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May 23, 2007

How safe is cruising?

By Jill Schensul
Record Columnist, NorthJersey.com

"I cannot imagine any condition which would cause a ship to founder. I cannot conceive of any vital disaster happening to this vessel. Modern shipbuilding has gone beyond that."

"Modern," when Capt. Edward John Smith spoke these words, was 1907, on the maiden voyage of the Adriatic. He would be able to imagine such conditions five years later, at the helm of the Titanic. Famous last words.

Reading them today, we may smile bittersweetly at their bravado and irony. Then again, after the grounding of the Empress of the North in Alaska last Monday -- just a little more than a month after the 1,200-passenger Sea Diamond sank in the Aegean Sea -- these words seem more portentous than not.

I, for one, have held the same trust in modern shipbuilding -- our modern, of course, not Titanic modern -- over the years. You'd hear about the occasional problem with a ship catching fire, one going aground. But these were isolated incidents, I told myself. A 1996 survey by the U.S. Coast Guard found that cruising was the safest form of commercial travel.

But these latest [cruise ship] accidents have to give us at least a little pause.

In fact, when I started digging, I realized that cruise ship accidents may not be as rare as we would like to believe. Ross Klein, a professor at Canada's Memorial University and the man behind the Web site cruisejunkie.com, tracks cruise safety issues and has testified before Congress about them. Klein has counted 21 sinkings of passenger ships around the world since 1980, including cruise liners and major ferry operations; he's also counted 76 incidents of passenger ships that have run aground during that time, including 24 involving big companies such as Carnival, Costa, Cunard, Holland America, Norwegian, Princess and Royal Caribbean.

Surprised? Unless these incidents result in significant numbers of injuries or fatalities, the cruise lines, for the most part, are able to keep them out of the public spotlight. For example, when a Princess cruise ship was hit by a rogue wave July 18, 2006, tilting violently and injuring 93 people after it left Port Canaveral, Fla., it was only the most severe of half a dozen similar incidents in one year.

"You didn't hear about the others because cruise lines aren't required to report such events unless they cause serious injuries or property damage," said Coast Guard spokeswoman Jennifer Johnson.

After the Empress of the North incident, I wondered about the Nordkapp, which had hit something during a cruise in Antarctica just days before I left on a similar cruise. At the time, the cause of the accident was unknown. Since I returned, I found no follow-up, except for a story from a foreign news service questioning whether oil had leaked into the sea.

There had been a swift conclusion to the investigation of the sinking of the Sea Diamond, however. The ship, carrying 1,156 passengers and 391 crew, hit a well-charted reef near the island of Santorini. The captain had blamed sea currents for the accident, but Greece's merchant marine minister concluded that human error was to blame. The captain and five crew members have been charged with negligence.

For ships calling on U.S. ports, the Coast Guard conducts inspections to assure compliance with safety regulations. The Coast Guard also examines each new cruise vessel when it first enters service at a U.S. port to ensure compliance with the Safety of Life at Sea Convention. After that, vessels calling on U.S. ports are subject to quarterly inspections. The examinations emphasize structural fire safety and proper life-saving equipment.

So why, with all these precautions, are there still accidents, especially when today's passenger ships are some of the newest and most technologically advanced ever on the seas?

In some instances, such as the rogue waves, computers have indeed malfunctioned or been stymied by unusual situations.

And in a great many cases, the cause comes down to human error, specifically crew fatigue.

Labor shortages are making for an "absolute crisis," according to Andrew Linington, spokesman for the British seafarers union Nautilus. The time bomb is the aging maritime workforce, he points out. Officers are retiring and replacements with experience and skills are at a premium. "It's only going to get worse," Linington says.

The International Maritime Organization, which oversees safety on the sea, drew up a series of new regulations at its 2005 meeting. Some of these will be in place by the end of the year, the rest by 2009. These regulations require better reinforcement of ship structure and more thought to passenger evacuation.

For now, remember that the Coast Guard says cruises are the safest form of travel.

And if you're so inclined, check out the Port Exchange Information System, cgmix.uscg.mil/psix, which provides a list of active documents and certificates of all ships that call at U.S. ports. Or go to equasis.com, a public Web site (you need to register first) offering safety information on ships.

