« August 2005 | Main | November 2005 »
Video clip of Scarborough Country segment "Charles Lipcon interviewed live on MSNBC regarding Congressional investigation of George Smith case"
View Clip [Windows Media, 16.19 Mb]
Airdate: October 3, 2005
Subject: Charles Lipcon interviewed live on MSNBC regarding Congressional investigation of George Smith case
Program: Scarborough Country
JAMES MACK and SHEILA MACK, Plaintiffs and Respondents-Appellees, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant and Petitioner-Appellant.
No. 1-04-2168
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
2005 Ill. App. LEXIS 1035
October 20, 2005, Decided
October 20, 2005, Opinion Filed
PROCEDURAL POSTURE: Plaintiffs James and Sheila Mack brought suit against defendant Royal Caribbean Cruise Lines, Ltd., alleging that James cut his foot in the swimming pool area of a cruise ship owned and operated by defendant. Plaintiffs alleged that defendant was liable for negligently maintaining its swimming pool area; that defendant was vicariously liable for the negligent medical treatment James received from defendant's on-board physician; and that defendant was liable to Sheila for loss of consortium. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), defendant appeals the trial court's interlocutory orders reinstating the plaintiffs' vicarious liability count and denying defendant's motion to dismiss.
HELD: Affirmed.
DISCUSSION: Defendant argues that, in reinstating the vicarious liability claim, the trial court ignored a largely established rule of law which precludes vicarious liability counts against carriers for the alleged negligence of shipboard doctors. Plaintiffs respond that the trial court was correct to follow the more reasoned approach of modem cases, which allows vicarious liability claims against carriers. Whether vicarious liability will be imposed generally turns on the ability of the principle to control the acts of his agent and on a variety of other factors, including "whether the work is 'part of the regular business of the employer'; whether the contractor is engaged in a distinct calling; the degree of skill of the contractor; who supplies the locale, tools and instrumentalities; the period of employment and the method of payment." A passenger does not have control over his relationship with a ship's doctor because a cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship's doctor. Additionally, vicarious liability for an on-board physician's negligence should be imposed because cruise lines reap the benefits of carrying a doctor aboard their vessels. Finally, to impose vicarious liability on a cruise line for the negligent treatment of passengers by its on-board physician is not unreasonable because the cruise line is already held vicariously liable for the negligence of the same ship's doctor in the treatment of hundreds of people-the crew-under the maritime duty to provide maintenance and cure.
DAVID W. BOWMAN, Appellee, v. AMERICAN RIVER TRANSPORTATION COMPANY et al., Appellants.
Docket No. 99094
SUPREME COURT OF ILLINOIS
2005 Ill. LEXIS 1604
October 20, 2005, Opinion Filed
PROCEDURAL POSTURE: Plaintiff filed suit against defendants in St. Clair County for injuries suffered while working as a seaman aboard a harbor boat. He claimed negligence under the Jones Act, unseaworthiness, and maintenance and cure. Defendants filed a timely request for a jury trial, which was stricken by the trial court on plaintiff's motion arguing that only plaintiffs in Jones Act cases can demand a jury trial.
HELD: REVERSED.
DISCUSSION: The key sentence of the Jones Act at issue here states: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury" (46 U.S.C. App. § 688(a) (2000)). We believe that anyone well versed in statutory construction, or even English grammar, would find the plain language of that sentence clearly states that the "election" to be made by the seaman pertains to his choice to maintain an action "at law," and not his election of a "right of trial by jury." Under the principle of statutory construction known as the last antecedent doctrine, relative or qualifying words or phrases in a statute serve only to modify words or phrases which are immediately preceding and do not modify those which are more remote.
