Cruise Ship Law

JOSEPH ABRUSKA, Plaintiff - Appellant, v. NORTHLAND VESSEL LEASING CO., LLC; NAKNEK BARGE, LLC; NORTHLAND SERVICES, INC., Defendants - Appellees.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 29039
December 10, 2007, Filed

PROCEDURAL POSTURE: Plaintiff longshoreman challenged the decision entered by the United States District Court for the District of Alaska that granted summary judgment in favor of defendants, the owner of the vessel upon which the longshoreman was working, in the longshoreman's action filed pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950.



OVERVIEW: While performing work aboard the vessel, the longshoreman fell overboard and sustained serious injuries. After recovering statutory damages from his employer, he sought damages in negligence from the vessel pursuant to § 5 of the LHWCA, 33 U.S.C.S. § 905(b). The district court granted summary judgment in favor of the vessel. On appeal, the court found that the longshoreman produced evidence sufficient to survive summary judgment on both his negligence per se and common-law negligence claims. The court therefore reversed the district court's summary judgment in favor of defendants and remanded for further proceedings. Because 46 C.F.R. § 92.25-5's three-course safety rail requirement applied to the vessel and because the vessel only had a two-course rail, the longshoreman established a regulatory violation. There was also sufficient evidence of the remaining elements to survive summary judgment. The longshoreman belonged to the class of beneficiaries and suffered an injury of the type the regulation sought to prevent. As to excuse, defendants produced no evidence to support their burden of proving the affirmative defense.



OUTCOME: The appellate court reversed the decision of the district court and remanded for further proceedings.