Cruise Ship Law

LAUREN KNIGHT, Plaintiff, vs. GRAND VICTORIA CASINO,Defendant.

No. 98 C 8439
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2000 U.S. Dist. LEXIS 18868
December 18, 2000, Decided

Jury instructions: At the final pretrial conference, the Court advised the parties that it would use the Fifth Circuit's pattern Jones Act jury instructions; reviewed with the parties the proposed jury instructions that they had tendered; and made rulings on disputed matters. One of the disputes that the Court did not resolve concerned a modification that defendant proposed to the Fifth Circuit pattern instruction regarding the plaintiff's seaman status. See Fifth Circuit Pattern Jury Instructions[*12] (Civil) 4.1. Specifically, defendant proposed to modify the instruction to (among other things) add a sentence requiring the jury to find that the plaintiff faced the "perils of the sea" in order to qualify as a seaman. See Dfdt's Proposed Jury Instruct. No. 2. As support for this modification, defendant relied on the Supreme Court's decisions in Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 137 L. Ed. 2d 800, 117 S. Ct. 1535 (1997) and Chandris, Inc. v. Latsis, 515 U.S. 347, 132 L. Ed. 2d 314, 115 S. Ct. 2172 (1995).

The Court has considered the effect of Papai and Chandris and concludes that they do not support the modification that defendant proposed. Indeed, Papai (relying on Chandris) reaffirms the test for seaman status found in the Fifth Circuit pattern instruction:

The essential requirements for seaman status are twofold. First, ... an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission.... Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial[*13] in terms of both its duration and its nature.

Id. at 554 (quoting Chandris, 515 U.S. at 368)(citations and internal quotation marks omitted). Though the Court in Papai did say that Jones Act coverage is limited to those subjected to the "perils of the sea," Papai, 520 U.S. at 555, 560, it did so not to announce a separate requirement that must be met, but rather to explain the reason for the second part of the Chandris standard:

"The fundamental purpose of the substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection with a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea."

Id. (quoting Chandris, 515 U.S. at 368).
In sum: there is no basis to include a "perils of the sea" requirement in the jury instruction regarding seaman status.

In Re: In the Matter of the Complaint of Endeavor Marine,Inc. and Tako Towing, Inc., as Owner and/or owner pro hac vice of the vessel M/VTako Endeavor, her engines, tackle, appurtenances, etc., praying for Exonerationfrom or Limitation of Liability: ENDEAVOR MARINE, INC.; TAKO TOWING, INC., asowner and/or owner pro hac vice of the vessel M/V Tako Endeavor her engines,tackle, appurtenances, etc., praying for exoneration from or limitation ofliability, Petitioners-Appellants, versus CRANE OPERATORS, INC.; ET AL.,Claimants, CRANE OPERATORS, INC., Claimant-Appellee, versus KEVIN M. BAYE, SR.,Claimant-Appellant.

No. 99-30197
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2000 U.S. App. LEXIS 31624
December 11, 2000, Decided

OVERVIEW: In an action under the Limitation of Liability Act brought by petitioner vessel owners, claimant employee sought recovery under the Jones Act, from petitioners and claimant employer, for injuries suffered while employed as a crane operator on one petitioner's barge. Claimant employer asserted that there was no liability under the Jones Act because claimant employee was not a seaman. The court held that claimant employee was a seaman under the Jones Act since he contributed to the function of the vessel and had a substantial employment connection to the vessel in terms of both duration and nature. Even though claimant employee's connection with the vessel did not take him to sea, where claimant employee boarded the barge only after the vessel was moored or in the process of mooring, the sole purpose of the barge was to load and unload cargo vessels, and claimant was regularly exposed to the perils of the sea in the course of his employment.
OUTCOME: Judgment was reversed; since claimant employee's duties as a crane operator aboard a barge regularly exposed claimant employee to the perils of the sea, claimant employee was a seaman and liability under the maritime statute was thus applicable to claimant employer.

Willie Cammon, Respondent, v. City of New York et al.,Appellants. Anjac Enterprises, Inc., Third-Party Plaintiff, v. MacroEnterprises, Inc., Third-Party Appellant. William M. Kimball, for third-partyappellant.

No. 126
COURT OF APPEALS OF NEW YORK
2000 N.Y. LEXIS 3902
December 21, 2000, Decided

OVERVIEW: Plaintiff injured employee sued defendant general contractor and city, and alleged violations of state labor laws after he was injured while doing repair work on a floating raft on navigable waters, but where the raft was anchored to land and the repair work involved a land structure. Defendant general contractor and city moved for summary judgment on the ground that federal maritime law preempted state labor law. The trial court granted the motion. The appellate court reversed and held plaintiff's causes of action were not preempted by federal maritime law. Leave to appeal was granted. The court affirmed the order reversing the grant of summary judgment and concluded the appellate court properly ruled that the causes of action were not preempted. Exercise of admiralty jurisdiction did not automatically mean state law was preempted and in the present case the "maritime but local rule" applied because even though plaintiff was on a floating raft in navigable waters, the raft was anchored to land and the repair was to a land structure. As a result, exercise of state law would not frustrate federal maritime law.
OUTCOME: Order reversing the grant of summary judgment to defendant general contractor and city affirmed and certified question about whether the appellate division acted properly in granting the reversal answered in the affirmative because plaintiff's complaint alleging violations of state labor law was not preempted by federal maritime law as the state's strict liability statutes were not at odds with federal maritime law in the present case.

RANDOLPH (RANDY) WALLACE HARPER, ETC. VERSUS FALRIGOFFSHORE, INC., ET AL.

00 694-CA
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
00 694 (La.App. 3 Cir, 12/20/00); 2000 La. App. LEXIS 3383
December 20, 2000, Rendered

OVERVIEW: Plaintiff was asked to weld a rain shield on defendant's oil rig. He was on a ladder, reaching for a sledge hammer which was being handed to him from above, when he fell and broke his heel bone and injured his back and neck. Plaintiff filed suit against defendants, rig owner and insurer, alleging unseaworthiness and negligence under the Jones Act. The trial court assessed 75 percent fault to plaintiff and 25 percent fault to defendant, and awarded plaintiff medical costs, general damages, loss of household services, and lost wages. All parties appealed. The court found that an unsafe work method which partially caused plaintiff to fall was an isolated incident of operational negligence, not a pervasive condition which rendered the rig unseaworthy. The trial court's findings of fault were not manifestly erroneous. The general damages award was not an abuse of trial discretion. The trial court's future wage loss calculation was in error because it was not based on plaintiff's gross wages at the time of his injury. The trial court also erred in allowing plaintiff to sue defendant insurer under the direct action statute, because the rig was not in Louisiana waters.
OUTCOME: The court affirmed the trial court's finding that the rig was seaworthy, its fault finding, its fault apportionment between the parties, and the award of general damages. It reversed the future wage loss award, and remanded for a new trial on that issue. It also reversed the trial court's decision not to dismiss defendant insurer from the case, and ordered its dismissal.