NOTE: This conclusion, however, does not negate the fact that, under the Jones Act, a plaintiff does control the choice between a bench or jury trial by using his choice of the forum. That is, the plaintiff desiring a bench trial may bring his case in admiralty under 28 U.S.C. § 1333, as there, neither party is entitled to a jury trial. See 30 J. Mar. L. & Com. at 669. On the other hand, the plaintiff desiring a jury trial may bring his case, pursuant to the saving-to-suitors clause, on the law side of federal court or in a state court whose law guarantees the right to a jury trial. See 30 J. Mar. L. & Com. at 669-70. Thus, having the power to control the forum, the Jones Act plaintiff starts out with full control over whether the case will be tried to a jury. It is in this sense that statements to the effect that "the Jones Act gives only the plaintiff the right to choose a jury trial" are true. However, [*21] Johnson and its predecessor in the Second Circuit make it clear that once the Jones Act plaintiff has made his forum choice, if defendants in that forum normally have a right to a jury, then so does the Jones Act defendant.
New trial ordered where maritime ergonomic engineering expert witness was improperly not permitted to testify as to opinions regarding ship's door latches and procedures for inspecting such latches where such expert had not conducted a ship board inspection of the subject area.
COLIN ORPE, Appellant, v. CARNIVAL CORPORATION AND GARY FERRIS, Appellees.
CASE NO. 3D02-3186
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
909 So. 2d 929; 2005 Fla. App. LEXIS 12010; 30 Fla. L. Weekly D 1858
August 3, 2005, Opinion Filed
PROCEDURAL POSTURE: Colin Orpe appeals a final judgment entered in a negligence action. Because the trial court would not allow Orpe to present the testimony of his expert witness at trial, we reverse. FACTS: Dr. Marc Wilson was Orpe's sole liability expert witness. Orpe was injured while he was a passenger on Carnival Corporation's vessel Holiday when his cabin bathroom door swung shut and severed a portion of his finger. The door opened outward and a magnetic device on the adjacent wall was designed to hold the door against the adjacent wall. Orpe's cabin-mate testified that the door had malfunctioned several times before the accident occurred. At trial, Orpe sought to introduce Dr. Wilson's testimony that a door dampener should have been used to slow down the rate at which the door closed; that an outward opening door without a door dampener is a hazard; that written warnings and a handrail in this area on a ship were necessary from an ergonomics, human factors and safety standpoint; that magnets lose their power over time; and that such devices must be regularly inspected and replaced. In the alternative, he suggested that the use of the hook-and-eye-type door latch, the usual type of latch used on cruise ships, was appropriate. In addition, he was to testify about general considerations for safety in equipping a ship's bathroom and door. The court excluded Dr. Wilson's testimony ruling that he was not qualified to testify concerning the appropriate safety measures in a ship's passenger cabin and that expert testimony on this issue was unnecessary. Carnival's expert, however, was permitted to offer his opinion as to a magnet's properties and characteristics, the force necessary to separate the door from the magnetic latch, and use of dampeners on cruise ship doors.
DISCUSSION: Although Dr. Wilson never visited the accident area on the ship, by the time of Dr. Wilson's pre-trial deposition, he had viewed photographs of the subject door, latch and bathroom. Furthermore, he personally interviewed Orpe and read his deposition transcript and read Hahn's affidavit. He had been advised of Orpe and Hahn's testimony regarding how the accident occurred and that there were no handrails or warnings in the bathroom. In addition, at the time of his deposition, Dr. Wilson had seen photographs of a bathroom door in a cabin of a competing cruise line, Celebrity Cruises. This door contained a "door dampener" such as here. He further viewed Carnival's video tape of the accident area, previously had inspected passenger bathroom doors on this same vessel, the HOLIDAY, and was familiar with the bathroom doors. Dr. Wilson testified that ergonomics is based primarily on prior research and that there are ample studies on different types of door closure devices, latching devices and dampeners. Dr. Wilson testified that he was able to give opinions from an ergonomic and safety point of view here without having personally viewed the subject accident scene based on the photographs, which showed that the door did not have a dampener, showed the door's magnetic latch at the bottom of the door, and showed there was no warning or safety handrail inside the bathroom or on the door. Dr. Wilson's experience and education afforded him knowledge of how magnets work and whether magnets can lose power. The proffered testimony was a proper subject for expert testimony.