May 22, 2007

Fox 11 Ten O'Clock News - Cruise Ship Industry Trying to Clean Up Image

Video clip of Fox 11 Ten O'Clock News segment "Cruise Ship Industry Trying to Clean Up Image"

View Clip [Windows Media]

Airdate: May 22, 2007
Subject: Cruise Ship Industry Trying to Clean Up Image
Program: Fox 11 Ten O'Clock News

May 20, 2007

Thirteen injured as wave pounds ship in France

BREST, France (AFP) - Thirteen people were injured, several of them seriously, when a massive wave struck a passenger ship on Saturday off the coast of Brittany in western France, maritime authorities said.

One man and one woman were swept off the bridge of the Enez Sun, which was carrying 136 passengers and seven crew members, and were washed overboard into the sea near Sein Island. The man broke his arm.

They were fished alive out of the water by a trawler that had been alerted to the accident by the coast guard and were airlifted to a hospital in the Brittany port of Brest.

"We were on the deck, we were looking at the dolphins. We were very close to the island when a huge wave hit us from the side. The seats were ripped loose. I was very afraid," said a 17-year-old female passenger.

The captain of the ship told the maritime authorities that a small child was among those who were seriously injured and receiving medical attention in the nearby port of Audierne.

Associated Press

May 15, 2007

1 killed in Greek cruise ship accident

ATHENS, Greece - An Indonesian sailor was killed and another crew member was seriously injured in an accident Monday when a cruise ship was docking at the island of Mykonos, authorities said.

The man was killed after a mooring line snapped, as the Greek-flagged Orient Queen was preparing to leave the island, the Mykonos port authority said. A second Indonesian sailor was hospitalized in serious condition.

The ship's operator, Cypriot-based Louis Cruise Lines, also operated the Sea Diamond cruise ship, which sank off the island of Santorini after striking well-marked rocks April 5. Nearly 1,600 people had been evacuated from that boat, while two French tourists remain missing, presumed drowned.

Associated Press

May 14, 2007

Cruise Ship Runs Aground Off Alaska

When the Empress of the North ran aground, the band played on - as everyone disembarked in a safe and orderly fashion.

Passengers jolted awake by the ship hitting a charted reef 50 miles southwest of Juneau early Monday were ordered to don lifejackets and gather in the ballroom, where a singer and piano player entertained them with songs including "Take Me Out to the Ball Game" as they waited for rescue.

Passengers praised the ship's crew for taking charge.

"They just seemed to know what they were doing. They were caring, courteous, the whole thing, and I think that's what kept everybody calm," said Mary Crosby, 83, of Seattle.

The National Transportation Safety Board will investigate the grounding of the riverboat-style cruise ship, which had 206 passengers and 75 crew members on board. One person was taken to a hospital for observation, a Juneau city official said.

When Coast Guard helicopters reached the area, the vessel was listing at the southern end of Icy Strait and had begun taking on water, the Coast Guard said.

As the ship's pumps worked to remove the water, the passengers were transferred safely to other boats in the area and then to an Alaska state ferry to be taken to Juneau.

The Empress of the North floated free of the rock during the evacuation, and the crew was able to stabilize the ship, said the Coast Guard.

The ship arrived in Juneau with a Coast Guard escort about nine hours after the grounding. The ferry Columbia arrived shortly after.

State officials said the hull sustained significant damage and an empty fuel tank was breached during the grounding. A light oil sheen was seen in the area but officials were uncertain if the ship was the source.

Coast Guard Petty Officer Barry Lane said Coast Guard inspectors did an initial survey of the ship as it was moored in Juneau's Auke Bay and will pass the information on to the NTSB.

It wasn't immediately clear why the cruise ship ran aground, said Coast Guard officials. It was drizzling in Juneau but the seas were calm.

Good Samaritans were first on the scene of the grounding and passengers were initially evacuated onto lifeboats, a charter fishing boat, a tugboat, another small cruise ship and a coast guard cutter before the Columbia arrived.

