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.