Cruise Ship Law

In the Matter of the Complaint of VULCAN MATERIALS CO.

Civil Action No. 3:04CV909
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION
2005 U.S. Dist. LEXIS 38221
December 21, 2005, Decided
December 21, 2005, Filed

Exoneration granted to ship owner where seaman fell on stairs that seaman failed to prove were greasy and further seaman failed to establish that the pitch of the stairs, the absence of a handrail, or violation of OSHA regulations contributed to the seaman's fall.

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GLENN TATE, et al., Plaintiffs-Appellants, v. SHOWBOAT MARINA CASINO PARTNERSHIP, et al., Defendants-Appellees.

No. 05-1681
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
431 F.3d 580; 2005 U.S. App. LEXIS 27168
October 24, 2005, Argued
December 13, 2005, Decided

PROCEDURAL POSTURE: Plaintiffs, members of the operating crew on a floating casino, appealed an order of the United States District Court for the Northern District of Illinois, Eastern Division, granting summary judgment in their action against defendants, the casino and others, brought under the Fair Labor Standards Act (FLSA).

OVERVIEW: On appeal, the court noted that the instant case was materially identical to a case filed the previous year. It involved the same boat, the same job titles, an overlapping time period, and the same plaintiffs' lawyer. Defendants were different as they were successors to defendants in the first case, but the only material difference between the two cases was the identity of plaintiffs. Because they were different people from plaintiffs in the first case, the instant case was not barred by res judicata or collateral estoppel. However, the court held that the instant action was barred by stare decisis because the facts in the two cases were the same and plaintiffs in the first case lost because the jury correctly found that they had no claim because they were part of the boat's operating crew and engaged in maritime-related activities, so they were seamen within the meaning of FLSA § 13(b)(6), 29 U.S.C.S. § 213(b)(6), which exempted seamen from the FLSA's overtime provisions. Plaintiffs gave no good reason for the court to overrule the prior decision, and a case cited by plaintiffs did not support their position as it was a Jones Act case.

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

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MURRAY A. POWELL, Plaintiff, vs. CARNIVAL CRUISE LINES and DOES 1 through 50, Defendants.

No. CV-F-05-1238 REC DLB, (Docs. 4 & 10)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
2005 U.S. Dist. LEXIS 29982
November 17, 2005, Decided

PROCEDURAL POSTURE: Plaintiff filed an action in state court against defendant cruise line to recover for injuries he suffered during the cruise, and the cruise line removed the action to federal court. Plaintiff filed a motion to remand and the cruise line filed a motion to dismiss based on a forum selection clause in the parties' contract.

OVERVIEW: Plaintiff, an experienced traveler, booked a cruise with the cruise line, whose principal place of business was in Florida. The court first held that it was powerless to order a remand because plaintiff's sole ground for his motion -- the difficulty of traveling to the federal court -- was no a theory provided for in 28 U.S.C.S. § 1447(c). The court then held that the forum selection clause was valid and its enforcement was reasonable because (1) the physical characteristics of the contract and the circumstances surrounding purchase and retention of the ticket indicated that the forum-selection clause was reasonably communicated to plaintiff; (2) plaintiff failed to show that the cruise line had invoked the forum-selection clause fraudulently or to thwart litigation against it; and (3) plaintiff's physical disability did not require the court to refuse to enforce the forum-selection clause. However, rather than dismissing the action under Fed. R. Civ. P. 12(b)(3), the court held that, in the interest of justice, the case should be transferred under 28 U.S.C.S. § 1406 to the location of the federal court specified in the forum selection clause.

OUTCOME: The court denied plaintiff's motion to remand, denied defendant's motion to dismiss, and transferred the action to the Southern District of Florida for further proceedings.

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ALMOTAZ ALSHAZLI, Plaintiff, v. AMERICAN SEAFOODS COMPANY, LLC, a Washington corporation and F/T NORTHERN HAWK, her tackle, gear, furniture, apparel and equipment, Defendants.

Case No. C04-1684L
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2005 U.S. Dist. LEXIS 38860
December 12, 2005, Decided

Seaman who slipped and fell on fish processing vessel awarded approximately $70,000 for operated herniated disk in back. This is after deduction 25% for seaman's comparative negligence.

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IN RE: Houseboat STARSHIP II and CLYDE CRAIG and VICKI CRAIG Individually and d/b/a EAST PORT MARINA, and JIM BARNA LOG SYSTEMS OF TENNESSEE, LLC, a domestic corporation d/b/a EAST PORT MARINA & RESORT.

NO. 2:05-0086
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2005 U.S. Dist. LEXIS 36237
December 12, 2005, Decided
December 12, 2005, Filed

Company that had management and operation responsibilities for rented house boat could file for limitation of liability as an owner.

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JEFFREY WAYNE WITHHART, Plaintiff-Counter Defendant-Appellee, versus OTTO CANDIES, L.L.C., ET AL., Defendants, SEA MAR, INC., SEA MAR MANAGEMENT L.L.C., NABOR MARINE, L.L.C., Defendant-Counter Claimants-Appellants

No. 04-31267
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2005 U.S. App. LEXIS 26270
December 2, 2005, Filed

PROCEDURAL POSTURE: Appellant shipowner-employer (owner) sought review of a decision of the United States District Court for the Western District of Louisiana, which dismissed the owner's counterclaims for negligence and indemnity brought against appellee seaman-employee (seaman) pursuant to Fed. R. Civ. P. 12(b)(6). The seaman had filed the original action under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law to recover for his injuries.

OVERVIEW: The matter arose from an accident at sea, and the owner paid a second shipowner for damages to its vessel. The owner sought to recover from the seaman that amount plus an amount for property damage to the owner's vessel allegedly caused by the seaman's negligence. In a case of first impression, the court reversed in an interlocutory appeal under 28 U.S.C.S. § 1292(b), holding that the owner's counterclaims were consistent with general maritime law and should not have been dismissed. The Federal Employers' Liability Act, 45 U.S.C.S. § 51, and consequently the Jones Act, contained no prohibition against a general maritime negligence and indemnity counterclaim by the owner against its seaman-employee for property damage. Allowing the owner to bring a claim against its seaman for property damage arising out of the seaman's negligence did not narrow the remedies available to the seaman under the Jones Act. The fact that seamen worked under difficult conditions was not a reason to shield them from liability from negligence and indemnity actions.

OUTCOME: The court reversed the district court's judgment of dismissal and remanded the cause for further proceedings.

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DIANA LEE HOUSE, Plaintiff, v. MARINE TRANSPORT LINES, INC. et al, Defendants.

CIVIL ACTION NO. G-05-188
2005 U.S. Dist. LEXIS 30006
October 31, 2005, Decided

PROCEDURAL POSTURE: Plaintiff seaman filed suit pursuant to the Jones Act against defendants, a ship's manager, the United States, and the United States Maritime Administration (MARAD), seeking to recover damages for personal injuries she sustained. Defendants moved for dismissal.

OVERVIEW: Because the seaman did not object to the motion to dismiss with regard to the manager and MARAD, the court granted dismissal as to those defendants. The U.S. contended that the court lacked subject matter jurisdiction over the suit because the seaman had not followed the claims procedures in 46 C.F.R. § 327 and 346 C.F.R. § 327.6. The court agreed. Reading these provisions together, a party could not file suit pursuant to the Suits in Admiralty Act, 46 U.S.C.S. app. § 745, as amended by the Clarification Act, 50 U.S.C.S. app. § 1291, until 60 days after MARAD received an administrative claim unless the party received notice of disallowance prior to that day. Here, the seaman's complaint was filed 59 days after the Division of Marine Insurance received her claim, which was 80 days after the claim had been sent. However, the claim was not addressed to the party specified in the regulations, and thus spent three weeks being passed around until it reached the Division. The court held that it was the seaman's sole burden to make sure that the claim was properly addressed. Because the seaman had not waited 60 days to file her claim, the court lacked jurisdiction to entertain it.

OUTCOME: The court granted defendants' motion to dismiss and dismissed the suit with prejudice.

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PATRICK J. CONNORS, Plaintiff, v. IQUIQUE U.S.L.L.C., et al., Defendants.

CASE NO. C05-334JLR
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2005 U.S. Dist. LEXIS 27935
November 8, 2005, Decided
November 9, 2005, Filed

PRIOR HISTORY: Connors v. Iqueque U.S.L.L.C., 2005 U.S. Dist. LEXIS 33580 (W.D. Wash., Aug. 25, 2005)

PROCEDURAL POSTURE: Defendants, a shipowner and a fisheries corporation as employers, filed a motion under Fed. R. Civ. P. 60(b) to modify the court's previous order compelling the payment of maintenance to plaintiff seaman as employee. Plaintiff filed a motion to force defendants to comply with the court's order. Defendants also filed a motion for summary judgment on their intentional concealment defense.

OVERVIEW: Before boarding the ship, plaintiff disclosed to defendants that he had undergone heart bypass surgery four years earlier. Within one month of serving aboard the ship, plaintiff experienced chest pain while lifting a pump. Plaintiff returned to shore and underwent a variety of cardiac treatments for complications from coronary artery disease. As an initial matter, the court found that disputed facts prevented summary judgment on the intentional concealment defense. Because defendants appealed the order directing defendants to make maintenance payments for at least an additional three months, the court also concluded that it lacked jurisdiction to grant the relief that defendants were entitled to under Rule 60(b)(1) based on deposition testimony from plaintiff's physician, which was taken subsequent to the court's order and which demonstrated that plaintiff reached maximum recovery six months after the shipboard injury. The court, however, exercised its inherent power to stay enforcement of its order pending appellate court action. Nevertheless, the court found defendants' unilateral decision to ignore its original order contemptuous, and it imposed sanctions against defendants.

OUTCOME: The court denied defendants' motion for summary judgment. The court also denied defendants' motion for relief from the court's order pending action in the appellate court. The court, however, stayed enforcement of its order. The court denied plaintiff's motion to compel further payment of maintenance, but it ordered defendants to pay sanctions for willful violation of the court's order

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BASIL ROBINSON, Plaintiff, v. GREGORY PRIOR and F/V KARRIE N, Defendants.

Civil No. 05-24-P-C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2005 U.S. Dist. LEXIS 28596
November 16, 2005, Decided

PROCEDURAL POSTURE: Plaintiff seaman filed a motion for summary judgment on his maintenance and cure claim against defendants, a shipowner and a vessel, and on the shipowner's counterclaim for wrongful or malicious seizure of the vessel. The seaman also filed a motion for interlocutory sale of the vessel. The matter was referred to a magistrate.

OVERVIEW: The seaman was injured in 2000. The seaman claimed that even if the three-year statute of limitations was applicable and even if principles of equitable tolling did not save the bulk of his complaint, he was entitled to maintenance and cure commencing three years prior to the date he filed suit, and that his maintenance and cure claim was sufficient to justify his action in rem against the vessel, thereby negating the owner's counterclaim for wrongful or malicious seizure of the vessel. The owner argued that the entire maintenance and cure claim was barred by laches. The court held that the seaman's claim for maintenance and cure since 2002 was not time-barred. Based on the shipowner's showing of prejudice, the application of the laches doctrine was the subject of factual disputes. The shipowner failed to brief the equitable or legal standard that governed his counterclaim for damages for the allegedly wrongful institution of arrest proceedings against his vessel. The court rejected the seaman's argument that sale of the vessel was inevitable. Because of concerns over storage fees, the court suggested that the vessel be released to the owner with an obligation to preserve it.

OUTCOME: The court recommended that the seaman's motion for summary judgment against the shipowner's counterclaim for damages be granted but that it otherwise be denied, and that action be postponed on the seaman's motion for interlocutory sale.

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Sean O'Donnell v. Jean McCausland, LLC et al,

Case No. 04-cv-175-PB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
2005 DNH 158; 2005 U.S. Dist. LEXIS 29202
November 17, 2005, Decided

PROCEDURAL POSTURE: Defendant vessel owner filed a motion to dismiss plaintiff crew member's unseaworthiness claim.

OVERVIEW: The crew member was injured when his arm became ensnared in the line of a dock winch that was permanently affixed to the dock. The crew member was using the winch to move a cooler filled with bait from the dock to a fishing boat, not the vessel. In granting the owner's motion to dismiss, the court held that the dock winch did not qualify as an appurtenance of the vessel because it did not travel with the vessel, was neither owned nor controlled by the owner, was not in contact with the owner's vessel when he was injured, and it was not being used to perform a function that was important to the vessel's operation. The court also held that the evidence revealed that the vessel had its own winch and did not regularly use the dock winch in loading or unloading operations.

OUTCOME: The court granted the owner's motion to dismiss.

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MAURICE WARNER versus UNITED STATES OF AMERICA

CIVIL ACTION No. 04-2789 SECTION: I/4
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2005 U.S. Dist. LEXIS 36528
November 29, 2005, Decided
December 1, 2005, Filed

Experienced ship captain's testimony as an expert with respect to lifting paint cans on a vessel was not allowed.

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BRANDEN DOONAN, individually and as personal representative of THE ESTATE OF JAMES DOONAN, LYNDSEY DOONAN, KRISTINE DOONAN, Plaintiffs, vs. CARNIVAL CORPORATION, a Panamanian Corporation, and GARY COLNER, ship's physician, Defendants.

Case Number: 05-20128-CIV-MARTINEZ-BANDSTRA
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2005 U.S. Dist. LEXIS 31609
November 30, 2005, Decided
November 30, 2005, Filed

PROCEDURAL POSTURE: In a wrongful death case, plaintiffs, a personal representative and two other individuals, sued defendants, a cruise line and a ship's physician. The court denied the cruise line's motion to dismiss the original complaint as moot since plaintiffs filed an amended complaint. The cruise line filed a motion to dismiss three counts in the amended complaint. Plaintiffs moved to amend the complaint by interlineation.

OVERVIEW: The cruise line argued that counts III and IV had to be dismissed because, under the Barbetta decision, it could not be held vicariously liable for the negligence of its ship's medical staff in the treatment and care of passengers. Plaintiffs chiefly relied on the Florida state court decisions in Carlisle and Huntley, which the present court declined to follow, in arguing that they were entitled to relief. Their argument was not sufficiently persuasive to justify deviation from the majority rule in the Barbetta decision. Regarding count IV, addressing vicarious liability and apparent agency, plaintiffs alleged that in addition to being the ship's physician, the doctor was recognized in other capacities aboard the ship. The court was unwilling to conclude that there were no conceivable facts under which plaintiffs would have been entitled to relief. Count V alleged a breach of contract. That claim failed because there was no express provision guaranteeing safe passage. Futhermore, the same arguments regarding count V raised in the current motion to dismiss were also raised in the original motion to dismiss. The amended complaint did not remedy the breach of contract claim.

OUTCOME: The cruise line's motion to dismiss was granted as to counts III and V of the amended complaint. Those claims were dismissed with prejudice. The motion to dismiss was denied in all other respects. Plaintiffs' motion for leave to amend the complaint by interlineation was granted in part.

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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.

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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.

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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.

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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."

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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."

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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.

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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.

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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.

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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.

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DENNIS S. GRENNAN, Appellant, v. CROWLEY MARINE SERVICES, INC., Respondent.

No. 55134-5-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2005 Wash. App. LEXIS 1788
July 25, 2005, Filed

NOTICE: [*1] PUBLISHED IN PART

PRIOR HISTORY: Superior Court County: King. Superior Court Cause No: 03-2-28136-1 SEA. Date filed in Superior Court: October 8, 2004. Superior Court Judge Signing: Hon. Nicole MacInnes.

PROCEDURAL POSTURE: Appellant employee challenged a decision from the Superior Court in King County (Washington), which granted summary judgment in favor of respondent employer in an action brought under the Jones Act and general maritime law to recover for injuries suffered on a ship.

OVERVIEW: The employee was injured on a ship that was docked in Russia. He later filed an action against the employer under the Jones Act, 46 U.S.C.S. § 688, and general maritime law. The employer filed a motion for summary judgment, contending that the Longshore and Harbor Worker's Compensation Act (LHWCA) governed instead. After the motion was granted, the employee sought review. On appeal, the court determined that the situs of the injuries fell within the coverage of 33 U.S.C.S. § 903(a). There was no genuine issue of material fact whether the employee had the status of "seaman" at the time of his injury. He did not have "seaman" status because he lacked a connection to a vessel in navigation that was substantial both in terms of duration and nature. Rather, he was an "employee" for purposes of and subject to exclusive coverage under 33 U.S.C.S. § 905(a). Thus, dismissal of his claims was proper. Next, the court reversed the sanctions awarded under Wash. Super. Ct. Civ. R. 37 for the failure to produce a document because the three-part inquiry was not conducted. The court did not consider whether the violation was willful, if there was prejudice, or if a lesser sanction was appropriate.

OUTCOME: The court affirmed the decision to grant summary judgment in favor of the employer and the order denying the employee's motion to strike the employer's affirmative defense. The court vacated the sanctions order and remanded that issue for further consideration.

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MARK CASAVANT & another n1 vs. NORWEGIAN CRUISE LINE, LTD. n1 Tara Casavant.

No. 04-P-47
APPEALS COURT OF MASSACHUSETTS
63 Mass. App. Ct. 785; 829 N.E.2d 1171; 2005 Mass. App.LEXIS 632
September 9, 2004, Argued
June 30, 2005, Decided

PRIOR HISTORY: [**1] Worcester. Civil action commenced in the Superior Court Department on October 3, 2002. The case was heard by James P. Donohue, J., on motions for summary judgment.

DISPOSITION: Judgment reversed. Order denying motion for reconsideration vacated.

PROCEDURAL POSTURE: Plaintiff customers filed a claim against defendant cruise line seeking to recover payment for a cruise they attempted to reschedule. The cruise line moved to dismiss the complaint based on a forum selection clause, which required that litigation be filed in Florida. The Worcester Superior Court Department (Massachusetts) entered judgment dismissing the complaint and denying the customers' motion for reconsideration. The customers appealed.

OVERVIEW: The customers purchased tickets for a cruise that was scheduled to depart from Boston harbor on September 16, 2001. The customers were fearful of going on the cruise, and sought to reschedule. The cruise line denied the customers' requests. The cruise line did not provide the customers with information concerning the forum selection clause until close to one year after the original booking, two months after full payment was made, and approximately 13 days before sail date. The appellate court concluded that because the manner and means of the delivery of the terms of the contract for passage did not fairly allow the customers the option of rejecting the contract with impunity, and because, in the limited time frame allotted, the customers did not accept the ticket as a binding contract, under controlling Federal maritime law and Massachusetts contractual law, the Florida-dictated forum selection clause was not enforceable. The appellate court also found fundamental error in the manner in which the trial court handles the cruise line's motion to dismiss which included extra material concerning the forum selection clause and thus, should have been treated as summary judgment motion.

OUTCOME: The judgment of the trial court was reversed.

