Cruise Ship Law

MICHAEL GRIVESMAN, et al., Plaintiffs, vs. CARNIVAL CRUISE LINES, Defendants.

Case Number: 00 C 2091
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 5257
April 26, 2001, Decided
April 27, 2001, Docketed

OUTCOME:On January 24, 2001, we dismissed this action for improper venue. We noted in footnote 6 that plaintiffs had not asked for transfer to the federal court in the Southern District of Florida. On March 15, 2001, plaintiffs belatedly did ask for transfer. Given that they are pro se, we treat the motion as one for relief from judgment for mistake or inadvertence pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. We vacate the dismissal and transfer the case to the Southern District of Florida.

HEATH BUFORD VERSUS CARDINAL SERVICES, INC. AND B. T. OPERATING CO.

01-0738
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
01-0738 (La.App. 3 Cir, 12/12/01); 2001 La. App. LEXIS 3006
December 12, 2001, Rendered

PRIOR HISTORY: APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT. PARISH OF IBERIA, NO. 90,901, HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE.

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: Plaintiff worker sued defendant employer under the Jones Act, specifically 46 U.S.C.S. § 688, after he suffered a work-related injury. The Sixteenth Judicial District Court, Parish of Iberia, Louisiana, granted summary judgment to the employer, and the worker appealed.

OVERVIEW: The worker performed his tasks on land, on fixed platforms, and on vessels. The employer claimed that over 55 percent of his work was done either in the shop or on a fixed platform, and that he worked on vessels only 27.30 percent of the time. The trial court found that the worker was not a Jones Act seaman. The appellate court held that issues of material fact as to the worker's seaman status precluded summary judgment. The trial judge neglected to consider his time aboard all five of the employer's vessels, and that some of the work he performed contributed to the function of these vessels. A jury could have concluded that his total work time aboard vessels owned and controlled by the employer was over 30 percent, the normal cutoff for seaman status under the Jones Act. Even a finding of less than 30 percent would not necessarily have defeated a finding of seaman status, if the jury found that his work aboard the vessels exposed him to maritime hazards. There was thus evidence from which a jury could have found that the worker met both the 30 percent requirement and the two-part test for seaman status under the Jones Act.

OUTCOME: The judgment was reversed and the case was remanded for trial on the merits.

MACK ATES VERSUS MALLARD BAY DRILLING, INC.

01-0836
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
01-0836 (La.App. 3 Cir, 12/12/01); 2001 La. App. LEXIS 2958
December 12, 2001, Decided

PRIOR HISTORY: APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NUMBER 81,648, GERARD B. WATTIGNY, DISTRICT JUDGE.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: The Sixteenth Judicial District Court, Parish of Iberia (Louisiana), entered a final judgment in favor of plaintiff employee and against defendant employer, and awarded damages, after the employee sued the employer under the Jones Act, 46 U.S.C.S. § 688, and general maritime law for injuries the employee sustained aboard the employer's vessel on which he was working. Both parties appealed.

OVERVIEW: The employee worked for the employer as a rig mechanic. He was on light duty status with the employer while he recovered from surgery and from back pain from a previous accident. He was then assigned to a particular vessel that needed a mud pump repaired. That job required heavy manual labor, which was ordinarily part of the employee's responsibilities but for his light duty status. Nevertheless, his supervisor told him to assist with the repair. He did as he was told. The chief mechanic on the rig picked up one end of a 150-pound metal mud slide and gestured to the employee for assistance. The employee had no option but to walk backwards in a very cluttered and narrow work space. He fell and injured his back. After the employee received a judgment for his injuries and was awarded damages, the appellate court found liability was established because the vessel was unseaworthy, as the deck was cluttered and obstructed. It also found the employer was liable for making the employee do work in violation of his light duty restriction and for not providing a safe work area. It further concluded the damage award was supported by the record and should not be disturbed.

OUTCOME: The judgment was affirmed.

IN THE MATTER OF THE COMPLAINT OF FRS CORPORATION, AS OWNERAND/OR OWNER PRO HAC VICE OF THE VESSEL M/V HERCULES, HER ENGINES, TACKLE,APPURTENANCE, ETC. PRAYING FOR EXONERATION FROM OR LIMITATION OF LIABILITY

CIVIL ACTION NO:01-2443 SECTION: "G"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 21224
December 11, 2001, Decided
December 12, 2001, Filed, Entered

PRIOR HISTORY: None.

DISPOSITION: [*1] Claimant's motion to lift stay of his state court proceeding granted.

PROCEDURAL POSTURE: Plaintiff corporation filed a limitation proceeding in connection with claimant seaman's state court civil action for injuries allegedly sustained after he fell from a vessel. The court approved the corporation's letter of undertaking, directed an issuance of notice to claimants, and restrained prosecution. The seaman moved to lift the stay and to hold the limitation proceeding in abeyance pending the resolution of his state court action.

OVERVIEW: The seaman alleged that he suffered personal injuries as a result of falling off a vessel while employed by another company. The seaman further alleged that the vessel was in an unseaworthy condition at the time of his accident, that the corporation was liable as a result of its negligence and fault, and that he was entitled to recovery as a Jones Act seaman. The corporation opposed the motion to lift the stay and asserted that the stipulations filed by the seaman in support of his motion were inadequate. The court held that the corporation did not allege that the seaman's counsel did not have authority to sign for him, and did not cite any statute or case for its contention that the stipulation should be signed by the seaman individually. The stipulations offered by the seaman adequately protected the corporation's right to seek limitation of liability in the court. The issues of "seaman" and "vessel" status could be determined by the state court and there was no requirement that these issues be resolved before the stay could be lifted.

OUTCOME: The motion to lift the stay of state court proceedings was granted.

SUMMARY JUDGMENT AGAINST JONES ACT SEAMAN DENIED WHERE SEAMAN PROVIDED EXPERT MEDICAL TESTIMONY ESTABLISHING A CAUSAL CONNECTION BETWEEN SEAMAN'S INJURIES AND INCIDENT ON THE VESSEL EVEN IN LIGHT OF EVIDENCE THAT INJURY PRE-EXISTED INCIDENT AND ALLEGATIONS THAT SEAMAN'S EXPERT MEDICAL TESTIMONY WAS BASED ON INCORRECT AND FALSE INFORMATION

DANIEL GINTHER VERSUS SEA SUPPORT SERVICES L.L.C., ZURICH AMERICAN INSURANCE COMPANY

CIVIL ACTION No. 00-2928 SECTION "K
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 21225
December 12, 2001, Decided
December 12, 2001, Filed
December 13, 2001, Entered

PRIOR HISTORY: None.

DISPOSITION: [*1] Defendants' Motion for Partial Summary Judgment DENIED.

PROCEDURAL POSTURE: Defendants, employing vessel owner and its insurer, moved for partial summary judgment on the claims of plaintiff injured seaman brought under the Jones Act, 46 U.S.C.S. § 688. The owner and insurer asserted that the seaman could not establish that his cervical injuries occurred during his employment because uncontroverted facts showed the injury was pre-existing.

OVERVIEW: The seaman alleged that he injured his neck on or about August 16, 2000, when he fell down stairs while going below deck to the engine room. He had surgery after the fall. However, the employer and insurer presented evidence that he had suffered a herniated cervical disk and was referred to a neurosurgeon on February 17, 2000, and before he began working for the employer. The seaman presented the expert testimony of a physician that there could be a causal connection between his injuries and his fall while employed. The owner argued that evidence should be disregarded because the medical opinion was based on incorrect and false information. The court noted the physician also stated that the seaman's condition was worsened from a compression of the nerve root to a compression of the spinal cord, and necessitated the surgery. He based his opinion on the data and the information that neurosurgeons typically rely, and raised an issue sufficient to deny summary judgment.

OUTCOME: The motion for partial summary judgment was denied, because there was an issue of material fact as to whether plaintiff's neck injuries were caused during his employment with defendant.

PETITION OF CAPE FEAR, INC., FOR EXONERATION FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME

CIVIL ACTION NO. 99-11312-REK
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2001 U.S. Dist. LEXIS 21904
December 20, 2001, Decided

PRIOR HISTORY: None.

DISPOSITION: [*1] Cape Fear's Petition for Exoneration DENIED.

PROCEDURAL POSTURE: After the vessel sank, petitioner vessel owner petitioned the court for exoneration from or limitation of liability.

OVERVIEW: The claimants asserted that the vessel was unseaworthy at the commencement of the voyage and became more so as conditions of the vessel and the seas developed during the latter stages of taking clams aboard. The court found that as the captain started the return to port the vessel was unseaworthy because it was substantially overloaded with clams in cages, a practice that had become common on the vessel. A significant portion of the cages of clams were stacked on deck so as to place the center of gravity of the loaded vessel higher than was safe. At that time the sea had already become rough in weather that predictably would produce rougher seas en route to port. These conditions made it highly likely that the vessel would sink and that before settling to the bottom it would roll, creating a very high risk not only of loss of the vessel and cargo but as well loss of life of one or more persons among the captain and crew.

OUTCOME: The vessel owner's petition for exoneration was denied

CAPTAIN HARTMUT RATHJE, et al., Plaintiffs v. SCOTIA PRINCECRUISES, LTD., Defendant

Civil No. 01-123-P-DMC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2001 U.S. Dist. LEXIS 21266
December 20, 2001, Decided

PRIOR HISTORY: None.

DISPOSITION: [*1] Defendant's motion granted as to plaintiffs' claim pursuant to 26 M.R.S.A. § 626, and otherwise denied.

PROCEDURAL POSTURE: Plaintiffs, former foreign employees, worked on a ship for defendant, foreign employer. Plaintiffs brought two claims against their former employer: breach of employment contract (specifically, wrongful termination) and violation of a Maine wage statute, Me. Rev. Stat. Ann. tit. 26, § 626. Defendant moved for summary judgment.

OVERVIEW: The employer sought summary judgment as to the first claim on the basis that the employees were not terminated, but rather resigned. The employer specifically argued that the employees' ultimatum constituted a resignation and that its refusal to accede to that ultimatum did not convert their resignations into discharges. In the employer's view, it possessed a unilateral right to waive the notice period, which it did. Thus, the employees had no right to receive compensation for their respective notice periods. The employees countered that, rather than resigning, they were effectively terminated. The court held that employees adduced sufficient evidence to raise a genuine issue of material fact as to whether they resigned. With respect to the Maine wage statute, the employees asked the court to employ an eight-factor choice-of-law test designed to ferret out the state with the most significant contacts to a given claim. The employer argued that the most-significant-contacts test was inapplicable to a wage claim. In the employer's view, the "law of the flag" doctrine governed, and the presumption against extraterritorial application of state statutes applied. The court agreed.

OUTCOME: The employer's motion for summary judgment was granted as to the plaintiffs' state law claim for wages, but was otherwise denied.

DEBRA WARD, Plaintiff-Appellant, v. CROSS SOUND FERRY, Defendant-Appellee.

Docket No. 01-7502
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
273 F.3d 520; 2001 U.S. App. LEXIS 26345
November 2, 2001, Argued
December 10, 2001, Decided

PRIOR HISTORY: [**1] Plaintiff-appellant Debra Ward appeals from the March 29, 2001 judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, District Judge) granting summary judgment to defendant-appellee Cross Sound Ferry and dismissing Ward's complaint as time-barred.

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: Plaintiff injured passenger sued defendant ferry operator for personal injuries from a slip and fall on the gangway as she was boarding the operator's boat. The passenger appealed from the judgment of the United States District Court for the Eastern District of New York granting summary judgment to the operator and dismissing the complaint as time-barred.

OVERVIEW: The operator sought to enforce a contractual time limitation appearing on the back of the passage ticket that required suits to be filed within one year of an injury. The passenger's husband obtained her ticket just two to three minutes before boarding the ferry. On boarding, the operator collected the tickets. The operator did not dispute that it typically issued tickets just prior to boarding and collected them upon boarding. The court of appeals found that possession of the ticket for such a short period of time was insufficient to give the passenger reasonable notice that the ticket contained important contractual limitations. Indeed, the fact that the operator collected the tickets so quickly after providing them to the passenger tended to negate the idea that the tickets were important contractual documents. The district court improperly (1) confused the question of reasonable communication with the less important question whether it was possible to read the ticket in the time provided, and (2) shifted the burden to the passenger to learn, after the fact, if notice had been given, rather than determining whether the operator had given reasonable notice in the first place.

OUTCOME: The court of appeals reversed the district court's grant of summary judgment for the operator, and remanded for further proceedings.