"The morning was incredible. You had anybody and everybody that could get there and they all got there as quick as they could and all were willing to help out," said Coast Guard Capt. Mark Guillory, federal on-scene coordinator.

Passengers left the ship with only their personal identification and medications. They were to be reunited with their belongings later in Juneau. All had been flown to Seattle by evening, said company officials.

"It couldn't have been better orchestrated the way things fell into place," said Chief Petty Officer Barry Lane.

The Empress of the North is operated by Majestic America Line of Seattle. The ship has 112 staterooms, a three-story paddlewheel and galleries featuring Native American masks and Russian artwork, including Faberge eggs, according to its Web site.

The 360-foot ship is less than half the size of the average cruise ship in the Caribbean, and is also dwarfed by most cruise other ships off the Alaska coast.

The grounding occurred on the second day of a seven-day cruise, said Dan Miller, a spokesman for Majestic America.

The American-built ship is billed by the company as the only overnight paddlewheel vessel in use on Alaska cruises. It also is used on cruises on the Columbia River between Washington state and Oregon.

The Empress of the North has had other problems since it began operating in mid-2003. In October of that year, it hit a navigation lock on the Snake River in Washington. It has also run aground at least twice before - once after developing steering problems on the Columbia River, and once on a sandbar near Washougal, Wash., as it tried to avoid a barge.

By ANNE SUTTON, AP

May 2, 2007

Cruise crime victims seek industry help

Eight years after her 22-year-old son disappeared while vacationing aboard a Carnival Cruise Lines ship, Jean Scavone's hopes rise each time her phone rings.

"I'm waiting for Jimmy to say, 'Mom, it's me. I'm here,' " said the 58-year-old Connecticut resident. "I know my son is probably dead, but in my heart and soul I can't believe it because there is nothing that tells me he's gone. He didn't die; he vanished."

Saying Carnival gave her more grief than comfort, Scavone helped form a victims group last year that has been calling for changes in the cruise industry.

Today in Atlanta some of the group's members and cruise industry employees plan to work together with the hope that future victims will find the support that Scavone said she did not have.

Carnival, Royal Caribbean and Celebrity Cruises are co-sponsoring the Sixth Annual Family Assistance Foundation Symposium, an event founded largely to help survivors of airline disasters.

"I hope it's not a public relations move," said Kendall Carver, the president of International Cruise Victims, the group made up mostly of people who have suffered cruise ship tragedies.

Carver, whose daughter went missing while on a 2004 cruise, and other members of the group will be the first cruise ship victims to speak at the annual event that brings together survivors and responders of tragic events. The symposium's organizer said bringing the victims and cruise industry employees together is a crucial part of helping future victims.

Joint appearances before three congressional subcommittee hearings, including one last month, have been tense. While the victim's group members say new laws are urgently needed, cruise officials maintain the industry has an enviable safety record.

How safe the estimated 10.6 million annual cruise vacationers that leave from U.S. ports is difficult to verify. No government agency publicly tracks crime or overboard incidents that occur on cruise ships, and the industry considers crime statistics "proprietary business information."

Legislation was presented last year that would have required more stringent crime-reporting standards for cruise lines. Another version could be proposed in Congress again this year.

Carolyn Coarsey, co-founder and president of the Atlanta-based nonprofit group hosting the Atlanta symposium, said she has trained some 2,000 cruise ship employees in the past year on how to handle tragic events. Within the last three months, Royal Caribbean International and its subsidiary Celebrity Cruises have joined the organization. Carnival, Princess Cruises and Holland America Line are in the process of joining.

"They want to know how to do better, and they're realizing the need," said Coarsey, whose foundation formed after a 1996 law required airlines to do more for survivors.

Lynn White, a vice president with Royal Caribbean and Celebrity, said her company started a three-person guest care team a year ago and Coarsey's group was instrumental in training that department.

Carver, the victim's group leader, said it is good that the cruise industry is working to treat people more compassionately, but legislation will be key to a long-term solution.

Still, Carver and other victims said they also felt compelled to meet with the cruise company employees this week.