HARTFORD FIRE INSURANCE COMPANY, Plaintiff, - against -JOSEPH MITLOF d/b/a HUDSON VALLEY WATERWAYS, VILLAGE OF TARRYTOWN, VILLAGE OF NYACK, NYACK PARKING AUTHORITY, KEY BANK U.S.A., RIVERCREST HOMEOWNERS ASSOCIATION a/k/a RIVERCREST CORP., GARRISON YACHT CLUB and NYACK BOAT CLUB, Defendants.

99 Civ. 9841 (WCC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2000 U.S. Dist. LEXIS 18200
December 15, 2000, Decided

OVERVIEW: Defendant operated a water taxi service on the Hudson River. Plaintiff issued defendant a marine hull protection and indemnity policy with passenger vessel amendments for two vessels. One of the boats capsized and several injured passengers brought personal injury lawsuits against defendant in state court. None of these actions had yet been litigated to judgment. Plaintiff ultimately denied coverage and commenced declaratory judgment litigation. Defendant intervenor passengers ("passengers") moved to intervene. They claimed they should be allowed to intervene under either Fed. R. Civ. P. 24(a) (Intervention of Right) or Fed. R. Civ. P. 24(b) (Permissive Intervention). Plaintiff claimed that they were precluded from intervention by New York's direct action statute, N.Y. Ins. Law § 3420(i) and N.Y. Ins. Law § 2117(b)(3). The court had to decide whether the passengers were foreclosed by N.Y. Ins. Law § 3420(i), § 2117(b)(3) from intervening. The court concluded that the New York Court of Appeals would not allow the passengers into the action without their first obtaining a judgment against defendant. They were barred from intervening as defendants by N.Y. Ins. Law § 3420.
OUTCOME: Defendant intervenor passengers' motions to intervene were denied because they were strangers to the indemnity contract and granting them intervention would have circumvented the judgment requirement of the New York State Insurance Law, a prerequisite for actions actions by injured third parties against indemnity insurers.

FRANK GAROFALO, Plaintiff, v. PRINCESS CRUISES, INC.,Defendant and Respondent; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP,Intervener and Appellant.

B127126
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,DIVISION THREE
2000 Cal. App. LEXIS 999
December 29, 2000, Filed

OPINION: This case presents a novel issue arising from the intersection of the Death on the High Seas Act ("DOHSA"), 46 United States Code section 761 et seq., and the California workers' compensation law. The question is whether DOHSA preempts an employer's state law claim in a subrogation action to recover from a third party tortfeasor sums the employer was obligated to pay for an employee's injury. We hold that it does. We also hold that California courts have concurrent jurisdiction over DOHSA claims.

(1) DOHSA preempts state wrongful death and survival[*24] claims when the incident leading to death occurs on the high seas; and (2) DOHSA limits recovery to pecuniary damages and prohibits litigants from supplementing their DOHSA claims with claims brought either under state law or the general maritime law. (E.g., Zicherman v. Korean Air Lines Co. (1996) 516 U.S. 217, 230, 133 L. Ed. 2d 596, 116 S. Ct. 629.)

CHRISTOPHER ANTHONY LINER, et al. v. DRAVO BASIC MATERIALS COMPANY, et al.

Civil Action No. 00-1908 SECTION: "J"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 16593
November 3, 2000, Decided
November 7, 2000, Filed; November 8, 2000, Entered

OVERVIEW: Two of the plaintiffs struck an unmarked submerged barge owned by defendants while they were using a 17-foot fiberglass recreational boat. Plaintiffs sued. Among the claims were loss of consortium and punitive damages. Defendants moved for partial summary judgment on these two claims calling into question the availability of loss of consortium damages and non-pecuniary damage awards under general maritime law. The motion for partial summary judgment was denied. Since the two plaintiffs were not seamen, and therefore not covered by United States Congressional statute, they could supplement their claims under general maritime law with applicable state law since the accident occurred in state territorial waters. State law permitted claims for loss of consortium. Under state law, punitive damages were available only in two specific instances, which did not apply in the instant case. However, turning the argument around, plaintiffs sought to supplement this claim by general maritime law. The court acknowledged that the general trend in the caselaw supported punitive damage claims under general maritime law when there were no overlapping federal statutes.
OUTCOME: Motion for partial summary judgment was denied. The two plaintiffs were not seamen; they could supplement their claims under general maritime law with applicable state law. State law permitted claims for loss of consortium. State law permitted punitive damages in only two circumstances, which were not present. However, caselaw supported the idea that general maritime law permitted punitive damages when there was no overlap with federal law.

LICENSED PRACTICAL NURSES, TECHNICIANS AND HEALTH CAREWORKERS OF NEW YORK, INC., Plaintiff, -v- ULYSSES CRUISES, INC., d/b/a PREMIER CRUISES, Defendant.

00 Civ. 4349 (GEL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2000 U.S. Dist. LEXIS 16619
November 14, 2000, Decided
November 15, 2000, Filed

OVERVIEW: Plaintiff union purchased tickets for their members on defendant's cruse ship to hold a meeting. The tickets contained provisions for where a law suit should be brought and stated that any suit must be brought within one year. Plaintiff brought their action after one year and in a court other that those listed on the ticket. The court held that since the union purchased the tickets for its members they were bound by the ticket's terms. The court found that presence of a forum-selection clause did not deprive the disfavored forum of jurisdiction or venue, because the conditions of subject matter and in personam jurisdiction and proper venue were otherwise met. They found that the ticket reasonably communicated the contractual limitations period to the purchaser. The face of the ticket contained a bold, large print, boxed notice, specifically calling the purchaser's attention to the fact that the ticket contained terms limiting the cruise line's liability. Therefore, the limitations clause of the contract was enforceable. Because the suit was brought more than one year after the incident complained of, as the contract provided for, the action was dismissed.
OUTCOME: The complaint was dismissed for failure to comply with the agreed-upon one-year limitations period printed on the tickets purchased by plaintiff.

ROBERT HOOD, Plaintiff, - against - REGENCY MARITIME CORP.,Defendant.