EMPLOYEE WHO HAD WORKED FOR EMPLOYER FOR SEVERAL YEARS AS SEAMAN BUT WHO WAS TRANSFERED TO STATIONARY BARGE PERFORMING A SUBSTANTIAL AMOUNT OF NONSEAMAN'S WORK MAY BE PROTECTED BY THE MAXIMUM HOUR AND OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT WHICH EXEMPTS SEAMEN

BOBBY OWENS, on behalf of himself and all other employees of Sea River Maritime, Inc., similarly situated, Plaintiff-Appellant, versus SEARIVER MARITIME, INC., Defendant-Appellee.

No. 00-60048
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
272 F.3d 698; 2001 U.S. App. LEXIS 23908; 7 Wage & Hour Cas.2d (BNA) 732
November 6, 2001, Decided

PRIOR HISTORY: Appeal from the United States District Court for the Southern District of Mississippi. 1:98-CV-436-BrR. David C Bramlette, III, US District Judge.

DISPOSITION: REVERSED and REMANDED.

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer pursuant to the maximum hour and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee appealed the grant, by the United States District Court for the Southern District of Mississippi, of the employer's motion for summary judgment based on the employee's exemption from the FLSA as a seaman.

OVERVIEW: The employee had worked several years for the employer as a seaman. However, he was transferred to a "strike team" assigned to a stationary barge. The team performed work usually done by towboat crews, including loading and unloading product, but worked on unattended barges that were neither towed by the employer's boats nor attended by its crews. The employee attended the barges only for the purposes of loading and unloading product. The court of appeals disagreed with the district court's ruling that the employee was a seaman for purposes of the FLSA and thereby exempt from its overtime provisions. The court found that the employee performed a substantial amount of nonseaman's work, that is, loading and unloading petroleum product, which was the primary purpose of his employment, and the activity to which the employee devoted the most substantial portion of his working time. This activity only prepared vessels for navigation; it did not aid in its actual operation as a means of transportation.

OUTCOME: The court of appeals reversed the decision of the district court granting summary judgment for the employer, and remanded for further proceedings.

In re: the EXXON VALDEZ, GRANT BAKER, et al., as representatives of the Mandatory Punitive Damages Class, Plaintiffs-Appellees,v. JOSEPH HAZELWOOD, Defendant, and EXXON CORPORATION; EXXON SHIPPING COMPANY,Defendants-Appellants. In re: the EXXON VALDEZ, GRANT BAKER, et al., as representatives of the Mandatory Punitive Damages Class, Plaintiffs-Appellees,v. EXXON CORPORATION; EXXON SHIPPING COMPANY, Defendants, and JOSEPH HAZELWOOD,Defendant-Appellant. DANIEL R. CALHOUN; BRADFORD J. CHISHOLM; DAVID P. CLARKE;THOMAS S. MCALLISTER; PHILLIP G. MCCRUDDEN; MICHAEL J. MCCLENAGHAN; GUY PIERCEY;HUGH WISNER; GRANT C. BAKER; LARRY L. DOOLEY; KIM J. EWERS; JOHN W. HERSCHLEB;KENT HERSCHLEB; DAVID B. HORNE; MICHAEL J. OWECKE; GERALD E. THORNE; GEORGE A.GORDAOFF; OLD HARBOR NATIVE CORPORATION; TIMBERLINE, INC.; BARBARA BROWN; JOHNFOGES; JAMIE L. HALLADAY; CHARLES MCMAHON; JENNIFER BRIGGS; TERRI MAST; MARK T.COLES; FRED GALICANO; MIKE HOLLERBEKE; KATHY BRYAN; VINCENT LIBED; ARTHUDDLESTON; ROBERT LOVE; ROXANE VILLAUEVA; MARCELO ROMBAOA; SCOTT HULBERT; BRIANGILLIS; FRANK MICHAEL CARLSON; ELENOR MCMULLEN; NATIVE VILLAGE OF LARSEN BAY;NATIVE VILLAGE OF CHENEGA BAY, Plaintiffs-Appellants, v. EXXON CORPORATION;EXXON SHIPPING COMPANY; JOSEPH HAZELWOOD, Defendants-Appellees.

No. 97-35191, No. 97-35192, Nos. 97-35193, 97-35235
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
270 F.3d 1215; 2001 U.S. App. LEXIS 24029; 2001 Cal. DailyOp. Service 9528; 2001 Daily Journal DAR 11915
May 3, 1999, Argued and Submitted, Seattle, Washington
November 7, 2001, Filed

PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Alaska. D.C. No. CV-89-00085-HRH, D.C. No. CV-89-00095-HRH. H. Russell Holland, District Judge, Presiding.

DISPOSITION: $5 billion punitive damages award was vacated and case was remanded to determine lower award in light of standards recently established by the United States Supreme Court. Summary judgment was affirmed in part but reversed as to specific classes of plaintiffs and remanded for latter group to establish allowable damages.

PROCEDURAL POSTURE: Defendant corporation and plaintiff class cross-appealed from the judgment of the United States District Court for the District of Alaska, entering a punitive damage award against the corporation in the class' action alleging damage to economic expectations for state commercial fishermen due to an oil spill by the corporation.

OVERVIEW: The corporation claimed that the punitive damage award was barred as against public policy, that the punitive damage award was barred by res judicata, that common law punitive damages remedy was preempted by the remedies in the Clean Water Act, 33 U.S.C.S. §§ 1251-1387, that there was insufficient evidence for the jury to award punitive damages, and that the punitive damage award was unconstitutionally excessive. The class claimed that the district court erroneously granted summary judgment against the claimants who suffered purely economic injury on account of the oil spill. The appellate court held that, although there was substantial evidence to support the jury verdict and damage awards, the district court failed to review the constitutionality of the punitive damage award under the appropriate standards. The court concluded that the punitive damage award was too high for its required review without the district court's initial review. The court further held that the district court should have determined whether certain claimants could recover purely economic damages due to the oil spill.

OUTCOME: The judgment was vacated in part and remanded regarding whether the punitive damage award was unconstitutionally excessive, and whether certain claimants could recover purely economic damages due to the oil spill. The judgment was affirmed in part regarding the remaining claims.

FRANCINE PICKETT, BRIAN COHEN, JACK MASIN, BELLE MASIN, individually and on Behalf of all other similarly situated, Respondents, LEONARD BEBCHICK, Respondent, JOSEPH HESS, LEONA HESS, TOM CRAGO, and LINDA CRAGO, Intervenors, v. HOLLAND AMERICA LINE-- WESTOURS, INC., Petitioner.

NO. 70300-1
SUPREME COURT OF WASHINGTON
35 P.3d 351; 2001 Wash. LEXIS 758
May 17, 2001, Argued
November 29, 2001, Filed

PRIOR HISTORY: [*1] Appeal from Superior Court, King County; 96-2-10831-6. Honorable Jay White, Judge.

PROCEDURAL POSTURE: Respondents class representatives sued petitioner cruise line to recover a portion of port charges charged to them in addition to cruise fares. Intervenor objecting class member objected to the proposed settlement that was approved by the trial court. The Washington Court of Appeals reversed the approval of the proposed settlement. The cruise line appealed.

OVERVIEW: The class representatives sued the cruise line for consumer protection violations and other claims. The trial court conditionally certified the class for the settlement. One member of the class objected to the trial court's approval of the settlement. The state supreme court held that the appellate court erred by focusing on the initial denial of class certification rather than determining if the settlement was fair, adequate, and reasonable. The factors used to make that determination include: plaintiffs' likelihood of success; the amount of discovery; the settlement terms; recommendation and experience of counsel; future expense and duration of litigation; recommendation of neutral parties; number of objectors and nature of objections; and the presence of good faith and the absence of collusion. The court considered that there was only one objection to the settlement out of a class of 450,000, the class was facing great uncertainty if the settlement was not approved, the travel vouchers received in the settlement were redeemable if not used, the parties were represented by good counsel, and the presence of good faith to hold the settlement was fair, adequate, and reasonable. Pursuant to the settlement agreement, members of the class were to receive fully transferable travel vouchers, redeemable for future Holland cruises. They are valid for three years from the date of issuance. The voucher amounts vary, depending upon the length of the original cruise and the date of its departure. The amounts are as follows:

Years of Departure Duration of Cruise Voucher Amount: 1992-94: Under 14 Days = $10.00; 14-21 Days = $15.00; Over 21 Days = $20.00; 1995-96: Under 14 Days = $25.00; 14-21 Days = $37.50; Over 21 Days = $50.00. The principal restriction on use of the vouchers is that they must be used for a booking made within 45 days of departure.

OUTCOME: The Court of Appeals was reversed the class settlement was determined to be fair, adequate, and reasonable

LINDA KAY WELCH, INDIVIDUALLY AND AS TUTRIX FOR DAYLON CHASEBOSWELL AND KYLER WELCH AND AS PERSONAL REPRESENTATIVE OF BYRON JOSEPH BOSWELLAND LISA PERIERA, INDIVIDUALLY AND AS TUTRIX FOR BRANDON BOSWELL AND AS PERSONALREPRESENTATIVE OF BYRON JOSEPH BOSWELL VERSUS FUGRO GEOSCIENCES, INC., AND ITSINSURER SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD.; MARSHLAND MARINE OF BAYTOWN,TEXAS, AND ITS INSURER XYZ INSURANCE COMPANY

2000 CA 1231
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2000 1231 (La.App. 1 Cir, 11/21/01); 2001 La. App. LEXIS 2716
November 21, 2001, Rendered

PRIOR HISTORY: On appeal from the eighteenth judicial district court. (number 25,579), parish of West Baton Rouge, state of louisiana. Honorable Jack T. Marionneaux, judge.

DISPOSITION: AFFIRMED. Costs are assessed against the plaintiffs-appellants.

PROCEDURAL POSTURE: Appellant, a deceased longshoreman's minor child, sued appellees, employer and insurer, asserting claims under the Jones Act, 46 U.S.C.S. § 688, under 28 U.S.C.S. § 1333, and under state law. The Eighteenth Judicial District Court of West Baton Rouge Parish, Louisiana, granted partial summary judgment to the employer and insurer, and dismissed the child's claims for consortium, punitive, and other nonpecuniary damages. The child appealed.

OVERVIEW: The child's father, working on his employer's airboat, died in Louisiana territorial waters after the airboat sank. The child alleged that the employer was negligent, and violated its warranty of seaworthiness to the decedent. In granting partial summary judgment to the employer and its insurer, the trial court held that nonpecuniary damages could not be recovered for the death of a longshoreman injured in territorial waters. The appellate court agreed. It assumed for purposes of the opinion that the parties had stipulated that the decedent had been a longshoreman. 33 U.S.C.S. § 905(b) of the Longshore and Harbor Workers' Compensation Act barred any recovery from shipowners for the death of a longshoreman resulting from breach of the duty of seaworthiness. A dependent of a longshoreman injured on the outer continental shelf could not recover loss of consortium damages under the general maritime law. The fact that La. Civ. Code Ann. art. 2315.3 authorized punitive damages was immaterial, as the statute was inapplicable, having been preempted by federal maritime law.

OUTCOME: The judgment was affirmed.

ROYAL CARIBBEAN CRUISES FORUM SELECTION CLAUSE, SELECTING MIAMI, FLORIDA, UPHELD BY COURT DISMISSING PASSENGERS CLAIM IN CALIFORNIA DESPITE LAPSING OF STATUTE OF LIMITATIONS TO REFILE SUIT IN MIAMI, FLORIDA

TERUO WATANABE et al., Plaintiffs and Appellants, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant and Respondent.

B146759
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
2001 Cal. App. LEXIS 2654
November 28, 2001, Filed

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County. (Super. Ct. No. KC 032144). Karl W. Jaeger, Judge.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: The Superior Court granted defendant cruise ship operator's motion to dismiss based on forum selection clause inserted within its passenger cruise tickets requiring a passenger to bring suit in a court in Miami, Florida.

OVERVIEW: Passsengers aboard defendant's cruise ship filed suit against the cruise line after the ship struck a reef during the cruise, forcing the passengers to abandon ship. Plaintiffs filed suit in California state court despite defendant's forum selection clause, inserted within its brochure and passenger tickets, selecting the court's of Miami, Florida to the exclusion of all other courts. Forum selection clauses are presumed valid. The party resisting the clause's application bears the "heavy" burden of showing enforcement is unreasonable under the circumstances to overcome the presumption. The passenger need not have actually read or been aware of the provision to be bound by it, so long as he had an opportunity to review the contract. Contractual clauses have been affirmed where the passenger never opened the ticket packet before boarding. Here, plaintiffs received the tickets seven days before the cruise. Plaintiffs did not claim they would have tried to book a different cruise had they known before then of the forum selection clause. Plaintiffs' arguments all involve the inconvenience of litigating the case in Florida, and their unwillingness to pursue paying Florida counsel, apparently due to the estimated return from the case's property loss and personal injury causes of action. Those factors do not support invalidating the forum selection clause. Further, plaintiffs unquestionably knew or should have known about the forum selection clause after their cause of action arose and before the Florida limitations period expired. Although plaintiffs declared they did not read the forum selection clause before losing their tickets while abandoning ship, they never claimed they did not know of the clause before the Florida limitations period lapsed.

