ROGER PERALTA VERSUS AMERICAN CONTINENTAL LINE, LLC, et al

CIVIL ACTION NO. 03-2497 SECTION "N" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 8103
May 6, 2004, Decided
May 6, 2004, Filed; May 7, 2004, Entered

PROCEDURAL POSTURE: Plaintiff seaman brought suit against defendant tugboat owner and alleged barge owner, seeking recovery for personal injury, alleging claims of negligence under the Jones Act and unseaworthiness under general maritime law. The tugboat owner moved for summary judgment, pursuant to Fed. R. Civ. P. 56.

OVERVIEW: The seaman fell on a barge attached to the tugboat and was injured. The seaman brought a negligence action against the tugboat owner, and in its motion for summary judgment, the tugboat owner claimed that the seaman was solely responsible for his fall and resulting injuries. However, the court found that the tugboat owner failed to defeat the negligence claim by only making conclusory statements regarding its purported lack of a duty. While the tugboat owner alleged that it did not have a duty to warn of open and obvious conditions, the tugboat owner failed to prove its absence of a duty. Thus, there was a genuine material fact as to whether the tugboat owner exercised reasonable care under the circumstances surrounding the seaman's injury. Next, the seaman challenged the seaworthiness of the barge, and the tugboat owner sought summary judgment on the ground that it did not own or possess an interest in the barge. Regardless, the tugboat owner failed to offer any evidence, by way of affidavit, contract with the alleged barge owner or any other material, to support its assertion. Therefore, the tugboat owner was not granted summary judgment as to liability of unseaworthiness.

OUTCOME: The tugboat owner's motion for summary judgment was granted insofar as it sought dismissal of any claim for unseaworthiness of the tugboat. The motion was denied in all other respects.

Posted by Lipcon Law Firm at 5:30 PM | Permalink

JERRY STOGNER VERSUS CENTRAL BOAT RENTALS, INC. ET AL

CIVIL ACTION NO: 03-2119 SECTION: "J"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 8503
May 11, 2004, Decided
May 11, 2004, Filed, Entered

PROCEDURAL POSTURE: Plaintiff seaman filed an action against defendants, an employer and the owner of a mud barge, under the Jones Act, 46 U.S.C.S. § 761. The seaman later added defendant third-party non-employer to the action and added a cause of action against the non-employer for punitive damages under general maritime law. The court granted the non-employer's motion to dismiss the punitive damages claim, and the seaman filed a motion for reconsideration.

OVERVIEW: The seaman was injured while working offshore between a rig and a mud barge. The seaman sought relief in an action against defendants. The action included a punitive damages claim against the non-employer, who had "company men" aboard the barge participating in the operation conducted at the time of the seaman's injury. After the seaman failed to respond to the non-employer's motion to dismiss the punitive damages claim, the court granted the motion as unopposed. The next day, the seaman sought a reconsideration of the decision. The court held that punitive or nonpecuniary damages could be recovered in a general maritime law negligence action against non-employers. The court also implicitly held that the seaman's punitive damages claim against the non-employer was viable where his claims against the non-employer were governed solely by the general maritime law and did not arise from any federal maritime statutes.

OUTCOME: The court granted the seaman's motion for reconsideration and reinstated the seaman's claim for punitive damages.

Posted by Lipcon Law Firm at 5:29 PM | Permalink

PAUL WUESTEWALD, Plaintiff(s), v. FOSS MARITIME COMPANY,SHORE TERMINALS LLC, Defendant(s).

Case No. C02-03002 BZ
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 9521
May 11, 2004, Decided
May 11, 2004, Filed, Entered in Civil Docket

PROCEDURAL POSTURE: Plaintiff tankerman sued defendants, his employer and the owner of a dock, seeking damages under general maritime law and the Jones Act, 46 U.S.C.S. § 688, for injuries the tankerman sustained after he fell from a ladder while attempting to access a barge owned and operated by his employer, from the dock owner's dock.

OVERVIEW: The tide on the evening of the tankerman's injury was extremely low. Consistent with his customary practice of accessing the dock, the tankerman braced the bottom of an aluminum ladder inside the side of the coaming facing the dock and leaned the ladder against the dock. The court held that there was no suitable place against which to brace the ladder or to tie off the ladder at either end. When he placed his right foot on the rung the ladder slipped from the bottom, causing him to fall approximately nine to 12 feet to the deck of the barge. The employer was aware of the customary use of ladders to access the docks, but never investigated conditions affecting dock accessibility or verified the feasibility of following its own ladder safety guidelines. The court declined to fault the tankerman for failing to employ many of the employer's suggested alternatives, the majority of which were not included in the employer's safety manual. The employer was negligent by failing to provide the tankerman with a safe means of access to and from the dock. The dock owner, however, did not have a duty to assist the tankerman or provide a safe means for accessing its dock from the barge.

OUTCOME: Having concluded that the employer was negligent and failed to provide a seaworthy vessel, the court awarded the tankerman damages. The tankerman's claim against the dock was dismissed.