99 Civ. 10250 (CSH)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2000 U.S. Dist. LEXIS 17298
November 29, 2000, Decided
November 30, 2000, Filed

OVERVIEW: While using a private bathroom on a cruise ship, plaintiff was struck by a part of the tub which had come loose. Plaintiff filed suit against defendant cruise line for negligence. Defendant moved for summary judgment, which the court granted. The court held that being struck by a portion of the tub was not an incident uniquely encountered while at sea, and that the appropriate standard of care to be applied was that which was reasonable in the circumstances. As such, defendant had no actual or constructive knowledge of the defect. Plaintiff's res ipsa loquitor claim failed because he failed to prove that defendant had exclusive control over the instrument which caused the injury.
OUTCOME: Motion of defendant for summary judgment granted, because plaintiff failed to present evidence that defendant breached appropriate standard of care; res ipsa loquitor claim failed where defendant did not have exclusive control.

PAUL GARY NURKIEWICZ, Appellant, v. VACATION BREAK U.S.A.,INC., RESORT YACHTS OF AMERICA, INC., and SERENITY YACHT CLUB, INC., Appellees.

Case No. 4D99-3198
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2000 Fla. App. LEXIS 15234
November 22, 2000, Opinion Filed

OVERVIEW: Plaintiff captain of sport boat was loading sodas onto the boat. As plaintiff was loading the 24 can cases, two at a time, into a hatch in the galley floor, he injured his back. Plaintiff alleged unseaworthiness and negligence under the Jones Act, 46 U.S.C.S. § 688, as defendant owners had not trained him to load heavy objects without injuring his back, given him a belt to protect his back, and made storage space more accessible. The trial court granted summary judgment to defendants. The appellate court found there was no negligence or unseaworthiness as a matter of law . Plaintiff was barred from recovery for negligence or unseaworthiness as the injury was entirely his fault. The trial court erred in entering summary judgment on the claim for maintenance and cure as claimed medical expenses were palliative rather than curative, but punitive damages were not recoverable in the claim.
OUTCOME: Order was affirmed as to negligence and unseaworthiness, but reversed and remanded for further proceedings with regard to the claim for maintenance and cure.

After reading the fifth circuit's opinion in Guevara, which interpreted the 1990 opinion of the Supreme Court in Miles, we are persuaded that, if faced with the question, the Supreme Court would agree with Guevara and hold that punitive damages are[*7] not recoverable in a maintenance and cure case. We note that a trial court within the eleventh circuit has disallowed punitive damages in a maintenance and cure case, concluding that the eleventh circuit would follow Guevara when presented with the issue. Hollinger v. Kirby Tankships, Inc., 910 F. Supp. 571 (S.D. Ala. 1996). We therefore hold that punitive damages are not available. We certify conflict with Norwegian Cruise Lines, Ltd. v. Zareno, 712 So. 2d 791 (Fla. 3d DCA 1998).

In the Matter of LEBEOUF BROTHERS TOWING CO., INC. as owner of M/V ERIKA LEIGH and BARGE LB-16

Civil Action No. 00-0848 SECTION: "J"(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 16881
November 7, 2000, Decided
November 9, 2000, Filed; November 13, 2000, Entered

OVERVIEW: Petitioner vessel owner brought an action under the Limitation of Vessel Owner's Liability Act (Act), 46 U.S.C.S. app. § 181 et seq., to limit petitioner's liability for injuries incurred by claimant while working on petitioner's vessel. Claimant sought to lift the stay to permit claimant to pursue his Jones Act action in a separate federal court under 28 U.S.C.S. § 1333. The court permitted claimant to proceed on his separate federal action, since petitioner's statutory right to limit its liability to petitioner's interest in the vessel and its pending cargo was sufficiently protected by claimant's stipulation to have all limitation issues adjudicated in the instant forum. The Savings to Suitors clause of 28 U.S.C.S. § 1333 did not limit claimant to state common law remedies, and claimant was thus not barred from seeking a federal statutory remedy. Further, although a stipulation by claimant to exclusive adjudication in federal court with respect to the issue of exoneration was not required by the Act, claimant expressly stipulated to such exclusive adjudication.
OUTCOME: Motion was granted; petitioner vessel owner's right to limitation of its liability for claimant's injuries was adequately protected by claimant's stipulation to adjudicate limitation and exoneration issues in the instant forum, although the stipulation concerning exoneration issues was not required, and claimant was thus entitled to pursue his federal statutory claim in a different court.

NICHOLAS MASTRODONATO, et al v. SEA MAR, INC., et al

Civil Action No. 99-2547 SECTION: "D"(3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 16568
November 9, 2000, Decided
November 9, 2000, Filed, Entered

OVERVIEW: Plaintiff, a seaman, was employed by defendant employer as a captain of a jack-up vessel. Plaintiff was transported from the jack-up vessel to the shore by the supply vessel. Plaintiff slipped and fell on the step on the supply vessel and sued co-defendant owner/operator of the supply vessel and defendant employer asserting negligence claims under maritime law and requested a trial by jury. Co-defendant filed a cross-claim against defendant employer, seeking contractual indemnity pursuant to defendant employer's charter agreement. Co-defendant also filed a third party demand against defendant employer's insurance company. Defendant employer and co-defendant both moved for partial summary judgment. The court found no evidence that defendant employer was negligent. The duty to provide plaintiff with a safe place to work did not extend to a vessel over which defendant employer exercised no control. Thus, plaintiff's Jones Act and unseaworthiness claims against defendant employer were dismissed. Defendant employer owed no contractual indemnity obligation to co-defendant under either the charter agreement or the insurance policy. defendant under either its charter agreement or insurance policy.
OUTCOME: Defendant's motion to strike jury demand was granted, as plaintiff's maritime negligence claim was dismissed. Co-defendant's cross-motion for partial summary judgment was denied.

JOHN FERNANDEZ, III, Plaintiff, v. JAMES B. HAYNIE, etc., etal., Defendants.

Civil Action No. 4:00cv9
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION
2000 U.S. Dist. LEXIS 16807
November 14, 2000, Decided

OVERVIEW: Plaintiff allegedly contracted with defendant brokers to place and maintain with a solvent underwriter an insurance policy on plaintiff's shrimping vessel. Defendant brokers delivered a marine insurance policy to plaintiff and the vessel. However, defendant brokers allegedly switched plaintiff's insurance coverage to a new policy with a different insurer. A seaman suffered injuries on board plaintiff's vessel and sued plaintiff. Plaintiff filed suit against defendants to redress losses incurred resultant to an alleged breach of the contract to procure and maintain marine insurance. The court denied defendants' motion to dismiss for lack of subject matter jurisdiction. The court determined that the action on an alleged contract to procure marine insurance was within the grant of admiralty jurisdiction to the federal courts. The subject matter of the alleged contract between plaintiff and defendant brokers was maritime in nature, and jurisdiction over the claim was consistent with the protection of maritime commerce, thus satisfying the jurisdictional inquiry for maritime contracts.
OUTCOME: Defendants' motion to dismiss for lack of subject matter jurisdiction was denied because the court had admiralty jurisdiction over the alleged contract to procure marine insurance.