OUTCOME: The granting of defendant's motion to dismiss was affirmed.

COURT FINDS THAT A CREW'S PERFORMANCE OF ITS WORK IN AN UNSAFE MANNER DOES NOT CONSTITUTE UNSEAWORTHINESS BUT, RATHER, JONES ACT NEGLIGENCE AND THAT SINCE INJURED SEAMAN HAD SEVERAL YEARS OF EXPERIENCE ON BOAT, HE WAS HELD TO BE 60% NEGLIGENT FOR WALKING UNDER A HEAVY SUSPENDED BOAT, THEREBY BARRING HIS CLAIM

MICHAEL B. HUSS, Plaintiff, v THE KING COMPANY, INC., and LAKE MICHIGAN CONTRACTORS, INC., Defendants.

No.1:98 cv 366
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2001 U.S. Dist. LEXIS 19293
November 14, 2001, Decided
November 14, 2001, Filed

DISPOSITION: [*1] Defendant's motion for summary judgment granted.

PROCEDURAL POSTURE: Plaintiff employee sustained a back injury during his employment. He brought claims of breach of the warranty of seaworthiness under general maritime law and negligence under the Jones Act against defendant shipowner, his former employer. The shipowner moved for summary judgment.

OVERVIEW: The court concluded that the employee had an employment-related connection to a dredge, contributing to its function. His actions on the date in question were a part of that function. The employee therefore had seaman status within the meaning of the relevant law. However, the court found that the record was void of any evidence from which a jury could have concluded that the ship was unseaworthy because it was not equipped with a picking harness. Further, the employee had not shown that the vessel was unseaworthy because the crew was incompetent or inadequate. The court concluded that the crew's performance of its work in an unsafe manner was a breach of duty, and that the employee's injury due to the weight of the boat falling on him was a foreseeable result of the breach. The employee, who had several years of experience, had a duty to protect himself from harm, and the court concluded that he breached that duty by walking under the heavy, suspended boat. The employee's negligence, as well as that attributable to the shipowner, caused his injuries. The percentage of negligence attributable to the employee was 60 percent.

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

SUMMARY JUDGMENT GRANTED AGAINST JONES ACT SEAMAN WHERE SEAMAN DID NOT ESTABLISH MOVING HEAVY GARBAGE IS A TWO PERSON JOB AND CREW INCOMPETENCE - COURT FINDS SHIPOWNERS FAILURE TO TRAIN ON HOW TO LIFT WAS INSIGNIFICANT AND THAT INCURRING A STRAINING INJURY WHILE PERFORMING A TASK DOES NOT ESTABLISH THAT THE TASK REQUIRES ADDITIONAL CREW

TWALLA JOY HAYNES, Plaintiff, v. HARRAH'S CASINO JOLIET, Defendant.

Case Number: 99 C 5546
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 18847
November 15, 2001, Decided
November 16, 2001, Docketed

DISPOSITION: [*1] Defendant's motion for summary judgment [11-1] granted.

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer for damages for a back injury she allegedly sustained while working on the employer's gaming vessel. The employee's remaining claims were that the employer was liable for damages under the Jones Act of 1920 for negligence and under general maritime law for unseaworthiness. The employer moved for summary judgment on the employee's claims.

OVERVIEW: The employee, who worked as a cleaner, allegedly injured her back while setting a wheeled garbage container down inside a ship's elevator. The same allegations underlay both of the employee's claims: (1) the vessel was understaffed; (2) the crew was incompetent; (3) the employer failed to supply the employee with proper equipment to move heavy garbage; and (4) the employer failed to properly train the employee on how to lift or move heavy garbage. The court found that the employee, as a matter of law, did not establish either claim. Regarding understaffing, the employee produced no evidence to show it was unreasonable for the employer to expect the employee to move the container herself; the evidence showed it was a one-person job. Her injury by itself did not establish that it was a two-person job. One instance of a co-worker leaving the container in a hallway did not establish crew incompetence. Nothing indicated that the container was inadequate. The employee had comprehensive training on her job duties, and failure to train on how to lift was insignificant, as the employee did not try to lift the container on the day she was injured.

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

NEW TRIAL GRANTED WHERE DIRECTED VERDICT ENTERED AGAINST A PASSENGER CLAIM THAT SHE WAS STRUCK BY A MOORING LINE WHILE SITTING ON A DECK OF THE SHIP - COURT NOTES THAT A SHIP OWNER COULD HAVE A HIGHER DUTY THAN A LANDOWNER WHERE DANGER DIFFERENT THAN FROM DANGERS ENCOUNTERED IN DAILY LIFE

SARA KALENDAREVA, Appellant, v. DISCOVERY CRUISE LINE PARTNERSHIP, DISCOVERY SUN PARTNERSHIP, d/b/a DISCOVERY CRUISE LINE, DISCOVERY DAWN, INC., and DISCOVERY DAWN PARTNERSHIP, Appellees. CASE NO. 4D00-4151

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
798 So. 2d 804; 2001 Fla. App. LEXIS 15025; 26 Fla. L.Weekly D 2545
October 24, 2001, Opinion Filed

PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Estella May Moriarty, Judge; L.T. Case No. 99-04309 (05).

DISPOSITION: Reversed for a new trial.

PROCEDURAL POSTURE: Appellant passenger sued appellee ship owner in the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), alleging maritime negligence. The trial court granted the ship owner's motion for directed verdict holding there was no evidence it knew or should have known of the danger. The passenger appealed.

OVERVIEW: The passenger was sitting on a lounge chair on the third deck of the cruise ship and was struck by the weighted end of a rope thrown while the ship was docking. After she presented her maritime negligence case, the trial court granted the ship owner a directed verdict on the ground it was plaintiff's burden to show notice of a dangerous condition, and that there was no evidence the ship owner had notice of the freak accident. The appellate court initially noted a ship owner could have a higher duty of care than a landowner, depending on the danger. The appellate court held the extent to which the circumstances surrounding maritime travel were different from those encountered in daily life and involved more danger to a passenger, would determine how high a degree of care was reasonable in each case. The appellate court concluded the trial court should have allowed the jury to decide whether the ship owner should have known of the danger to passengers on the third deck.

OUTCOME: The directed verdict was reversed and case was remanded for a new trial.

ALISTAIR J. MACPHAIL, Plaintiff, v. OCEANEERING INTERNATIONAL, INC., Defendant. CIVIL ACTION NO. G-01-266

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
170 F. Supp. 2d 718; 2001 U.S. Dist. LEXIS 17430
October 12, 2001, Decided
October 17, 2001, Entered

DISPOSITION: [**1] Defendant's rule 12(b)(3) motion to dismiss was denied.

PROCEDURAL POSTURE: Plaintiff employee scuba diver sued defendant employer marine company pursuant to the General Maritime Law of the United States of America, the Jones Act, specifically, 46 U.S.C.S. § 688, and state laws for injuries suffered in the course of his employment as a saturation diver. The employer moved to dismiss the complaint.

OVERVIEW: The employer claimed that the complaint should have been dismissed pursuant to an Australian forum selection clause contained in a release and discharge (Release) previously executed by the parties. The employee claimed that the clause was unenforceable because the employer procured the Release, including the forum selection clause, through fraud and overreaching. The court held that the motion to dismiss pursuant to the forum selection clause fell within the purview of Fed. R. Civ. P. 12(b)(3). Even though the employee had presented affidavits suggesting fraud, coercion, and manifest overreaching by the employer, none of the averments supported a finding that the employee was induced to include the forum selection clause. However, the forum selection clause violated public policy underlying the General Maritime Law and the Jones Act. Specifically, the employee's averments regarding his injuries and the conditions which existed when he signed the Release established that the employee unquestionably fell within the group of plaintiffs that the venerable and strong public policy favoring the rights of seamen was fashioned to protect.

OUTCOME: The company's motion to dismiss was denied.

SEAMAN'S MOTION TO REMAND JONES ACT CASE TO STATE COURT GRANTED AFTER DEFENDANT ERRONEOUSLY REMOVED CASE TO FEDERAL COURT BY CLAIMING THAT SEAMAN'S EMPLOYMENT CONTRACT WAS SUBJECT TO EXCLUSIVE FEDERAL QUESTION JURISDICTION PURSUANT TO THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

WILFREDO JARANILLA VERSUS MEGASEA MARITIME LTD., PANKAR MARITIME S.A., GREECE AND KOUROS MARITIME ENTERPRISES CIVIL ACTION NO. 01-1449 SECTION "J"(2)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
171 F. Supp. 2d 644; 2001 U.S. Dist. LEXIS 17233; 18 BNA IERCAS 22
October 12, 2001, Decided
October 12, 2001, Filed
October 15, 2001, Entered

DISPOSITION: [**1] Plaintiff's motion to remand was granted.

PROCEDURAL POSTURE: Plaintiff seaman was severely burned as a result of an electrical explosion on the ship where he worked. Plaintiff filed suit in state court, seeking damages pursuant to the Jones Act, general maritime law, and applicable foreign law. Defendants removed the action to federal court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C.S. § 201 et seq. The seaman moved to remand.

OVERVIEW: Based on the plain language of the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C.S. § 201 et seq., the court concluded that United States arbitration law specifically excluded seafarers' contracts of employment from the scope of commercial contracts. 9 U.S.C.S. § 1. The Convention did not apply to employment contracts of seaman, as such contracts were not commercial under the national law of the United States. Accordingly, the court ordered that the case be remanded for lack of federal question subject matter jurisdiction.

OUTCOME: Plaintiff seaman's motion to remand was granted.

Robert N. Britton, Plaintiff, v. U.S.S. Great Lakes Fleet, Inc., Defendant.

Civ. File No. 00-2160 (PAM/RLE)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
2001 U.S. Dist. LEXIS 17804
October 15, 2001, Decided

DISPOSITION: [*1] Defendant's motion for summary judgment was granted. Plaintiff's motion for partial summary judgment was denied.

PROCEDURAL POSTURE: Suing under the Jones Act, 46 U.S.C.S. app. § 688, under general maritime law, and for alleged medical malpractice, plaintiff seaman sought to impose liability on defendant owner for injuries the seaman suffered while working on the owner's vessel. The seaman moved for partial summary judgment on the owner's affirmative defense. The owner moved for summary judgment.

OVERVIEW: The seaman alleged the owner violated the Jones Act and failed to ensure the owner's ship was seaworthy by failing to have enough crewmembers on deck the day the seaman was injured. Asserting an affirmative defense, the owner stated that the seaman failed to report a prior back injury. Regarding the seaman's motion, the owner offered evidence that the seaman failed to report his prior injury. Whether the owner would have hired the seaman even if he had disclosed the injury was of no moment in determining whether genuine issues of material fact existed about the affirmative defense. Regarding the owner's motion, the seaman's own testimony was the only evidence he offered to prove the owner's alleged negligence and the unseaworthiness of the vessel. That testimony, the court held, was insufficient to create a genuine fact dispute. The seaman failed to rebut the owner's evidence that the seaman failed to disclose his prior back injury. The seaman's omission defeated his claim for maintenance and cure. Finally, assuming the owner could be liable for its designated physician's acts, the seaman offered no evidence of malpractice.

OUTCOME: The court denied the seaman's motion for partial summary judgment and granted the owner's summary judgment motion.

WHERE LIMITATION OF LIABILITY FILED BY SHIPOWNER, CLAIMANT MUST FIRST BEAR BURDEN AT TRIAL BY PUTTING FORTH EVIDENCE OF NEGLIGENCE OR UNSEAWORTHINESS BEFORE THE BURDEN SHIFTS TO SHIPOWNER TO ESTABLISH THAT THEY WERE NOT PRIVY TO, NOR HAD ANY KNOWLEDGE OF, THE ACT OF NEGLIGENCE OR UNSEAWORTHINESS

In the Matter of the Complaint of MORAN TOWING CORPORATION, MORAN ATLANTIC TOWING CORPORATION and MORAN TOWING AND TRANSPORTATION CO., INC.as Owners or Bareboat Charterers of the Tug HEIDE MORAN, for Exoneration from or Limitation of Liability. In the Matter of the complaint of MORAN ENTERPRISES CORPORATION, MEC I, INC., MORAN TOWING AND TRANSPORTATION CO., INC., MORANTOWING CORPORATION, PETROLEUM TRANSPORT CORPORATION and SEABOARD BARGE CORPORATION, as Owners or Bareboat Charterers of the Barge TEXAS, for Exoneration from or Limitation of Liability.