"I can't stand up on a soap box and scream that I'm a victim and not take part in the process to make things better," said Virginia resident Kimberly Dean Edwards, 42, who is still engaged in a civil suit with Royal Caribbean after she said she was forcibly fondled in a woman's restroom aboard Royal Caribbean's Majesty of the Sea in October 2004.

Carver, Edwards and others have agreed to participate in training videos that will be shown to cruise company employees.

"I hope by hearing my story, they will be touched in a way that they will say, 'This stops now. We will not re-victimize another person,' " Edwards said.

By M.C. MOEWE, Staff Writer
Daytona Beach News Journal Online

Sea Diamond black box heading for US

The data recording device from a cruise ship that sunk off the island of Santorini earlier this month was sent to the US yesterday under heavy security.

It is hoped that data from the device – often referred to as a black box – will facilitate the investigation into the sinking of the Sea Diamond on April 5.

A prosecutor and coast guard officials took the box to a military airport under heavy security to prevent any possibility of anyone tampering with the device.

Investigators hope the data will help clear up confusion about why the vessel hit a well-marked reef, whether the sinking of the vessel could have been prevented and who decided the location to which the ship was towed before eventually sinking.

The device will be sent to New York and from there to Florida, where the data will be analyzed.

Kathimerini, Greece's International English Language Newspaper

May 1, 2007

DEFENDANT SHIP'S PHYSICIAN DISMISSED FOR LACK OF PERSONAL JURISDICTION BECAUSE THE ALLEGED MEDICAL MALPRACTICE DID NOT OCCUR WITHIN THE TERRITORIAL WATERS OF FLORIDA; THE FORUM SELECTION CLAUSE DID NOT APPLY TO THE PLAINTIFF'S CLAIMS; AND THE ALLEGED ACTS

JAMELIA BARNETT, individually and as personal representative of the Estate of LILA ASHLEY BARNETT, deceased, Plaintiff, v. CARNIVAL CORPORATION, RAHAL MONTHER and DEBRA FERRIS-REYNOLDS, Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2007 U.S. Dist. LEXIS 37481
May 23, 2007, Decided

PROCEDURAL POSTURE: Defendant Rahal Monther moves to dismiss on the grounds that the court lacks personal jurisdiction over him.

OVERVIEW: The defendant Rahal Monther, the ship doctor, seeks dismissal on the ground that the Court lacks personal jurisdiction because the alleged medical malpractice did not occur within the territorial waters of Florida. To determine whether this Court has personal jurisdiction over the defendant ship doctor, the Court must undertake a two-part analysis. The Eleventh Circuit explained First, [the Court] must determine whether the Florida long-arm statute provides a basis for personal jurisdiction. If so, then [the Court] must determine whether sufficient minimum contacts exist between the defendant[] and [Florida] so as to satisfy "traditional notions of fair play and substantial justice" under the Due Process Clause of the Fourteenth Amendment. Both prongs must be satisfied for personal jurisdiction to exist. The plaintiff argues that this Court has personal jurisdiction over the ship doctor on the following grounds: 1) Florida's long arm statute regarding insuring any person, property, or risk located within Florida at the time of contracting; 2) Florida's long arm statute regarding a defendant who is carrying on a business or business venture in Florida or is engaged in substantial and not isolated activity within Florida, whether such activity is wholly interstate, intrastate, or otherwise, ... whether or not the claim arises from that activity; and 3) the forum selection clauses contained in the contract between Carnival Corporation and Dr. Monther as well as the passenger ticket. Because the alleged medical malpractice of the ship doctor occurred outside the territorial boundaries of Florida; the forum selection clause does not apply to the plaintiff's claims; and the alleged acts do not fall within one of the enumerated bases to confer personal jurisdiction under Florida's long arm statute, this Court lacks personal jurisdiction over Dr. Monther.

OUTCOME: The defendant's Motion to Dismiss is granted. The defendant, Rahal Monther, is dismissed.