CREIGHTON E. MILLER, Administrator of the Estates of Juvenal J. Rezendes, Deceased (99-3703), Louie E. Hudson, Deceased (99-3705), Booker T.Pompey, Deceased (99-3707), Walter L. Bowman, Deceased (99-3708), William B.Birch, Jr. (99-3709), Plaintiff-Appellant, v. AMERICAN HEAVY LIFT SHIPPING, etal., Defendants-Appellees.

Nos. 99-3703/99-3705/99-3707/99-3708/99-3709
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
231 F.3d 242; 2000 U.S. App. LEXIS 27440; 2000 FED App.0384P (6th Cir.)
June 21, 2000, Argued
November 3, 2000, Decided
November 3, 2000, Filed
OUTCOME: The decision was reversed because the amended claims arose out of the same conduct, transaction, or occurrence as the original claims. Defendants were allegedly liable for the same conduct -- negligently exposing the deceased seamen to toxins and failing to maintain seaworthiness of their vessels -- as originally alleged.

LASZLO FULOP, Plaintiff-Appellant, v. OCEAN HOPE 1 F/V, the vessel, her tackle & gear In Rem; US MARINE CORP., a foreign corporation InPersonam, Defendants-Appellees.

No. 99-35196
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2000 U.S. App. LEXIS 30216
November 15, 2000, Argued and Submitted, Seattle, Washington
November 27, 2000, Filed

It is true that an award of medical expenses under the Jones Act is properly reduced by the Seaman's own negligence. Fitzgerald v. United States Lines Co., 374 U.S. 16, 19, 83 S. Ct. 1646, 1649, 10 L. Ed. 2d 720 (1963). However, awards for maintenance and cure are not so reduced. Id. Rather, they are payable until the seaman has reached maximum cure, regardless of fault on anyone's part. Permanente S. S. Corp. v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966); Crooks v. United States, 459 F.2d 631, 633 (9th Cir. 1972); see also Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527-28, 58 S. Ct. 651, 653, 82 L. Ed. 993 (1938).

KRISTINE BIERING, Plaintiff, vs. HARVEY'S IOWA MANAGEMENT COMPANY, INC., Defendant.

8:99CV48
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
2000 U.S. Dist. LEXIS 16130
October 30, 2000, Decided

OVERVIEW: Plaintiff was injured in fall during her employment as a dealer on defendant's casino vessel, and plaintiff alleged that defendant was liable for the injuries under the Jones Act and general maritime law. Defendant asserted that plaintiff did not have the seaman status required for jurisdiction under the statute. The court held that, in view of statements in defendant's employee handbook and correspondence from defendant's attorney, the evidence indicated that defendant treated plaintiff as a worker covered by the statute. A jury could reasonably find that plaintiff was a maritime employee substantially connected in terms of duration and nature to a fully functioning gaming vessel.
OUTCOME: Plaintiff's motion to vacate summary judgment was granted, and defendant's motion for summary judgment was denied; based on defendant employer's treatment of plaintiff as a maritime worker, a jury could reasonably find that plaintiff work as a dealer on defendant's casino vessel was sufficient to confer seaman status for purposes of maritime jurisdiction.

GEORGE DIEFENBACH, Plaintiff, Appellee, v. SHERIDAN TRANSPORTATION, Defendant, Appellant. SIX TUG BARGE CORPORATION, Defendant,Appellee.

No. 00-1099
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
229 F.3d 27; 2000 U.S. App. LEXIS 25225
October 6, 2000, Decided

OVERVIEW: Plaintiff employee brought an action against defendant employer pursuant to the Jones Act, 46 U.S.C.S. app. § 688 (1994), for personal injuries sustained in the course of his employment. The first trial ended in a mistrial. The second trial resulted in a jury verdict and an award of damages for plaintiff. Defendant moved for a new trial on the grounds that the district court improperly instructed the jury, improperly admitted plaintiff's maritime expert's opinion and allowed an excessive verdict, and defendant also moved for remittitur. The district court denied the defendant's motions for a new trial and remittitur. Defendant appealed, claiming district court error in denying its motions. The court affirmed, holding that the district court did not err in denying defendant's motions because the district court properly admitted plaintiff's maritime expert's opinion and defendant waived any objection to its admission, the district court properly instructed the jury regarding damages, and th e jury's damage award did not warrant remittitur as it was supported by the evidence.
OUTCOME: Judgment affirmed because the district court properly admitted plaintiff employee's maritime expert's opinion and defendant employer waived any objection to its admission, the district court properly instructed the jury regarding damages, and the jury's damage award was supported by the evidence.

SEA-LAND SERVICE, INC., Plaintiff-Appellee, v. Pedro SELLAN,Defendant-Appellant.

No. 99-12571.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
231 F.3d 848; 2000 U.S. App. LEXIS 26886; 14 Fla. Law W.Fed. C 87
June 21, 2000, Argued
October 26, 2000, Decided

OVERVIEW: Appellant was injured while on sea duty and was declared to be 100-percent disabled from sea duty. Appellee paid appellant, pursuant to a settlement agreement (agreement) for current expenses and for his entire work-life expectancy in exchange for a release of liability. Pursuant to the agreement, if appellant violated the agreement and returned to work on any vessels belonging to appellee, he would do so at his own risk. Appellant surreptitiously regained employment as a seaman with appellee, and then filed a claim that he had been re-injured. Appellee commenced a declaratory action to find the agreement enforceable against appellant's newest claim. The district court found that the agreement was valid and that appellant was bound by its terms. Appellant sought review, claiming that the agreement violated the Federal Employers' Liability Act (FELA), 45 U.S.C.S. § 51-60. The court held that the agreement was a valid settlement of a present claim of total disability for sea duty and was enforceable agreement under FELA. Consequently, appellee was not responsible for appellant's injuries, and appellant was precluded from pursuing the new injury claim against appellee.
OUTCOME: Judgment affirmed. The litigated provision of the settlement agreement was part of a valid settlement of a present claim of total disability for sea duty and represented an enforceable agreement that appellant would not work for appellee in the future, and if he did, that appellee was not responsible for appellant's injuries.

WILLARD STEWART, Plaintiff, Appellant, v. DUTRA CONSTRUCTION COMPANY, INC., Defendant, Appellee.