CV 97-1647 (ADS), CV 97-2272 (ADS)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
166 F. Supp. 2d 773; 2001 U.S. Dist. LEXIS 16869
October 16, 2001, Decided

PRIOR HISTORY: None.

DISPOSITION: Motion for order directing petitioners to proceed first at trial was denied.

PROCEDURAL POSTURE: Petitioner owners filed two limitation petitions seeking exoneration from or limitation of liability, pursuant to the Limitation of Liability Act, 46 U.S.C.S. § 183 et seq., on behalf of two vessels. Claimants filed claims against the owners in both actions seeking damages for repair of the submarine electrical cables. Claimants filed a motion requesting a finding that the owners be required to present their proof first at trial.

OVERVIEW: The determination of whether the owners were entitled to limitation of liability required a two-step analysis. First, the court must have determined what acts of negligence or conditions of unseaworthiness caused the accident. Second, the court must have determined whether the owners had knowledge or privity of those same acts of negligence or conditions of unseaworthiness. The court found that claimants bore the burden of going forward at trial by putting forth evidence that the damage or loss was caused by unseaworthiness or negligence. Provided that claimants succeed in this first stage of the proceeding, the burden would have shifted to the owners to establish that they were not privy to, and had no knowledge of, the decisive act of negligence or condition of unseaworthiness.

OUTCOME: Claimants' motion for order directing the owners to proceed first at trial was denied.

ACCESS NOW, INC. and EDWARD RESNICK, Plaintiffs, vs. CUNARD LINE LIMITED, CO., and CARNIVAL CORPORATION, Defendants.

Case No. 00-7233-CIV-MORENO
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2001 U.S. Dist. LEXIS 21481; 15 Fla. L. Weekly Fed. D 33
October 31, 2001, Decided
October 31, 2001, Filed

DISPOSITION: [*1] Parties' Joint Motion for Approval of Settlement Agreement GRANTED.

PROCEDURAL POSTURE: In a class action suit, plaintiff passengers filed suit against defendant ship companies pursuant to the Americans with Disabilities Act for lack for accessible accommodations. The parties proposed a joint settlement.

TERMS OF SETTLEMENT: This settlement requires Defendants to spend $7 million on installing fully and partially accessible cabins, accessible public restrooms, new signage, coamings, thresholds, stairs, corridors, doorways, restaurant facilities, lounges, spas and other shipboard facilities. To enforce the settlement agreement, Defendants agreed to create a fund to pay experts who will inspect the modified cruise ships. Additionally, Defendants agreed to allow Plaintiffs an opportunity to inspect the cruise ships within sixty days of the time of completion. As such, Plaintiffs have obtained much of the relief they sought in their complaint, weighing heavily in favor the settlement's approval.

OVERVIEW: Following a considerable amount of time in supervised mediation, the parties arrived at a settlement agreement, which they submitted to the court for approval. In determining the settlement agreement's fairness, the court looked at (1) the passengers' likelihood of success at trial, (2) the range of relief the passengers could obtain at trial vis-a-vis that proposed in the agreement, (3) the complexity and expense of litigation, (4) the amount of opposition, and (5) the stage of litigation in which the agreement was reached. Using these factors, the court found that the proposed settlement agreement was fair and that the settlement notice met the requirements of Fed. R. Civ. P 23(e) for notice in a Fed. R. Civ. P 23(b)(1) or (2) class action.

OUTCOME: The parties' joint motion for approval of settlement agreement was granted. All pending motions were denied as moot.

RUSTY ROBERTS, Plaintiffs-Appellants, versus CARDINAL SERVICES, INC.; ET AL.; Defendants.

No. 00-31232
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
266 F.3d 368; 2001 U.S. App. LEXIS 21256
October 2, 2001, Decided

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Louisiana. 99-CV-430-N. Edith Brown Clement, US District Judge.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiffs, injured employee and wife, sued defendants, employer and oil and gas platform owner, in the United States District Court for the Eastern District of Louisiana, raising negligence claims against the employer under the Jones Act of 1920, and negligence, premises liability, and strict liability claims against the owner. The employee and spouse appealed the grants of summary judgment in favor of the employer and owner.

OVERVIEW: While working on the owner's platform as a plugging and abandoning operator, the employee was injured by the accidental firing of a perforation gun attached to a wireline that was being used in connection with plugging a well. The employee claimed he was a seaman under the Jones Act of 1920 (Act) and thus entitled to bring tort claims against his employer. The court of appeals agreed with the district court that the employee was not a seaman under the Act. Under the requirement that a worker spent at least 30 percent of his time on certain vessels, the employee did not have the requisite "substantial connection" to a vessel or an identifiable fleet of vessels under the employer's common ownership or control. Claims under La. Civ. Code Ann. arts. 2315 and 667 for negligence (under vicarious liability) and strict liability against the owner because use of a wireline perforation gun under the circumstances was an "ultrahazardous activity" were not established. Wireline perforation was not congruent with "blasting with explosives" as used in La. Civ. Code Ann. art. 667, and did not satisfy Louisiana's broader jurisprudential test for ultrahazardous activities.

OUTCOME: The judgment was affirmed.

SHIPOWNERS REQUEST FOR MEDICAL EXAM OF SEAMAN FOR PURPOSES OF A SECOND OPINION DID NOT MEET THE REQUIREMENTS OF A DEFENDANT'S MEDICAL EXAM UNDER THE RULES OF CIVIL PROCEDURE SO AS TO JUSTIFY SANCTIONS AGAINST THE SEAMAN FOR HAVING THE SURGERY WITHOUT ALLOWING THE SHIP OWNER TO HAVE AN EXAM DONE

LUIS VEGA, Petitioner, vs. CSCS INTERNATIONAL, N.V., et al.,Respondents.

CASE NO. 3D01-414
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 12490
September 5, 2001, Opinion Filed

DISPOSITION: [*1] Diamond B's motion to enjoin further prosecution of Texaco's third party demand in state court DENIED. Diamond B's motion to hold Texaco and its attorneys in contempt DENIED. Texaco's motion to recognize Texaco's rights to Diamond B's insurance proceeds DENIED.

PRIOR HISTORY: Writ of Certiorari to the Circuit Court for Miami-Dade County, Ronald Friedman, Judge. LOWER TRIBUNAL NO. 99-13398.

DISPOSITION: Certiorari granted; order quashed.

PROCEDURAL POSTURE: Petitioner employee filed claims in the Circuit Court for Miami-Dade County (Florida), for personal injuries. Respondent employer moved for dismissal or sanctions for intentional spoliation of evidence. The trial court granted the motion and struck the employee's surgeon as a witness and disallowed his records or medical bills as evidence. The employee petitioned for a writ of certiorari to quash the trial court's order.

OVERVIEW: The employee injured his back. His attorney notified the employer's attorney that the employee was scheduled for back surgery. The employer responded with a letter requesting the employee delay the surgery in order to obtain a second opinion. The employee had the surgery without getting a second opinion. The trial court found the request created an obligation on the employee to not have the surgery and struck the testimony of his surgeon and disallowed the surgeon's medical records or bills as evidence. The appellate court found the employer never made a request for a defense medical examination under Fla. R. Civ. P. 1.360(a)(1)(A) because the letter did not contain any of the necessary criteria required by the rule, and was thus insufficient to impose a duty on the employee to postpone his surgery. Therefore, it was error for the trial court to conclude that the employee was required to undergo an examination before having surgery. Further, the employer failed to present any evidence that it was prejudiced by any loss of evidence. Thus, excluding the testimony and records of the physician was an abuse of discretion.

OUTCOME: Certiorari was granted; the trial court's order was quashed.

THOMAS E. JOHNSON VERSUS LAWSON & LAWSON TOWING COMPANY,INC.

CIVIL ACTION NO. 00-0629 SECTION "R"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 14607
September 14, 2001, Decided
September 14, 2001, Filed, Entered

DISPOSITION: [*1] Plaintiff's motion for reconsideration denied.

PROCEDURAL POSTURE: Plaintiff, injured party, moved for reconsideration of orders granting summary judgment to defendants, on a finding that making plaintiff lift a 31 pound motor was not negligent as a matter of law, and denying a deferral of summary judgment pending further discovery.

OVERVIEW: Plaintiff argued that the court misconstrued the factual basis for plaintiff's injury, which he claimed was not caused by the initial lifting of the motor, but instead when he awkwardly contorted his body to install the motor. The court found that plaintiff had the evidence of the new mechanics of the injury before the court's order dismissing the claims. Plaintiff had been the only witness to the accident, he had not advanced the new theory before, and he had specifically denied it was the cause of his injury. As to the order refusing to defer summary judgment, plaintiff offered no basis for doing so. Nothing demonstrated that his motion for reconsideration was necessary to correct a manifest error of fact or law, to present newly discovered or previously unavailable evidence, to prevent manifest injustice, or to consider an intervening change in the controlling law.

OUTCOME: The court denied plaintiff's motion to reconsider.

NOOR BEGUM KARIM, Wife of; FAZAL KARIM, Plaintiffs -Appellants - Cross-Appellees v. FINCH SHIPPING COMPANY, LTD.; ET AL, Defendants;FINCH SHIPPING COMPANY, LTD., Defendant - Appellee - Cross-Appellant

No. 00-30683
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
22001 U.S. App. LEXIS 19657
September 5, 2001, Decided
September 5, 2001, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Eastern District of Louisiana. 95-CV-4169. Eldon E Fallon, US District Judge.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: In a maritime personal injury case, plaintiff seaman and defendant shipping company appealed a judgment of the United States District Court for the Eastern District of Louisiana which contained a number of rulings, including a ruling that the shipping company was entitled to limitation, but not exoneration, of liability.

OVERVIEW: Plaintiff seaman was seriously and permanently injured at sea. The district court conducted a trial on defendant shipping company's action under the Limitation of Liability Act of 1851, 46 U.S.C.S. ß 181 et seq. The parties cross-appealed. The court held: (1) jurisdiction was proper because the shipping company consented to jurisdiction; (2) there was nothing unreasonable about the district court's conclusions regarding forum non conveniens; (3) the district court did not err in making a determination of quantum under Bangladeshi law by applying English and Indian precedent; (4) it did not err in setting the amount of general damages under Bangladeshi law to be $160,000, (5) it did not err in determining that the general maritime law of Bangladesh was inapplicable; (6) it did not err in granting summary judgment in favor of the shipping company on the seaman's claim under the United States penalty wage statute; (7) the maintenance claim was not properly before the court; (8) it did not abuse its discretion in setting the initial date of interest accrual; and (9) there was no error in the awarding of litigation costs, including fees.

OUTCOME: The judgment of the district court was affirmed.

In re: MARINE ASBESTOS CASES; Plaintiffs-Appellants, v. AMERICAN HAWAII CRUISES,INC.; GREAT INDEPENDENCE SHIP COMPANY; GREAT HAWAIIAN PROPERTIES CORPORATION;GREAT HAWAIIAN CRUISE LINE, INC., dba American Hawaii Cruises, Defendants-Appellees.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 20136
February 13, 2001, Argued and Submitted, San Francisco, California
September 10, 2001, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-97-77777-HG. Helen Gillmor, District Judge, Presiding.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: The United States District Court for the District of Hawaii granted summary judgment to defendant shipbuilders in plaintiff seamen's claims for exposure to asbestos in the course of employment on board the vessels. The seamen appealed.

OVERVIEW: The seamen argued that summary judgment was improper. The seamen argued that their claim for recovery fell under the Jones Act, 46 U.S.C.S. ß App. 688 (2000), which granted seamen a claim for personal injury caused by an employer's negligence. The seamen maintained that the Jones Act permitted recovery for medical monitoring. The seamen failed to raise a genuine issue of material fact as to whether any increased risk of disease made medical monitoring reasonably necessary, or whether early detection would provide any clinical benefit. It was not shown that a treatment existed, or that there was clinical value to administering any such treatment before the onset of symptoms. There was no evidence that a single examination would yield any clinical benefit. The seamen failed to establish that they suffered an injury that was cognizable under a theory of unseaworthiness. They were not sick and uninjured, therefore there was no recovery under the doctrine of cure. The denial of the seamen's Fed. R. Civ. P. 56(f) motion was not an abuse of discretion because all of the facts needed to raise a genuine issue of material fact were within the control of the seamen.