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ROBERT MCINNIS VERSUS PARKER DRILLING COMPANY AND STONE ENERGY CORPORATION

NO. 2004-CA-1887
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
04-1887 (La.App. 4 Cir. 06/01/05);
2005 La. App. LEXIS 1565
June 1, 2005, Decided

[*1] THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

PRIOR HISTORY: APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2001-13692, DIVISION "G-11". Honorable Robin M. Giarrusso, Judge.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Appellant drilling company employee was injured aboard platform rig-3 while in the course and scope of his employment. He alleged that he was employed by appellee employer as a seaman at the time of his employment injury, thereby entitling him to recover under the Jones Act, 46 U.S.C.S. app. § 688. The Civil District Court, Orleans Parish, Division "G-11" (Louisiana) found that the employee failed to prove seaman's status, and he appealed.

OVERVIEW: The issue was whether the employee's transfer to rig-3, which was not a vessel, was temporary or permanent. If the transfer was permanent, then the employee forfeited whatever seaman's status he previously had enjoyed prior to the transfer. The employee claimed that because he had worked on both platform rigs and jack-up rigs for the employer, his transfer to rig-3 had to be considered temporary. The appellate court disagreed and held that the fact that the employee might have been a seaman in the past and might have had the prospect of becoming one again in the future did not mean that his assignment to rig-3 was temporary instead of permanent as those terms were understood in the jurisprudence. It was to the new duties that the appellate court had to look in determining the employee's seaman's status. The court found that all of his duties in his new work assignment to rig-3 were non-vessel-related. Coupling that undisputed fact with the trial court's finding that the employee's reassignment to rig-3 was permanent compelled the conclusion that the employee was not a seaman at the time of his injury regardless of whether he might have qualified as such immediately prior thereto.

OUTCOME: The judgment of the trial court was affirmed

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STERLING CASINO LINES, L.P., Appellant, v. LESLIE ROSALEEPLOWMAN-RENDER, Appellee.

Case No. 5D04-2830
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
902 So. 2d 938; 2005 Fla. App. LEXIS 8265; 30 Fla. L. WeeklyD 1404
June 3, 2005, Opinion Filed

SUBSEQUENT HISTORY: Released for Publication June 22, 2005.

PRIOR HISTORY: [*1] Appeal from the Circuit Court for Brevard County, Lawrence V. Johnson III, Judge.

DISPOSITION: REVERSED and REMANDED for a new trial.

PROCEDURAL POSTURE: Appellant cruise line appealed a judgment in favor of appellee individual by the Circuit Court for Brevard County (Florida) in the individual's personal injury action; the cruise line claimed that the trial court erred in admitting improper character evidence, evidence of prior bad acts, and other irrelevant evidence.

OVERVIEW: The individual claimed that she injured her shoulder when a waitress carrying a tray of coffee bumped into her. The cruise line's emergency medical technician treated the individual with a first aid spray. The individual returned home, and her burns healed in a few days. However, two or three days later, she had a stiff neck and a sore shoulder. She went to see her primary care physician, whose medical records indicated the injury occurred when the individual struck her shoulder on a door a month later. Over the cruise line's objection, the individual was able to introduce information relating to the medical technician's alcohol-induced coma, suicide attempt, stays in a mental facility, and the reason for his termination from employment with the cruise line. The court held that the questions asked of the technician might have been appropriate in a discovery context. However, they were irrelevant to the issues at trial and served simply to portray the technician in an unfavorable light. Because the questions impugned the technician's character and might have destroyed his effectiveness as a witness, the cruise line was entitled to a new trial.

OUTCOME: The judgment was reversed, and the cause was remanded for a new trial.

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BETTY FROST, Plaintiff, vs. TECO BARGE LINES, Defendant.

No. 04-CV-00752-DRH
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFILLINOIS
2005 U.S. Dist. LEXIS 11795
June 1, 2005, Decided
June 1, 2005, Filed

PROCEDURAL POSTURE: Plaintiff seaman filed an admiralty complaint against defendant barge company under the Jones Act, 46 U.S.C.S. § 688 et seq., and general admiralty and maritime law to recover for personal injuries sustained in the course and scope of her employment as a crew member aboard one of the company's vessels. The seaman filed a motion for cure, punitive damages, and/or attorney fees.

OVERVIEW: The seaman alleged that she sustained back injuries while working on one of the company's vessels. The seaman's doctor recommended treatment in the form of medication, nerve blocks, and possible physical therapy. The company stated that it was not required to pay for this treatment because the injury was not related to the injuries the seaman sustained on the vessel and because the treatment was purely palliative, not curative. The court disagreed. First, the seaman's doctor sent a letter clarifying that the treatment was related to the injury sustained aboard the vessel. Second, the medical treatment was aimed at resolving pain at the injury site, thereby relaxing tissue and allowing healing of the tissue. Thus, the seaman was entitled to cure. However, the court held that the seaman was not entitled to an award of attorney fees because the company's failure to pay was not willful as there had been confusion over whether the injury for which cure was sought was one that was sustained aboard the vessel. Nor was the seaman entitled to punitive damages, which the court held were not available even for an employer's willful failure to pay maintenance and cure.

OUTCOME: The court granted the seaman's motion for cure to the extent that the company was ordered to comply with its cure obligations with regard to the seaman's medical treatment. The remainder of the motion was denied.

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JOHN F. HURLEY, Plaintiff, v. M/V MAJESTIC STAR, herengines, boilers, furniture, tackle and apparel; and MAJESTIC STAR CASINO, Defendants.

NO. 2:04-CV-277 PS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFINDIANA, HAMMOND DIVISION
2005 U.S. Dist. LEXIS 13480
July 6, 2005, Decided

PROCEDURAL POSTURE: Plaintiff, a riverboat casino employee, sued defendant casino seeking overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee also attempted to invoke the court's admiralty jurisdiction; he brought an action in rem against the physical vessel on which he worked pursuant to the Maritime Lien Act (MLA), 46 U.S.C.S. 31342(a)(2). The vessel and the casino moved to dismiss.

OVERVIEW: The employee had not stated a claim for relief with respect to the vessel because the complaint alleged that the employee was not "employed as a seaman" and that he performed services of a non-maritime nature aboard a vessel that was virtually permanently moored. By attempting to take advantage of the protections of the FLSA, the employee had, in effect, pled himself out of court on his maritime lien claim. Moreover, there was no right to overtime under general maritime law principles, and the employee admitted that he was properly paid his regular wages in full. Further, the employee could not bring an FLSA claim directly against the vessel because the vessel was not an employer. The employee also could not maintain a maritime lien against the casino because the employee had pled that he was not a seaman. However, the employee could maintain an FLSA claim against the casino as he alleged that he worked in excess of 40 hours per week, that he was not compensated at a rate of one and one half times his regular rate, that he was not employed as seamen, and that he performed non-maritime duties.

OUTCOME: The in rem case against the vessel was dismissed for failure to state claim, but the casino's motion to dismiss was denied.

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JOHN F. HURLEY, Plaintiff, v. M/V MAJESTIC STAR, herengines, boilers, furniture, tackle and apparel; and MAJESTIC STAR CASINO, Defendants.

NO. 2:04-CV-277 PS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFINDIANA, HAMMOND DIVISION
2005 U.S. Dist. LEXIS 13480
July 6, 2005, Decided

PROCEDURAL POSTURE: Plaintiff, a riverboat casino employee, sued defendant casino seeking overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee also attempted to invoke the court's admiralty jurisdiction; he brought an action in rem against the physical vessel on which he worked pursuant to the Maritime Lien Act (MLA), 46 U.S.C.S. 31342(a)(2). The vessel and the casino moved to dismiss.

OVERVIEW: The employee had not stated a claim for relief with respect to the vessel because the complaint alleged that the employee was not "employed as a seaman" and that he performed services of a non-maritime nature aboard a vessel that was virtually permanently moored. By attempting to take advantage of the protections of the FLSA, the employee had, in effect, pled himself out of court on his maritime lien claim. Moreover, there was no right to overtime under general maritime law principles, and the employee admitted that he was properly paid his regular wages in full. Further, the employee could not bring an FLSA claim directly against the vessel because the vessel was not an employer. The employee also could not maintain a maritime lien against the casino because the employee had pled that he was not a seaman. However, the employee could maintain an FLSA claim against the casino as he alleged that he worked in excess of 40 hours per week, that he was not compensated at a rate of one and one half times his regular rate, that he was not employed as seamen, and that he performed non-maritime duties.

OUTCOME: The in rem case against the vessel was dismissed for failure to state claim, but the casino's motion to dismiss was denied.

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DEBORAH HELLMAN, Plaintiff, v. ROYAL CARRIBEAN INTERNATIONAL Defendant.

Case No. 04 C 4041
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
2005 U.S. Dist. LEXIS 14177
July 8, 2005, Decided
July 8, 2005, Filed

PROCEDURAL POSTURE: Plaintiff passenger, an Illinois resident, sued defendant cruise ship company for negligence, alleging she sustained serious injury to her arm as the result of a massage she received while a passenger aboard one of the company's ships. The company moved to dismiss the complaint for improper venue and lack of personal jurisdiction, or, in the alternative, to transfer the case to a court where venue was proper.

OVERVIEW: The passenger's ticket contract provided that the forum for any litigation would be Miami, Florida. She argued that the forum selection clause was unenforceable because she lacked adequate notice of the clause and because it was fundamentally unfair. The court disagreed. The contract stated in bold letters that the document was "Important" and admonished the passenger to "Read All Clauses"; the forum selection clause itself appeared in all capital letters. That the passenger chose not to read the contract was immaterial. She was presented with adequate notice of the forum selection clause and the opportunity to reject it within 30 days without incurring a substantial financial penalty. She failed to show that fundamental unfairness would result from prosecuting the claim in Florida rather than in Illinois, as there was at least some likelihood that discoverable material and/or witnesses related to the company's alleged negligence would at its corporate offices in Miami. The court determined that justice was better served by transfer under 28 U.S.C.S. 1406(a) rather than dismissal, since the contract limited the time period in which an action could be brought.

OUTCOME: The company's motion to dismiss was denied, and its motion to transfer was granted. The case was transferred to the U.S. District Court for the Southern District of Florida.

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SUE LEVICK, Plaintiff, v. STEINER TRANSOCEAN LIMITED, Defendant.

CASE NO. 04-21910-CIV-LENARD/KLEIN
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA, MIAMI DIVISION
2005 U.S. Dist. LEXIS 14770
July 13, 2005, Decided
July 13, 2005, Filed

PRIOR HISTORY: Levick v. Steiner Transocean Ltd., 228 F.R.D. 671, 2005 U.S. Dist. LEXIS 11350 (S.D. Fla., 2005)

PROCEDURAL POSTURE: Plaintiff claimant brought a negligence action against defendant, a provider of spa services, after the claimant was injured when stepping down from a massage table while a passenger on a cruise line. The provider filed a motion to dismiss, which the court construed as a motion for summary judgment.

OVERVIEW: The provider contended that the claimant's action was barred by the shortened one-year limitation period under the cruise ticket contract, as allowed by 46 U.S.C.S. app. § 183b(a). The court granted summary judgment in favor of the provider because there were no material facts in dispute relevant to the one-year limitation period. The court found that the provider could benefit from the shortened filing time because the one year period was lawful under § 183b(a) and the ticket contract clearly notified the claimant and other passengers of the types of liability exclusions and the types of entities who could benefit. The contract included independent contractors and detailed the type of contractors covered, including spa and masseuse services. Thus, the provider was clearly the type of independent contractor or concessionaire covered by the contract. Equitable tolling was not applicable because the claimant chose to pursue her action solely in the state court system without preserving her claim by filing in federal court. The claimant was aware of the shortened time period before its expiration, and no inequitable event prevented her from timely filing in federal court.

OUTCOME: The court granted the provider's motion to dismiss, construed as a motion for summary judgment, and closed the case. The court denied as moot all pending motions.

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EDDIEPATTERSON,Plaintiff-Counter-Defendent-Appellee, Versus ALLSEAS USA,INC., ET ALDefendants, ALLSEAS MARINE CONTRACTORS SA, Defendants-Counter Claimant-Appellant

$ 04-40949
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2005 U.S. App. LEXIS 10692
June 8, 2005, Filed

NOTICE: [*1] RULES OF THE FIFTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Texas, Lufkin Division. No. 9:02-CV-175.

DISPOSITION: REVERSED; RENDERED.

PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Texas, Lufkin Division, which ruled in favor of appellee employee in his suit to recover damages for personal injuries pursuant to the Jones Act, 46 U.S.C.S. § 688.

OVERVIEW: The employee, who was the highest ranking employee on the ship other than the captain, went with a co-employee to inspect a pool of standing water. The employee's boots became wet during the process. Following the inspection, the employee descended a stairway and slipped, though he was prevented from falling because the co-employee blocked the employee's fall. The employee's boots were wet at the time of the fall, and a portion of the handrail on one side of the stairs was missing. The district court entered judgment for the employee on the grounds that the co-employee, who was a barge supervisor tasked with safety, had breached a duty to warn the employee of the dangers of descending the stairway with wet boots and that the employer was vicariously liable for the co-employee's breach of duty. In reversing the judgment, the court pointed out that under the Jones Act, a shipowner need not warn seamen of dangers that were "open and obvious." The court held that the employee, who was the co-employee's supervisor and the main safety official on the ship, should have known of the dangers associated with descending a stairway in wet boots, and thus, the co-employee had no duty to warn.

OUTCOME: The court reversed the district court's judgment and rendered judgment in favor of the employer.

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PAUL SOBIESKI and GAIL SOBIESKI, Plaintiffs-Appellants, v. ISPAT ISLAND, INC., INDIANA HARBOR STEAMSHIP CO., LLC, CENTRAL MARINE LOGISTICS,INC., and M/V JOSEPH L. BLOCK, Defendants-Appellees.

No. 04-3001
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2005 U.S. App. LEXIS 12901
January 5, 2005, Argued
June 29, 2005, Decided

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:01-CV-617-PRC. Paul R. Cherry, Magistrate Judge.

PROCEDURAL POSTURE: Appellants, crewman and his wife, filed suits against appellees, corporations, employer, and vessel, and alleged various negligence claims under maritime law. The United States District Court for the Northern District of Indiana, Hammond Division dismissed the claims that remained after a grant of summary judgment. The crewman challenged the grant of summary judgment on the claims under the Jones Act, 46 U.S.C.S. app. § 688.

OVERVIEW: The crewman's neck was injured when his crewmate forcefully cracked his neck unexpectedly. The crewman then fell down his basement stairs when he experienced a lock up pinch in his neck. As a result, the crewman broke his neck in three places and required multiple surgeries and rehabilitation. The crewman and his wife contended that the employer was vicariously liable under the Jones Act, 46 U.S.C.S. app. § 688 for what they described as the crewmate's pseudoctic ways. The crewman and his wife also argued that the employer was directly negligent and liable for the crewman's injury because it was aware, or should have been aware, through its officers, of the crewmate's neck-tractioning activities and did nothing to prevent them. The court found that the crewmate's altruistic tractioning of necks clearly fell within that category of acts commonly held to be outside the scope of employment, those undertaken by an employee for a private purpose and having no causal relationship with his employment. Thus, no reasonable jury could have found that the crewmate's act of cracking the crewman's neck fell within the scope of employment, and the crewman's respondeat superior argument failed.

OUTCOME: Summary judgment on the crewman and the wife's Jones Act claims was appropriate. Therefore, the judgment of the district court was affirmed.

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FOLKSAMERICA REINSURANCE COMPANY, as successor in interestto Christiania General Insurance Company of New York, Plaintiff-Appellant, v.CLEAN WATER OF NEW YORK, INC., Defendant-Appellee.

Docket No. 03-9124
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2005 U.S. App. LEXIS 13041
November 9, 2004, Argued
June 30, 2005, Decided

PRIOR HISTORY: [*1] Appeal from a memorandum and order entered on August 14, 2003, in the United States District Court for the Eastern District of New York (Block, J.), dismissing the complaint for lack of subject matter jurisdiction in the absence of admiralty jurisdiction. Folksamerica Reinsurance Co. v. Clean Water of N.Y., Inc., 281 F. Supp. 2d 530, 2003 U.S. Dist. LEXIS 13991 (E.D.N.Y., 2003)

PROCEDURAL POSTURE: A worker was injured cleaning an oil tank of a barge moored in New York Harbor. Plaintiff insurer filed suit for a declaration that it had no obligation to defend or indemnify defendant ship tank cleaning business, which had subcontracted the work to the worker's employer. The United States District Court for the Eastern District of New York dismissed the case for lack of maritime jurisdiction under 28 U.S.C.S. § 1333(1). The insurer appealed.

OVERVIEW: The shiprepairers legal liability section and the modified comprehensive general liability (CGL) section together operated seamlessly to provide coverage that was primarily marine in nature. The sections shared a premium and were subject to the same deductible and limitations. The policy was custom-built to fill the gaps that traditional marine insurance policies--hull, collision, and protection and indemnity insurance--left in maritime-industry coverage. The SLL section protected against property damage to vessels undergoing repair, and the CGL section added completed operations, products, pollution, contractual liability, and premises and operations coverage. The provisions rounded out coverage for maritime transport operations and gave ship repair and maintenance coverage. Because one section provided full marine insurance, and the other was specifically modified to cover maritime risks, the policy was marine in nature without the necessity of determining whether the premises and operations coverage was marine or not. The policy's primary objective was marine insurance. It was error to conclude that there was no admiralty jurisdiction under 28 U.S.C.S. § 1333(1).

OUTCOME: The district court's dismissal was vacated and the case was remanded.

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DOUGLAS SPECTOR, ET AL., PETITIONERS v. NORWEGIAN CRUISELINE LTD.

No. 03-1388
SUPREME COURT OF THE UNITED STATES
125 S. Ct. 2169; 162 L. Ed. 2d 97; 2005 U.S. LEXIS 4655; 73U.S.L.W. 4429; 16 Am. Disabilities Cas. (BNA) 1345; 18 Fla. L.Weekly Fed. S354;11 Accom. Disabilities Dec. (CCH) 11-256
February 28, 2005, Argued
June 6, 2005, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. Spector v. Norwegian Cruise Line, Ltd., 356 F.3d 641, 2004 U.S. App. LEXIS 340 (5th Cir. Tex., 2004)

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: Plaintiff disabled passengers filed a class action against defendant foreign cruise line under Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12181 et seq. Though holding Title III generally applicable, the district court dismissed some claims but left others in place. The United States Court of Appeals for the Fifth Circuit held that the ADA was inapplicable to foreign vessels. The passengers sought review.

OVERVIEW: The passengers claimed the line's ships were covered by Title III's prohibition on discrimination in "public accommodations," 42 U.S.C.S. § 12182(a), and "specified public transportation services," 42 U.S.C.S. § 12184(a). Inter alia, the Supreme Court held that although the statutory definitions of "public accommodation" and "specified public transportation" did not expressly mention cruise ships, the cruise ships in question clearly fell within both definitions under conventional principles of interpretation. The "clear statement rule" demanded a clear congressional statement, not for all applications of a statute to foreign-flag vessels, but only those applications that would interfere with the foreign vessel's internal affairs. This did not mean the clear statement rule was irrelevant to the ADA, however. If Title III by its terms imposed duties that interfered with a foreign-flag ship's internal affairs, the lack of a clear congressional statement could mean that those specific statutory applications were precluded. The Circuit Court's broadly sweeping clear statement rule interpretation was inconsistent with the Supreme Court's case law and sound statutory interpretation.