Posted by Lipcon Law Firm at 5:29 PM | Permalink

BANUEL ROSALES VERSUS BOUCHARD COASTWISE MANAGEMENT CORP.

CIVIL ACTION No. 03-2978 SECTION "K"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 9172
May 18, 2004, Decided
May 19, 2004, Filed; May 20, 2004, Entered

PROCEDURAL POSTURE: Plaintiff seaman filed a motion to strike the jury in connection with the seaman's suit against defendant ship owner under the Jones Act, 46 U.S.C.S. app. § 688, and General Maritime Law.

OVERVIEW: The seaman was injured when he slipped and fell while working aboard the owner's vessel. The owner requested a trial by jury. The court held that the seaman's simple statement in its initial complaint that he asserted jurisdiction based on the Jones Act and the general maritime law was adequate to designate his claim as one in admiralty. Because the seaman exercised his prerogative in electing to proceed in admiralty initially, Fed. R. Civ. P. 39(a) did not apply. Since the seaman did not invoke the court's diversity jurisdiction, and instead based his claim upon admiralty jurisdiction from the outset of the litigation, the owner had no right to a trial by jury.

OUTCOME: The court granted the seaman's motion to strike the jury.

Posted by Lipcon Law Firm at 5:28 PM | Permalink

DERIC COAKLEY VERSUS SEARIVER MARITIME, INC.

CIVIL ACTION NO. 02-3509 SECTION "F"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 9980
May 25, 2004, Decided
May 25, 2004, Filed; May 26, 2004, Entered

PROCEDURAL POSTURE: Plaintiff employee brought an action against defendant employer and asserted claims for Jones Act negligence and breach of the warranty of seaworthiness. The court had previously denied the employer's motion for summary judgment on the unseaworthiness claim. The matter was before the court again after the parties submitted their trial briefs.

OVERVIEW: The employee worked for the employer on a tug. At the time of the accident, the tug had several barges under tow. The employee went to fix the sounder on the front of an unmanned barged, which was owned by another company and pulled by agreement with the employer, and the employee injured himself. He brought this action, alleging negligence and unseaworthiness. The court had denied the employer's summary judgment motion with respect to the unseaworthiness claim, but the court rescinded that order and granted the employer partial judgment as a matter of law on the issue. There was no question that the employee was a seaman with regard to the tug. However, the barge being towed by the tug was unmanned. The employee was required to establish that he was a seaman on the vessel on which he sustained the injury. The employee's work on the barge while in service of the tug did not meet that standard. The employee was not a seaman as to all barges that could be towed by the employer under its towing agreement with the company, because the group of vessels was not a finite group. The agreement was not considered a demise charter, and thus the employer did not own the barge in question.

OUTCOME: The court recalled and rescinded its previous order and entered partial summary judgment as a matter of law on the issue of unseaworthiness in favor of the employer. That claim was thus dismissed.

Posted by Lipcon Law Firm at 5:28 PM | Permalink

VINOD KUMAR DAHIYA, Plaintiff-Appellee, versus TALMIDGEINTERNATIONAL, LTD., NEPTUNE SHIPMANAGEMENT SERVICES (PTE) LTD., AMERICAN EAGLETANKERS, INC., LTD., AMERICAN EAGLE TANKERS AGENCIES, INC., BRITANNIA STEAM SHIP INSURANCE ASSOCIATION, LTD., Defendants-Appellants.

No. 02-31068
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2004 U.S. App. LEXIS 9680
May 18, 2004, Filed

PROCEDURAL POSTURE: Appellants, an employer, a shipowner, co-owners of the fleet, and the ship's insurer, sought review of a decision of the United States District Court for the Eastern District of Louisiana, New Orleans, which remanded the claim filed by appellee employee to the state court where it was originally filed and denied appellants' motions to stay the proceedings and compel arbitration.

OVERVIEW: The employee, a native of India, filed a maritime personal injury action in a Louisiana state court against appellants. Appellants did not file a notice of removal within the 30-day time limit allowed under 28 U.S.C.S. § 1446, but argued that removal was still proper under 9 U.S.C.S. § 205, which allowed for removal at any time before trial. Appellants stated that the matter was governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Sept. 1, 1970, 21 U.S.T. 2517, T.I.A.S. 6997, art. I et seq., (Convention). The district court rejected the argument, remanded the matter, and denied appellants' motions to stay pending arbitration. Affirming, the court held that the remand, whether or not it was appropriate, deprived the court of appellate jurisdiction, pursuant to 28 U.S.C.S. § 1447, and the court could not consider whether or not the stay and arbitration proceedings invoked under the Convention were applicable to the case. The limited exceptions that would have allowed review of the remand order did not apply because the orders did not have a preclusive effect and the matter could proceed in state court.

OUTCOME: The court dismissed the appeal.

Posted by Lipcon Law Firm at 5:27 PM | Permalink