OUTCOME: The judgment was affirmed.

DAWN RANNALS, Plaintiff-Appellant, v. DIAMOND JO CASINO, Defendant-Appellee.

No. 99-4267
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2001 U.S. App. LEXIS 20297; 2001 FED App. 0320P (6th Cir.)
January 26, 2001, Argued
September 12, 2001, Decided
September 12, 2001, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 98-07545. David A. Katz, District Judge.

DISPOSITION: REVERSED and REMANDED.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant shipowner, alleging that the shipowner was liable under the Jones Act for injuries incurred by the seaman in a fall while attending a training program off the ship. The seaman appealed the judgment of the United States District Court for the Northern District of Ohio which granted summary judgment to the shipowner.

OVERVIEW: The seaman worked as a deckhand on the shipowners' riverboat casino, and the seaman was injured by a fall in an icy parking lot of the facility in another state where she was attending a firefighting training program. The shipowner paid for the training, and the seaman's wages during the training, but the seaman was not required to attend the training. The appellate court held that the seaman raised genuine issues of fact concerning whether her injuries were incurred during the course of her employment, and were caused by unreasonably dangerous icy conditions of which the facility, as the shipowner's agent, should have known. The training was required for supervisory positions, and the shipowner's encouragement to attend indicated that attendance was within the scope of the seaman's employment. Further, any negligence of the facility was imputed to the shipowner, since its duty to provide a safe workplace was non-delegable. Also, the continued existence of the icy conditions during the day was sufficient to permit an inference of constructive notice. Finally, the common law preclusion of liability for a natural accumulation of ice did not apply to claims under the Jones Act.

OUTCOME: The judgment granting summary judgment to the shipowner was reversed.

REX R. SPRIETSMA. Adm'r of the estate of Jeanne Sprietsma,Deceased, Appellant, v. MERCURY MARINE, a Division of Brunswick Corporation,Appellee.

Docket No. 89492-Agenda 17-March 2001.
SUPREME COURT OF ILLINOIS
2001 Ill. LEXIS 1039
August 16, 2001, Filed

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Appellant survivor filed a wrongful-death action against appellee manufacturer, among others. The circuit court of Cook County (Illinois) granted the manufacturer's motion to dismiss, finding the claims to be impliedly preempted. The appellate court affirmed, holding that the common law claims for failure to install propeller guards were expressly preempted. The supreme court granted the survivor's petition for leave to appeal.

OVERVIEW: The issue was whether the Federal Boat Safety Act of 1971 (FBSA), 46 U.S.C.S. ß 4301 et seq. (1994), preempted state common law causes of action based on the manufacturer's failure to install propeller guards on its boat engines. The survivor's decedent fell from a motor boat and was struck by the motor's propeller blades. Although the survivor's claims bore upon state and federal concerns, the supreme court ruled that federal concerns predominated. Therefore, the supreme court did not apply a presumption against preemption. The supreme court addressed whether the FBSA expressly preempted the survivor's common law tort claims. The inclusion of a savings clause prohibited a broad reading of the express preemption provision, so there was no express preemption. However, the supreme court found that implied preemption was warranted in order to continue the line of uniformity laid down by the federal courts that found preemption under the FBSA. Several federal district courts and courts of appeal found preemption, express or implied, in similar propeller guard cases.

OUTCOME: Judgement was affirmed.

RAYMOND HAGUE and MARY RUTH HAGUE, Plaintiffs, - against -CELEBRITY CRUISES, INC., FANTASIA CRUISING, INC., ESSEF CORPORATION, PAC-FAB,INC., ESSEF MANUFACTURING FSC, INC., and SFG, Defendants.

95 Civ. 4648 (BSJ) (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10824
August 1, 2001, Decided
August 1, 2001, Filed

DISPOSITION: [*1] Defendants' Rule 50 motion in instant case denied without prejudice. Defendants' motion for new trial denied.

PROCEDURAL POSTURE: A jury awarded damages to plaintiffs, a passenger who contracted Legionnaires' Disease from a cruise ship whirlpool and his wife, in the sum of $350,000 for past pain and suffering, $15,000 for future pain and suffering, $100,000 for past loss of society, and $15,000 for future loss of society. Defendants moved for judgment as a matter of law to strike the damages for loss of society and for a new trial on damages or remittitur.

OVERVIEW: The cruise line and other defendants' motion to strike the loss of society damages was denied without prejudice to modification based on the determination of whether such damages were available in admiralty in another, pending bellwether case. The award for past pain and suffering did not shock the conscience of the court given the seriousness of the passenger's illness. However, the award for future pain and suffering for the injuries, and derivative damages to wife, was seriously erroneous and warranted a new trial. According to the medical testimony, the illness was acute but had no demonstrable permanent effects. Also, the award for loss of society to the wife up to the date of trial was excessive. In the court's view, given the limited period of incapacity, the evidence justified a maximum award of $25,000.

OUTCOME: The court denied the cruise line and other defendants' motion for new trial, provided that the passenger and his wife accepted a judgment of $350,000 for past pain and suffering, $25,000 for past loss of society, and prejudgment interest.

RONNIE J. KONIKOFF, Plaintiff, v. PRINCESS CRUISES, INC.,LISTON BRADSHAW d/b/a LISTON RELIABLE TAXI SERVICE, and THE WEST INDIAN COMPANY,LTD., Defendants.

Civ. No. 1999-224
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGINISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN
2001 U.S. Dist. LEXIS 14034
August 13, 2001, Decided

DISPOSITION: Princess Cruises, Inc.'s motion for summary judgment GRANTED. Princess Cruises, Inc. DISMISSED as a defendant in this action.

PROCEDURAL POSTURE: Defendant cruise line moved for summary judgment in plaintiff passenger's action for personal injury damages.

OVERVIEW: The passenger was on a ship owned and operated by the cruise line. While the ship was docked, she disembarked and used a taxi. As she later exited the taxi, she fell and sustained injuries. She sued the cruise line and others for damages. She alleged that she was the intended third-party beneficiary of a contract or agreement between the cruise line and the taxi to provide tour and taxi services. The cruise line moved for summary judgment based on the statute of limitations. The court held that the passenger could not be an intended beneficiary of the alleged third-party contract, whose expressed intent would be to benefit passengers, without also being a passenger subject to the ticket contract. Because she was subject to the ticket contract, she was subject to its terms. One of those terms was to timely file a action against the cruise line, which she failed to do.

OUTCOME: The motion for summary judgment was granted and the cruise line was dismissed as a defendant in the action.

TRICO MARINE ASSETS, INC., ET AL VERSUS DIAMOND B MARINESERVICES, INC., ET AL

CIVIL ACTION NO. 99-0951 C/W NO. 99-0984, C/W NO. 99-1346 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 13257
August 17, 2001, Decided
August 21, 2001, Filed, Entered

DISPOSITION: [*1] Diamond B's motion to enjoin further prosecution of Texaco's third party demand in state court DENIED. Diamond B's motion to hold Texaco and its attorneys in contempt DENIED. Texaco's motion to recognize Texaco's rights to Diamond B's insurance proceeds DENIED.

PROCEDURAL POSTURE: In two limitation proceedings consolidated with an admiralty suit, defendant shipowners moved for an injunction and sanctions against intervenor employer for the employer's alleged violation of an order enjoining the commencement and further prosecution of any action against the shipowners pursuant to 46 U.S.C.S. ß 181 et seq. The employer moved for an order recognizing its contractual rights to the shipowners' insurance proceeds.

OVERVIEW: Plaintiff vessel owners sued the shipowners after their vessels collided. Both of them then petitioned for exoneration and/or limitation of liability. The court consolidated the three actions and issued the order enjoining commencement and prosecution of other actions against the shipowners. Passengers on the shipowners' vessel filed claims in both limitation actions. The passengers worked for the employer, and the employer intervened in the limitation actions. The passengers also sued in state court, naming as defendants the captains of the vessels, a mate of one vessel, and the employer. The employer then filed a third-party demand against the shipowners. That action, the shipowners argued, violated the instant court's injunction. The instant court disagreed. The employer's third-party demand arose from a personal contract between the employer and the shipowners; thus, the claims fell outside of the Limitation of Vessel Owner's Liability Act, 42 U.S.C.S. app. ß 181 et seq., and the court's injunction. For the same reason, the court lacked jurisdiction to recognize the shipowners' obligation to the employer under their contract.

OUTCOME: The court denied all three motions.

ASSOCIATION FOR DISABLED AMERICANS, INC., DANIEL RUIZ, andLUIS RODRIGUEZ, Plaintiffs, v. CONCORDE GAMING CORPORATION and GOLDCOASTENTERTAINMENT CRUISES, INC., Defendants.

Case No. 99-1058-CIV-HIGHSMITH
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2001 U.S. Dist. LEXIS 12774; 14 Fla. L. Weekly Fed. D 495
August 20, 2001, Decided
August 20, 2001, Filed

PROCEDURAL POSTURE: Plaintiffs, disabled individuals and an organization supporting the disabled, sued defendants, a gaming corporation and a cruise line, alleging that defendants' gaming vessel failed to accommodate the disabled persons, in violation of Title III of the Americans with Disabilities Act of 1990 (Title III), 42 U.S.C.S. ß 12181 et seq. The court conducted a trial.

OVERVIEW: The disabled individuals were wheelchair-bound, and alleged that during their cruise on defendant's gaming vessel they were confined to the lower deck and they were unable to use the restrooms, the craps table, the bar, the restaurant, and the cashier counter. The court first held that the disability organization lacked standing to assert a Title III claim on behalf of its members, and the gaming corporation was not subject to Title III liability since it was not the vessel owner or operator. Further, with the exception of the restrooms, the disabled individuals failed to show that the areas of the vessel which constituted public accommodations were subject to reasonable modifications to permit access by the disabled individuals. The disabled individuals failed to proffer readily achievable alternatives for services or facilities available only on the upper decks, and unreasonable time and expense precluded installation of an elevator. Further, wait service was available for the bar and restaurant, the height of the cashier counter was required for security reasons, and the proposed modifications to the craps tables would fundamentally alter the nature of the game.

OUTCOME: The cruise line was directed to modify its restrooms to accommodate disabled individuals, but the disabled individuals' claims were otherwise denied.

DANIEL L. JOHNSON, Plaintiff, -against- SEA-LAND SERVICE,INC., Defendant

99 Civ. 9161(WHP)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 11447
August 8, 2001, Decided
August 9, 2001, Filed

PROCEDURAL POSTURE: In a Jones Act action filed by plaintiff seaman who claimed that he was injured while employed by defendant, the seaman brought a letter-motion seeking to preclude the employer from using at trial an e-mail that was claimed to be privileged, and that was inadvertently produced in discovery.

OVERVIEW: The employer opposed the motion, arguing that the seaman waived any privilege as to the document, that the document did not contain a privileged communication, and that any claim of privilege was overcome because the document fell within the crime-fraud exception to the attorney-client privilege. The court granted the seaman's request to preclude the use of the document. The document was an e-mail sent from the seaman to his attorney, and was sent in response to counsel's inquiry for background information. Therefore the document was covered under the attorney-client privilege. The e-mail did not demonstrate probable cause to believe that either the seaman or his doctor engaged in, or was prepared to engage in, a fraud, and there was nothing that suggested that it was a communication seeking advice on how to perpetuate or cover up a fraud. Thus, the crime-fraud exception did not apply. Under the circumstances, the production of the e-mail was inadvertent and did not waive the attorney-client privilege. The failure to see and withhold the e-mail was, at most, careless, but its production did not evince such extreme carelessness to permit waiver of privileged communications.

OUTCOME: The seaman's application to preclude the employer from using the e-mail at trial of action was granted.

SEAN REED vs. WEEKS MARINE, INC.

CIVIL ACTION NO. 01-CV-0759
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2001 U.S. Dist. LEXIS 12847
August 21, 2001, Filed

PROCEDURAL POSTURE: Plaintiff seaman sued defendant employer pursuant to the Jones Act, 46 U.S.C.S. ß 688 et seq., for injuries he received while working as a crewmember of the employer's vessel. The employer moved to dismiss the complaint for insufficient service of process or, in the alternative, to transfer venue to another district court.