OUTCOME: The Supreme Court reversed the decision of the Circuit Court and remanded for further proceedings.

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[*1] S.M. Pires and VIRGINIA PIRES, his wife, Plaintiff,v. Frota Oceanica Brasileira, S.A., BOARD OF TRUSTEES OF GALVESTON WHARVES d/b/aPORT of GALVESTON & CITY OF GALVESTON d/b/a PORT OF GALVESTON, Defendants. S.M.PIRES and SAUL RUDES, Plaintiffs, KENNETH HELLER, Defendant KENNETH HELLER,Third-party Defendant, SUSAN HARMON, Third-party Defendant. S.M. PIRES and SAULRUDES, Plaintiffs, v. KENNETH HELLER, Defendant

23829/76
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2005 NY Slip Op 50315U; 6 Misc. 3d 1036A; 2005 N.Y. Misc.LEXIS 434
January 14, 2005, Decided

According to the verified complaint in Pires and Rudes v Heller, plaintiff S.M. Pires retained defendant Kenneth Heller to represent him in[**5] the an action commenced in 1976 against Frota Oceanica Brasileira, S.A. et al, for personal injuries Mr. Pires sustained while employed as[*3] a seaman on Frota's ship. That action for maintenance and cure resulted in a judgment in Mr. Pires' favor in a sum exceeding $4,000,000 plus interest. The complaint further avers that Mr. Heller retained plaintiff Saul Rudes as appellate counsel to handle appeals resulting from the judgment and agreed that Mr. Rudes' fee would be 10% of Heller's net fee in Mr. Pires' personal injury action. After several appeals, the total judgment with interest awarded to Mr. Pires was $8,329,720.65. Defendant Frota issued a check in that amount made payable to "Starkheiser Pires and Kenneth Heller and Saul Rudes, his attorneys."

According to the supporting affidavit of Mr. Pires', Mr. Heller represented him in the personal injury action S.M. Pires v Frota Oceanica Brasileira, Index No. 23829/76. Mr. Pires states that (1) Mr. Heller showed him the June 24, 1997 Appellate Division decision which held that Mr. Pires was entitled to a $4,000,000 damage award, (2) after further appeals, defendant Frota was ordered to pay that amount with interest which amount totaled $8,239,720.65 and that Mr. Heller never informed him of this accrued additional interest and Mr. Heller kept that amount for himself, (3) at the time that Mr. Pires went to the bank with Mr. Heller to receive the $4,000,000 amount, Mr. Heller asked Mr. Pires to sign blank sheets of paper and Mr. Pires has no knowledge of the contents of those documents now, (4) after learning of the higher award, Mr. Pires confronted Mr. Heller who stated he took the other 50% as his fee, (5) Mr. Pires protested to Mr. Heller as he was never told of the higher award and never agreed to the 50% fee, (6) Mr. Pires never signed a retainer[**8] agreement, (7) Mr. Pires filed a complaint with the Disciplinary Committee of the Appellate Division, First Department, Mr. Heller promised that he would pay the money back because the Court would award an additional $4,000,000 as attorneys' fees against defendant Frota's insurance company, (8) Mr. Pires withdrew the complaint under duress as Mr. Heller said he would not get the money back if Mr. Heller was disbarred as Mr. Pires had no[*4] other attorney at the time, (9) Mr. Heller came to Brazil and Mr. Pires signed an affidavit which he did not read and gave a deposition recorded on videotape, a copy of which Mr. Pires does not have and which is invalid according to Brazilian law, (10) Mr. Heller has told Mr. Pires that he has no money to repay him and Mr. Heller has previously told him that he keeps money in bank accounts in Switzerland, Leichtenstein and Germany, and (11) Mr. Heller has threatened to leave the state and live in Brazil as Brazil has no extradition policy with the United States specifically for the purpose of defeating the collection of any judgment Mr. Pires would obtain against him.

Mr. Pires has taken contradictory positions regarding his former attorney Kenneth Heller and the[**9] submissions on these motions reflect those differing positions. However, the explanations given, that he signed blank sheets of paper for Mr. Heller and that Mr. Heller told him that he would not see the money owed to him unless he withdrew his complaints, are plausible.

The affirmation of plaintiff Saul Rudes n2 avers that Mr. Rudes has been co-counsel with Kenneth Heller in the Pires v Frota Oceanica Brasileira personal injury action since 1996, having been retained by Mr. Heller to handle several post-judgment appeals. Mr. Rudes states that (a) his status as an attorney of record was confirmed in a Supreme Court order dated July 29, 1999, (b) his fee agreement with Mr. Heller in this action as well as other actions for which he was retained is that he would receive 10% of Mr. Heller's net fee, and, thus, he has a 10% interest in the attorneys' fee against the judgment of $8,329,720.65, (c) Mr. Heller committed a fraud against Mr. Pires and Mr. Rudes when Mr. Heller took half of the full judgment amount, (d) Mr. Heller duped Mr. Rudes into waiving an attorneys' fee lien by falsely stating to Mr. Rudes, and to the Court, that the $8,329,720 was to be paid directly to the client, Mr. Pires [**10]and that attorneys' fees were to be awarded separately, (e) Mr. Heller moved to have defendant Frota issue a new check without Mr. Rudes name on it and as a result Frota issued a new check which was issued payable solely to Heller as attorney.

DISPOSITION: Plaintiffs' motion for an order of attachment granted; cross-motion to dismiss denied.

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HAROLD YOUNCE VERSUS PACIFIC GULF MARINE, INC. AND ABCINSURANCE COMPANY

No. 04-CA-839
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
04-839 (La.App. 5 Cir. 01/25/05);
893 So. 2d 909; 2005 La. App. LEXIS 57
January 25, 2005, Decided

PROCEDURAL POSTURE: Appellant claimant challenged the judgment of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Division I, Louisiana, granting summary judgment in favor of appellee employer denying the claimant maintenance and cure benefits for his injury suffered aboard a ship.

OVERVIEW: The claimant was involved in an accident aboard a ship in December 1995 while employed by the employer. The evidence presented showed that the claimant was injured aboard another ship in April 1995. The employer argued that the claimant intentionally concealed his injury and treatment for the prior accident in April 1995, thereby forfeiting his right to maintenance and cure. The appellate court ruled that whether the claimant intentionally misrepresented his medical condition or fraudulently concealed material information regarding his medical condition when he presented to get his clinic card was a disputed question of fact. Since the claimant admitted to having a prior neck injury and that the prior injury occurred on a ship, there was a material issue of fact as to whether the claimant fraudulently concealed his medical condition and should be deprived of maintenance and cure. Also, it was not clear from the evidence submitted whether the prior injury and medical treatment even if disclosed would have prevented the claimant from receiving a clinic card.

OUTCOME: The judgment was reversed and the matter was remanded.

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ARMONDO MARTINEZ VERSUS MARLOW TRADING, S.A. AND FOREIGNCREW EMPLOYMENT SERVICES, INC.

No. 2004-CA-0538
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2004-0538 (La.App. 4 Cir. 02/02/05);
894 So. 2d 1222; 2005 La. App. LEXIS 283; 2005 AMC 778
February 2, 2005, Decided

PROCEDURAL POSTURE: Appellant injured Honduran seaman brought a suit for maintenance and cure against appellees, a Greek vessel owner and its Louisiana agent. Both filed, inter alia, a motion to dismiss pursuant La. Code Civ. Proc. Ann. art. 123(B), stating that Orleans Parish was not an appropriate forum and that Panama or Honduras were more appropriate. The Civil District Court, Orleans Parish, Division "G-11" (Louisiana) granted the motion. The seaman appealed.

OVERVIEW: Panama and Honduras were both adequate and available forums for the proceedings to be conducted and therefore, they fulfilled the requirements for transfer to a more convenient forum. Panama was available because it was the chosen forum of both parties based upon the contractual agreement, and the vessel was also registered in Panama. Honduras was available because the seaman was domiciled there and it was where key witnesses, including his doctors, were located. Based upon the affidavits of a Panamanian attorney, the seaman's claims would be recognized in Panama and he would receive an adequate remedy. The seaman was domiciled and had received the remainder of his medical treatment in Honduras; therefore Honduras was also the location of his treating physicians who would be required to testify at trial. In the interest of fostering greater access to sources of proof and minimizing the costs of obtaining witnesses the trial should be held in either Panama or Honduras; especially because the witnesses were not located in Orleans Parish nor was the vessel registered in that parish. Therefore the appellate court held that both countries provided adequate forums for the trial.

OUTCOME: The judgment of the trial court was affirmed.

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STEPHEN C. SMITH VERSUS TIDEWATER INC.

NO. 2004-CA-0195
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
04-0195 (La.App. 4 Cir. 3/02/05);
2005 La. App. LEXIS 905
March 2, 2005, Judgment Released

PROCEDURAL POSTURE: Defendant employer, a marine company, appealed a decision of the Civil District Court, Orleans Parish (Louisiana), which awarded damages to plaintiff employee in finding that the defendant violated the duty to rescue plaintiff after he fell overboard. Plaintiff was also awarded damages for wrongful termination.

OVERVIEW: Plaintiff was working for defendant when he allegedly fell overboard off the coast of Puerto Rico. Plaintiff swam for nearly 20 hours to shore. The court held that defendant complied with 46 C.F.R. § 26.03-2(b). However, once the Coast Guard began searching for plaintiff, defendant brought its tow into port claiming that it created a burden in the search efforts. The court held that even if that were so, defendant's action of spending over three hours in port while its seaman was lost at sea was not diligent. Further, while 46 C.F.R. § 4.06 required chemical testing on those directly involved, the testing could have been done later. But for the vessel returning the barge to port so that it could remain on schedule, plaintiff may have been rescued and his post-traumatic stress disorder lessened. However, the trial court erred in not assessing plaintiff a percentage of contributory negligence. Therefore, because defendant was not negligent in plaintiff's actual fall, it assigned plaintiff 70 percent fault. Finally, the court held that the retaliatory discharge award was proper because there was evidence that plaintiff was fired in because he was considering filing a claim.

OUTCOME: The court amended the judgment to cast plaintiff 70 percent comparatively at fault. The award for retaliatory discharge was amended to reflect the intention to include an award for lost wages and loss of future income.

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SIVIRINO CARREON, BULIG-BULIG KITA KAMAGANAK ASSOCIATION,RENATO ASISTORGA, PEDRO B. SORIMA, ARNEL N. GALANG, ELSA MONTIAGODO, ERASTOMAGHACUT, ISABEL MAGNO, LORITA ACOSTA, ACEBEDO VIOLETA, SABULAO FAIYAZ, JULIETABENASO, ESCOLASTICA BALDO, JOSE BAGUHIN VERSUS CAL-TEX PHILIPPINES, INC.,CAL-TEX PETROLEUM, CORP., CAL-TEX ASIA, LTD., CAL-TEX OIL CORP., CALIFORNIATEXAS OIL CORP., CAL- TEX PHILIPPINES PETROLEUM COMPANY, INC., CAL--TEX TRADINGAND TRANSPORT CORP., STEAMSHIP MUTUAL, ET AL.

NO. 2004-CA-0809
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2004-0809 (La.App. 4 Cir. 03/23/05);
2005 La. App. LEXIS 1010
March 23, 2005, Decided

PROCEDURAL POSTURE: After two vessels collided off of the coast of the Philippines, appellee petitioners brought a suit in the Civil District Court, Orleans Parish, Division "G-11" (Louisiana). The court initially conditionally dismissed the suit based on forum non conveniens pursuant to La. Code Civ. Proc. Ann. art. 123, but the court subsequently reinstated the suit because no foreign forum would provide an adequate remedy. Appellant ship owner appealed.

OVERVIEW: The issue was whether the district court erred in reinstating the claim. The ship owner argued, inter alia, that the petitioners sabotaged their own motion to intervene in the Manila court by failing to provide support for the motion and failing to advise the Manila court of the previous dismissal in Catabalogan. The appellate court found that the record reflected that the petitioners accurately filed their motion in accordance with the appropriate law and that there was no harm in the petitioner's efforts to seek another forum to litigate. The record did not reveal any wrongdoing or ill filings on the part of the petitioners that warranted the label of "sabotage" or deceit. Twice the district court ordered the conditional dismissal of the case. The petitioners complied with the order of the district court by filing their claims in Manila and Catabalogan. Each judgment provided for the reinstatement of the case in the Civil District Court for the Parish of Orleans should the Philippine courts choose not to accept jurisdiction. The district court had not abused its discretion by reinstating the claims, especially when it clearly rendered its judgments with that possibility in mind.

OUTCOME: The judgment of the trial court reinstating the claims of the petitioners was affirmed.

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BETTY FISK, Plaintiff-Respondent, v. ROYAL CARIBBEANCRUISES, LTD., a Liberian corporation, Defendant-Appellant.

Docket No. 30041, 2005 Opinion No. 39
SUPREME COURT OF IDAHO
108 P.3d 990; 2005 Ida. LEXIS 44
March 4, 2005, Filed

PROCEDURAL POSTURE: The District Court of the Fourth Judicial District, Ada County, Idaho, denied appellant cruise line's Idaho R. Civ. P. 12(b) motion to dismiss an action brought against it by respondent passenger for having been filed in an improper forum. The cruise line appealed.

OVERVIEW: Under principles of federal maritime law, the cruise line sought enforcement of a forum selection clause in the cruise ticket contract signed by the passenger. The appellate court noted that the suit arose from a tort occurring on the high seas and involved the interpretation of a maritime contract. As such, both the tort and the contract were subject to federal maritime law. Although the passenger argued that Idaho law applied, any public policy exceptions were not controlling in an international commercial agreement outside of American waters. The maritime contract at issue was international in nature as it involved a cruise to Mexico. There was no authority permitting the appellate court to apply Idaho law in place of federal maritime law. The forum selection clause in the non-negotiated cruise ticket contract established Florida as the sole appropriate forum for litigation. The passenger did not raise fairness issues such as inconvenience, fraud, or overreaching. Therefore, the forum selection clause in the cruise ticket contract had to be enforced. The passenger was not the prevailing party on appeal; therefore, no award of attorney fees was warranted.

OUTCOME: The judgment was reversed and remanded.

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IRIS FRANGO and JOSEPH FRANGO, Appellants, v. ROYALCARIBBEAN CRUISES, LTD., Appellee.

CASE NO. 3D03-3261
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
891 So. 2d 1208; 2005 Fla. App. LEXIS 954; 2005 AMC 804; 30Fla. L. Weekly D 320
February 2, 2005, Opinion Filed

DISPOSITION: Affirmed in part; reversed in part and remanded.

PROCEDURAL POSTURE: Appellants, a wife and a husband, brought suit against defendant cruise company to recover for injuries sustained by the wife on one of the company's ships and for loss of consortium. Appellants sought review of the judgment of the Circuit Court for Miami-Dade County (Florida), which granted the company's motion for summary judgment on both of the claims.

OVERVIEW: While appellants were passengers on one of the company's ships, the automatic sliding doors that led into the ship's lounge closed on the wife's face and caused her injuries. The incident occurred as the wife entered the lounge and turned her head around to find her husband, who was walking behind her. In appellants' suit against the company, the trial court granted summary judgment against appellants on both the wife's negligence claim and the husband's claim for loss of consortium. On appeal, the court found that the trial court erred in granting summary judgment against the wife on her negligence claim because the court could not agree that by briefly stopping to look back at her husband, the wife was entirely responsible for the accident. However, the court determined that the trial court properly granted summary judgment against the husband on his loss of consortium claim because maritime law did not recognize a claim for loss of consortium to non-seamen.

OUTCOME: The court reversed the judgment granting summary judgment for the company on the wife's claim for injuries but affirmed the judgment granting summary judgment for the company on the husband's claim for loss of consortium. The court remanded the cause to the trial court.

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MARLON VALDIVIA, Appellant, v. PRESTIGE CRUISES, N.V. andCSCS INTERNATIONAL, N.V., Appellees.

No. 4D04-1942
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2005 Fla. App. LEXIS 4653; 30 Fla. L. Weekly D 905
April 6, 2005, Decided

OPINION: Per Curiam.

We affirm the trial court's dismissal of this seaman's personal injury suit on forum non conveniens grounds. In dismissing this case, the trial court properly applied the analysis required by Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and rule 1.061(a) of the Florida Rules of Civil Procedure. The Kinney factors provide the proper analysis for maritime cases filed in state court. See Tananta v. Cruise Ships Catering & Svcs. Int'l, 2004 Fla. App. LEXIS 19661, 2004 WL 2955023, 30 Fla. L. Weekly D18 (Fla. 3d DCA Dec. 22, 2004) (clarifying that[*2] where dismissal of a Jones Act action filed in state court is sought on the grounds of forum non conveniens, Kinney standards apply, rather than a federal choice of law venue analysis).

Further, the time limitation in rule 1.061(g) does not affect the trial court's ability to raise the forum non conveniens issue sua sponte at any time. See Verysell-Holding LLC v. Tsukanov, 866 So. 2d 114 (Fla. 3rd DCA), rev. denied, 874 So. 2d 1194 (2004) (holding that the sixty-day time limit imposed by rule of civil procedure governing service of a party's motion to dismiss based on forum non conveniens does not apply to a trial court's inherent power to raise the issue of forum non conveniens sua sponte.).

Affirmed.

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Audre Capaldo v. Camelot Cruises, Inc. et al.

CV030179618S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OFWATERBURY, AT WATERBURY
2005 Conn. Super. LEXIS 551
February 18, 2005, Decided
February 18, 2005, Filed

PROCEDURAL POSTURE: Plaintiff injured party filed a negligence action against defendants, a cruise line and performing theatre company (company), for injuries she sustained during one of the company's on- ship performances. The cruise line moved for summary judgment on the ground that it had no duty to the injured party, no issues of material fact existed, and thus, it was entitled to judgment as a matter of law. This proceeding followed.

OVERVIEW: The injured party alleged that the cruise line was negligent in allowing the company to have personal contact with the ship's passengers, allowing the performance to take place in their proximity, failing to provide a warning that performers would have contact with passengers, not properly supervising the performers, and not providing reasonable assistance to her once she was injured. The court first held that it appeared that the company was an independent contractor. Second, the cruise line retained some degree of control over the equipment used in the performances, such as the cordless microphones used for the actors. It also had the sole responsibility to promote and advertise the performance and had the right to control the content and format of all written and printed materials that came in contact with passengers. These contract provisions, coupled with the fact that the performances took place on the ship, raised material fact issues regarding the cruise lines's retention of control over the premises where the performances took place. Further, given the interaction between the company and the audience, it was foreseeable that an actor would step on a passenger's foot.

OUTCOME: The motion was denied.

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DONALD J. LEBLANC v. M/V NAUMACHIA (O.N. 672110), herengines, tackle and appurtenances, inrem

CA No. 04-009 ML
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODEISLAND
2005 U.S. Dist. LEXIS 5152; 2005 AMC 506
January 4, 2005, Decided

PROCEDURAL POSTURE: In an in rem action, pro se plaintiff former captain asserted maritime liens against a vessel. After the vessel was arrested, claimant bank intervened asserting that it held a preferred ship mortgage against vessel superior to any lien asserted by the captain.