Nos. 99-1487, 00-1090
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
230 F.3d 461; 2000 U.S. App. LEXIS 27090
October 31, 2000, Decided

OVERVIEW: Plaintiff sought to recover for his injuries under, inter alia, the Jones Act, alleging that his injuries occurred while employed as a seaman upon defendant's dredge which was excavating for a tunnel in a harbor. Defendant asserted that the statute did not apply since the dredge was not a vessel in navigation, thus precluding plaintiff's seaman status. The appellate court held that established precedent demonstrated that plaintiff was not a seaman for purposes of the statute since the floating dredge was not a vessel in navigation. The primary purpose of the dredge was not navigation or commerce, and the dredge was not in actual navigation or transit at the time of plaintiff's injuries. Plaintiff failed to show any ground for the court to reexamine, narrow, or distinguish the precedent, and thus the statute was not applicable.
OUTCOME: Order was affirmed; since the primary purpose of defendant's floating dredge was not navigation, and the dredge was not engaged in navigation at the time of plaintiff's injuries while employed on the dredge, established precedent required the finding that plaintiff did not fall within the statutory definition of seaman because the dredge was not a vessel in navigation.

NELLIE T. CRANE and QUENTIN BARRYMAN, husband and wife, andtheir community, Appellants, vs. THE STATE OF WASHINGTON; The WASHINGTON STATEDEPARTMENT OF TRANSPORTATION; The WASHINGTON STATE FERRY SYSTEM, and The F/VWalla Walla, Respondents.

No. 45258-4-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2000 Wash. App. LEXIS 1905
October 2, 2000, Filed

OVERVIEW: Plaintiffs filed a negligence claim against defendant state transportation department, alleging that plaintiff seaman had contacted hepatitis C after sticking her finger on a diabetic's lancet while cleaning a ferry passenger cabin as a result of defendant State's failure to follow regulations regarding bloodborne pathogens. The trial court granted summary judgment for defendants, finding that no genuine issue of material fact existed because plaintiff seaman was unable to prove proximate cause. The court affirmed. Despite defendant state transportation department's violation of applicable Washington State Industrial Safety and Health Act regulations on bloodborne pathogens, the Pennsylvania rule did not apply to shift the burden on causation to defendant state transportation department, as the violation pertained to a general safety statute instead of a maritime-specific statute. Plaintiffs failed to present evidence to meet even the reduced burden of proof on causation that they had in the case.
OUTCOME: Trial court's grant of summary judgment for defendants was affirmed. Because defendant state transportation department had violated a general safety statute instead of a maritime-specific statute, the Pennsylvania rule did not apply to shift burden of proof on causation to it in plaintiffs' maritime-related negligence action.

NELDA GARCIA, AS PERSONAL REPRESENTATIVE OF THE ESTATES OFABOU EL SOUD TAHA MOHAMED HAMMOUDA, MOHAMED REFAT ABDOU WANAS, MOHAMED AHMED ALMEZAYEN, ABDUL MUHAIMIN, HUSSAIN AHMED, AND CHARALAMBOS VOUZEKIS VERSUS BUREAUVERITAS QUALITY INTERNATIONAL (NORTH AMERICA) INC., BUREAU VERITAS, PARIS,FRANCE, NAGOS SHIPPING LTD. OF VALETTA, MALTA, OSTENE SHIPPING SOUTH AFRICA,GOOD FAITH SHIPPING COMPANY SOUTH AFRICA AND SONMEZ DENIZCILIK.

NO. 99-CA-3092
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
99-3092 (La.App. 4 Cir, 10/04/00); 2000 La. App. LEXIS 2555
October 4, 2000, Decided

OVERVIEW: Plaintiff, as a representative of the deceased, brought an action for claims under both the Jones Act and the general maritime law when a boat sank off the coast of South Africa. The decedents and their survivors were all foreign nationals. The named defendants are all foreign corporations. The only connection that the case had with Louisiana was that the purported personal representative of the decedents' estates happened to reside in Louisiana. The trial court granted defendants an exception of improper venue.

Plaintiff appealed from that exception. Since the case had no connection with Louisiana other than the personal representative, the appellate court declined to stretch the long-arm statute, La. Rev. Stat. Ann. § 13:3201, et seq., to find Louisiana was a proper venue for the action. The court also questioned the plaintiff's capacity to bring the action as a personal representative.
OUTCOME: Judgment affirmed; Louisiana was not a proper venue as the only connection the case had with the State was that it was where the personal representative resided.

JIMMY SHAY RICHARD VERSUS MIKE HOOKS, INC., CONSOLIDATEDWITH JIMMY SHAY RICHARD VERSUS MIKE HOOKS, INC., CONSOLIDATED WITH JIMMY SHAYRICHARD VERSUS BUCYRUS-ERIE COMPANY, INC. et al.

NUMBER 99-1631, NUMBER 99-1632, NUMBER 99-1633
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
99-1631 (La.App. 3 Cir, 10/04/00); 2000 La. App. LEXIS 2257
October 4, 2000, Decided

OVERVIEW: The appeal arose from the trial court's determination that the plaintiff, an injured welder employed by defendant, was a seaman under the Jones Act, 46 U.S.C.S. § 688. The defendant, a marine salvage and dredging company, brought an appeal challenging the trial court's finding. The court affirmed the judgment of the trial court. Defendant did not dispute the trial court's findings of fact. Instead, it asserted that the trial court's application of the law to the facts was erroneous. Defendant argued that plaintiff did not meet all of the criteria required for seaman status. It assigned three issues for review, all of which could be summarized as: was the nature of plaintiff's relationship to defendant's fleet of vessels sufficient for him to be a seaman? To determine whether plaintiff had a connection with defendant's vessels that was substantial in duration and nature, the court considered plaintiff's total employment relationship with defendant. The court found no error in the factual determination made by the trial court, nor did the court find any legal error leading to the conclusion that plaintiff was a seaman under the Jones Act.
OUTCOME: Judgment was affirmed. There was no error in the factual determination of the trial court that the plaintiff was a seaman, after reviewing plaintiff's total relationship with defendant's vessels.

ODILON CHACHA COTO; EDIBERTO HERNANDEZ HERNANDEZ; EMEDELIOH. TORRES; HECTOR R. GAMAS; NELLI R. OBANDO, ET AL. VERSUS J. RAY MCDERMOTT,S.A.; MCDERMOTT INTERNATIONAL INC.; THE AMERICAN BUREAU OF SHIPPING, INC.; CCCFABRIONES Y CONSTRUCTTIONES, ET AL.

NO. 99-CA-1866
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
99-1866 (La.App. 4 Cir, 10/25/00); 2000 La. App. LEXIS 2625
October 25, 2000, Decided

PROCEDURAL POSTURE: Plaintiffs appealed from Civil District Court, Orleans Parish (Louisiana), summary judgments for defendants, dismissing their Jones Act and general maritime claims on the basis of seaman's releases executed by them in favor of defendants, challenging the validity of the releases.