OVERVIEW: The court denied the motion to dismiss for failure to effectuate proper service because the employer had received a copy of the summons and complaint by certified mail that was delivered to its principal place of business in another state and the seaman had had a second copy of the summons and complaint hand delivered to the employer's office. Since the employer had not challenged the authority of the person who had accepted the certified mail on its behalf and had not argued that the receptionist who accepted the hand-delivered copy was not the person in charge of its place of business at the time she received the copy, it was clear that the seaman's service was effective pursuant to Fed. R. Civ. P. 4(e)(1). Moreover, venue was proper because the balance of interests did not tilt strongly in favor of moving the action to a district that was simply across the river. In other words, the other district was no more convenient to the parties or the witnesses. Therefore, the court declined to disturb the seaman's choice of forum.

OUTCOME: The motion to dismiss was denied.

Riverway Harbor Service, St. Louis, Inc., In the matter ofthe complaint of; as owners and/or operators of; in a cause of action forexoneration from or limitation of liability - Bucyrus Erie 30-B Super CraneBarge - M/V Arkie II, Petitioner-Appellee, Fredrick Webber, Claimant-Appellant,Cargo Carriers, a Division of Cargill Marine & Terminal, Inc., Claimant,Riverway Harbor Service, St. Louis, Inc., - M/V Arkie II - Bucyrus Erie 30-BSuper Crane, Third Party Plaintiff, v. Bridge & Crane Inspection, Inc., ThirdParty Defendant-Appellee.

No. 00-1415
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
2001 U.S. App. LEXIS 18728
November 16, 2000, Submitted
August 20, 2001, Filed

PROCEDURAL POSTURE: The claimant, an individual, appealed the final order entered in the United States District Court for the Eastern District of Missouri following the denial of his motion to dissolve a permanent injunction issued by the district court prohibiting state court proceedings in an admiralty tort action against defendant harbor service.

OVERVIEW: The claimant was involved in an accident at the harbor service in which a crane malfunctioned and struck the claimant, knocking him into the water. The harbor service filed a complaint invoking admiralty jurisdiction in federal court pursuant to the Limitation of Vessel Owners Liability Act, 46 U.S.C.S. ßß 181-196, seeking exoneration or limitation of liability for the accident. The same day, the claimant filed in state court, seeking damages for personal injury under 46 U.S.C.S. ß 688(a). As required by the injunction, the claimant filed a claim in district court in the limitation proceeding. The claimant moved to dissolve the federal court injunction. The district court denied his initial motion to dissolve and held that his stipulations were inadequate. The claimant filed an amended motion to dissolve, including a supplemental stipulation in conformity with the district court's order. The district court again refused to dissolve the injunction in a final order. On appeal, the court reversed and remanded because the claimant's stipulations fulfilled the single-claimant exception permitting limitation of liability and thereby satisfied the limitation statute's requirements.

OUTCOME: The order was reversed and remanded.

VICTOR VARGAS, Appellant, vs. CRUISE SHIP CATERING ANDSERVICE CARIBBEAN N.V. "CSCS", CRUISE SHIP CATERING AND SERVICE INTERNATIONALN.V., and COSTA CROCIERE, Appellees.

CASE NO. 3D00-2783
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 10303
July 25, 2001, Opinion Filed

We find no error in the conclusion below that the defendants Cruise Ship Catering and Service International N.V. and Costa Crociere did not waive their now-admittedly valid insufficiency of process claims, see Fla.R.Civ.P. 1.140(h)(1), and therefore affirm the judgment entered in their behalf below.

However, the summary judgment for Cruise Ship Catering and Service Caribbean N.V. is reversed for trial because the record raises a genuine issue as to whether that corporation was the plaintiff's employer at the pertinent times and was therefore subject to his claims under the Jones Act and other aspects of the maritime law. See Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d Cir. 1991), cert. denied, 502 U.S. 919 (1991); Volyrakis v. M/V Isabelle, 668 F.2d 863 (5th Cir. 1982);[*2] Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).

Affirmed in part, reversed in part.

RAYMOND HAGUE and MARY RUTH HAGUE, Plaintiffs, - against -CELEBRITY CRUISES, INC., FANTASIA CRUISING, INC., ESSEF CORPORATION, PAC-FAB,INC., ESSEF MANUFACTURING FSC, INC., and SFG, Defendants.

95 Civ. 4648 (BSJ) (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10824
August 1, 2001, Decided
August 1, 2001, Filed

Raymond W. Hague contracted Legionnaires' Disease from the whirlpool/spa aboard the cruise ship M/V Horizon. Following a trial on damages, the jury awarded Mr. Hague $350,000 for past pain and suffering and $15,000 for future pain and suffering. It also awarded his wife, Mary Ruth Hague, $100,000 for past loss of society and $15,000 for future loss of society. The defendants now move pursuant[*2] to Rule 50(b) of the Federal Rules of Civil Procedure for judgment as a matter of law striking the awards for loss of society. In addition, they move under Rule 59 for a new trial on damages or a remittitur.

The issue of whether damages for loss of society are available in admiralty is being considered in connection with the posttrial motions in Silivanch v. Celebrity Cruises, Inc., 95 Civ. 0374 (BSJ) (JCF), the action tried as the bellwether case on liability. Therefore, the defendants' Rule 50 motion in the instant case shall be denied without prejudice to modification of the judgment based on the determination in Silivanch.

The defendants' motion for a new trial is denied insofar as it challenges the award to Mr. Hague for past pain and suffering. Legionnaires' Disease rendered Mr. Hague so critically ill that his physician believed that he might die. An award of $350,000 for so serious a condition does not shock the conscience even if the illness was acute rather than chronic and had no demonstrable permanent effects.

Finally, the award of $100,000 to Mary Ruth Hague for loss of society up to the date of trial is excessive. Given the limited period of time during which Mr. Hague was incapacitated, the maximum award that could be justified by the evidence is $25,000. This is the amount awarded by the jury in DeFrancesco v. Celebrity Cruises, Inc. [*4] , 94 Civ. 6147 (BSJ) (JCF), where similar evidence was presented with respect to loss of society.

EDWARD MULCAHY and FRANCIS MULCAHY, Appellants, v. STATE OFWASHINGTON, DEPARTMENT OF TRANSPORTATION, MARINE DIVISION, Respondents.

No. 45602-4-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2001 Wash. App. LEXIS 1530
July 16, 2001, Filed

FACTS: Edward and Francis Mulcahy are brothers and Chief Engineers on ferries operated by the Washington State Department of Transportation. Ed Mulcahy worked as an oiler until 1983 when he became an assistant engineer. He earned his chief's license in 1988 or 1989 and became a chief engineer in 1992. Francis Mulcahy started working as an assistant engineer in 1977 and became a chief engineer in 1980. Oilers, assistant engineers, and chief engineers are all engine room personnel.

In May, 1994, the Mulcahys discovered they both had hearing loss after a hearing test performed by an audiologist for the ferry system.

At trial, the experts for both parties agreed that noise levels above 85 dB cause hearing loss. The plaintiffs submitted evidence that the noise level in the engine room of every Washington State ferry far exceeds 85 dB. See Ex. 26 (showing a range from 99 to 114 dB). The plaintiffs also presented[*3] evidence that seventy-five percent of WSDOT engine room employees suffered from noise induced hearing loss.

After the close of testimony, the trial court charged the jury. Over the plaintiffs' objections, the judge charged the jury with Instruction No. 17, which was submitted by WSDOT and which embodied the primary duty doctrine:

Generally, a seaman employee is barred from recovering damages from his employer for injuries caused by the employee's failure to perform a duty imposed upon him by his employment. In order for plaintiffs' claims to be barred in this case, the defendant must prove each of the following by a preponderance of the evidence:

Plaintiffs consciously assumed a specific duty as a term of their employment;

Plaintiffs knowingly failed to perform the consciously assumed duty;

Any injuries sustained by plaintiffs were caused by plaintiffs' failure to perform the specific duty; and

Plaintiffs were not injured by a dangerous condition which they could not have controlled or eliminated in the proper exercise of their employment duties.

If you find by a preponderance of the evidence that each of these propositions has been proved, then plaintiffs' [*4] claim[s] are barred and you should find for the defendants. On the other hand, if you should find that any one of these propositions has not been proved, then you must decide plaintiffs' claims in accordance with the court's other instructions.

The jury returned a verdict for WSDOT. Plaintiffs moved for judgment as a matter of law and a new trial, which was denied. This appeal followed.

The State's expert testified that the hearing protection provided was adequate to prevent hearing loss. RP 222-223. In addition, duration of exposure is a factor. Thus, we cannot say that no evidence or reasonable inference exists which would be sufficient to sustain a verdict for the WSDOT on the issue of unseaworthiness.

Furthermore, the Mulcahys argue that the primary duty instruction was not supported by the evidence. But even if this was true, Instruction No. 17 was not prejudicial because it had no effect on the outcome of the trial. Because the jury found the vessels seaworthy, the jury did not reach the question of the primary duty doctrine.

ALBERT LEE DAVIS, SR. VERSUS TIDEWATER MARINE, INC.

CIVIL ACTION NO. 00-2480 SECTION "C' (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 9795
July 2, 2001, Decided
July 2, 2001, Filed; July 3, 2001, Entered

DISPOSITION: Judgment entered against plaintiff, Albert Lee Davis, Sr., and in favor of the defendant, Tidewater Marine, Inc., dismissed with prejudice.

PROCEDURAL POSTURE: Plaintiff employee filed an employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., seeking damages for discriminatory termination by defendant employer.

OVERVIEW: The court found that the employee established a prima facie case of racial discrimination. The court found that the captain of the vessel on which the employee worked did make a racial slur. The court also found that the captain did not offer cleaning the mat at the dock as an option to the employee. Such an insult explained the employee's desire to get off the vessel and out of the captain's employ. However, the captain did not terminate the employee, the information technologist did. The employee admitted that he never told anyone at the employer about the captain's use of the racial slur at any relevant time, nor had he produced evidence of racial animus on the technologist's part. The cleaning task was not unduly dangerous and the technologist was reasonable in concluding that the employee should have obeyed the order. The employee's refusal to complete the task, coupled with his stated desire to get off the vessel, was sufficient "legitimate" cause to terminate him. The employee had not established by a preponderance of the evidence that the reasons for termination were pretextual, false or discriminatory.

OUTCOME: Judgment was entered in favor of the employer. The employee's action was dismissed with prejudice.

MARK WHITSTINE versus BASIN EXPLORATION, INC., and DIAMONDOFFSHORE DRILLING, INC.

CIVIL ACTION NO. 00-1405 SECTION "C" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 10489
July 17, 2001, Decided
July 17, 2001, Filed; July 18, 2001, Entered

DISPOSITION: Defendants held jointly and severally liable for any damages suffered by the Plaintiff that not attributable to Plaintiff's own negligence, and they not entitled to contribution from Plaintiff's employer.

PROCEDURAL POSTURE: Defendant filed a motion for partial summary judgment, asking the court to determine the relevance of a recent judicial opinion to the present dispute in regards to whether state law or federal maritime law applied to this case which, according to plaintiff, fell under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.S. § 1331 et seq.

OVERVIEW: Defendant filed a motion for partial summary judgment to determine how a ruling of the United States Court of Appeals for the Fifth Circuit regarding OCSLA impacted this case. Defendant argued Louisiana law would control, meaning any liability would be joint and divisible, and defendant could not be held responsible for the portion of plaintiff's damages attributable to his employer. Plaintiff argued maritime law controlled and defendants' liability was joint and several, meaning plaintiff could recover his full amount of damages from defendants, even if their liability was minor relative to plaintiff's employer's liability. The court agreed with plaintiff that, even though a jacked-up oil rig temporarily attached to the seabed satisfied the OCSLA situs requirement, the rig did not cease to be a vessel for purposes of interpreting the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq. Because Louisiana law was inconsistent with LHWCA, federal maritime law principles controlled. Defendant was jointly and severally liable for plaintiff's injuries, minus his own contributory negligence.

OUTCOME: The court made a ruling that federal maritime law applied.

ROBERT J. DURFOR, Plaintiff, -against- K-SEA TRANSPORTATIONCORP., E.W. HOLDING CORP., WALLIN MARINE CORP., and EKLOF MARINE CORP.,Defendants.

00 Civ. 6782 (AGS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10703
July 27, 2001, Decided
July 30, 2001, Filed

PROCEDURAL POSTURE: Plaintiff sued defendants for damages under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law for injuries he allegedly sustained while working on a boat. Plaintiff moved for an increase in his maintenance.