OVERVIEW: It was undisputed that the bank's mortgage was a preferred mortgage under the Commercial Instruments and Maritime Liens Act, 46 U.S.C.S. § 31301 et seq. The bank disputed the very existence of the liens asserted by the captain and argued instead that the captain was a joint venturer who was legally incapable of asserting a maritime lien against the vessel. The court engaged in a five-part analysis and determined that a joint venture existed. The captain and his former fiancee intended to purchase the vessel together, but could not because of the captain's poor credit. The captain controlled nearly all of the operational activities of the vessel. While his former fiancee was legal owner of the vessel, the captain nonetheless managed the operations of the vessel and, as such, had a proprietary interest in the vessel and its success. The final two factors considered the share of the venture's profits and losses. The captain and his former fiancee agreed to equally share all profits. The fact that they never discussed who would bear the enterprise's losses did not necessarily foreclose a determination that the captain was a joint venturer.

OUTCOME: The bank had a preferred ship mortgage against the vessel, but the captain had no valid maritime liens. The vessel was ordered sold, and the resulting proceeds would first be allocated to any expenses that had accumulated while the vessel was detained in custodia legis. The remainder would then be paid into the registry of court for disbursement on any claims made.

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JAMES WHITE, Plaintiff, v. WATERMAN STEAMSHIP CORP.,Defendant.

CIVIL ACTION NO. G-03-1026
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, GALVESTON DIVISION
2005 U.S. Dist. LEXIS 7246
January 7, 2005, Decided

PROCEDURAL POSTURE: Following an injury while working aboard a vessel, plaintiff seaman sued defendant, the vessel's owner, alleging causes of action under the Jones Act, 46 U.S.C.S. § 588, unseaworthiness, maintenance and cure, and penalty wages under 46 U.S.C.S. § 10313. Defendant filed a motion for partial summary judgment only as to the claim for penalty wages.

OVERVIEW: There was no evidence that defendant intentionally withheld plaintiff's wages for his work on the first day he was on the vessel or arbitrarily or willfully refused to pay him those wages. A simple accounting error in the calculation of a seaman's wages did not qualify as arbitrary or willful so as to invoke the draconian penalties under 46 U.S.C.S. § 10313. Moreover, plaintiff was not entitled to penalty wages for any lost past and future wages, unpaid maintenance and cure benefits, and lost union benefit plan contributions. Lost union benefit plan contributions and unpaid maintenance and cure benefits were outside the scope of the wage penalty statute. Lost union benefit contributions were paid to the seaman's union and not directly to the seaman. Lost wages were those that a seaman could have earned but did not because of his incapacity, thus, they did not accrue until after he was discharged.

OUTCOME: The court granted defendant's motion for partial summary judgment for penalty wages.

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LUCKY STEVENS VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION No: 00-3326 SECTION "T" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 537
January 11, 2005, Decided
January 13, 2005, Filed; January 13, 2005, Entered

PROCEDURAL POSTURE: Plaintiff seaman was injured while working aboard a vessel owned by defendant employer. The seaman filed an action pursuant to the Jones Act, 26 U.S.C.S. app. § 688, and general maritime law seeking compensation for his injuries. The court conducted a bench trial, in admiralty, and entered its findings and judgment.

OVERVIEW: While working on a fishing boat, the seaman was struck in the back by a hydraulically operated galvanized steel block. His last treating physician reported that he suffered a 15 to 20 percent permanent partial total body medical impairment, which would limit his ability to work. The seaman's economic expert concluded that he would lose between $203,435 and $267,254 in wages, as a result of his physical impairments. The court found that the employee who operated the block was negligent, as was the rest of the crew for failing to warn the seaman of the impending danger created by the block operator. The employer could be held liable and was negligent through the actions of its boat crew; their incompetence also rendered the boat unseaworthy. The court found no contributory fault on the seaman's part. The seaman was entitled to recover unpaid maintenance and cure benefits and was also entitled to recover damages for pain and suffering and for past and future lost wages. He was not entitled to attorney's fees because he failed to show that the employer's denial of maintenance and cure benefits was egregious.

OUTCOME: The court entered a judgment for the seaman and ordered the employer to pay him $629,656.64, together with interest from the date of the judgment. It held that the seaman was not entitled to attorney's fees. The court declined to award prejudgment interest.

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IN THE MATTER OF CRESCENT SHIP SERVICE, INC., as owner andowner pro-hac-vice, of the M/V MR. FREDDIE, her engines, tackle, appurtenances,etc. in a cause of EXONERATION FROM OR LIMITATION OF LIABILITY

CIVIL ACTION NO. 03-2107, c/w 03-2163, C/w 04-0340, c/w04-0397 SECTION "C" (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 1294
January 26, 2005, Decided
January 27, 2005, Filed; January 28, 2005, Entered

PROCEDURAL POSTURE: In an action that arose out of an accident involving a crew boat and a barge, the matter was before the court to determine whether claimant longshoremen suffered injury and damages as a result of the collision.

OVERVIEW: The 22 longshoremen alleged they were on board a crew boat when, at approximately 8:00 p.m., the vessel struck a slow-moving barge. The crew boat was ferrying the longshoremen back to shore from a mid-river work site. The owner of the crew boat and the owner of the barge stipulated that they were jointly and severally liable for causing the accident that was the basis of the suit. The court first found that the collision was strong enough to cause injury to passengers on the crew boat. The court reasoned that virtually all of the longshoremen testified that the collision provided a strong jolt to the crew boat, and the impact itself was exacerbated by the sharp acceleration and turn of the crew boat immediately prior to contact, a result of the captain's attempt to maneuver the boat out of harm's way. Next, the court stated that it would consider each longshoremen's allegations of injury without regard to their failure to report injury or their reasons for not doing so. Finally, the court addressed each of the longshoremen individually. In doing so, most of the longshoremen were awarded medical specials and general damages.

OUTCOME: The court awarded medical specials and general damages to most of the longshoremen. Two of the longshoremen were awarded nothing.

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GLEN TATE, et al., Plaintiffs, v. SHOWBOAT MARINA CASINOPARTERNSHIP, et al., Defendants.

No. 02 C 3432
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
357 F. Supp. 2d 1075; 2005 U.S. Dist. LEXIS 6245

PROCEDURAL POSTURE: Plaintiff employees filed suit against defendant vessel owners, seeking overtime pay and damages for delay in payment pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The owners filed a motion for summary judgment.

OVERVIEW: The employees, who worked as crew members on a gambling boat, claimed that they were entitled to overtime pay under the FLSA. The owners contended that the employees were exempt from the overtime provisions of the FLSA under 29 U.S.C.S. § 213(b)(6) because they were employed as "seamen" on a vessel. The court held that the owners were entitled to summary judgment on the employees' claims because: (1) the employees were considered seaman for purposes of the Jones Act, 46 U.S.C.S. app. § 688, and, thus, a presumption arose that they were seaman under the FLSA as well; and (2) there was no genuine issue of material fact such that the employees could rebut the presumption that they were seaman. The court found that the activities relied upon by the employees in support of their assertion that they spent over 20 percent of their time on non-maritime services--acting as security guards, greeting guests while they stood watch on the rampway, changing and cleaning ceiling tiles, performing general housekeeping duties, moving slot machines and furniture, and answering telephones--were in fact maritime services because they were related to the safety of the boat as a ship and not a casino.

OUTCOME: The court granted the owners' motion for summary judgment.

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ANTHONY ALFRED VERSUS HORNBECK OFFSHORE SERVICES, ET AL.

CIVIL ACTION NO. 04-2243 SECTION "L" (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 3325
February 22, 2005, Decided
February 22, 2005, Filed; February 24, 2005, Entered

PROCEDURAL POSTURE: Plaintiff seaman filed suit against defendants, his employer, a vessel owner, and a charterer, alleging claims against the owner and charterer for negligence and unseaworthiness. The seaman also alleged claims against his employer for negligence and unseaworthiness under the Jones Act and for maintenance and cure. The charterer and the employer filed motions for summary judgment.

OVERVIEW: The seaman, who was working as a cook aboard a vessel, claimed that he was injured when he slipped on a wet floor while walking down a hallway from his bedroom to the bathroom. The seaman further contended that he did not know that the floor had just been mopped and was wet. The charterer and the employer sought summary judgment on the seaman's negligence claim. The court held that the charterer was entitled to summary judgment because the seaman's injuries did not occur within the traditional spheres of activity over which a time charterer might exercise control, the charterer had no employees aboard the vessel, and the charterer had no responsibility for controlling tasks like mopping. Thus, the charterer did not owe the seaman a "hybrid duty" to instruct the captain to maintain a safe work place and keep the floors from being slippery and dangerous. The court further held that the employer was entitled to summary judgment on the issue of liability under the Jones Act because the evidence established that the employer had no way of knowing that the floor was wet at the time of the accident. Thus, the employer did not have notice and an opportunity to correct the unsafe condition.

OUTCOME: The court granted the charterer's motion for summary judgment, granted the employer's motion for summary judgment with respect to the employer's liability under the Jones Act, and denied the employer's motion for summary judgment with respect to the seaman's claim for maintenance and cure.

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RICHARD T. ARNOLD, Plaintiff, v. LUEDTKE ENGINEERING, CO.,Defendant.

File No. 1:04-CV-69
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
357 F. Supp. 2d 1019; 2005 U.S. Dist. LEXIS 3107
February 24, 2005, Decided

PROCEDURAL POSTURE: Plaintiff employee filed suit against defendant employer, seeking damages for negligence and vessel unseaworthiness pursuant to the Jones Act (Jones Act or Act), 46 U.S.C.S. app. § 688. The employer filed a motion for summary judgment on the ground that the employee was not a " seaman " under the Act.

OVERVIEW: The employer was a maritime construction company. During his 23 years of employment, the employee worked in various capacities, including as a runner, deckhand, tugboat pilot, and project foreman. At the time of the events in question, the employee was assigned as project foreman to a seawall construction project. The employee was injured during the wedge plate phase of the project. The court held that the employer was entitled to summary judgment on the employee's Jones Act claim because the employee's job assignment at the time of his injury--attaching wedge plates to a seawall--was a new, land-based assignment that did not involve any service to a vessel; thus, the employee did not have a substantial connection to a vessel as required for " seaman " status under the Act. The court found: (1) the employee's prior work history with the employer was not relevant to the seaman inquiry; (2) the employee's service as a tug boat pilot during the wedge plate phase of the project did not satisfy the substantial connection requirement; and (3) the employee's membership in a seafarers union and receipt of maintenance and cure pursuant to a union contract did not establish his seaman status.

OUTCOME: The court granted the employer's motion for summary judgment.

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JAMES BAILEY, Plaintiff, -against- SEABOARD BARGECORPORATION, PETROLEUM TRANSPORT CORPORATION, MORAN TOWING CORPORATION, CLEANWATER OF NEW YORK, INC., MARINERS HARBOR MARINE CORP., and EGRET REALTY CORP., Defendants.

03 CV 0267 (GBD)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2005 U.S. Dist. LEXIS 2860
February 25, 2005, Decided
February 25, 2005, Filed

PROCEDURAL POSTURE: Plaintiff, a tankerman, brought claims under the Jones Act, 46 U.S.C.S. app. § 688, against his employer, a barge owner, and their parent corporation, and brought common law negligence claims against a barge docking facility owner and its operator, following injuries he sustained while attempting to board his employer's barge. The employer, owners, and operator moved for summary judgment under Fed. R. Civ. P. 56.

OVERVIEW: The tankerman claimed that the facility owner and its operator failed to provide a safe means for him to access the barge he was assigned to work on. The court held that the tankerman's negligence claims failed because there was no evidence that the facility owner or its operator breached their duty of reasonable care or that any such breach was the proximate cause of the tankerman's injuries. The court found that there was no evidence that the barge docking facility was inherently unsafe or that the tankerman was not warned of any hidden dangers, and that the tankerman's injuries occurred on mothballed barges adjacent to the docking facility's property which he chose, of his own volition, to walk through. The court further held that the tankerman's Jones Act, 46 U.S.C.S. app. § 688, claims failed because there was no evidence that the employer or barge owner failed to provide a safe and available way to get from the shore to the barge. The court found that a safe route was available to the barge, and that the tankerman was injured as a result of his decision to board the barge through mothballed barges, which were not owned, operated, or controlled by the employer or barge owner.

OUTCOME: The motions for summary judgment were granted. The tankerman's claims against the employer, owners, and operator were dismissed.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OFMASSACHUSETTS
360 F. Supp. 2d 195; 2005 U.S. Dist. LEXIS 3121
March 3, 2005, Decided

PROCEDURAL POSTURE: Plaintiff seaman, who sustained injuries when he was stuck with a fish hook while working on board a vessel, sued defendant owner of the vessel for a claim under the Jones Act, 46 U.S.C.S. § 688, for a claim of unseaworthiness, and for a claim of maintenance and cure. Defendant owner moved for summary judgment.

OVERVIEW: The captain of the vessel removed the hook and cleaned and bandaged the wound. Two weeks later when the vessel docked, the seaman was diagnosed as having an infection and was prescribed antibiotics. He was also treated for gastrointestinal bleeding. Tests revealed that he had used cocaine and opiates, and the seaman reported using drugs intravenously. The issue in the case was whether the fish hook incident was causally related to two surgeries for the seaman's ulcers. The seaman could not rely on his doctor's opinion to establish causation because there was no evidence to support the opinion that the seaman had taken aspirin and Motrin for pain after the fish hook incident which caused the ulcers. Without evidence of causation, his Jones Act and unseaworthiness claims failed as a matter of law. However, because the seaman denied in deposition that he had ever used, or reported using, cocaine or other drugs intravenously, a question of material fact was raised as to whether his own willful misconduct foreclosed an award for maintenance and cure.

OUTCOME: The court granted in part and denied in part the owner's motion for summary judgment. The motion was granted as to the Jones Act and unseaworthiness claims and denied as to the claim for maintenance and cure.

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SANDRA JEAN SIMPSON, and ALEXANDER J. SIMPSON, PersonalRepresentative for the Estate of DR. MOSTAFA KARIM Plaintiffs, v. THE SOCIALISTPEOPLE'S LIBYAN ARAB JAMAHIRIYA, Defendant.

Civil Action No. 00-1722 (RMU), Document No.: 45
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
2005 U.S. Dist. LEXIS 3292
March 7, 2005, Decided

PROCEDURAL POSTURE: Plaintiffs, spouse of deceased husband and his estate, sued defendant Libya under international law, federal law, and state law, seeking compensatory damages for an act of hostage taking that Libya allegedly committed in 1987. Libya sought dismissal for lack of jurisdiction, inter alia, which implicated the state sponsored terrorism exception to Foreign Sovereign Immunities Act, specifically 28 U.S.C.S. § 1605(a)(7).

OVERVIEW: In 1987, Libyan authorities boarded the boat the spouse and deceased were traveling on, forcibly removed all passengers, and detained the spouse and deceased. Eventually, the spouse was forcibly separated from her husband and allowed to leave, but her husband was detained for the next seven months. The exception to foreign sovereign immunity at issue in the present case was the state-sponsored terrorism exception, codified at 28 U.S.C.S. § 1605(a)(7). The court held that in light of the political situation at the time and evidence produced by the plaintiffs, the allegations used to support the hostage-taking claim including use of the plaintiffs as human shields to prevent American air attacks; revenge and compensation for American air attacks; exchange for Egyptian military hardware; and Libya's pattern of terrorist activity, were sufficient for the court to exercise subject matter jurisdiction. Competent evidence demonstrated that Libya's purpose in the alleged hostage taking was to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the hostages' release. Thus, the court had jurisdiction under the state sponsored terrorism exception.

OUTCOME: The court denied Libya's motion to dismiss and granted the spouse and estate leave to amend their complaint to state with specificity their causes of action.

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HOEKSTRA, et al., Plaintiff(s) v. CARIBBEAN CRUISES, LTD.,et al, Defendant(s)

CIVIL NO. 04-1044(JAG)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
360 F. Supp. 2d 362; 2005 U.S. Dist. LEXIS 4153
March 9, 2005, Decided

PROCEDURAL POSTURE: Plaintiffs vacationers filed a breach of contract and constitutional-tort action seeking compensatory and punitive redress for the losses of their failed vacation against defendant cruise line. The cruise line filed a motion to dismiss for failure to state a claim and for improper venue.

OVERVIEW: The vacationers made a booking with the cruise line's subsidiary and were aware that the subsidiary had a policy not allowing women who were in an advanced stage of pregnancy on board. Three days before the departure date, the vacationers sought clarification regarding the aforementioned policy, and the vacationers were assured that the wife could board the ship because at the time of the scheduled boarding she would be only twenty-five weeks pregnant. Relying on this information, the vacationers boarded a transatlantic flight to Miami from their home in The Netherlands. However, upon arriving at the pier where the cruise ship was docked, the vacationers were not allowed to board. The court would not dismiss the action because the vacationers were raising the possibility that the cruise line, as a parent company, developed policies for the subsidiary and had the duty to train the subsidiary's employees. As to venue, the vacationers could not have had prior knowledge of the forum selection clause because they were supposed to pick up the relevant documents at the pier. Thus, the court could not impute to the vacationers the required knowledge to enforce the forum selection clause.

OUTCOME: The court denied the cruise line's motion to dismiss.

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VEGA-PEREZ, et al., Plaintiff(s) v. CARNIVAL CRUISE LINES, et al., Defendant(s)

CIVIL NO. 04-2358(JAG)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
361 F. Supp. 2d 1; 2005 U.S. Dist. LEXIS 4156
March 16, 2005, Decided

PROCEDURAL POSTURE: Defendants, a cruise line and others, filed a motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss plaintiff parents' action for personal injuries based on improper venue.

OVERVIEW: The parents authorized their sons to take a cruise trip with their grandparents and other relatives. While playing at a close distance from their relatives, one of the sons tripped on the rug and slit his left cheek with an air hockey machine that had a protruding piece of metal at the bottom part of the machine. Defendants moved to dismiss the action because the passage contract contained a forum selection clause that designated Miami, Florida, as the exclusive forum for resolution of disputes arising from the contract of passage. Defendants claimed that the ticket contract, as well as the travel brochure, reasonably communicated the forum selection clause to the passengers. The court held that, given the fact that the parents presumably became aware of the forum selection clause at the moment they received the travel tickets, they were reasonably communicated the terms and conditions of the passage contract. Further, the court found that the clause was fair and reasonable. The court also found that the enforcement of the forum selection clause would not have gravely inconvenienced the parents since Miami was a relatively close litigation forum to Puerto Rico.

OUTCOME: The court denied defendants' motion to dismiss for improper venue, but transferred the case to the United States District Court of Southern District of Florida.

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JANE DOE, Plaintiff, vs. ROYAL CARIBBEAN CRUISES, LTD.,Defendant.