DENIAL OF MOTION FOR SUMMARY JUDGMENT THAT PLAINTIFF WAS NOT A SEAMAN BECAUSE SEAMAN STATUS IS A QUESTION OF FACT TO BE DECIDED DURING THE TRIAL; GRANT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFF'S CLAIMS FOR NON PECUNIARY DAMAGES BECAUSE THE

SHEILA A. DALEY, et al., Plaintiffs, v. MARITIME HYDRAULICS US, INC., MH PYRAMID, INC., and ENSCO OFFSHORE COMPANY, Defendants,
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2007 U.S. Dist. LEXIS 33326
May 4, 2007, Filed

PROCEDURAL POSTURE: Plaintiffs brought this action against Defendants for the wrongful death of Larry C. Daley. Defendants filed a Corrected Motion for Partial Summary Judgment Against Plaintiffs' Claims alleging that Daley was not a Jones Act seaman. Plaintiffs filed a Response regarding seaman status, and defendants filed a Reply.

OVERVIEW: Daley was employed by MHP as a service technician and was killed while working aboard a semi-submersible oil rig. MHP's Motion for Partial Summary Judgment Against Plaintiffs' Claims for Non-Pecuniary Damages is not yet ripe, but Plaintiffs concede that the accident occurred on a vessel located approximately forty-five nautical miles from the Louisiana coastline. Because Daley's death occurred on the high seas, if he is a seaman, the appropriate cause of action is found in the Jones Act. If he is not a seaman, then the remedy for any wrongs associated with his death is found in the Death on the High Seas Act (DOHSA). Daley's seaman status is a question of fact that will be decided during the trial. However, the damages that Plaintiffs may recover is limited regardless of the outcome of the seaman status issue. If the jury assigns fault to Defendants and determines that Daley was not a Jones Act seaman, then his beneficiaries are entitled only to pecuniary damages because the Death on the High Seas Act limits recovery to pecuniary loss. However, if the jury determines that Daley was a Jones Act seaman and assigns fault to Defendants, Daley's beneficiaries may recover only pecuniary damages, and his estate may recover for any conscious pain and suffering Daley experienced because the Jones Act limits recovery to pecuniary loss, but allows a survival action for the seaman's "personal loss and suffering where the injuries are not immediately fatal."

OUTCOME: Defendants Motion for Summary Judgment Against Plaintiffs' Claims that alleges Daley was not a seaman is denied, and defendant's Motion for Partial Summary Judgment Against Plaintiffs' Claims for Non-Pecuniary Damages is granted.

THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT TO THE MARINA WAS REVERSED BECAUSE THE LEASE'S LIMITATION OF LIABILITY PROVISION DID NOT CLEARLY AND UNEQUIVOCALLY DISCLAIM THE MARINA'S LIABILITY FOR DAMAGE CAUSED BY ITS OWN NEGLIGENCE AND THE MARINA DID NOT P

Markel American Insurance Company, Appellant, v. Dagmar's Marina, L.L.C., Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2007 Wash. App. LEXIS 1169
May 21, 2007, Filed

PROCEDURAL POSTURE: Appellant insurance company sued appellee marina after the hull of a vessel that the insurance company was the hull insurer for was damaged in a windstorm. The insurance company alleged two causes of action under general maritime law: negligence and breach of implied warranty of workmanlike performance. The trial court granted the marina's motion for summary judgment. The insurance company appealed.

OVERVIEW: The principal issue was whether a limitation of liability provision in a lease agreement clearly and unequivocally disclaimed a marina's liability for damage caused by its own negligence. The second issue was whether the marina provided storage services to the boat owner, thus giving rise to an implied warranty of workmanlike performance. The appellate court reversed and remanded the trial court's grant of summary judgment to the marina on the insurance company's claims of negligence and breach of implied warranty of workmanlike performance because the lease's limitation of liability provision did not clearly and unequivocally disclaim the marina's liability for damage caused by its own negligence. Since exculpatory clauses were construed against the drafter if more than one construction of a term was reasonable, using the term "safekeeping" did not make the limitation of liability provision a clear and unequivocal disclaimer of the marina's liability for its own negligence, particularly when read in light of the clause in its entirety. Moreover, there was no warranty of workmanlike performance because the marina did not contract to perform storage services.

OUTCOME: The judgment of the trial court was reversed and the case was remanded for further proceedings.