OVERVIEW: Plaintiff sued defendants alleging negligence, and for cure, maintenance, and medical expenses. During discovery and after the defendants declined to increase his maintenance, plaintiff moved for partial summary judgment for increased maintenance. The plaintiff's motion was granted. The court determined that the plaintiff was not bound by the maintenance limits set forth in a collective bargaining agreement when those amounts were insufficient. The plaintiff had submitted evidence that the amount of maintenance was insufficient. In granting plaintiff's motion for an increase, the court noted that the right to maintenance was not preempted by federal labor statutes and the right to maintenance was to be construed liberally. The court rejected defendants' Fed. R. Civ. P. 56(f) motion to conduct further discovery because they failed to indicate what they believe the possible documentary evidence and deposition of plaintiff would establish. They also failed to indicate how the discovery would create a genuine issue of material fact.

OUTCOME: Plaintiff's motion for an increase in his rate of maintenance was granted.

ELGIN THOMPSON, Plaintiff-Appellant, v. VANE LINESBUNKERING; UNITED STATES OF AMERICA, Defendants-Appellees. ELGIN THOMPSON, Plaintiff-Appellee, v. VANE LINES BUNKERING, Defendant-Appellant, and UNITED STATES OF AMERICA, Defendant-Appellee.

No. 00-1997, No. 00-1998
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2001 U.S. App. LEXIS 16612
June 5, 2001, Argued
July 23, 2001, Decided

PROCEDURAL POSTURE: After a bench trial, the United States District Court for the Eastern District of Virginia entered judgment for defendants in plaintiff seaman's action under the Jones Act, 46 U.S.C.S. § 688 et seq., the Public Vessels Act, 46 U.S.C.S. § 781 et seq., the Suits in Admiralty Act, 46 U.S.C.S. § 741 et seq., and general maritime law against employer and United States for injuries from a fall from a rope ladder. Seaman appealed.

OVERVIEW: While offloading fuel oil from a United States Navy ship into the employer's tank barge at a naval base, the seaman had to use a rope ladder to exit the barge via the navy ship. The district court had found that the seaman's weight, fatigue, extra clothing, back brace, and sea bag, combined with dizziness because of prescribed drugs taken for osteoarthritis and degenerative disc disease, caused the accident. It was not the United States' negligence in the arrangement of the ladder. The appellate court noted that maritime law, with its comparative negligence standard, rather than Virginia law, with its contributory negligence standard, governed the case. Thus, the district court erred in finding that the seaman was contributorily negligent. The error, however, was harmless in view of the district court's express finding that the sole proximate cause of the fall was plaintiff's physical inability to climb or hold on to the ladder. Although a trier of fact could have resolved the issue differently, the appellate court could not hold that the district court clearly erred.

OUTCOME: The judgment of the district court was affirmed, although the district court erred in finding that the plaintiff seaman was contributorily negligent.

DRURY DEROUEN VERSUS MALLARD BAY DRILLING, LLC.

NO. 2000 CA 1268
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2000 1268 (La.App. 1 Cir, 06/22/01); 2001 La. App. LEXIS 1684
June 22, 2001, Rendered

Drury Derouen was employed by Mallard Bay for approximately eighteen months. Derouen was assigned as a floorhand (roughneck) to Mallard Bay Rig 56 (Rig 56), a submersible[*2] drilling rig. On March 3, 1998, the crew of Rig 56 had completed drilling operations at a site in St. Mary Parish and was in the process of dismantling the drilling equipment so that the rig could be moved to its next location.

At approximately 6:00 p.m. Derouen began his 12-hour shift. He was assisting in offloading some of the equipment when Elijah Robertson, the driller, asked Derouen for assistance in disconnecting a barite line. The barite line was a transfer hose connected to the rig's metal piping system that was being used to transfer barite from Rig 56 to a nearby barge. Barite is a dry substance used in drilling operations.

John Davis, who was the derrickman for Rig 56, indicated that the crew was having trouble offloading barite because the line kept getting plugged. Before the plugs could be removed from the system, the pressure in the lines had to be relieved. In an effort to relieve or release the pressure, Davis bled the system down, i.e., opened a series of valves that allowed the pressure to escape.

Ronald Authement, the tool pusher and supervisor of the operation, was standing on a deck approximately eight feet above Derouen and Robertson. Authement told them[*3] to disconnect the barite line in order that the plug might be removed. Derouen placed both hands on the barite line while Robertson attempted to unhook the line. The barite line was secured by two connections (sometimes referred to as flaps or ears). When Robertson undid the first connection, barite began to come out of the line. Derouen realized that the barite line was still under pressure and yelled to Authement that the line was under pressure. Employing the use of profanities, Authement insisted Robertson and Derouen immediately remove the line. Jonathan Breaux, a roustabout, [Pg 3] who had been assisting Derouen with the barite line, backed away from the area when he heard Derouen indicate there was still pressure in the line, leaving Derouen as the only person holding the barite line. Responding to Authement's urging, Robertson removed the second clamp on the line, which immediately caused the trapped pressure to explode from the piping, striking Derouen in the chest and knocking him backward. The force of the release knocked Derouen back several feet and slammed him against a pipe, causing injury to his lower back.

The trial court ordered Mallard Bay to pay Derouen the sum of $699,702.00, plus interest, from the date of the incident, March 3, 1998, as compensation for his injuries.

FREDERICK LANE, Appellant, vs. JANE G. TRIPP, Appellee.

CASE NO. 3D00-2195
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 8058
June 13, 2001, Opinion Filed

OVERVIEW: Employee, a seaman, was employed by employer as a crew member on her 90-foot yacht. During the course of a voyage to Maine, the vessel stopped in New Jersey. The crew started to clean the vessel. As employee attempted to dismount the console, he slipped on a wet footrest, and severely injured his knee. Employee sued employer claiming the footrest was unseaworthy because it lacked a non-skid coating. After summary judgment was granted to employer on the unseaworthiness claim, employer amended his complaint to add a claim for negligence under the Jones Act, 46 U.S.C.S. App. § 688. Summary judgment was subsequently granted to employer on employee's negligence claim. The judgment was reversed. Employee adduced sufficient evidence to satisfy his "featherweight" burden of proof on his Jones Act negligence claim. In addition, the issue of whether the footrest was unseaworthy due to the lack of non-skid coating was for a jury to decide.

OUTCOME: The judgment was reversed and remanded for further proceedings.

GERRARD P. ADAMS VERSUS ODYSSEA MARINE GROUP, LLC, ET AL

CIVIL ACTION 00-0506 SECTION "T"(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 8562
June 14, 2001, Decided
June 14, 2001, Filed
June 15, 2001, Entered

The parties agreed that the accident occurred offshore and not within Louisiana. The policy was drafted in London, England. And delivered to the employer in Texas. The insurer claimed that, as the Louisiana Direct Action Statute required that the accident, the policy, or the delivery of the policy be in the state before a direct action could be brought against it. The seaman claimed, however, that the decision to discontinue maintenance and cure payments had been made by defense counsel in the state, so the action could be brought. The court held that maintenance and cure was predicated upon a maritime employment contract and not fault, so the employer was charged with the payment of applicable benefits. Since the employer's agent in Texas stated that the decision to discontinue the payments was made by him based on advice from counsel. The seaman neither alleged that the insurer made the decision to stop the payments nor sufficiently proved that anyone other than the employer, thorough its agent, made the decision.

OUTCOME: The insurer's motion for summary judgement was granted.

WILSON VALAREZO, Plaintiff, -against- ECUADORIAN LINE, INC.,INDIAN OCEAN SHIPPING, LTD. and TRIREME VESSEL MANAGEMENT, N.V., Defendants.

00 Civ. 6387 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 8942
June 26, 2001, Decided
June 29, 2001, Filed

Plaintiff Wilson Valarezo, an Ecuadorian national and resident, brings this personal injury action against defendants Ecuadorian Line, Inc., Indian Ocean Shipping, Ltd. and Trireme Vessel Management, N.V. ("Trireme"). Defendants move to dismiss the lawsuit on grounds of forum non conveniens, arguing that Ecuador is a more appropriate forum. Each defendant agrees to submit to jurisdiction in Ecuador should this Court order a dismissal. For the reasons stated below, the motion to dismiss is granted based on forum non conveniens.

On December 15, 1997, the incident giving rise to Valarezo's claim took place aboard the M/V INDIAN OCEAN, in international waters while the vessel was en route to Panama from Florida. See id. P 3. Valarezo claims that he suffered serious personal injuries from a slip and fall caused by the defendants' negligence in permitting an area of the vessel to "become and remain in a greasy, oily and otherwise slippery and dangerous condition." Complaint P 27.

Jose Antonio Cabrera ESPINAL, Plaintiff-Appellee, v. ROYALCARIBBEAN CRUISES, LTD., Celebrity Cruises, Inc., Defendants-Appellants. JoseAntonio Cabrera Espinal, Plaintiff-Appellant, v. Royal Caribbean Cruises, Ltd.,Celebrity Cruises, Inc., Defendants-Appellees.

Nos. 00-12619, 00-13268.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2001 U.S. App. LEXIS 11908; 14 Fla. L. Weekly Fed. C 796
June 8, 2001, Decided
June 8, 2001, Filed

OVERVIEW:: Plaintiff was involved in two related cases that were consolidated on appeal. Plaintiff worked on defendants cruise lines' ships as a tip-earning employee under a contract that provided for at-will employment to be terminated with two weeks notice. A collective bargaining agreement (CBA) governed the contract. In the first case plaintiff herniated a lumbar disc and in the second case plaintiff developed an eye injury. In both cases defendants paid him sick wages in the amount of his guaranteed minimum salary. Plaintiff contended in both suits that he was entitled to his actual monthly salary as sick wages instead of the guaranteed minimum. In the first case the appellate court found that the court erred in finding that the clause modifying maritime law was inapplicable. Nothing in maritime law prevented the setting of sick wages below the average tip income received and the court erred in not relying on the CBA to calculate the amount of unearned sick wages. In the second case the court found that to find that defendant owed plaintiff any further obligations would contradict both contract law as embodied in the CBA and the interpretation of general maritime law.

OUTCOME: The district court's calculation of the amount of sick wages was reversed. Application of the collective bargaining agreement's 112-day sick period was affirmed. The district court's grant of summary judgment in the second case was affirmed.

Robbin Weaver, Plaintiff-Appellant, v. HollywoodCasino-Aurora, Inc., Defendant-Appellee.

No. 00-2862
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2001 U.S. App. LEXIS 13870
February 13, 2001, Argued
June 21, 2001, Decided

PROCEDURAL POSTURE: Plaintiff employee was injured on a riverboat casino owned by defendant employer. She sued for relief under general maritime jurisdiction, 28 U.S.C.S. § 1333, and the Jones Act, 46 U.S.C.S. § 688, et seq. The employee appealed the causation ruling of the United States District Court for the Northern District of Illinois, Eastern Division, the denial of maintenance and cure, and the denial of attorneys' fees.

OVERVIEW: The parties stipulated that the boat cruised on a navigable waterway, though the employer's counsel stated that the boat could only travel 300 yards, since there was a dam on one side, and a bridge on the other side. Over the employer's objection, the district court found that it had jurisdiction under the Jones Act, 46 U.S.C.S. § 688 et seq., but it did not specifically consider its general maritime law jurisdiction, and the employer did not appeal jurisdiction under the Jones Act. The court of appeals, sua sponte, considered the jurisdictional issues, and remanded the case to the district court for a determination whether the portion of the river where the employee's injury occurred was navigable water. The dam and bridge suggested the gambling boat was located, entirely within one state, in a portion of the river that could not be used as a highway for maritime commerce. As the boat was a commercial boat engaged in transporting passengers for profit, an injury to a crew member would disrupt its participation in maritime commerce. The same navigability inquiry was necessary to determine if there was a sufficient relationship to navigable waters for Jones Act jurisdiction.

OUTCOME: The court of appeals remanded the case for proceedings to determine whether there was general maritime and Jones Act jurisdiction.

NORFOLK SHIPBUILDING & DRYDOCK CORPORATION v. CELESTINEGARRIS, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER GARRIS, DECEASED

No. 00-346
SUPREME COURT OF THE UNITED STATES
121 S. Ct. 1927; 2001 U.S. LEXIS 4125; 69 U.S.L.W. 4410;2001 Cal. Daily Op. Service 4514; 2001 Daily Journal DAR 5549; 2001 Colo. J.C.A.R. 2759; 14 Fla. L. Weekly Fed. S 305
February 28, 2001, Argued
April 18, 2001, Argued
June 4, 2001, Decided

PROCEDURAL POSTURE: On writ of certiorari to the United States Court of Appeals for the Fourth Circuit, petitioner argued no cause of action existed under general maritime law for the death of a nonseaman in state territorial waters resulting from negligence. Respondent had brought a wrongful death suit for the death of her son under general maritime law and the Virginia wrongful death statute, Va. Code Ann. § 8.01-50 to 8.01-56 (2000).