CASE NO. 04-21627-CIV-HOEVELER
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA
2005 U.S. Dist. LEXIS 6582
March 18, 2005, Decided
March 18, 2005, Filed

PROCEDURAL POSTURE: Defendant employer moved to compel arbitration in plaintiff employee's action, which resulted from a rape experienced while she was working on one of the employer's vessels. The employee moved for remand.

OVERVIEW: The employee brought an action against the employer, a cruise ship line, relating to her employment on one of the employer's vessels. The employee's claims arose from a rape experienced while she was working on one of the employer's vessels and from the employer's subsequent actions toward her. The employer removed the action to federal court pursuant to the United States Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), 9 U.S.C.S. § 201 et seq., and asked the court to compel arbitration. The employee filed a motion for remand. The court found that the employee was employed pursuant to an agreement that required that her dispute be brought either before the National Labor Relations Commission of the Philippines, or an arbitrator. While it was plausible that economic hardship might make a prospective Filipino seaman susceptible to a hard bargain during the hiring process, the employee failed to explain how that made for a defense under the Convention. Thus, the court sent the employee's claims to arbitration.

OUTCOME: The court denied the employee's motion for remand. The court granted the employer's motion to compel arbitration.

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SANDERS COLEMAN, III VERSUS M/V ORHAN EKINCI, VAKIF DENIZFINANSAL, HYUNDAI MERCHANT MARINE (AMERICA), INC., AND ABC INSURANCE COMPANY

CIVIL ACTION NO. 02-3599 SECTION "T" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 5513
March 22, 2005, Decided
March 22, 2005, Filed

PROCEDURAL POSTURE: Plaintiffs, a longshoreman and, apparently, his wife, sued defendants, a vessel owner and a time charterer, under § 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA) to recover for losses that resulted when the longshoreman was injured while assisting with the discharge of cargo from the owner's vessel. Defendants moved for summary judgment.

OVERVIEW: The longshoreman was injured when he fell through material know as doorskin that covered a gap between stacks of cargo, apparently after it had been torn loose from some cargo. Plaintiffs argued that defendants were liable for plaintiff's losses under § 905(b) of the LHWCA because defendants failed to fulfill their Scindia duties with respect to the vessel and cargo. Defendants were entitled to summary judgment. The Scindia duties applied not only to the vessel owner but also to the time charterer because the condition of the cargo caused the accident. However, defendants did not violate any of those duties. Defendants turned over a safe ship, as the stevedores inspected the vessel before taking control of it and unloading operations had been going on for two days before the accident occurred. Defendants were not in active control of the ship when the accident occurred. And, there was no evidence that defendants should or even could have known of the hazard posed by the torn doorskin. Plaintiffs offered only speculation about how the hazard was created and that defendants knew or should have know about it.

OUTCOME: The court granted defendants summary judgment.

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THOMAS J. GREEN, Plaintiff, -against- McALLISTER BROTHERS,INC., Defendant. McALLISTER BROTHERS, TOWING OF NEW YORK, sued herein asMcALLISTER BROTHERS, INC., Third-Party Plaintiff, THE CITY OF NEW YORK,Third-Party Defendant. JACK SALTARELLA, et al., Plaintiffs, -against- THE CITYOF NEW YORK, Defendant.

02 Civ. 7588 (FM), 03 Civ. 1482 (FM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2005 U.S. Dist. LEXIS 4816
March 24, 2005, Decided
March 25, 2005, Filed

PROCEDURAL POSTURE: In separate Jones Act actions arising from exposure to debris following the destruction of the World Trade Center, (1) plaintiff former employee sued defendant former employer, which brought a third-party negligence claim against third-party defendant city, and (2) plaintiff city workers sued defendant city. In the first action, the parties moved in limine to preclude expert testimony. Defendants in both actions moved for summary judgment.

OVERVIEW: The employee claimed that he developed asthma and other medical problems while working on the employer's tugboat transporting barges that contained Trade Center debris. The city workers had worked aboard boats at a landfill where the debris was taken; they claimed that they had medical problems attributable to their handling of the debris. The parties consented to a magistrate's jurisdiction. In the first action, with respect to the admissibility of testimony by the employee's treating physician that the employee's illness was caused by his exposure to Trade Center dust while working for the employer, there was an adequate showing of general causation; however, a Daubert hearing was necessary to determine why the physician ruled out as a cause any earlier exposure the employee may have had to Trade Center debris. Medical testimony offered by the employer and the city was admissible. In the second action, the workers had failed to designate any expert witnesses and therefore could not show causation as required for their toxic tort claim, and they could not recover for fear of future illness absent any physical manifestation of their exposure to asbestos or carcinogens.

OUTCOME: In the first action, the magistrate ordered a Daubert hearing prior to ruling on the admissibility of certain of the physician's proposed testimony; the motions in limine by all parties and the motion for summary judgment were otherwise denied, except to the extent that they might be affected by the Daubert ruling. The city's summary judgment motion in the second action was granted.

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JEFFERY OWENS VERSUS GLOBAL SANTA FE DRILLING CO.

CIVIL ACTION NO. 04-702 SECTION "K" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 6225
April 8, 2005, Decided
April 8, 2005, Filed

PROCEDURAL POSTURE: Plaintiff, an assistant derrickman, filed a Seaman's Complaint pursuant to 28 U.S.C.S. § 1916, seeking damages for neurological problems that he allegedly sustained while working on a rig owned by defendant drilling company. The company filed a motion for summary judgment.

OVERVIEW: The derrickman alleged that he was suffering from panic attacks, depression, and neurological problems due to repeated minor injuries he sustained on the rig, as well as due to witnessing coworkers sustain injuries. In granting the company's motion for summary judgment, the court held that the facts alleged by the derrickman did not state a claim for damages for purely emotional injuries. Under the zone of danger theory, a claimant could cover for purely emotional harm if he was objectively within the zone of danger; he feared for his life at the time of the accident, and his emotional injuries were a reasonably foreseeable consequence of the defendant's alleged negligence. Here, the derrickman did not allege that he feared for his life as a result of his own injuries or the injuries sustained by coworkers. Further, his minor injuries had all healed, and the derrickman had gone to work for eight months before claiming to be suffering from emotional distress. Thus, the emotional injuries were not foreseeable. The court opined that emotional injuries resulting from nothing more than the accumulation of years of common encounters with the hardships of the sea were not foreseeable.

OUTCOME: The court granted the company's motion for summary judgment.

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CHRISTOPHER SAIENNI versus CAPITAL MARINE SUPPLY, INC., ET AL

CIVIL ACTION No. 03-2509 SECTION I/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 6928
April 18, 2005, Decided
April 18, 2005, Filed

PROCEDURAL POSTURE: Plaintiff worker who repaired vessels sued defendant employers under the Jones Act, alleging that the employers were liable for injuries sustained by the worker on one of the employer's vessels. The employers moved for summary judgment on the ground that the worker was not a seaman for purposes of the Jones Act.

OVERVIEW: The worker's job title was shoreside mechanic and the worker's daily duties included performing preventive maintenance, coordinating repairs, and performing mechanical and electrical repairs aboard the employers' vessels and at a land-based facility. The worker contended that he was a seaman under the Jones Act based on his contribution to the function of the employers' fleet, but the employers asserted that the worker had an insufficient connection to the fleet to be considered a seaman. The court held that, while the worker spent a significant amount of time aboard the employers' vessels, the nature of the worker's function of performing land-based repairs of the vessels could not be deemed to confer seaman status. The worker was a shoreside mechanic operating out of a land-based fleeting facility, the worker's repairs aboard the vessels generally occurred while the vessels were moored at stationary locations, and the worker did not sleep aboard the vessels when performing repairs which required an overnight stay. Moreover, the worker's job was not of a seagoing nature and involved only sporadic exposure to the perils of the sea.

OUTCOME: The employers' motion for summary judgment was granted.

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RICKY GROS, JR. versus L&L MARINE TRANSPORTATION, INC., etal.

CIVIL ACTION No. 04-2681 SECTION I/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 6932
April 19, 2005, Decided
April 19, 2005, Filed

PROCEDURAL POSTURE: Plaintiff seaman filed a motion, pursuant to Fed. R. Civ. P. 41(a)(2), for voluntary dismissal without prejudice of a personal injury claim against defendants, an employer and an insurer, asserting claims pursuant to the Jones Act and maritime law.

OVERVIEW: The seaman alleged that he was injured while employed as a deckhand aboard a ship. The seaman originally filed a petition state court against the employer and an unnamed insurer asserting claims based on the same incident. After some discovery had been conducted, the state court granted the seaman's motion to voluntarily dismiss his state court petition so he could pursue his federal lawsuit. The seaman later filed a second lawsuit in state court against defendants, and moved to voluntarily dismiss the instant action in order to pursue his remedies in state court. Defendants alleged that the seaman was forum shopping. The court held that defendants produced no evidence to support a finding that they would have been legally prejudiced by a dismissal at an early stage in the proceeding. However, because defendants identified some evidence of abuse by the seaman, he was prohibited from refiling the action in federal court.

OUTCOME: The court granted the seaman's motion for voluntary dismissal and dismissed his claims without prejudice with the condition that the seaman could not re-file the action in federal court.

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IRENE VALENTI and JOSEPH VALENTI, Plaintiffs, - against -NORWEGIAN CRUISE LINE, Defendant.

04 Civ. 8895 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2005 U.S. Dist. LEXIS 6811
April 21, 2005, Decided

PROCEDURAL POSTURE: Plaintiff passengers filed an action against defendant cruiseline alleging that the passenger wife suffered personal injuries due to the negligence of the crew on a cruise ship. The cruiseline filed a motion to dismiss under Fed. R. Civ. P. 12(b) and 12(c), claiming that the forum selection clause contained on the ticket purchased by the passengers precluded the passengers from bring a lawsuit in the forum.

OVERVIEW: The cruiseline maintained a principal place of business and corporate headquarters in Florida. The passengers purchased and used a ticket for a voyage with the cruiseline. The ticket, retained by the passengers, contained a contract of passage, including a forum selection clause that required all litigation to go forward in Florida. The passengers did not reject the ticket contract even though the had the tickets at their home for almost a month before the cruise. The passengers had an opportunity to cancel the contract without facing a penalty. The court held that the source of substantive law for the action was federal maritime law. Under federal maritime law, a forum selection clause in a maritime contract was prima facie valid unless there was some independent justification for refusing to enforce it. The passengers had not provided any grounds for justifying non-enforcement of the forum selection clause that was reasonably communicated to the passengers. Additionally the court found that the cruiseline's requirement that litigation be initiated in a court in Florida was fair and reasonable.

OUTCOME: The court granted the cruiseline's motion to dismiss.

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DOYLE RUSSELL HART VERSUS FOREST OIL CORPORATION, ET AL

CIVIL ACTION NO. 03-2776 SECTION "C" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2005 U.S. Dist. LEXIS 8027
April 25, 2005, Decided
April 26, 2005, Filed

PROCEDURAL POSTURE: Plaintiff employee sued defendants, an employer, a barge owner, a vessel owner, and a compressor repair company, seeking compensation for injuries he received while on a production barge. Defendants filed several motions for summary judgment.

OVERVIEW: While the employee contended that he was unable to ascertain how long the barge was located in its stationary position and that it qualified as a special purpose vessel, the depositions and discovery presented by defendants supported the conclusion that the barge was used strictly as a platform for storing and processing oil and gas. Thus, the employee did not qualify as a seaman based on work performed on the barge. Although the parties conceded that the vessel qualified as a vessel in navigation for purposes of the Jones Act, they disputed whether the employee's affiliation with the vessel was merely incidental to his employment or whether he spent a substantial portion of his time on board the vessel. In light of the employee's allegations that he spent a substantial portion of his day aboard the vessel or attending to its needs and acted as the vessel's skipper and the evidence that the vessel was essential to the performance of the employee's job duties, summary judgment was inappropriate on whether the employee was a seaman based on his work aboard the vessel. The compressor repair company was granted summary judgment as there was no evidence establishing fault on its part.

OUTCOME: The motions for summary judgment were granted with respect to the employee's status as a seaman based on his work aboard a barge and the compressor repair company's liability but was denied as to the employee's status as a seaman based on his work aboard a vessel.

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EDWARD A. CARNEY v. UNITED STATES OF AMERICA

CCB-03-3493
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
2005 U.S. Dist. LEXIS 7697
May 2, 2005, Decided

PROCEDURAL POSTURE: Plaintiff, a seaman-engineer, suffered an injury to his hand while attempting to measure a shipboard fan unit to facilitate repairs. He brought claims for negligence and failure to provide prompt maintenance or cure, pursuant to the Suits in Admiralty Act, 46 U.S.C.S. app. §§ 741-752, and the Public Vessels Act, 46 U.S.C.S. app.§§ 781-790. Defendant United States moved to dismiss the claims as subject to the discretionary function exception.

OVERVIEW: The engineer was employed by a private contractor, but was assigned to a vessel used by the government. He was injured when his superior officer failed to take certain safety precautions with the fan machinery, such as failing to stabilize it and replace protective covers as required by the machinery's manual. The government asserted the claims should be dismissed for lack of subject matter jurisdiction under the discretionary function theory, and also moved for summary judgment on the maintenance and cure claims, asserting it had paid the benefits due to the engineer and did not presently owe maintenance and cure. The court agreed with the government that selecting a ship for public use was a discretionary act as to the government's procurement of the vessel and crew, but rejected the argument that the negligent failure to warn and a negligent creation of unsafe working conditions or equipment were covered under discretionary function exception immunity. The government was current on maintenance and cure, but could be liable for compensatory damages for delay in payment. The engineer set forth no statutory basis for an award of attorney's fees.

OUTCOME: To the extent that the delay in receipt of maintenance and cure exacerbated the engineer's injury or pain and suffering, he could seek consequential or compensatory damages, not including attorney's fees or punitive damages. Summary judgment was otherwise granted. The motion to dismiss was denied as to the failure to warn claim, and granted as to the arguments about the crew and the vessel, which were within the government's discretion.

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RICKEY BROWN, Plaintiff-Appellee, versus PARKER DRILLINGOFFSHORE CORPORATION, Defendant-Appellant.

No. 03-30782
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
396 F.3d 619; 2005 U.S. App. LEXIS 125; 2005 AMC 827
January 5, 2005, Filed

PROCEDURAL POSTURE: Plaintiff seaman filed a suit against defendant employer seeking to recover damages under the Jones Act for an injury allegedly sustained aboard a vessel. The employer appealed after the United States District Court for the Eastern District of Louisiana accepted the jury's verdict and awarded damages to the seaman and argued that the evidence did not support the jury's finding that the employer unreasonably withheld benefits from the seaman.

OVERVIEW: The seaman failed to disclose on his job application that he had suffered back injuries in the prior two years; he was fired from his previous job for failing to disclose his back trouble. The seaman claimed that he injured his back while working on one of the employer's oil rigs. The employer refused to pay him benefits on the ground that the seaman's complaints derived from his prior back injuries and that he had willfully concealed those injuries. The jury found that the seaman was injured due to the employer's negligence, that he had not willfully concealed his medical condition, and that the employer had unreasonably withheld maintenance and cure benefits from him. The employer contended that the jury had clearly erred in finding no willful concealment and an unreasonable withholding of benefits. The court agreed. The record showed that the seaman had willfully failed to disclose his prior back injuries on his job application, that the information was material to the employer's decision to hire him, and that the withheld information was causally related to the seaman's claimed injuries; under the circumstances, it was reasonable for the employer to withhold benefits from him.

OUTCOME: The court reversed the district court's judgment, vacated the jury's verdict, and dismissed the seaman's suit with prejudice.

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RIZALYN BAUTISTA, Individually and as PersonalRepresentative of the Estate of Mari-John Bautista, and all claiming by andthrough her, Plaintiff-Appellant, versus STAR CRUISES, NORWEGIAN CRUISE LINE,LTD., Defendants-Appellees. PAUL PERALTA, Plaintiff-Appellant, versus STARCRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. RAYMOND LOVINO,Plaintiff-Appellant, versus STAR CRUISES, NORWEGIAN CRUISE LINE, LTD.,Defendants-Appellees. RONALDO MARCELINO, Plaintiff-Appellant, versus STARCRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. ROLANDO TEJERO,Plaintiff-Appellant, versus STAR CRUISES, NORWEGIAN CRUISE LINE, LTD.,Defendants-Appellees. ABDI COMEDIA, Plaintiff-Appellant, versus STAR CRUISES,NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. CRISTINA L. VALENZUELA,Individually and as Personal Representative of the Estate of Candido S.Valenzuela, Jr. and all those claiming through her, Plaintiff-Appellant, versusSTAR CRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. MARILEN S.BERNAL, Individually and as Personal Representative of the Estate of Ramil G.Bernal, and all those claiming by and through her Plaintiff-Appellant, versusSTAR CRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. WILLY I.VILLANUEVA, Individually and as Personal Representative of the Estate of ReneVillanueva, and all those claiming through him, Plaintiff-Appellant, versus STARCRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. MARIA GARCIA L.ROSAL, Individually and as Personal Representative of the Estate of Ricardo B.Rosal, III, and all those claiming by and through her, Plaintiff-Appellant,versus STAR CRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees.

No. 03-15884
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
396 F.3d 1289; 2005 U.S. App. LEXIS 889; 2005 AMC 372; 18Fla. L. Weekly Fed. C 177
January 18, 2005, Decided
January 18, 2005, Filed

PROCEDURAL POSTURE: Appellants, crewmembers of a foreign vessel or their representatives (crewmembers), sued appellee vessel owners in state court, seeking recovery for injury or death caused by a boiler explosion on the vessel in a United States port. The action was removed to federal court, and the crewmembers appealed the order of the United States District Court for the Southern District of Florida which compelled arbitration of the dispute.

OVERVIEW: The owners contended that the arbitration clause in the crewmembers' employment contracts required arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), opened for signing June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. The crewmembers argued that arbitration was not required under the seaman employment contract exemption of the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., and that the arbitration clause was otherwise unenforceable. The appellate court first held that, since the Convention broadly defined the commercial legal relationships subject to the Convention, the FAA's narrow seaman exemption conflicted with such definition and thus did not apply to preclude arbitration under the Convention. Further, despite assertions that the crewmembers had insufficient time to review the contract terms, the crewmembers executed the contracts containing the arbitration clause, and there was no requirement that the owners prove the crewmembers knowingly agreed to arbitration. Also, there was no basis for finding that the arbitration provision was null and void as unconscionable, or could not otherwise be performed.

OUTCOME: The order compelling arbitration was affirmed.

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JOHN MARCIC, Plaintiff-Appellant, v. REINAUER TRANSPORTATIONCOMPANIES, REINAUER TRANSPORTATION CO., L.L.C., REINAUER MARITIME GROUP, STEPHENREINAUER, in rem, AUSTIN REINAUER, in rem, and BARGE RTC 501, in rem,Defendants-Appellees.