OVERVIEW: Plaintiffs were 11 divers from a crew of 20 divers aboard a barge in Mexican waters when it sank in a storm. They were rescued and sent home at their employer's expense. Defendant employer subsequently met with plaintiffs to discuss settlement of their claims and hosted a banquet to celebrate their survival. Following the banquet, the men continued to celebrate with drinking. The next day, plaintiffs settled their claims with defendants and signed releases. Each settlement meeting was recorded on videotape. Defendants contended the videotapes proved plaintiffs had a complete understanding of what they were doing and intelligently and freely entered into the settlements. Plaintiffs contended the videotapes proved they were unfairly led or forced into settlements they did not understand. The court held this fact alone compelled the conclusion that there were genuine issues of material fact as to the subjective states of minds of the parties. The court reversed the grant of summary judgments to defendants, which had been based on the seaman's releases executed by plaintiffs, and remanded the case.
OUTCOME: Summary judgments were reversed and case remanded, as videotapes relied on by both sides to prove each side's position created genuine issues of material fact, including subjective state of minds, to be resolved by fact finder and therefore improper for summary judgment.

ROBERT WAGNER, Plaintiff and Appellant, v. APEX MARINE SHIPMANAGEMENT CORPORATION et al., Defendants and Respondents.

A087349
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT,DIVISION TWO
83 Cal. App. 4th 1444; 2000 Cal. App. LEXIS 781; 100 Cal.Rptr. 2d 533; 2000 Cal. Daily Op. Service 8248; 2000 Daily Journal DAR 10919
October 4, 2000, Filed

OVERVIEW: Plaintiff appealed the trial court's decision, sustaining, without leave to amend, the demurrer of defendants in plaintiff's asbestos action brought pursuant to the Jones Act. The trial court found plaintiff's claims to be untimely pursuant to the applicable statute of limitations. However, plaintiff alleged on appeal that because he claimed to have suffered from two distinct asbestos-related diseases, with the later-discovered illness forming the basis of his claim against defendants, the trial court should have found his claim timely under the Jones Act. The court reversed the trial court's decision and remanded. Each disease resulting from asbestos exposure triggered anew the running of the statute of limitations. Accordingly, plaintiff had stated a timely claim for his later-discovered asbestos-related disease.
OUTCOME: Trial court's decision was reversed and case was remanded. Each disease resulting for asbestos exposure triggered anew the running of the statute of limitations, such that plaintiff had stated a timely claim for the latter of two asbestos-related diseases suffered by him.

American Commercial Barge Line Company and American Commercial Barge Line LLC v. Allen Chase Roush.

1990952
SUPREME COURT OF ALABAMA
2000 Ala. LEXIS 445
October 20, 2000, Released

OVERVIEW: Appellant shipowner's employee was injured in an automobile accident while a passenger in appellee's vehicle. Appellant was required to pay the employee maintenance and cure because a seaman injured in the service of his ship was entitled to benefits, regardless of fault. Appellant filed an indemnity action against appellee to recover the money paid to the employee, arguing appellee's negligence caused his injuries. The trial court granted appellee's motion to dismiss, holding Alabama law did not recognize a right of indemnity for maintenance and cure payments in the absence of a contractual or statutory right. Appellant challenged the dismissal. The court held federal maritime law governed the indemnity claims of shipowners against third-party defendants for the payment of maintenance and cure. The court concluded a shipowner could recover those payments from a third-party whose negligence partially or wholly precipitated the seaman's injury.
OUTCOME: Judgment reversed, because appellant shipowner was entitled to recover those payments from appellee whose negligence may have partially or wholly caused appellant's employee's injury, therefore dismissal was error. Whether the action was barred by the statute of limitations was a matter for the trial court to address on remand.

DALE W. RUSSELL VERSUS SEACOR MARINE, INC., ET AL.

CIVIL ACTION NO. 00-339 SECTION: "R" (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 15245
October 10, 2000, Decided
October 10, 2000, Filed, Entered

OVERVIEW: Plaintiff seaman suffered a herniated disc while working on a boat and sought maintenance and cure. Defendants, boat rental company and marine company, moved for partial summary judgment alleging that plaintiff did not qualify for maintenance and cure because he had failed to disclose a prior back injury and numbness in his legs in his job application. The court rejected plaintiff's argument that he answered the questions properly asked on the application and the ones he did not answer were in violation of the Americans with Disabilities Act. The court found that plaintiff had intentionally misrepresented or concealed medical facts. The issue was whether there was a causal link between the old back injury and the present one. The court denied the partial summary judgment motion because there was a genuine issue of material fact as to whether the present back injury was a new problem clearly from the herniation plaintiff previously suffered or whether it was not. The former position was supported by plaintiff's neurologist, and the later position was supported by an earlier MRI which showed a slight bulge at the spot of the present herniation.
OUTCOME: The court denied defendants' motion. The court agreed that plaintiff improperly withheld information regarding a prior back injury. However, plaintiff passed the pre-employment physical examination. A genuine issue of material fact arose because plaintiff's neurosurgeon stated the new back problem was new problem, and an earlier MRI of plaintiff's back showed a slight bulge where the herniation occurred.

TERRY SPEER, Plaintiff, v. TAIRA LYNN MARINE, LTD., INC.,AND HOLLYWOOD MARINE, INC., Defendants.

CIVIL ACTION NO. G-99-716
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
116 F. Supp. 2d 826; 2000 U.S. Dist. LEXIS 15576
October 11, 2000, Decided
October 13, 2000, Entered

OVERVIEW: Plaintiff seaman suffered a heart attack while training on a derelict moored barge. He sued defendants, marine companies, under the Jones Act and for unseaworthiness and general negligence. The defendant marine company who was not his employer but owner of the barge moved for summary judgment. The motion was granted in part and denied. The court granted the motion as it applied to plaintiff's Jones Act claim because under the act, plaintiff had to establish an employee-employer relationship which he could not do. The court rejected plaintiff's argument that the defendant was imbued with the same duty of care as his employer. Summary judgment was granted against the unseaworthiness claim because plaintiff was not a member of the crew of the vessel when he suffered the heart attack. The court rejected the argument that defendant was an agent of his employer and owed him a duty of seaworthiness. The court denied the motion with regards to the general negligence claim because discovery was still going on and the status of the barge was still disputed.
OUTCOME: The motion was granted in part and denied part. The court granted the motion as to plaintiff's Jones Act claim because plaintiff was not defendant's employee and as to plaintiff's unseaworthiness claim because defendant did not owe plaintiff any duty since he as not a member of the crew. The court denied the motion as to plaintiff's general negligence because discovery was still going on and the training barge's status was disputed

MICHAEL C. PETTY, Plaintiff, v. ODYSSEA VESSELS, INC.,ODYSSEA MARINE, INC., ODYSSEA MARINE GROUP, L.L.C., HORIZON OFFSHORE, INC.,HORIZON OFFSHORE CONTRACTORS, INC. and HORIZON VESSELS, INC., Defendants.