PLAINTIFF, EMPLOYED AS ROUSTABOUT, DID NOT POINT TO EVIDENCE SUPPORTING FINDING DUTY TO INTERVENE UNDER 33 U.S.C.S. � 905(B); OBSTRUCTED WALKWAY WAS WHOLLY CREATED BY PERSONNEL OF PLAINTIFF'S EMPLOYER, WAS WITHIN ROUSTABOUTS' WORK AREA AND OPEN AND OBVI

JOHN FONTENOT, Plaintiff-Appellant, versus McCALL'S BOAT RENTALS, INC.; SEACOR MARINE, LLC, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 11293
May 14, 2007, Filed

PROCEDURAL POSTURE: Plaintiff brought an action against defendants, seeking recovery under � 5(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA). After a bench trial, a magistrate judge entered judgment in favor of defendants. Plaintiff appealed from the United States District Court for the Eastern District of Louisiana.

OVERVIEW: Plaintiff was employed as a roustabout. Plaintiff was assigned to perform rigging work aboard a vessel, owned by defendants, in connection with the backloading of cargo and equipment from a platform to the vessel. Plaintiff argued that defendants retained active control of the entire vessel, including the deck, throughout the backloading operation. The instant court concluded that, even accepting plaintiff's arguments that the captain retained ultimate control over all areas of the vessel under a blanket time charter and industry custom, neither the time charter nor custom established that the captain had active control over the deck during the backloading operation. Nor did a Job Safety Analysis establish active control. Further, even assuming a deckhand's knowledge that a trash bag was blocking a walkway could be imputed to the captain and defendants, plaintiff did not point to evidence that would have supported finding a duty to intervene. The obstructed walkway was wholly created by personnel of plaintiff's employer, was within the roustabouts' work area and open and obvious to them, and could have been remedied by the personnel if they believed it to be unreasonably dangerous.

OUTCOME: The judgment was affirmed.

IN A CONSOLIDATED APPEAL OF TWO CASES BROUGHT UNDER THE JONES ACT, THE APPEAL AS TO ONE EMPLOYEE WAS DISMISSED BECAUSE THE COURT LACKED JURISDICTION; IN THE OTHER CASE, THE DISTRICT COURT'S ENTRY OF SUMMARY JUDGMENT IN FAVOR OF A DRILLING COMPANY WAS AFFI

ROY THIBODEAUX, Plaintiff, v. VAMOS OIL & GAS CO, ET AL., Defendants, v. DPR INTERNATIONAL LLC, Defendant - Third Party Plaintiff-Appellee, v. MAXUM SERVICES INC, Defendant - Third Party Defendant-Appellant. GABINO SILVA, Plaintiff, v. DPR INTERNATIONAL LLC, ET AL., Defendants, v. DPR INTERNATIONAL LLC, d.b.a. Axxis Drilling, Defendant - Third Party Plaintiff-Appellee, v. MAXUM SERVICES INC, Third Party Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 11614
May 17, 2007, Filed

PROCEDURAL POSTURE: In a consolidated appeal of claims brought by employees A and B, appellant contract labor provider sought judicial review of the decisions by the United States District Court for the Western and Eastern Districts of Louisiana granting summary judgment and finding that the labor provider owed appellee drilling company an obligation of indemnity and defense.

OVERVIEW: Pursuant to a master service agreement (MSA), the labor provider assigned employees A and B to work for the drilling company. The employees alleged that they sustained injuries during their work as roustabouts on a drilling vessel and brought Jones Act claims against the drilling company. While the cases had been consolidated, they were in different procedural postures. Employee A had settled his claims against the drilling company, and the labor provider agreed that the settlement was reasonable. Employee B's claims had not settled and were still being litigated. Therefore, the appellate court lacked jurisdiction over employee B's claims because he had yet to establish that the drilling company was liable. Regarding employee A's claims, the MSA was clear that the labor provider would defend and indemnify the drilling company against all claims brought by the labor provider's employees in connection with the MSA. The labor provider argued that the contract was invalid because error vitiated its consent and that the indemnity clause was unenforceable under the Louisiana Oilfield Indemnity Act. Both arguments failed.