Docket No. 03-9273
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
397 F.3d 120; 2005 U.S. App. LEXIS 1735; 66 Fed. R. Evid.Serv. (Callaghan) 470; 2005 AMC 621

PROCEDURAL POSTURE: A jury returned a verdict in favor of defendant ship owners on plaintiff seaman's unseaworthiness and Jones Act claims but awarded the seaman $75,000 for maintenance. The United States District Court for the Eastern District of New York granted the owners' motion to reduce the maintenance award under a collective bargaining agreement (CBA). The seaman appealed, seeking a new trial on the failed claims and restoration of the award.

OVERVIEW: It was not improper for the owners' counsel to invoke financial incentive in an impeachment attempt. There were only a handful of questions as to a previous injury and consultation with a lawyer. Asking the vocational expert if he had seen a document signed by a doctor releasing the seaman to full duty did not require a new trial; the document had stated that the seaman was able to return to work. While counsel suggested that the seaman and his witnesses were willing to lie to make money, counsel did not engage in personal attacks on opposing counsel, use epithets or slurs, or appeal to prejudices. There was an insufficient foundation to support admission of a deck hand's alleged statement that the ship's rail was painted without a non-skid additive. There was no evidence the deck hand painted the rail so that his statement related to a matter within the scope of his agency relationship with the owner. The ambiguous CBA provided a minimum of $15 per day for maintenance, but also stated that $15 per day was subject to a non fit for duty certificate. It allowed for a flexible-rate interpretation. The jury was free to exceed $15 per day minimum. The award was to be restored.

OUTCOME: The jury's finding for the owners was affirmed as to the unseaworthiness and Jones Act claims. The district court's reduction of the maintenance award was vacated and the case was remanded for reentry of the jury's $75,000 maintenance award.

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PRINCESS CRUISES, INC., Plaintiff-Cross Appellant, v. UNITEDSTATES, Defendant-Appellant.

03-1330, 03-1345
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
397 F.3d 1358; 2005 U.S. App. LEXIS 1955; 26 Int'l TradeRep. (BNA) 2153
February 8, 2005, Decided

PROCEDURAL POSTURE: Defendant United States sought review of a decision of the United States Court of International Trade, which determined that liability for harbor maintenance tax (HMT) payments on certain cruises before January 27, 1993, was barred by the retroactivity doctrine. Plaintiff cruise line filed a cross-appeal that awarded prejudgment interest to the government because the government was entitled to receive arriving passenger fee (APF) payments.

OVERVIEW: After enactment of the Harbor Maintenance Revenue Act of 1986 (HMRA), 26 U.S.C.S. § 4461 et seq., the United States Customs Bureau determined that the cruise line was liable for further HMT and APF payments, and the cruise line challenged the determination in court. The trial court determined upon remand that the cruise line could not be subjected to HMT liability for cruises that occurred before January 1993 because an earlier application was improperly retroactive. The trial court further determined that the government was entitled to prejudgment interest for the APF payments. Affirming, the court concluded that the application of the January 1993 ruling to conduct occurring before the ruling was issued would have an impermissible retroactive effect. The imposition of the ruling worked a significant change in the law, and applying the evidentiary presumption to pre-1993 conduct would prejudice the cruise line. The court found that the imposition of prejudgment interest on the APF payments was appropriate because it provided full compensation to the government.

OUTCOME: The court affirmed the decision of the trial court.

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MARC W. WEBSTER, Plaintiff - Appellant, versus HANSFORD T.JOHNSON, Acting Secretary of the Navy, Defendant - Appellee.

No. 04-1022
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2005 U.S. App. LEXIS 2965
December 3, 2004, Argued
February 18, 2005, Decided

PROCEDURAL POSTURE: Plaintiff seaman sued defendant United States Secretary of the Navy (Navy), alleging that he was not promoted on a civilian operated vessel due to a racially hostile environment that produced performance evaluations motivated by racial animus and that the promotion board was racially biased. The United States District Court for the Eastern District of Virginia, at Alexandria, granted the Navy summary judgment. The seaman appealed.

OVERVIEW: The seaman's racially-motivated hostile work environment claim was barred because he failed to timely initiate administrative remedies. Specifically, he did not contact the Equal Employment Opportunity (EEO) counselor until 120 days after receiving the allegedly improper evaluations rather than the required 45 days. Equitable tolling of the limitations period was not available as the seaman was familiar with the EEO process and he offered no evidence that his superiors tricked him into sleeping on his rights. The seaman also presented no evidence of a racially hostile work environment as evidence that his superior officer was a strict supervisor did not demonstrate racial animus. As for the promotion board's decision, the seaman failed to rebut the legitimate, nondiscriminatory reason for the decision not to promote, i.e., the seaman's score in the board's review process was substantially lower than that necessary to be rated "best qualified." In fact, the seaman's score was the lowest of all candidates, even under his own calculation method.

OUTCOME: The district court's judgment was affirmed.

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PARADISE DIVERS, INC., as Owner of the 30' Island hopper M/VParadise Diver IV bearing hull identification number D929003, her engines, tackle, appurtenances, etc., Petitioner, in a cause for exoneration from limitation of liability, Plaintiff-Appellant, versus KEVIN R. UPMAL, Claimant-Appellee.

No. 04-12037
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
402 F.3d 1087; 2005 U.S. App. LEXIS 3938; 18 Fla. L. WeeklyFed. C 308
March 9, 2005, Decided
March 9, 2005, Filed

PROCEDURAL POSTURE: Appellee claimant filed an action against appellant vessel owner for Jones Act negligence, unseaworthiness, and maintenance and cure. The owner filed a limitation of liability action under 46 U.S.C.S. app. § 185. The claimant moved the district court to dismiss the action as untimely. The United States District Court for the Southern District of Florida dismissed the limitation action as untimely and the vessel owner appealed.

OVERVIEW: The sole issue in this admiralty appeal was whether correspondence from the claimant to the vessel owner in March and May of 2002 was sufficient written notice of a claim, under 46 U.S.C.S. app. § 185, to begin the running of the six-month limitation period during which the vessel owner had to file an action for limitation of liability. The instant court found that the letters from the claimant to the vessel owner, which referenced claims under the Jones Act and for unseaworthiness and maintenance and cure worth tens of thousands of dollars, were sufficient to begin the running of the limitation period. The court reasoned that the May 30, 2002, letter advised the vessel owner of a claim subject to limitation, because the claimant asserted a claim for Jones Act negligence, unseaworthiness, and maintenance and cure, and stated his intent to file a complaint. Additionally, the court reasoned that the May 2002 letter referenced the liability of the vessel owner in relation to the accident. Finally, the court found that the May 30, 2002, letter was unambiguous.

OUTCOME: The judgment was affirmed.

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CARNIVAL CRUISE LINES, INC., HAL ANTILLEN, N. V., HALLSHIPPING LTD., WIND SURF LIMITED, HOLLAND AMERICA LINE, N. V., and HAL CRUISESLIMITED, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Cross Appellant.

04-1110, 04-1219
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2005 U.S. App. LEXIS 5929
April 12, 2005, Decided

PROCEDURAL POSTURE: Plaintiffs, a cruise ship operator and its subsidiaries, appealed a decision of the U.S. Court of International Trade, which affirmed the position of the U.S. Bureau of Customs and Border Protection that it was improper for the operator to deduct certain amounts from the price of the cruise tickets for the purpose of paying the Harbor Maintenance Tax (HMT) under the Harbor Maintenance Revenue Act of 1986, 26 U.S.C.S. §§ 4461, 4462.

OVERVIEW: The operator was subject to the HMT, which was a tax imposed on any port use in an amount equal to a percentage of the value of the commercial cargo involved. Commercial cargo included passengers transported for compensation or hire. 26 U.S.C.S. § 4462(a)(5)(B) defined value to mean the actual charge paid for the transportation of passengers or the prevailing charge for comparable service if no actual charge was paid. Customs took the position that the "actual charge" for transportation paid by the passenger included all embarkation to disembarkation costs reflected on passenger tickets. The operator argued that it was improper for Customs to include, when calculating the value, charges for services, amenities, and other expenses not directly tied to the actual transportation of the passengers. In affirming the trial court's decision, the court held that the tax was imposed on the actual charge for the transportation, not on the transportation component of a service that consisted largely of providing entertainment. The court held that Customs' interpretation was a reasonable one that avoided the problems created by attempting to separate the entertainment charges.

OUTCOME: The court affirmed the decision.

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DISABLED AMERICANS FOR EQUAL ACCESS, INC. Plaintiff, EDUARDOUMPIERRE, Plaintiff, Appellant, v. FERRIES DEL CARIBE, INC., Defendant, Appellee.

No. 04-2086
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2005 U.S. App. LEXIS 7091
April 26, 2005, Decided

PROCEDURAL POSTURE: Plaintiff individual and organization sued defendant cruise vessel operator, seeking injunctive relief, attorney's fees, and costs for violations of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12181 et seq., and its implementing regulations. The United States District Court for the District of Puerto Rico granted the operator's motion to dismiss. The individual appealed.

OVERVIEW: The individual had standing to raise the ADA claim because his allegations that he visited the operator's vessel and that various barriers to accessibility endangered his safety were sufficient to show a real and immediate threat of discrimination by the operator. Moreover, the individual had stated a claim for relief by alleging that the operator's land based facilities violated the ADA. Taking judicial note of a pending case addressing precise question of whether Title III applied to foreign-flagged ships, the appellate court instructed the district court to defer further proceedings until a decision in that case was available. If the legal or factual resolution of the foreign-flagged ship issue did not preclude application of Title III to the operator's cruise vessel, the district court also was to consider on remand whether the individual's vessel-based statutory and regulatory claims under Title III and 28 C.F.R. §§ 36.302-36.305 could proceed despite the absence of a separate category of regulations governing the new construction and alteration of cruise ships.

OUTCOME: The district court's decision was vacated and the case was remanded for further proceedings.

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WILLARD STEWART, Petitioner v. DUTRA CONSTRUCTION COMPANY

No. 03-814
SUPREME COURT OF THE UNITED STATES
125 S. Ct. 1118; 160 L. Ed. 2d 932; 2005 U.S. LEXIS 1397; 73U.S.L.W. 4130; 2005 AMC 609; 18 Fla. L. Weekly Fed. S 115
November 1, 2004, Argued
February 22, 2005, Decided

PROCEDURAL POSTURE: Petitioner, a maritime engineer, sued respondent owner of a large dredge under the Longshore and Harbor Workers' Compensation Act (LHWCA), alleging that the owner was liable for the engineer's injuries from a collision between the dredge and scow on which the engineer was working. Upon the grant of a writ of certiorari, the engineer appealed the judgment of the U.S. Court of Appeals for the First Circuit which held that the LHWCA did not apply.

OVERVIEW: The dredge was a floating platform used to remove silt from the ocean floor and dump the silt onto scows floating alongside, and the dredge navigated short distances by manipulating its anchors and cables. The dredge used its bucket to move the scow on which the engineer was working, which caused the scow to collide with the dredge causing the engineer's severe injuries. The lower court found that the dredge was not a vessel, and thus the owner was not the owner of a vessel for purposes of the LHWCA, since the dredge did not have the primary purpose of navigation and was not in transit when the collision occurred. The U.S. Supreme Court unanimously held, however, that the definition of a vessel set out in 1 U.S.C.S. § 3 applied under the LHWCA, and thus the dredge was a vessel since it was a watercraft practically capable of maritime transportation. The definition did not require that the dredge be used primarily for navigation nor was the dredge required to be in motion at the time of the collision to qualify as a vessel, and the dredge was in fact used to transport equipment and workers over water.

OUTCOME: The judgment holding that the dredge was not a vessel under the LHWCA was reversed, and the case was remanded for further proceedings.

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JANE DOE, Plaintiff-Appellant-Cross Appellee, versusCELEBRITY CRUISES, INC., in personam, ZENITH SHIPPING CORPORATION, in personam,APOLLO SHIP CHANDLERS, INC., in personam, CELEBRITY CATERING SERVICESPARTNERSHIP, in personam, Defendants-Appellees-Cross-Appellants, BARIS AYDIN, inpersonam, M/V ZENITH, her engines, boilers, tackle, etc., in rem,Defendants-Appellees.

No. 03-15321
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2004 U.S. App. LEXIS 26743
December 22, 2004, Decided
December 22, 2004, Filed

PROCEDURAL POSTURE: Plaintiff cruise line passenger sued defendant cruise line, vessel owner, and two other service providers after she was allegedly raped by a cruise crew member. The U.S. District Court for the Southern District of Florida, after a verdict favoring the passenger, granted a Fed. R. Civ. P. 50(b) judgment to all defendants concluding it had not been proven that any single defendant was both a common carrier and the employer. The passenger appealed.

OVERVIEW: The alleged rape occurred off the ship at a port of call in a park near a disco that the crew member, as the passenger's waiter, had recommended to the passenger and her friends. The court held that: (1) it had admiralty jurisdiction; (2) the district court had clearly erred because it lacked authority to enter judgment under Fed. R. Civ. P. 50(b) for defendants on a ground not raised prior to the submission of the case to the jury; (3) defendants owed a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their cruise passengers; (4) thus the district court had not erred in concluding that defendants were strictly liable for crew member assaults on their passengers during the cruise; and (5) the common carrier- passenger relationship did not have a strict spatial limit and thus was not severed when the passenger and the crew member left the ship's premises. The court could not conclude that the interaction between them was outside the scope of the on-going carrier- passenger relationship. The court concluded that the sexual battery and sexual assault charges, and the jury's verdict as to those charges, were in no way inconsistent.

OUTCOME: The entry of judgment for defendants was reversed because the district court lacked authority to enter judgment as a matter of law on a new ground not raised by any party prior to submission of the case to the jury. The jury's verdict for plaintiff was reinstated and affirmed and the case was remanded to the district court to enter final judgment on the jury's verdict for plaintiff and against defendants.

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JOSEPH THIBODAUX VERSUS C & G BOATS INC.

CIVIL ACTION NO. 03-3617 SECTION "J" (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 25638
December 15, 2004, Decided
December 15, 2004, Filed
December 15, 2004, Entered

PROCEDURAL POSTURE: Defendant ship owner filed a motion to limit the testimony of plaintiff seaman's marine safety expert in connection with an action for negligence under the Jones Act, 46 U.S.C.S. § 688.

OVERVIEW: The seaman was removing P-tank covers to inspect the water tight integrity of the void around the hold. While he was removing one of the covers, he was allegedly injured as a result of the negligence of the ship owner. The ship owner argued that the report and testimony of the seaman's expert should have been limited because: (1) he was not qualified to testify as an ergo dynamics expert; (2) his report was replete with references to OSHA and NIOSH regulations; and, (3) his opinions regarding the ship owner's duty to supervise the seaman's work were within the common understanding of lay jurors. Exercising its gatekeeping function under Fed. R. Evid. 702, the court held that, because the case was to have a non-jury trial, the danger of confusion that might have existed in a jury trial did not exist. The court would consider the report, along with all of the evidence presented at trial, in deciding the merits of the case. At trial, the court would properly limit or disregard any expert testimony that was neither helpful nor within the scope of the witness's expertise.

OUTCOME: The court denied the ship owner's motion to limit expert testimony and report without prejudice to urge any objections to specific testimony at trial.

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APRIL FASOLD, Appellant v. DELAWARE RIVER & BAY AUTHORITY

No. 03-3624
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2004 U.S. App. LEXIS 26709
December 6, 2004, Argued
December 21, 2004, Filed

PROCEDURAL POSTURE: Plaintiff, a supervisor for the food service crew on a passenger ferry, appealed from a judgment of the United States District Court for the District of New Jersey, granting summary judgment to defendant precluding the supervisor's pursuit of her claims under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law.

OVERVIEW: The supervisor supervised the food service crew on a passenger ferry traveling between Lewes, Delaware and Cape May, New Jersey. Among her responsibilities was keeping clean the kitchen and galley area. While cleaning the walk-in refrigerator located in the ferry's galley, the supervisor injured her back moving a keg of beer stored there. The supervisor claimed that the refrigerator was "filthy" and that, in order for her to do her job, the keg had to be moved so food and debris behind it could be picked up. The supervisor alleged that defendant failed to, inter alia, provide a safe place to work, properly stow the keg, provide the proper equipment to move the keg, and provide a sufficient number of able-bodied crew. The instant court found that the record demonstrated that there had been problems in the past with women having to lift heavy objects, the unsuitability of hand trucks and the size of the crew being insufficient to handle all the work aboard the ship. While a jury might determine that the supervisor's actions contributed to her injury and apportion liability accordingly, that did not foreclose her claims.

OUTCOME: The judgment was reversed.

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GEORGE LEWIS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. C 04-1834 PJH
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 25283
December 2, 2004, Decided

OVERVIEW: The seaman alleged that he was injured while working on board a United States Navy vessel in June 2003. The seaman moved to California around February 2004. In May 2004, after the vessel set sail, the seaman filed suit in the Northern District of California, on the grounds that the PVA permitted suit in the residence of the seaman if the vessel was at sea. The Government argued that the seaman had to establish domicile, not mere residence in the district, and that he did not truly reside in the district. The court determined that, under the PVA, the seaman was required only to prove that he established "residence" in the district and not "domicile." The court also determined that the seaman established his residence in the district by his physical presence.

OUTCOME: The court denied the Government's motion to dismiss and denied as moot the Government's motion to transfer for improper venue.

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PABLO MEMBRENO, Plaintiff, vs. COSTA CROCIERE, S.p.A., aforeign corp., and CSCS INTERNATIONAL N.V., a foreign corp., Defendants.

CASE NO. 03-61180-CIV-HUCK/TURNOFF
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2004 U.S. Dist. LEXIS 25116
November 23, 2004, Decided
November 23, 2004, Filed

PROCEDURAL POSTURE: Plaintiff filed a complaint, alleging five-counts under the Jones Act and general maritime law against four defendants related to a personal injury that he alleged occurred while he was working on a cruise ship. Defendants moved to dismiss based upon forum non conveniens.

OVERVIEW: The Jones Act and the general maritime law of the United States did not apply and the private and public factors weighed in favor of the case being tried in one of the three countries, Italy, Honduras, or the Netherlands Antilles, with a greater interest in the action and where there were available and adequate fora. There appeared to be no real disagreement that six of the eight choice of law factors weighed in favor of defendants' contention that the Jones Act and U.S. maritime law did not apply. As to the place of the accident, the accident did not occur within the U.S. or U.S. territorial waters. The remaining question was whether defendants' base of operations was in the U.S. or whether defendants otherwise had sufficient contacts with the U.S. to warrant the application of U.S. law. Defendants' limited commercial activities in the U.S. and its business affiliation with two U.S. companies for purposes that were ancillary to plaintiff's employment were not sufficiently substantial connections to justify application of U.S. law. All of the forum non conveniens factors weighed in favor of dismissal and allowing the case to be heard in a more convenient and appropriate forum.

OUTCOME: Defendants' motion to dismiss based upon forum non conveniens was granted, and the case was dismissed without prejudice to plaintiff's ability to re-file the action in an alternative forum or to reinstate his action in the instant court if no alternative fora accepted his case.

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JUDITH LIPFORD, Plaintiff, vs. CARNIVAL CORPORATION, a foreign corporation, d/b/a CARNIVAL CRUISE LINES, Defendant.