Injured cruise line passengers' claims dismissed as time barred for failing to file suit within one year as required by cruise line's limitation provision within the passenger's cruise ticket despite cruise line's failure to specifically inform plaintiff's lawyer of such provision while communicating with the lawyer during the limitations period.
BETTY REESER, et al. v. NCL (BAHAMAS) LTD.
CIVIL ACTION NO. 05-2344
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2005 U.S. Dist. LEXIS 17159
August 17, 2005, Decided
August 17, 2005, Filed
PROCEDURAL POSTURE: Plaintiffs, cruise line passengers, who suffered injuries aboard Defendant's cruise line in June 2003, filed suit against the cruise line in April 2005. Defendant moved to dismiss Plaintiff's claims as time barred pursuant to a one year limitations period set forth in the cruise line's passenger ticket. Plaintiff's argued that they did not receive reasonable notification of Defendant's limitation provision, that such limitation provision was not reasonable or reasonably communicated, and that Defendant failed to provide a copy of the limitation provision or ticket to Plaintiff's attorney despite communicating with the attorney during the limitation period.
HELD: Plaintiffs claims are time barred and Defendant's Motion to Dismiss is granted.
DISCUSSION: Although the time limitation provision could have been more prominent, the standard is one of reasonableness, which means the Court does not ask whether the cruise line took every possible step to put plaintiffs on notice. The location of the term does not render it unenforceable. Similarly, the size of the text in which terms are printed does not necessarily render terms unenforceable, provided that the text is readable. Although the provision could have been expressed in simpler language, the standard is one of reasonable communicativeness and the Court will not engage in "hypothesizing some further step the shipowner could possibly have taken." Finally, even if NCL did not inform the plaintiffs' counsel of the time limitation, the Court notes that NCL did point out the "rights and defenses" contained in the "passenger ticket contract" in at least two notices to plaintiffs' counsel before the time limitation period expired. The following paragraph appeared in a letter dated October 21, 2003, addressed to the plaintiffs' lawyer and signed by NCL's Senior Claims Representative: "This request for information and any conversations or correspondence between us should not be construed as an admission of liability and is without prejudice to the rights and defenses of Norwegian Cruise Line Limited, including the terms and conditions set forth in the passenger ticket contract of passage."
BILL WIGGINS and ALICE WIGGINS, Plaintiffs, v. CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINES, Defendant.
EP-05-CV-0230-FM
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, EL PASO DIVISION
2005 U.S. Dist. LEXIS 18235
August 25, 2005, Decided
PROCEDURAL POSTURE: Defendant, cruise line, filed a Motion to Dismiss or in the Alternative to Transfer Venue, based upon a forum selection clause placed in a passenger cruise ticket requiring passengers to file suit in federal court in Miami, Florida.
HELD: This case should be TRANSFERRED to the United States District Court for the Southern District of Florida, Miami Division and Defendant's "Motion to Dismiss Under FED. R. CIV. P. 12(b)(3) and (6), or, in the Alternative, to Transfer Under 28 U.S.C. 1404(a), and/or 1406(a)" [Rec. No. 2] should be GRANTED IN PART AND DENIED IN PART to the extent that the case is transferred but not dismissed.
DISCUSSION: This Court finds no reason why the Court should not enforce the forum selection clause. Even though Plaintiffs argue they did not have adequate notice of the forum selection clause and it is fundamentally unfair, the position is unsupported by the case law and facts making up this cause of action. In this action based on a cruise to the Bahamas departing from Florida and purchased through a travel agent outside of Texas, Plaintiff has not overcome its heavy burden and shown the clause "unreasonable under the circumstances."
Minor sues hotel chain and owner of wave runner rental operation in Cayman Islands - Admiralty law held to apply precluding application of Connecticut parental immunity law; Hotel chain's motion for summary judgment denied as issues of fact remained as to hotel chain's control over wave runner operation; and Limitation of Liability not available as to hotel chain defendants which were not owners of the subject wave runner.