CIVIL ACTION NO. G-00-046
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
115 F. Supp. 2d 768; 2000 U.S. Dist. LEXIS 15559
October 11, 2000, Decided
October 11, 2000, Entered

OVERVIEW: Plaintiff seaman sued defendants, marine companies, for personal injury following a fire at sea. Defendants paid plaintiff maintenance and cure for eight months and then called him to Houston to execute a release of all claims and an indemnity agreement. Plaintiff signed and defendants moved for summary judgment. Plaintiff argued that he lacked the mental capacity to enter into a valid agreement and that defendants had overreached and coerced plaintiff. The summary judgment was denied. The court treated plaintiff as a "ward of the admiralty" and carefully scrutinized the agreement. The court found that there were genuine issues of material fact as to whether the release and indemnity agreement had been coerced from plaintiff. Specifically, defendants had questioned plaintiff's credibility. Credibility was an issue to be determined by the trier of fact. In addition, the court looked at the facts alleged by plaintiff that could establish both coercion and lack of mental capacity to sign the documents.
OUTCOME: Motion was denied. The court found that there were genuine issues of material fact regarding whether defendants had overreached themselves and had coerced plaintiff into signing the release.

RUSTY ROBERTS VERSUS CARDINAL SERVICES, INC. ET AL

CIVIL ACTION NO. 99-430 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 15631
October 16, 2000, Decided
October 18, 2000, Filed, Entered

OVERVIEW:OVERVIEW: Plaintiff brought suit against defendant employer under the Jones Act, 46 U.S.C.S. § 688, for injuries sustained in an explosion on board a boat on which he was working. Defendant moved for summary judgment, alleging he was not a seaman within the meaning of the Jones Act. The court found, according to his work records, plaintiff spent 24.88 percent of his time assigned to defendant's boats. Case law established that a worker who spent less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman. The court found, because the evidence clearly proved that plaintiff had an inadequate temporal connection to a vessel, it was appropriate for the court to take the determination of seaman status from the jury. Accordingly, since plaintiff did not raise any questions of fact as to how much time he spent on a vessel in navigation, the court found he was not a seaman under the Jones Act and granted defendant summary judgment.
OUTCOME: The court granted summary judgment finding plaintiff failed to raise an issue of fact to contradict defendant's proof that he worked on boats under 30 percent of the time and, therefore, did not qualify as a seaman.

NURKIEWICZ v. VACATION BREAK U.S.A.,INC., RESORT YACHTS OF AMERICA, INC., and SERENITY YACHT CLUB, INC.

CASE NO. 4D99-3198
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2000 Fla. App. LEXIS 11016
August 30, 2000, Opinion Filed

OVERVIEW: The trial court granted summary judgment to defendants in plaintiff's action alleging negligence and unseaworthiness under the Jones Act, 46 U.S.C.S. § 688, and for maintenance and cure. Plaintiff's claims arose from an incident in which plaintiff injured his back while loading cases of soda into the galley of a ship. The court affirmed the grant of summary judgment on the negligence and unseaworthiness claims. The court found that the injury was entirely the fault of plaintiff. Plaintiff was captain of the vessel, and plaintiff made the decision to buy sodas in cases, to store them inside a hatch, and to load the cases two at a time. The court reversed the grant of summary judgment on the maintenance and cure claims. The court held that an employer was liable for both curative and palliative treatment until a seaman had reached maximum medical cure. The court found that defendants did not establish that the plaintiff had reached that stage, and accordingly there were material issues of fact on the issue of whether plaintiff was entitled to benefits. The court held that plaintiff was entitled make a claim for punitive damages in relation to the claim for maintenance and cure.

CELEBRITY CRUISES, INC., GALAXY CRUISE SERVICES, a division of CELEBRITY CATERING SERVICES PARTNERSHIP, and APOLLO SHIP CHANDLERS, INC., Appellants, vs. NOEL HITOSIS, Appellee.

CASE NOS. 3D00-769, 3D99-3051
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2000 Fla. App. LEXIS 11345
September 6, 2000, Opinion Filed

OVERVIEW: Appellee's employment form purported to vest the Philippines' grievance machinery with exclusive jurisdiction over employment contract disputes. However, it also stated that "this procedure shall be without prejudice to any action that the parties may take before the appropriate authority." The court held that the quoted clause permitted the pursuit of other remedies in other jurisdictions. Thus, it failed to mandate that the designated forum was the only forum in which appellee could seek relief. Accordingly, the clause was merely permissive. Because the clause did not limit the available for a, the trial court properly declined to dismiss the action based on the forum selection clause. The trial court also properly denied appellants' forum non convenes dismissal motion because appellants were American companies with headquarters in Miami-Dade county; appellants provided extensive medical treatment to appellee in Miami; and that the medical witnesses were located in Miami.

METH v. A. H. BULL & CO.; ISTHMIAN LINES INCORPORATED; PENN SHIPPING COMPANY; VICTORY REAL ESTATE DEVELOPMENT CORPORATION, Successors-in-Interest to MT. VERNON TANKER COMPANY and MT. WASHINGTON TANKER COMPANY, C.A.

No. 99C-05-260
ASB SUPERIOR COURT OF DELAWARE, NEW CASTLE
2000 Del. Super. LEXIS 249
December 10, 1999, Submitted
August 21, 2000, Decided

OVERVIEW: In 1992, plaintiffs' decedent, a 61-year-old naval yard worker who smoked for 25 years before quitting 11 years before, was diagnosed with mesothelioma. He sued defendants, alleging the disease resulted from exposure to asbestos during his employment. The complaint was dismissed in 1994 for lack of jurisdiction. He died in 1996. In 1999, plaintiffs brought a wrongful death and survival action against defendants, for negligence and unseaworthiness, based on asbestos exposure. Defendants moved for partial summary judgment. The motion was granted, because plaintiffs' claims were time-barred by the three-year statute of limitations under the Jones Act, 46 U.S.C.S. § 688, which incorporated the Federal Employer's Liability Act, 45 U.S.C.S. § 51-60, and under the general maritime law statute of limitations, based on the claims having accrued in 1992 and thus having expired before decedent died.

KULESZA VS. SCOUT BOATS, INC.