Case No. 04-21120-CIV-GRAHAM
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2004 U.S. Dist. LEXIS 24530
November 23, 2004, Decided
November 24, 2004, Filed

PROCEDURAL POSTURE: Plaintiff passenger filed a motion to stay her action for personal injuries suffered in the high seas against defendant cruise line pending the resolution of a pending, identical state court case.

OVERVIEW: The passenger alleged that she was injured on an excursion while on a cruise. Pursuant to a forum selection clause, all disputes had to be instituted in the United States District Court for the Southern District of Florida within one year. The passenger filed suit in state court, and simultaneously filed a "cautionary complaint" with the court. The state court held that the forum selection clause was invalid. The passenger sought a stay because of the expiration of the one year limitations period and the possibility that the state court's ruling invalidating the forum selection clause might have been overturned. The court held that because the stay would have remained in place until the completion of the trial and appeals in the state court case, the requested period of the stay was indefinite and therefore unwarranted. The passenger's ability to sue the cruise line within the one year period was not dependent upon the court's granting of a stay, but rather on the passenger's decision to sue in state court. Having made the decision to avail herself of the benefits of the state forum, the passenger was not justified in delaying an identical case in federal court indefinitely.

OUTCOME: The court denied the passenger's motion to stay the case and dismissed the action without prejudice.

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WALTER RADUT and DOROTHY RADUT, Plaintiffs, - against -STATE STREET BANK & TRUST CO. as Owner Trustee, HURON LEASING, LLC, U.S. SHIP MANAGEMENT, INC., MAERSK, INC., MAERSK LINE LIMITED d/b/a Maersk Sealand, and the MV SEA-LAND ACHIEVER, her engines, tackle, gear, appurtenances, etc., Defendants.

03 Civ. 7663 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22318
November 3, 2004, Decided
November 4, 2004, Filed

PROCEDURAL POSTURE: Plaintiffs, an independent contractor and his wife, sued defendant corporation on various claims arising out of injuries sustained by the contractor while working on the corporation's vessel. The corporation moved for summary judgment on plaintiffs' claim for unseaworthiness. The corporation also moved to dismiss plaintiffs' claims alleging non-pecuniary damages and the wife's claim for loss of consortium.

OVERVIEW: The corporation argued that because the contractor was not a seaman he was not entitled to pursue an unseaworthiness claim under the Jones Act, 46 U.S.C.S. app. § 688. The court found that the undisputed facts established the contractor's status as a Sieracki seaman where the contractor worked, slept, and ate alongside the crew; he went to sea with the ship; he was exposed to the same hazards as the crew; and, most importantly, he was performing the ship's service, at the owner's request. Therefore, because the contractor was a Sieracki seaman, he was entitled to bring an action for unseaworthiness against the corporation, and the corporation's motion for summary judgment was denied. The Jones Act, 46 U.S.C.S. app. § 688 and the Death on the High Seas Act, 46 U.S.C.S. app. § 761 did not permit recovery for non-pecuniary damages. Therefore, because the contractor and his wife had availed themselves of a cause of action available only to seamen--their unseaworthiness claim under the Jones Act--they could not recover non-pecuniary damages from the corporation, and the corporation's motion to dismiss the claims for punitive damages and loss of consortium was granted.

OUTCOME: The corporation's motion for summary judgment was denied. The corporation's motion to dismiss the non-pecuniary claims was granted.

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FLOYD RESNICK, Plaintiff, -against- VANTAGE DELUXE WORLDTRAVEL, INC., Defendant.

03 Civ. 1114 (LAK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22904
November 12, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger was injured in a slip and fall aboard a ship. The passenger alleged that defendant owner owned, operated, maintained and controlled the ship, and that the passenger was injured in consequence of unspecified negligence. The passenger motioned for partial summary judgment of liability and for other relief and the owner's motion for summary judgment dismissing the complaint.

OVERVIEW: The passenger contended that the owner waived its ticket limitations by failing to plead them as affirmative defenses. The court noted that even assuming that a plaintiff's allegation of compliance with contractual conditions could overcome a defendant's failure to plead the defense affirmatively, the passenger never alleged timely institution of the action. The owner's failure to plead that the action was not timely commenced therefore waived any such defense. There was a genuine issue of material fact as to what documents were given to the passenger and as to their contents. It was impossible to determine on motion what if any notice was required, let alone whether legal standards determining the sufficiency of limitation in passenger tickets were satisfied. There was ample evidence to go to the jury on the issue whether the owner had constructive notice of a dangerous condition that was a proximate cause of the accident. The passenger was entitled to partial summary judgment to the extent that he fell as a proximate consequence of getting his shoes wet by walking across the mat and then slipping. There was no competent evidence as to the extent of his injuries.

OUTCOME: The passenger's motion for partial summary judgment was granted to the extent that the passenger was injured in a fall caused in part by a wet mat and the owner was estopped to deny that, at the time of the accident, it was the owner of the vessel; the motion was denied in all other respects.

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ERIC BOUTTE, Plaintiff, v. CENAC TOWING, INC., Defendant

CIVIL ACTION NO. G-03-1054
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2004 U.S. Dist. LEXIS 24726
November 15, 2004, Decided

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer pursuant to admiralty jurisdiction under the Jones Act, 46 U.S.C.S. § 688, seeking recovery for injuries sustained while working aboard the employer's vessel. The court previously issued an order denying the employer's motion to dismiss or, in the alternative, to transfer venue. The employer moved for reconsideration of that order. The employee contested the motion.

OVERVIEW: As a condition of employment, the employee executed a choice of forum agreement designating Louisiana as the appropriate forum. The employee sustained injuries while aboard a vessel in Texas, where he filed suit. In denying the employer's motion to transfer venue to Louisiana, the court found that the choice of forum agreement was enforceable, but that the location of the alleged wrong and delay from a transfer favored retention. The court denied the motion for reconsideration. In admiralty, venue was proper in any court with personal jurisdiction over the defendant. However, the court held that choice of forum agreements in employment contracts between American seamen and American companies were unenforceable in Jones Act claims. Further, discretionary transfer under 28 U.S.C.S. § 1404(a) was properly denied. The location of the alleged wrong was of primary importance. The citizens of Texas had a legitimate interest in the safety conditions and seaworthiness of vessels doing business in the state. The employee's choice of forum was entitled to deference. The convenience of the employer's witnesses was not entitled to much weight as the employer could compel their testimony.

OUTCOME: The court denied the employer's motion for reconsideration of its order denying its motion to dismiss and its alternative motion to transfer venue.

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ROBERT HASTY, Plaintiff-Appellant, versus TRANS ATLAS BOATSINC; GREATER LAFOURCHE PORT COMMISSION, Defendants-Appellees.

No. 03-30884
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
389 F.3d 510; 2004 U.S. App. LEXIS 22768
November 2, 2004, Filed

PROCEDURAL POSTURE: Appellant seaman sought judicial review of a decision by the United States District Court For the Eastern District of Louisiana that granted summary judgment in favor of appellees, a port commission and ship owner, on negligence, unseaworthiness, and vicarious liability claims. The seaman's injuries arose when he intervened in a fight between two other seamen.

OVERVIEW: The seaman contended that the captain was negligent by allowing: (1) the other seaman to come onto the vessel and remain aboard despite being aware that he was intoxicated, and (2) the intoxicated seaman to sneak away from the harbor police and the captain and re-board the vessel. A reasonable could conclude that the seaman's injury was a foreseeable consequence of permitting the intoxicated seaman on board because of the risk he posed to his shipmates. A reasonable jury might also find the captain was negligent in allowing the intoxicated seaman to re-board the vessel after being terminated. The harbor police testified that the owner possessed a duty to remove the terminated employee safely from both the vessel and the surrounding port area. The seaman offered no evidence that the intoxicated seaman possessed the characteristics needed to make the ship unseaworthy. The owners were not vicariously liable for the acts of the harbor police. Since the conduct and activities of the harbor police were insufficiently related to traditional maritime activity, admiralty jurisdiction does not exist over the seaman's claims against the harbor police.

OUTCOME: The district court's summary judgment dismissal of the seaman's negligence claim against the owner was reversed, and the case was remanded. The district court's grant of summary judgment as to the seaman's other claims was affirmed.

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MELODEE WHITMAN, Plaintiff, Appellant, v. RICK MILES, Defendant, Appellee.

No. 04-1117
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
387 F.3d 68; 2004 U.S. App. LEXIS 22624
October 28, 2004, Decided

PROCEDURAL POSTURE: Appellant seaman challenged a decision from the United States District Court for the District of Maine, which entered judgment in favor of appellee employer in a claim for maintenance and cure.

OVERVIEW: The seaman was taken to the hospital after falling, suffering a burn, and experiencing other symptoms. Following testing, the seaman was diagnosed with relapsing-remitting multiple sclerosis (MS). Thereafter, she sought maintenance and cure payments. After summary judgment was granted in favor of the employer, the seaman sought review. In affirming, the court determined that the employer was only required to pay maintenance and cure until the condition had stabilized and further progress had ended. The court rejected the argument that the condition could have been improved through treatment. Although the symptoms could have been alleviated, there was no cure for MS. Further, there was no need for any physician to use the word "permanent" in the diagnosis. The seaman's asymptomatic status did not mean that her overall condition had improved; therefore, the district court did not err by setting the date of maximum improvement shortly after the diagnosis. In addition, the seaman was unable to recover maintenance and cure for her depression. She was unable to show that it started while in the service of a ship or that it was a symptom of MS. Finally, attorney's fees were not awarded.

OUTCOME: The decision was affirmed.

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KENNETH LONG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Action No: 2:04cv82
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFVIRGINIA, NORFOLK DIVISION
339 F. Supp. 2d 729; 2004 U.S. Dist. LEXIS 20881
October 6, 2004, Decided

PROCEDURAL POSTURE: Plaintiff former steward was injured while working in the walk-in freezer of a vessel and filed an action against defendant United States, alleging claims under the Jones Act, 46 U.S.C.S. § 688, and a claim that the vessel operated by the United States was unseaworthy. The United States filed a motion for summary judgment.

OVERVIEW: The steward was injured when he was in a walk-in freezer and a piece of frozen meat fell and landed on the steward's foot. The steward claimed that the United States, as the owner of the vessel, was negligent under the Jones Act, 46 U.S.C.S. § 688, because the meat in the vessel was improperly stored, secured, and inspected. The steward alleged a claim that the vessel was unseaworthy for the same reasons. The court denied the United States' motion for summary judgment. The court held that there was a genuine factual controversy relating to the Jones Act claim so that summary judgment was not appropriate. The parties disputed who was responsible for the negligence that caused the steward's injury, particularly when the steward had been charged with securing items in the freezer. The court noted that the same factual disputes made summary judgment on the claim of unseaworthiness inappropriate. The steward provided evidence that other ships used for long voyages had larger freezers. The court rejected the United States' assertion that the primary duty rule acted as a complete bar to the steward's claims.

OUTCOME: The court denied the United States' motion for summary judgment.

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JENNIFER ANN McALLISTER, by and through her parents, SHERRI and PATRICK McALLISTER, Guardians ad Litem, and SHERRI and PATRICK MCALLISTER, Individually v. ROYAL CARIBBEAN CRUISES, LED, and PETER WALL

CIVIL ACTION NO. 02-2393
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2004 U.S. Dist. LEXIS 19166
September 14, 2004, Decided
September 14, 2004, Filed; September 15, 2004, Entered

PROCEDURAL POSTURE: Plaintiffs, a minor child and her parents, filed suit against defendants, a cruise ship company and one of its employees, alleging that the child was sexually molested by the employee. Plaintiffs subsequently filed a motion to compel the depositions of a corporate representative and certain employees. The company filed a cross-motion for a protective order.

OVERVIEW: The company objected to many of the areas upon which plaintiffs sought to question the corporate representative. The company also objected to the production for deposition of the captains of the vessel on which the alleged incident took place. The court held that plaintiffs could question the representative as to: (1) any meetings or publications in which sexual assaults of any sort, perpetrated by a crew member upon a passenger, were discussed; (2) any and all sexual assaults perpetrated by a crew member against a passenger during the past 10 years; and (3) any lawsuit involving sexual assaults of any sort, perpetrated by a crew member upon a passenger. However, the court held that plaintiffs could not question the corporate representative as to information regarding successor liability, claims handling policies, employee grievance policies, and insurance coverage and exclusions because those areas of inquiry did not appear to be relevant to any issue in the case. The court further held that plaintiffs could depose the captains because they might have information concerning the company's history of failing to deal adequately with sexual assaults by crew members.

OUTCOME: The court ordered that plaintiffs could not question the company's corporate representative with respect to four areas of inquiry but could question the representative on all other areas of inquiry, with certain modifications. The court also ordered that plaintiffs could depose the captains of the vessel on which plaintiffs cruised at the time of the alleged incident.

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LINDA REYNOLDS-NAUGHTON, Plaintiff, Appellant, v. NORWEGIANCRUISE LINE LIMITED, d/b/a/ NORWEGIAN CRUISE LINE, Defendant, Appellee.

No. 04-1183
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
386 F.3d 1; 2004 U.S. App. LEXIS 19372; 2004 AMC 2370
September 14, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed a negligence claim in admiralty against defendant cruise ship owner in the United States District Court for the District of Massachusetts. The owner filed suit in the Southern District of Florida, and filed a motion to dismiss the Massachusetts case pursuant to a forum selection clause in the parties' contract. The Massachusetts court granted the motion to dismiss; the passenger appealed.

OVERVIEW: After a door closed on her hand, the passenger lost part of a middle finger. Her passenger -ticket contract contained a forum selection clause which she claimed was invalid under the Limitation of Vessel Owner's Liability Act, former 46 U.S.C.S. app. § 183(c). The appellate court noted that U.S. Supreme Court had read the Act as allowing forum selection clauses that limited a passenger's choice of venue, so long as a court of competent jurisdiction remained available to the passenger. Examining the legislative history of the Act, the appellate court held that later amendments to it had not legislatively overruled the Supreme Court's reading of the Act.

OUTCOME: The judgment was affirmed.

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PATRICIA A. WILLS, individually and as personalrepresentative of the Estate of RICKY LEE WILLS, deceased, on behalf of RickyLee Wills and those persons similarly situated, Plaintiff-Appellant, v. AMERADAHESS CORP., SPENTONBUSH/RED STAR COMPANIES, INC., SHERIDAN TRANSPORTATION CORP.and HYGRADE OPERATORS INC., Defendants-Appellees.

Docket No. 02-7913
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
379 F.3d 32; 2004 U.S. App. LEXIS 16510; 64 Fed. R. Evid.Serv. (Callaghan) 1153; 2004 AMC 2082
August 7, 2003, Argued
August 11, 2004, Decided

PROCEDURAL POSTURE: Appellant spouse of a deceased seaman sued appellee vessel owners and operators under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime law, alleging that the seaman's death from cancer was caused by exposure to hazardous chemicals while working aboard appellees' vessels. The spouse appealed the order of the United States District Court for the Southern District of New York which granted summary judgment to appellees.

OVERVIEW: Appellees' vessels transported petroleum-based fuels, but appellees asserted that, despite the unreliable conclusions of the spouse's expert, there was no evidence that any fumes on the vessels could or did cause the seaman's cancer. The spouse argued that appellees' failure to comply with their duty to protect the seaman from exposure to toxins shifted the burden to appellees to show that such exposure could not cause the cancer. The spouse also argued that her expert established that such exposure was the likely cause of the seaman's cancer and, in any event, the seaman was entitled to maintenance and cure. The appellate court held, however, that the spouse's failure to establish causation precluded her claims. The rule shifting the causation burden did not apply since it could not be said with confidence that the seaman's cancer resulted from appellees' actions. Further, expert testimony was required to establish causation and, even with the relaxed burden of proof under the Jones Act, the theory of causation of the spouse's expert was admittedly controversial, was contrary to generally accepted theory, and was not grounded in reliable scientific methods.

OUTCOME: The order granting summary judgment to appellees was affirmed.

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PETITION OF RJF INTERNATIONAL CORPORATION FOR EXONERATION FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME

C.A. No. 01-588S
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
332 F. Supp. 2d 458; 2004 U.S. Dist. LEXIS 16146
August 10, 2004, Decided

PROCEDURAL POSTURE: Claimant was a young seaman who was injured on August 11, 2001 while working on petitioner vessel owner's vessel when it was docked in Newport, Rhode Island. Before the court was the vessel owner's motion to terminate maintenance and cure benefits. Intervenor-plaintiff was the United States.

OVERVIEW: The question presented was whether Medicare supplanted maintenance and cure as the payor of first resort when a seaman became Medicare eligible. The vessel owner contended that it no longer was obligated to provide the seaman with "cure" due to his entitlement to Medicare benefits. It attempted to bring Medicare under the umbrella of the general rule that, under the doctrine of maintenance and cure, a shipowner will not be required to pay for medical care that is furnished at no expense to the injured seaman. The dispute focused upon the period of time between the expiration of Medicare's 25 month waiting period (the point at which a seaman became eligible for Medicare), and the seaman's subsequent attainment of maximum medical recovery. This period of time would vary on a case-by-case basis, the court stated. The court concluded that, under the Medicare Secondary Payer (MSP) provisions and regulations promulgated thereunder, Medicare was barred from providing payments to eligible beneficiaries when a primary plan was obligated to cover the same medical expenses--in other words, Medicare had to be the secondary payor in those circumstances.

OUTCOME: The vessel owner's motion to terminate the seaman's maintenance and cure benefits because of his eligibility for Medicare was denied.

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GENEVA MCCARTHY, Plaintiff, v. The F/T SEAFREEZE ALASKA, et al., Defendants.

Case No. C03-1189L
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2004 U.S. Dist. LEXIS 20375; 2004 AMC 2107
August 9, 2004, Decided

PROCEDURAL POSTURE: Plaintiff seaman sought partial summary judgment in connection with her claim for maintenance from defendant corporations. The corporations sought to strike a declaration of the seaman's attorney. The seaman requested $2,500 in attorneys fees for filing the motion.

OVERVIEW: On July 5, 2000, the seaman was injured on board a ship. On September 19, 2001, an orthopedic surgeon diagnosed her with a herniated nucleus pulposus with chronic neck, right shoulder, and arm pain. The seaman's treating physician opined that her cervical disk herniation was related to the seaman's injury. Between September 19, 2001, and April 30, 2003, the corporations paid for the costs for the seaman's treatment, but the seaman's requests for maintenance were denied. The corporations asserted that the seaman injured her back in an earlier car crash. A second surgeon concluded that it was not possible to state that her symptoms were attributable to the on-board injury. The court held that there was no fact issue that precluded a declaration of liability for maintenance. The second surgeon's failure to make a statement as to causation did not create a factual dispute. If the corporations truly believed that the seaman's symptoms after September 19, 2001, were not their responsibility, they presumably would have refused to pay cure. The seaman was entitled to attorney's fees because they ignored the seaman's request for maintenance for over a year without explanation.