LINDA SZOLLOSY, on behalf of herself and as parent and next friend of CHARLES DEAN SZOLLOSY, Plaintiff v. HYATT CORPORATION, HYATT BRITANNIA CORPORATION LTD., WATERSPORTS ADMINISTRATION INC., AND RED SAIL CAYMAN LTD., Defendants/Third-Party Plaintiffs v. CHARLES SZOLLOSY, Third-Party Defendant
Civil Action No. 3:99 CV 870 (CFD)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
2005 U.S. Dist. LEXIS 22088
September 26, 2005, Decided
PROCEDURAL POSTURE: Plaintiff Linda Szollosy brought this action as parent and next friend of her minor son Charles "Dean" Szollosy, seeking damages for injuries suffered by Dean Szollosy during a September 1998 vacation in the Cayman Islands. Linda Szollosy's complaint contains five counts, alleging the common law torts of negligence and breach of warranty by defendants Hyatt Corporation and Hyatt Britannia Corporation Ltd., and alleging negligence, breach of warranty, and strict products liability under Conn. Gen. Stat. § 52-572m et seq. against defendants Watersports Administration, Inc("WAI"), and Red Sail Cayman Ltd. The defendants then brought a third-party action against Charles Szollosy for contribution, common law indemnification, and apportionment, alleging that Charles Szollosy was liable for all or part of Dean's injuries due to negligence. Charles Szollosy has now filed a motion for summary judgment on the defendants' third-party complaint, arguing that Connecticut law governs the defendants' action and affords Charles Szollosy parental immunity. Defendants Hyatt, Hyatt Britannia, and WAI have filed a separate motion for summary judgment as to Linda Szollosy's complaint, arguing that they are distinct legal entities that cannot be held responsible for any liability of Red Sail. Finally, Linda Szollosy has filed a motion for summary judgment on the defendants' nineteenth affirmative defense, in which the defendants claim limitation of liability under the federal admiralty statutes at 46 U.S. § 183 et seq.
HOLDINGS AND DISCUSSION:
1. Admiralty law applies and hence, Connecticut's parental immunity laws do not. The Lauritzen test appears to support the application of federal maritime law in this case. The location of the wrongful act, the first factor to be considered, is of course the Cayman Islands. The remaining factors, however, weigh more heavily in favor of the United States. The second factor, the law of the flag of the vessel involved, is not a compelling one; this was a wave runner designed for tourist use, not a vessel registered and doing business in international waters. The third factor, the domicile of the injured party, is the United States. The fourth factor, the national allegiance of the defendant shipowner, does not favor either body of law strongly. While the owner of the wave runner was Red Sail Cayman Ltd., the defendants have sworn that Red Sail is 66% percent Cayman-owned and approximately 34% owned by entities which also own the American-based defendant Hyatt Corporation. Red Sail appears to have allegiances to both the Cayman Islands and the United States, and therefore would not be materially prejudiced by applying the law of either nation. The fifth factor, place of contract, is not applicable here, as the parties did not contract for the use of the wave runner. Finally, the sixth and seventh factors, the relative accessibility of the foreign forum and the law of the forum chosen, weigh in favor of applying federal maritime law. The Szollosys are United States residents who would be greatly inconvenienced by litigating in the Cayman Islands, while the defendants/third-party plaintiffs are all corporations with at least some United States contacts or ownership, lessening the difficulty of pursuing a lawsuit here. Additionally, Linda Szollosy filed the original complaint in this case in federal court for the District of Connecticut; the law of this forum for an admiralty action is federal maritime law. Therefore, after evaluating the Lauritzen factors as a whole, the Court will apply federal maritime law to this action. Parental immunity is treated quite differently across the 50 states. Even looking wholly intrastate, Connecticut takes different approaches to parental immunity depending on the nature of the tort alleged. The Court must agree with the Byrd court that importing state law rules on parental immunity to federal admiralty actions would detract from the uniformity of admiralty law, undermine the simplicity of the admiralty system, and too greatly impair admiralty's rule of contribution among joint tortfeasors. Therefore, in its application of federal admiralty law to this action, the Court will not import Connecticut's rules of decision on parental immunity.
