Cruise Ship Law

Barry Berretta, Plaintiff-Appellant, v. Tug Vivian Roehrig, LLC, Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 28678
December 11, 2007, Decided

PROCEDURAL POSTURE: Appellant, a seaman, sued appellee, a tug boat owner, alleging maritime negligence after he was injured during a make up procedure connecting a barge to the owner's tug boat. The United States District Court for the Southern District of New York dismissed the seaman’s complaint. The seaman appealed.



OVERVIEW: The seaman claimed that the district court applied the wrong legal standard to determine negligence, misapprehended certain facts derived from the testimony at trial, and erroneously credited the testimony of a witness for the owner over his own testimony. The appellate court held that the district court's articulated standard to determine negligence conformed to the law, and that the district court's admission of evidence of industry practices, customs, and norms regarding what constituted reasonable prudence and due care during a make up procedure connecting a barge to a tugboat was not an error. The appellate court further held that it was appropriate for the district court to hear testimony from witnesses for the owner regarding their understanding of standard practices on tug boats, since a key factual issue was what, if anything, the individuals working on the tug could have done in the situation in which the seaman was injured, and that, because the evidence elicited from the seaman and the owner's witnesses conflicted on the issue of standard practices, the district court, as the finder of fact, was entitled to credit one the testimony of one witness over another.



OUTCOME: The district court's judgment was affirmed.