OUTCOME: The appeal arising from employee B's claim was dismissed for lack of jurisdiction. The district court's summary judgment related to employee A's claim was affirmed.

WHERE EMPLOYER SOUGHT TO CREDIT A SETTLEMENT COVERING EMPLOYEE'S AND WIFE'S STATE LAW CLAIMS FOR DISABILITY AND DEATH BENEFITS AGAINST WIFE'S AWARD OF DEATH BENEFITS UNDER LHWCA, 33 U.S.C.S. � 903(E) LIMITED THE CREDIT TO SETTLEMENT FUNDS DIRECTED TOWAR

ANNA BARSCZ (WIDOW OF CHARLES BARSCZ), Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS AND ELECTRIC BOAT CORPORATION, Respondents.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 11598
May 18, 2007, Decided

PROCEDURAL POSTURE: Petitioner, an employee's wife, appealed a decision of the Benefits Review Board allowing respondent employer to credit the entire amount of a settlement, which covered the employee's state law claims for disability benefits and the wife's state law claims for death benefits, against the wife's award of death benefits under the Longshore and Harbor Workers' Compensation Act (Longshoreman's Act), 33 U.S.C.S. � 901 et seq.

OVERVIEW: The employee and his wife entered into a settlement agreement with the employer resolving all past, present, and future state law claims relating to injuries the employee suffered during his employment. The employee was also awarded compensation for his asbestosis under the Longshoreman's Act. Following the employee's death, the wife was awarded death benefits under the Longshoreman's Act, and the Benefits Review Board allowed the employer, pursuant to 33 U.S.C.S. � 903(e), to take a credit for the full amount of state benefits paid under the settlement. Interpreting the unambiguous language of � 903(e), the court held that � 903(e) limited the credit that could be taken to amounts paid for the same injury, death, or disability currently being claimed under the Longshoreman's Act. Accordingly, only the settlement funds directed toward death benefit claims could be credited. The court concluded that under � 7(c) of the Administrative Procedure Act, the employer bore the burden of proof in establishing which portion of the settlement amount was paid to settle the wife's death claims because the employer was the proponent of an order allowing a credit.

OUTCOME: The court reversed the Board's decision and remanded the case to the Board to conduct fact-finding regarding the allocation of the state settlement between death benefits and disability benefits.

DISTRICT COURT DID NOT CLEARLY ERR IN FINDING THAT OWNER'S TWO BARGES BROKE LOOSE AND DAMAGED SHORE SIDE RESTAURANT, AS TWO WITNESSES TESTIFIED THAT THEY SAW BARGES FLOATING BY AND LATER SAW THEM IN FRONT OF RESTAURANT, AND ACT OF GOD DEFENSE WAS INAPPLIC

IN THE MATTER OF THE COMPLAINT OF CENAC TOWING COMPANY, INC., vs. SOUTHPORT, L.L.C..
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 11705
May 18, 2007, Filed

PROCEDURAL POSTURE: Appellant, a barge owner, sought review of a judgment from the United States District Court for the Southern District of Alabama, which, pursuant to Fed. R. Civ. P. 52, ruled in favor of appellees, a restaurant and its lessor, in the barge owner's limitation of liability suit to adjudicate all damages allegedly caused by two of the owner's barges.

OVERVIEW: The captain of the barges lashed them side-by-side in a canal for the purpose of riding out a hurricane. The barges were tied to some trees on the shore, but the trees were uprooted during the storm. Appellees alleged that two of the barges ran into the restaurant, causing structural damage. A captain of another ship testified that the two barges were the only large objects he saw floating by during the storm and that he saw two barges blocking the lights in front of the restaurant. The barge owner alleged that another barge, which belonged to someone else, caused the damage. The district court disagreed, crediting the testimony of the captain of the other ship. On appeal, the court held that the district court's findings were not clearly erroneous, given the testimony of the captain of the other ship and similar testimony from another witness aboard that ship. The court also found that the district court did not clearly err in finding that the Act of God defense asserted by the barge owner was inapplicable, as the 84-mile per hour wind speeds during the storm were not of such a force that no reasonable preparations would have prevented the barges from breaking loose.

OUTCOME: The court affirmed the district court's judgment.