2. The Court finds that genuine disputes of material fact exist, including the precise nature of the various defendants' corporate relationship with and control over Red Sail and its rental operation at Rum Point. Therefore, the Court denies the motion for summary judgment and leaves Linda Szollosy's claims against Hyatt, Hyatt Britannia, and WAI for resolution by the trier of fact.
3. Limitation of Liability may not be invoked by non vessel owners. The Court finds that defendants Hyatt, Hyatt Britannia, and WAI cannot invoke the protections of the Limitation of Liability Act. It is undisputed that the wave runner at issue here was owned solely by defendant Red Sail. The non-Red Sail defendants argued that since Linda Szollosy elsewhere has asserted that they own or control Red Sail, such putative ownership or control allows them to seek relief under the Limitation of Liability Act. Linda Szollosy maintains that her allegations relate only to Hyatt, Hyatt Britannia, and WAI's control over the "policies and 'standards' concerning the operation of the Red Sail concession at Rum Point." She does not seek to hold them liable as owners of the wave runner, nor as the entities responsible for the maintenance or operation of Red Sail's wave runners. The Second Circuit has suggested that limitation of liability is available only to those parties who "had actual title or [were] capable of exercising some measure of dominion or control over the vessel at the time of the accident. As such, the non-Red Sail defendants may not seek relief under the Limitation of Liability Act.
Ashley R. Bunch, Appellant, v. Canton Marine Towing Co., Inc., a Missouri Corporation; Sir Joseph, an inland river towboat, Her Engines, Boilers, etc., Appellees.
No. 04-1292
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
419 F.3d 868; 2005 U.S. App. LEXIS 18017
April 14, 2005, Submitted
August 23, 2005, Filed
PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Missouri. Bunch v. Canton Marine Towing Co., 2004 U.S. Dist. LEXIS 28412 (E.D. Mo., Jan. 6, 2004)
DISPOSITION: Reversed.
OPINION: Ashley Bunch was injured aboard the M/V Sir Joseph, a tugboat owned by Bunch's employer, Canton Marine Towing Company, Inc. Bunch sued Canton and the Sir Joseph under section 33 of the Merchant Marine Act of 1920, 46 U.S.C. app. § 688, commonly known as the Jones Act. The district court granted summary judgment to the defendants, concluding Bunch was not a "seaman" covered by the Jones Act, because Bunch "simply did not have a substantial connection to a vessel in navigation." We reverse. Bunch worked as a barge cleaner at Canton's Missouri facility, a cleaning barge moored to the bed of the Missouri River. Almost every day, Bunch was ferried in the morning to the cleaning barge from Canton's Illinois facilities, then back for lunch and again to return home in the evening, usually aboard the Sir Joseph. On most days Bunch spent twenty minutes aboard the Sir Joseph. Cleaning third-party barges consumed Bunch's normal workday aboard the cleaning barge. Bunch cleaned barges on all but approximately ten of the 242 days he worked during his first year with Canton. On those approximately ten days, Bunch worked as a deckhand for a few hours on the Sir Joseph. Viewing the evidence most favorably to Bunch, for summary judgment purposes, the district court assumed Bunch spent, at most, ten percent of his work time as a deckhand. We hold the cleaning barge was a vessel and, thus, a vessel in navigation under the Jones Act. In Templeton, after noting the Rand had inoperable engines and would need to be towed if she were to be moved, we concluded such facts were insufficient to strip the Rand of vessel status. Templeton, 378 F.3d at 850-52. The Rand also was connected to spud poles by bolts, "which could easily be removed, permitting the Rand to be towed because she floated on her own, which [was] sufficient to bestow 'vessel' status on her." Id. at 852. The undisputed facts of this case do not show the cleaning barge was permanently moored or anchored to the river bed, and the barge had been moved from its mooring to travel across the river during the time Bunch worked for Canton. Although the cleaning barge was secured in position, strong currents would shift the barge, belying the permanency of its mooring. Nor does the evidence show the barge had been taken out of service or rendered practically incapable of maritime transportation.