CIVIL ACTION NO. 99-3488
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2000 U.S. Dist. LEXIS 11972
August 8, 2000, Decided

OVERVIEW: The lawsuit arose out of a boating accident just off Shelter Island, New York. Shortly after third party defendants' boat left a small harbor, plaintiff female lost her balance and was thrown out of the boat, along with the top of the chair she was gripping, which unexpectedly came off the post to which it was attached. Her arm was severed by the propeller. Plaintiffs initiated suit against several defendants. The jurisdictional basis for the complaint rested in diversity and all parties demanded a jury trial. Having reached the immediate pretrial phase of this litigation, the parties hit a stumbling block with respect to the applicable choice-of-law governing the dispute. Certain defendants asserted New York substantive law governed. Plaintiffs and defendant boat manufacturer sought the application of admiralty/maritime law, emphasizing that the basis of jurisdiction had no impact on the governing substantive law. The court followed the rule that, regardless of the basis of jurisdiction invoked by plaintiff, substantive admiralty law governed a dispute that fell within admiralty jurisdiction. The tort at issue undisputedly fell within that jurisdiction.

LARA v. HARVEYS IOWA MANAGEMENT CO., INC.

1-98-CV-90058
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA, WESTERN DIVISION
2000 U.S. Dist. LEXIS 11722
August 8, 2000, Filed

OVERVIEW: Defendant riverboat casino sought summary judgment on plaintiff injured worker's claims for damages under the Jones Act (Act), 46 U.S.C.S. § 688, asserting that plaintiff did not face the "perils of the sea" as a cocktail server and bartender, and thus was not a " seaman" for purposes of the Act. The court found that there existed a genuine issue of material fact goingto plaintiff's status as " seaman. " Given the representations made by defendant's benefits representative, the fact that defendant's return-to-work forms expressed its intention to treat plaintiff's injury as falling within the Act, the fact that she was contributing to the function of the ship, the fact that the casino was a " vessel in navigation," and the fact that she spent most of her working hours on board the casino, a jury could have reasonably found that she was a maritime employee substantially connected in terms of duration and nature to a fully functioning gaming vessel.

JOSEPH VERSUS RIVER PARISHES CO., INC.

CIVIL ACTION NO. 00-0180 SECTION "A"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 11788
August 9, 2000, Decided
August 9, 2000, Filed, Entered

OVERVIEW: Plaintiff's left hand was crushed while making repairs onboard defendant's ship, and he brought suit under the Jones Act, 46 U.S.C.S. § 588. Defendant moved for a partial summary judgment determination that disability insurance payments made to plaintiff as a result of the injury should be set-off against plaintiff's prospective jury award, to preclude double recovery by plaintiff. Defendant argued that the disability insurance had been purchased to defray its potential liability. Plaintiff argued that the disability plan was a fringe benefit that contained no language indicating benefits pursuant to the disability plan should off set potential liability. The court held the policy generally fell under the collateral source rule, and evidence of the benefits could erroneously be used by a jury to reduce plaintiff's recovery. Set-off was denied, based on policy language. The court also noted that the policy specifically contemplated a deduction for an award of maintenance, and reserved that issue for argument.

WILLIAMS. VERSUS McCALL'S BOAT RENTALS, INC

CIVIL ACTION NO. 99-1769 SECTION "T" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 12073
August 11, 2000, Decided
August 14, 2000, Filed
August 15, 2000, Entered

OVERVIEW:The Plaintiffs wish to call Mr. Key, a marine expert, to testify on the duties and obligations of a crew boat captain, factors to consider before making a voyage, as well as the allegedly negligent decisions made by McCall's captain. n1 McCall's wants to exclude Mr. Key's testimony on the basis that it will not benefit the finder of fact.

Fed. R. Evid. 702. According to the Advisory Committee Notes to Fed. R. Evid. 702, "whether a situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier." Sorcic v. Sea Horse Marine, Inc., 1998 U.S. Dist. LEXIS 8175, No. 97-2092, 1998 WL 175897, at[*6] *1 (E.D.La. May 29, 1998).

IN RE GRAHAM OFFSHORE, ETC.

CIVIL ACTION NO. 98-724 C/W 99-2951 SECTION: "J"(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 13173
September 5, 2000, Decided
September 6, 2000, Filed
September 6, 2000, Entered

OVERVIEW: While it is certainly preferable to clearly and unambiguously invoke Rule 9(h), such express invocation is not necessary as long as the complaint contains a simple statement identifying the claim as an admiralty or maritime claim. Id. If such a statement is in the complaint, the plaintiff has sufficiently designated her claim so as to invoke[*7] the Admiralty side of the Court. Id. This is true even though plaintiff may at the same time request a jury trial

STATE COURT LAW SUIT NOT SUFFICIENT NOTICE TO OWNER TO START 6 MONTH TIME PERIOD RUNNING FOR FILING LIMITATION OF LIABILITY ACTION WHERE THE WRONG VESSEL NAMED.

BILLIOT versus DOLPHIN SERVICES, INC.. In Re: In the Matter of: DOLPHIN SERVICES, INC., As Owner Pro Hac Vice/Operator of the Spud Barge

No. 99 31009
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2000 U.S. App. LEXIS 21424
August 24, 2000, Decided

OVERVIEW: Judgment vacated and case remanded because appellee's original state court petition was not a sufficient written notice of claim since appellee had identified wrong vessel and had rejected appellants' attempts to advise him of error until after time period for filing liability limitation action had passed.

SEAMAN ORDERED TO WATCH VIDEO SHOWING WOMEN HAVING SEX WITH ANIMALS MAY BE ENTITLED TO MAINTENANCE AND CURE EVEN THOUGH SEAMAN MAY HAVE LIED ON PRE EMPLOYMENT PHYSICAL ABOUT PRIOR PROBLEMS WITH ALCOHOLISM AND VENEREAL DISEASE AND EVEN THOUGH NO PHYSICAL INJURY. DENIAL OF SUMMARY JUDGMENT AFFIRMED.

West v. Midland Enterprises,Inc. and Motor Vessel W.H. Dickhoner

No. 99-5982
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2000 U.S. App. LEXIS 23198; 2000 FED App. 0321P (6th Cir.)
August 9, 2000, Argued
September 14, 2000, Decided
September 14, 2000, Filed

OVERVIEW: In the present case, West claims that, while working on the M/V Dickhoner, he was ordered by the captain to watch a pornographic videotape. West further testified that as a result[*10] of watching this videotape, he suffered emotional problems and had to undergo mental health counseling. Because West's deposition testimony makes out a prima facie case for maintenance and cure, the district court properly denied ORCO's motion for summary judgment.

West concedes that he did not give a full accounting of his[*12] medical history on his employment application, he argues that his less-than-candid responses regarding his history with alcoholism and venereal disease are so distant in time and so unrelated to his present injury that they should not bar recovery.

The defense that a seaman knowingly concealed material medical information will not prevail unless there is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.