OUTCOME: The court denied the corporations' motion to strike, granted the seaman's motion for maintenance, and granted in part the seaman's motion for attorney's fees. The court excluded $500 in fees for which there was no evidence in support.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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STAVROS ANDROUTSAKOS, as Guardian Ad Litem for EliasAndroutsakos, an incapacitated person, Plaintiff, vs. M/V PSARA, her engines,tackle, apparel and equipment, CHEVRON USA, INC., a Pennsylvania Corporation,PSARA SHIPPING CORPORATION, a Liberian Corporation, Defendants.

Case No. 02-1173-KI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2004 U.S. Dist. LEXIS 8214
April 29, 2004, Decided

PROCEDURAL POSTURE: Defendant, a Liberian shipping company, filed a motion for application of Greek law and for dismissal of plaintiff's tort action. Plaintiff moved for application of U.S. law.

OVERVIEW: Plaintiff, a Greek citizen, sustained injuries after he was struck in the head by a mooring line on the deck of a ship owned by the company. The ship was docked at a U.S. port. The ship sailed under the flag of Greece and the company's board of directors was made up of Greek citizens. Plaintiff, through his guardian, brought a tort action against the company and defendant domestic corporation. In granting plaintiff's motion to apply U.S. law, the court held that the presence of the domestic corporation in the action as an alleged joint tortfeasor had to be considered in applying the appropriate factors to the choice of law analysis. The court held that the location of the injury pointed toward the application of U.S. law and was an important consideration. However, the court also held that the law of the flag and the domicile of plaintiff indisputably pointed to the application of Greek law. The court concluded that, due to the presence of the domestic corporation, to which there was no real argument that U.S. law applied, applying two different maritime laws would have been unworkable.

OUTCOME: The court denied the company's motion for application of Greek law and for dismissal. The court granted the guardian's motion for application of U.S. law.

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DAFYDD HOFFMAN, ET AL., Plaintiffs, ANDREW MARIANO,Plaintiff - Appellant, v. HALCOT SHIPPING CORP., ET AL., Defendants, HALCOTSHIPPING CORP.; ZODIAC MARITIME AGENCIES, LTD., Defendants-Appellees.

No. 03-30301
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
93 Fed. Appx. 658; 2004 U.S. App. LEXIS 6241
April 1, 2004, Filed

PROCEDURAL POSTURE: Appellant boat operator sued appellee shipping company to recover for injuries sustained in an accident involving the shipping company's oceangoing tanker. The United States District Court for the Eastern District of Louisiana found the shipping company at fault, but reduced the award in half due to the employer's fault and denied recovery of medical expenses that were paid under the employer's health plan. The boat operator sought review.

OVERVIEW: At the time of the incident only one other boat operator and one deck hand were working for the employer's water taxi service. The boat operator was injured when he attempted to untie a vessel by himself in response to an emergency call. On appeal, the court reversed the 50 percent reduction of the award based on the employer's fault. A vessel owner did not owe a duty to maintain a standby crew for all of its available vessels. However, the court upheld the district court's refusal to permit the boat operator to recover medical expenses already paid by his employer's insurer. Although the collateral source rule prohibited reduction of a tort recovery by the amount of such benefits, there was an exception where an insurer had the right to subrogate against the tortfeasor who injured the plaintiff. This exception applied even if the subrogated party did not appear to assert its subrogation rights. The shipping company introduced evidence of the subrogation right by introducing the plan summary. Thus, the subrogation exception to the collateral source rule was properly applied to prevent the boat operator from recovering medical expenses paid by his employer's insurer.

OUTCOME: The court affirmed that part of the district court's judgment denying the boat operator recovery of medical expenses paid by his employer's insurer. The court reversed the district court's judgment insofar as it reduced the boat operator's recovery based on his employer's fault. The court vacated this part of the judgment and remanded the case for entry of judgment reflecting this change.

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JOHN HOWARD, et al., Plaintiffs-Appellees, v. SOUTHERNILLINOIS RIVERBOAT CASINO CRUISES, INC., doing business as PLAYERS ISLANDCASINO, Defendant, Third-Party Plaintiff-Appellant, v. TRIANGLE ENTERPRISES,INC., doing business as TRIANGLE INSULATION AND SHEET METAL COMPANY, Third-PartyDefendant-Appellant.

Nos. 02-3818 & 02-3819
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
364 F.3d 854; 2004 U.S. App. LEXIS 6919

PROCEDURAL POSTURE: Defendant casino owner and third party defendant insulation company appealed an order from the United States District Court for the Southern District of Illinois, which denied their motions for summary judgment on plaintiff workers' negligence action under the Jones Act, 46 U.S.C.S. app. § 688 (a), and which certified for interlocutory review the question of whether the Act applied to workers on a permanently moored riverboat casino.

OVERVIEW: Workers on a permanently moored riverboat casino were exposed to chemicals in the course of their employment and sued the owner under the Act. The owner filed a third party claim against the company, and both defendants filed motions for summary judgment, which were denied. On interlocutory review, the court held although the riverboat was capable of cruising on the river, was licensed as a passenger vessel with the U.S. Coast Guard, and left its moorings once a year for Coast Guard mandated propulsion tests, the riverboat did not in fact transport passengers, was connected to land-based utilities, and maintained its status as vessel merely to comply with state gambling regulations. Therefore, using a pragmatic approach, the court held that the riverboat was not a vessel in navigation and, consequently, the workers were not seamen under the Act and could not bring claims under the Act.

OUTCOME: The court reversed the order and remanded the case with instructions to enter judgment in favor of defendant and third party defendant.

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DOUGLAS SPECTOR, ANA SPECTOR, JULIA HOLLENBECK, DAVID KILLOUGH, and RODGER PETERS, Appellants v. NORWEGIAN CRUISE LINE LTD. D/B/ANORWEGIAN CRUISE LINE, Appellee

NO. 01-02-00017-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2004 Tex. App. LEXIS 2941
March 30, 2004, Opinion Issued

PROCEDURAL POSTURE: Appellant consumers sought review of an order from the 270th District Court, Harris County (Texas), which denied class certification in the consumers' lawsuit against appellee cruise line for contract breach, fraud or fraudulent inducement, unjust enrichment, negligent misrepresentation, deceptive trade practices, and disability discrimination.

OVERVIEW: The consumers alleged that the cruise line falsely represented that its vessels or related port excursions were accessible to mobility-impaired passengers and that those passengers would have assistance on and off the ship. The court, in affirming the denial of certification, concluded that the consumers had failed to preserve a spoliation argument for review. The trial court did not abuse its discretion or act improperly by ruling without reviewing sealed volumes of documents that it had been told related to the issue of numerosity, which was not seriously contested. The denial of class certification was proper because the consumers did not show that common issues predominated, as required by former Tex. R. Civ. P. 42(b)(4) (renumbered as Tex. R. Civ. P. 42(b)(3)). As to the claim of deceptive practices, the trial court reasonably could have determined that individual reliance inquiries under Tex. Bus. & Com. Code Ann. § 17.50(a)(1)(A), (B) (2002) would predominate over common ones. Determination of oral contract terms also required individual inquiries, as did unjust enrichment allegations. Tex. Hum. Res. Code Ann. ch. 121 applied only to vessels that sailed in Texas waters.

OUTCOME: The court affirmed the trial court's order denying class certification.

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EUGENE BURNS, Appellant, v. RADISSON SEVEN SEAS CRUISES,INC., SERVICES ET TRANSPORTS TAHITI, COPROPRIETE DU NAVIRE PAUL GAUGUIN, THECRUISE STATION, and DIMENSIONS IN TRAVEL, INC., Appellees.

CASE NO. 4D03-1333
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
867 So. 2d 1191; 2004 Fla. App. LEXIS 2710; 29 Fla. L.Weekly D 544
March 3, 2004, Opinion Filed

PROCEDURAL POSTURE: Plaintiff passenger appealed an order by the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), that dismissed his complaint against defendant cruise line for improper venue; the passenger claimed that the venue was inconvenient and unreasonable.

OVERVIEW: The passenger contracted to act as radio host for seven days on a Tahitian cruise ship. He was subsequently injured in a slip and fall while on board. The cruise ticket contained a forum selection clause providing that United States citizens had to bring suit, for any incidents arising on board a cruise ship that did not touch a United States port, in Paris, France. The appellate court held that the ship both departed and returned from a foreign locale, never making contact with any ports or waters of the United States. Therefore, it was reasonable that the cruise line selected France as a neutral location in order to dispel confusion as to where passengers from a variety of countries could bring a lawsuit. The forum selection clause was valid. The passenger failed to meet his burden of proving that the venue was improper.

OUTCOME: The order was affirmed.

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OSAY DUPLESSIS versus DAYBROOK FISHERIES, INC.

CIVIL ACTION No. 03-1901 SECTION: I/1
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 3259
March 2, 2004, Decided
March 3, 2004, Filed; March 4, 2004, Entered

PROCEDURAL POSTURE: Plaintiff bailer who unloaded fishing vessels sued defendant employer which operated a fishing business and processing plant, alleging that the employer was liable under the Jones Act and general maritime law for the bailer's injuries from a fall on one of the employer's vessels. The employer moved for summary judgment on the ground that the bailer was not a seaman entitled to protection under maritime law.

OVERVIEW: The bailer contended that maritime law applied to render the employer liable for the bailer's injuries suffered in a fall from a ladder while aboard the employer's vessel. The employer argued that the bailer was not a seaman for maritime purposes since he was a land-based employee who was only aboard vessels when they were docked. The court held that the bailer, whose duties involved only unloading fish from vessels using land-based equipment when the vessels were docked, was not a seaman for purposes of maritime law. The bailer was not involved in fishing operations and did not go to sea, and thus the bailer did not contribute to the primary fishing function of the vessels and had no substantial connection to the vessels in terms of duration and nature.

OUTCOME: The employer's motion for summary judgment was granted.

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GWEN WARD VERSUS BOYD GAMING CORPORATION IN PERSONAM and TheM/V TREASURE CHEST, her engine, Tackle, etc. IN REM

CIVIL ACTION NO. 04-0060 SECTION "K" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 3509
March 4, 2004, Decided
March 4, 2004, Filed; March 5, 2004, Entered

PROCEDURAL POSTURE: Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) plaintiff's personal injury action in which plaintiff asserted that she seriously injured her right leg on the job, attributing defendant's negligence and the vessel's unseaworthiness as the cause of the accident. Plaintiff brought her action under the Jones Act, 46 U.S.C.S. § 688, and General Maritime Law, pursuant to Fed. R. Civ. P. 9(h).

OVERVIEW: The boat upon which plaintiff worked was a paddlewheel-driven riverboat casino. The court noted that the Jones Act provided that "any seaman " who sustained personal injury in the course of his employment could maintain an action for damages at law, with the right to trial by jury. Plaintiff alleged that at the time of her injury, the boat was a vessel in navigation and as such, she was a member of the crew, entitling her to seaman status under the Jones Act, and general maritime law. The court disagreed. It held that the federal courts had consistently held that indefinitely or permanently moored riverboat casinos were not Jones Act vessels. Therefore, Jones Act seaman status did not apply to plaintiff. Plaintiff next asserted that if she was not a seaman, then she still had a general maritime law cause of action because the casino was floating in navigable waters at the time of her injury and thus was within the admiralty jurisdiction. The court found that plaintiff had failed to establish a sufficient maritime nexus due to a lack of potential impact on maritime commerce. Her claims were not within the court's admiralty jurisdiction and, therefore, had to be dismissed.

OUTCOME: The court granted defendant's motion and dismissed plaintiff's claims with prejudice.

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KATHLEEN HUNTLEY, Plaintiff, v. CARNIVAL CORPORATION, aforeign corporation, d/b/a CARNIVAL CRUISE LINES, and DR. GREGORY M. McNAMARA,M.D., Defendants.

CASE NO. 03-21925-CIV-KING
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA, MIAMI DIVISION
307 F. Supp. 2d 1372; 2004 U.S. Dist. LEXIS 4195; 17 Fla. L.Weekly Fed. D 415
March 12, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed an action against defendants, a cruise ship corporation and a cruise ship doctor, to recover damages after she suffered injuries during a fall on a cruise ship. Her complaint contained five negligence-based counts. Pursuant to Fed. R. Civ. P. 12(b)(6), the corporation moved to dismiss the counts of the complaint that alleged medical negligence and vicarious liability for the doctor's alleged medical malpractice.

OVERVIEW: The passenger claimed that she slipped while in the ship's casino bar and that the doctor, who was employed by the corporation, committed medical malpractice while treating her. The corporation moved to dismiss the passenger's two medical malpractice based claims, asserting that under the majority legal rule articulated by the United States Court of Appeals for the Fifth Circuit, it could not be held vicariously liable for the alleged negligence of the ship's doctor. The court denied the motion after concluding that the passenger might be able to establish a set of facts entitling her to relief. The court had already recognized the possibility of a cruise line's vicarious liability for a ship doctor's actions based upon apparent agency grounds. The Third District Court of Appeal of Florida had rejected the majority rule and had embraced the minority view, which held that a shipowner might be held vicariously liable where a ship's physician was in the regular employment of a ship, as a salaried member of the crew, subject to the ship's discipline and the master's orders, and presumably also under the direction and supervision of the company's chief surgeon.

OUTCOME: The court denied the corporation's motion to dismiss. It ordered the corporation to file an answer to the passenger's complaint within 20 days of the court's order.

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SERGE VOILLAT and SIMONE VOILLAT, individually and assuccessors-in-interest to LIONEL VOILLAT, Plaintiffs, v. RED AND WHITE FLEET,FISHERMAN'S WHARF BAY CRUISE CORPORATION d/b/a RED AND WHITE FLEET, GOLDEN GATESCENIC STEAMSHIP CORPORATION, LON RICHARDS, LOU'S BLUE SNAX, INC., JOHNNY BRETTand KEITH O'REILLY, both individually and d/b/a "OBLIVION," "OBLIVIONSF," and/or"OBLIVIONSF.COM," SPECIALIZED SECURITY ENTERPRISES, WILLIAM O. MONAGHAN, andDOES 1-50, inclusive, Defendants.

No. C 03-3016 MHP
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 4359
March 18, 2004, Decided

PROCEDURAL POSTURE: Defendants, a cruise ship passenger, cruise ship owners, corporations, and individuals, moved to dismiss plaintiff parents' survival and dram shop liability claims for failure to state a claim, or, in the alternative, to strike portions of the parents' prayer for relief in a wrongful death and survival action.

OVERVIEW: After their son was killed when he was thrown overboard from a cruise ship by another passenger, the parents brought a wrongful death and survival action against defendants. Defendants moved to dismiss the survival and dram shop liability claims for failure to state a claim, or, in the alternative, to strike portions of the parents' prayer for relief. The court found that the parents properly stated a claim for relief under a general maritime survival action. The court further found, however, that California's anti-dram shop provision, Cal. Bus. & Prof. Code § 25602(b), precluded the parents' dram shop claim. Under California law, the parents failed to state a claim for relief under their claim for improper service of alcohol. Finally, the court found that while the parents were entitled to punitive damages and damages for pre-death pain and suffering, they were not entitled to damages for both loss of support and lost future earning capacity, though they could seek one or the other. As wrongful death beneficiaries, they were entitled to damages for loss of support.

OUTCOME: The court denied defendants' motion to dismiss the parents' survival action. The court granted defendants' motion to dismiss the parents' claim for improper service of alcohol. The court denied defendants' motion to strike the parents' request for damages for pre-death pain and suffering, damages for lost future earning capacity, and punitive damages.

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ENRIQUE WILLIAMS, Plaintiff, vs. CRUISE SHIPS CATERING ANDSERVICE INTERNATIONAL, N.V.; PRESTIGE CRUISES N.V.; and COSTA CROCIERE, SPA,Defendants.

Case No. 03-60158-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA
2004 U.S. Dist. LEXIS 7586; 17 Fla. L. Weekly Fed. D 595
March 31, 2004, Decided
March 31, 2004, Filed

PROCEDURAL POSTURE: Plaintiff, a Costa Rican citizen and injured employee, sued defendants, including a vessel's owner, for injuries suffered working aboard an Italian-flagged vessel. He alleged claims under the Jones Act, and claims for unseaworthiness, failure to cure, and failure to treat. Pending was defendants' motions for reconsideration.

OVERVIEW: The motion for reconsideration pertained to the court's order denying defendants' motion to dismiss on forum non conveniens grounds. The court earlier denied the dismissal motion primarily due to its conclusion that defendants' base of operations was in the United States. It examined the motion for reconsideration under both Fed. R. Civ. P. 59(e), 60(b). Based on defendants' arguments, the court examined the motion under these Fed. R. Civ. P. 59(e), 60(b) standards: (1) mistake, inadvertence, surprise, or excusable neglect, or the need to correct clear error, and (2) new evidence. Regarding the first standard, none of defendants' three grounds warranted reconsideration. As for newly discovered evidence, a review of the entire record simply strengthened the court's conclusion that defendants' base of operations was in the United States. Even upon consideration of new filings, reconsideration was not warranted. The case involved a controlling question of law, i.e., whether the United States could be considered the base of operations for a shipowner that was owned by a company that primarily conducted its business in the United States. The case was appropriate for certification.

OUTCOME: Defendants' motions for reconsideration were denied.

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Fanos, on behalf of himself and those similarlysituated,vs-Maersk Line, Ltd., Maersk Sealand, A. P. MollerGroup, Maersk, Inc., Wilmington Trust, Expander Transport Corporation, ExpediterTransport Corporation, Expresser Transport Corporation, Exporter TransportCorporation, and Extender Transport Corporation, Defendants-Appellees.

No. 03-40418
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
363 F.3d 358; 2004 U.S. App. LEXIS 4558; 9 Wage & Hour Cas.2d (BNA) 810
March 10, 2004, Filed

PROCEDURAL POSTURE: Plaintiff seaman appealed an order of the United States District Court for the Southern District of Texas, which granted summary judgment to defendants, a shipper, an owner, and contractors, in connection with the employee's action seeking wages and penalty wages pursuant to 46 U.S.C.S. § 10313.

OVERVIEW: The shipper and the contractors entered into a collective bargaining agreement with a union, which provided employees with paid vacation and required employers to contribute to union benefit plans. The contractors and the union later signed a memorandum of understanding which eliminated employers' duplicate benefit contributions for days when two officers were aboard a ship to perform one job. The shippers and the contractors were not required to pay vacation benefits directly to employees. Rather, they were required to make contributions to the union vacation plan, which distributed the funds. The seaman argued that withholdings pursuant to the memorandum of understanding were improper. The court held that assuming that the vacation benefits were wages, defendants did not violate § 10313 because the seaman did not allege that they did not make proper contributions to the plan and because defendants were not responsible for the withholding of the benefits. Further, the seaman showed no evidence that the union was not authorized to negotiate the terms of its members' employment. Thus, the memorandum of understanding provided sufficient cause for withholding the vacation benefits.

OUTCOME: The court affirmed the judgment.

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OPINION: Appellants and defendants Nicholas Bachko Company and First American Bulk Carrier Corporation appeal the judgment on jury verdict in favor of plaintiff and respondent Richard Andrews in Andrews's action for personal injuries that occurred while he was serving as a crew member aboard a merchan