JESUS VELASQUEZ, Plaintiff-Appellant, versus C.S.C.S. International, N.V., a foreign corporation, COSTA CROCIERE, S.P.A., a foreign corporation, et al., Defendants-Appellees.
No. 05-11170 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2005 U.S. App. LEXIS 19448
September 6, 2005, Decided
September 6, 2005, Filed
PRIOR HISTORY: Appeal from the United States District Court for the Southern District of Florida. D. C. Docket No. 03-61183-CV-MGC.
DISPOSITION: AFFIRMED.
PROCEDURAL POSTURE: Appellant Jesus Velasquez appeals the district court's order dismissing his suit based on Jones Act and general maritime claims for forum non conveniens.
OVERVIEW: Velasquez, a Honduran citizen and resident, was employed by Cruise Ships Catering & Service International N.V. ("C.S.C.S."). He worked on a ship named the Costa Victoria, which embarked from Genoa, Italy. Velasquez alleges that he was injured aboard the ship while lifting boxes of wine. During the time of his alleged injury, the Costa Victoria was in international waters calling on ports in the Mediterranean Sea. After receiving shoreside diagnostic testing in Genoa, Italy, Velasquez left the Costa Victoria on medical leave and went back to Honduras where he was treated and underwent three back operations. He also had subsequent surgery in Miami. The district court properly dismissed this action for forum non conveniens. The law of the United States should not apply in this case as the alleged wrongful act occurred in the Mediterranean Sea, the vessel on which Velasquez worked was foreign, Velasquez is a resident and citizen of Honduras, the shipowner, Costa, is an Italian corporation and foreign fora are accessible to Velasquez.
ROLF L. LINDSTROM, Plaintiff, WILLARD E. BARTEL and DAVID C. PEEBLES, administrators of the estate of ROLF L. LINDSTROM, deceased, Plaintiffs-Appellants, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, A.W. CHESTERTON, COFFIN TURBO PUMP, INC., INGERSOLL-RAND COMPANY, WALWORTH COMPANY, THE ANCHOR PACKING COMPANY, COLTEC INDUSTRIES, GARLOCK SEALING TECHNOLOGIES, LLC, GOULDS PUMPS, INC., HENRY VOGT MACHINE CO., and JOHN CRANE, INC., Defendants-Appellees.
No. 04-3751
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
424 F.3d 488; 2005 U.S. App. LEXIS 21010; 2005 FED App. 0400P (6th Cir.)
PROCEDURAL POSTURE: Rolf L. Lindstrom, a merchant seaman, brought suit against numerous defendants seeking compensation for his mesothelioma, a disease he claims was caused by exposure to asbestos released from products manufactured by defendants-appellees.The district court granted summary judgment in favor of defendants-appellees Ingersoll Rand Company, Coffin Turbo Pump, Inc., Garlock Sealing Technologies, LLC, Henry Vogt Machine Company, and Goulds Pumps, Inc., but denied John Crane, Inc.'s summary judgment motion. Following a bench trial, the district court entered a verdict in favor of John Crane, Inc. Willard E. Bartel and David C. Peebles, administrators of Lindstrom's estate, now appeal.
DISPOSITION: Affirmed.
OVERVIEW: The requirement is that the plaintiff make a showing with respect to each defendant that the defendant's product was a substantial factor in plaintiff's injury, As a matter of law the evidence presented by the Plaintiff did not provide a basis for a causation finding as to any particular defendant. A holding to the contrary would permit imposition of liability on the manufacturer of any product with which a worker had the briefest of encounters on a single occasion.