OVERVIEW: The United States Supreme court held that respondent's son, who was not a seaman, was not covered by the Jones Act, 46 U.S.C.S. app. § 688(a), or the Death on the High Seas Act (DOHSA), 46 U.S.C.S. app. § 761 et seq. The Jones Act bore no implication for actions brought by nonseamen. Even as to seamen, general maritime law could provide wrongful-death actions predicated on duties beyond those that the Jones Act imposed. DOHSA did not foreclose any nonstatutory federal remedies that could be found appropriate to effectuate the policies of general maritime law. DOHSA did not pre-empt respondent's negligence action. The Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., expressly preserved all claims against third parties, 33 U.S.C.S. § 933(a), (i). And petitioner was a third party; it neither employed respondent's son nor owned the vessel on which he was killed. The LHWCA therefore did not preclude the negligence action for wrongful death. The maritime cause of action established for unseaworthiness was equally available for negligence.

SYLLABUS: In her complaint filed in the District Court, respondent alleged that her son died as a result of injuries sustained while performing sandblasting aboard a vessel berthed in the navigable waters of the United States. She further asserted that the injuries were caused by the negligence of petitioner and another, and prayed for damages under general maritime law. The District Court dismissed the complaint for failure to state a federal claim, stating that no cause of action exists, under general maritime law, for death resulting from negligence. The Fourth Circuit reversed, explaining that although this Court had not yet recognized a maritime[**2] cause of action for wrongful death resulting from negligence, the principles contained in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772, made such an action appropriate.

HELD: The general maritime cause of action recognized in Moragne -- for death caused by violation of maritime duties, id. at 409 -- is available for the negligent breach of a maritime duty of care. Although Moragne's opinion did not limit its rule to any particular maritime duty, Moragne's facts were limited to the duty of seaworthiness, and so the issue of wrongful death for negligence has remained technically open. There is no rational basis, however, for distinguishing negligence from unseaworthiness. Negligence is no less a maritime duty than seaworthiness, and the choice-of-law and remedial anomalies provoked by withholding a wrongful death remedy are no less severe. Nor is a negligence action precluded by any of the three relevant federal statutes that provide remedies for injuries and death suffered in admiralty: the Jones Act, the Death on the High Seas Act, and the Longshore and Harbor Workers' Compensation Act. Because of Congress's extensive[**3] involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further development to Congress. See, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 455, 127 L. Ed. 2d 285, 114 S. Ct. 981. The cause of action recognized today, however, is new only in the most technical sense. The general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury. Pp. 2-9.

OUTCOME: The judgment of the court of appeals was affirmed.

In re U.S. LINES, INC., ASBESTOSIS CLAIMANTS, Appellant, -against - U.S. LINES REORGANIZATION TRUST, U.S. LINES, INC., Appellee.

00 Civ. 3800 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 6612
May 17, 2001, Decided
May 21, 2001, Filed

PROCEDURAL POSTURE: Appellant legal clinic challenged order of United States Bankruptcy Court, which had granted the motion of appellees vessel owner and its reorganization trust to expunge 23,963 claims of seamen exposed to asbestos that had been filed by appellant in the bankruptcy proceeding. Appellant also moved for permission to file a master complaint.

OVERVIEW: The bankruptcy court had expunged the seaman claims after appellant failed to meet the 30-day timeframe set forth in the bankruptcy court's order. The reviewing court affirmed the bankruptcy court's order denying appellant's request for modifications and extensions because the bankruptcy court's factual findings were not clearly erroneous and equitable estoppel was not warranted for appellant's failure to timely file the claims. Moreover, the bankruptcy court had authority to apply a statute of limitations in disallowing claims, including the seaman's personal injury claims, and it lacked authority to extend the 30-day time limit set forth in 11 U.S.C.S. § 108(c)(2). The bankruptcy court properly barred redundant claims given that those claims had been disallowed and could not have been revived under the applicable statutes of limitations. Appellant was not entitled to file a master complaint under Fed. R. Bankr. P. 8013 given it's past history of failing to file documentation to support seaman claims. In addition, Fed. R. Civ. P. 8 and Fed. R. Civ. P. 11 required appellant to act more diligently than the proposed master complaint would have allowed.

OUTCOME: Order was affirmed and appellant's motion to file a master complaint was denied.

DENISE DAVIS, Appellant v. THE MISSOURI GAMING COMPANY d/b/aARGOSY RIVERSIDE CASINO, Respondent

WD 58768
COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT
2001 Mo. App. LEXIS 799
May 15, 2001, Filed

PROCEDURAL POSTURE: Plaintiff appealed a decision of the Circuit Court of Platte County (Missouri) granting summary judgment for defendant in an action brought pursuant to 46 U.S.C.S. § 688 (Supp. 2000) of the Jones Act, and general maritime law.

OVERVIEW: Plaintiff employee sued defendant riverboat casino employer pursuant to 46 U.S.C.S. § 688 (Supp. 2000) of the Jones Act (Act), and general maritime law, seeking to recover for personal injuries that she sustained while she participated in a United States Coast Guard fire drill on board defendant's casino. The trial court granted summary judgment for defendant, concluding that the Act did not apply and that state workers' compensation law provided plaintiff's exclusive remedy. Plaintiff appealed, and the appellate court reversed and remanded for further proceedings. As to the issue of whether plaintiff qualified for jurisdiction under the Act, the critical inquiry in this case was whether defendant's casino constituted a "vessel in navigation" at the time that plaintiff was injured. The issue of whether the structure was such a "vessel in navigation" was a fact-intensive inquiry. Disputed issues of material fact existed as to that issue, such that the issue should have been submitted to a jury.

OUTCOME:The trial court's grant of summary judgment for defendant was reversed and the case was remanded for further proceedings. Disputed fact issues existed as to whether defendant's casino was a "vessel in navigation" at the time of plaintiff employee's injury.

JAMES E. CRAMER, Plaintiff, v. SABINE TRANSPORTATION COMPANYet al., Defendants.

CIVIL ACTION NO. G-00-116
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2001 U.S. Dist. LEXIS 5992
May 4, 2001, Decided
May 4, 2001, Entered

PROCEDURAL POSTURE: In maritime personal injury case, plaintiff filed suit and asserted causes of action for negligence and for the unseaworthiness of defendants' vessel on which he worked. Plaintiff moved to disqualify an attorney working for defendants. Plaintiff also filed a motion in limine to prevent defendants from offering certain wage loss evidence.

OVERVIEW: At least part of plaintiff's theory of liability hinged upon the unsafe condition of the vessel's stairwell, which allegedly caused plaintiff's injury. Plaintiff hired an active chief officer as an expert on this issue. One of the associates that worked for the law firm representing defendant boarded plaintiff's expert's boat for photographs to be used in the case and had a conversation with plaintiff's expert. Plaintiff complained that the associate's alleged substantive conversations with his expert constituted prohibited ex parte communications for which the associate individually, but not the law firm, should have been disqualified. The court denied plaintiff's request, finding plaintiff failed to carry its burden of demonstrating a need for disqualification. Although the court was not convinced that an ex parte conversation regarding the subject of the lawsuit took place, even assuming that a discussion occurred, the court found no basis for imposing a disqualification sanction, since plaintiff did not allege that any confidential information, or any specific information was shared. Since this was a bench trial, any motion in limine was unnecessary.

OUTCOME: Plaintiff's motion to disqualify and motion in limine were denied.

CARROLL RIPP VERSUS GULF SOUTH MARINE TOWING, INC. ANDMARTIN MARIETTA MATERIALS OF LOUISIANA, INC.

CIVIL ACTION NO: 01-136 SECTION: "R"(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 6403
May 11, 2001, Decided May 11, 2001, Filed, Entered

OVERVIEW:: Plaintiff, while he was employed as a deckhand by defendant, slipped off the deck of a barge onto the river bed, causing multiple fractures in his right ankle and leg. Defendant paid plaintiff maintenance and cure benefits for six weeks. Plaintiff brought suit, claiming that he was still unable to work as a deckhand and needed physical therapy and medical attention for his injuries. Defendant refused to provide further maintenance and cure. Plaintiff moved for partial summary judgment establishing his right to maintenance and cure benefits. The court agreed with plaintiff, granting him partial summary judgment on the issues of maintenance and cure benefits because plaintiff provided evidence demonstrating that he was a seaman injured while in service. Furthermore, plaintiff provided an affidavit which stated that plaintiff was totally disabled because of his leg and ankle injuries and that he was in need of physical therapy and follow up care. Defendants did not opposed the motion and failed to demonstrate that a genuine issue of material fact existed for trial.

OUTCOME: Plaintiff's motion for partial summary judgment was granted and the court awarded past maintenance and cure and attorneys' fees.

JOHN SIMEONOFF, Plaintiff-Appellant, v. TODD HINER and CLAREHINER, in personam and the F/V SAGA, Defendants-Appellees.

Case Number: 99-35910
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 8518; 2001 Cal. Daily Op. Service 3621;2001 Daily Journal DAR 4461

PROCEDURAL POSTURE: John Simeonoff ("Simeonoff") injured his foot while crab fishing on a commercial vessel, the F/V SAGA ("SAGA"). Simeonoff brought a claim pursuant to the Jones Act, 46 U.S.C. § 688 et seq., and general maritime law against the SAGA and ship -owners, Clare and Todd Hiner ("Hiners") claiming negligence and unseaworthiness. After a bench trial, the district court found the SAGA and the Hiners ("Appellees") seventy percent negligent and Simeonoff thirty percent negligent. The court found $163,500 total damages and, reducing that by thirty percent, awarded[*2] $114,450 to Simeonoff.

OVERVIEW: Appellant argued that the district court erred (1) in finding appellant contributorily negligent, (2) in issuing unreviewable damages findings, (3) by awarding insufficient non-economic damages, and (4) by failing to award prejudgment interest. The court affirmed in part and reversed in part the district court's judgment. As to appellant's first argument, the court found that appellant could not be held contributorily negligent for responding to an urgent, yet general, call to the vessel's crew for assistance; therefore, the district court clearly erred by reducing appellant's damages based on a finding of contributory negligence. As to the second argument, the district court's findings of fact were adequately detailed to permit meaningful appellate review of any substantive challenge to the awards. As to the third argument, the court found that the non-economic damages awards were not clearly erroneous in light of the record and the district court's factual findings. The court finally found that it should remand on the issue of prejudgment interest, so the district court could articulate its reasons for denying that interest or to reconsider the issue.

OUTCOME: District court's judgment was affirmed and reversed in part. The court found that the district court erred in finding appellant contributorily negligent, and also remanded on the issue of prejudgment interest. However, the court found that the district court's findings as to damages were sufficiently specific, and that the non-economic damages awards were not clearly erroneous.

When given any order, a seaman might be aware of potential injury if the order is followed, but reasonably might sacrifice personal safety for the good of the ship or crew. An order given from superior to seaman on the open sea should constitute the result of the superior's consideration of risk to the seaman balanced against the value of the task to the safety and mission of all. It is more reasonable for a seaman to follow an order without assessing alternatives than to weigh alternatives beyond the immediate order. To assess alternatives is to second guess a superior's assessment of the situation. Disruption of the chain of command at sea, and delays by seamen in executing orders, may imperil crew and vessel.

KENNETH B. O'BRIGHT, Plaintiff-Appellant, v. JOHN'S TOWINGSERVICE, INCORPORATED, a Pennsylvania Corporation, Defendant-Appellee, and J&CTOWING SERVICES, INCORPORATED, a Corporation, Defendant.

No. 00-1292
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2001 U.S. App. LEXIS 10860
February 28, 2001, Argued
May 25, 2001, Decided

OVERVIEW: O'Bright testified that during the early morning of December 13, 1994, he was employed as a deckhand on the Lori Johnson when he fell into the Monongahela River because a stanchion on the boat broke while he was leaning against it. O'Bright claimed that he had just finished urinating into the river when a gust of wind came along and pushed him into the stanchion, which snapped under his weight, causing him to fall into the water. There were no witnesses[*3] to the incident. O'Bright was hospitalized and treated for acute hypothermia, myoglobinuria, and hypoglycemia resulting from his exposure to the cold water. Additionally, O'Bright claims that he suffers from ongoing back pain as a result of the incident.

Other members of the crew testified that they thoroughly inspected the Lori Johnson and found no broken stanchions or any other physical reason why O'Bright would have fallen into the water. Additionally, John's Towing argued vigorously that O'Bright's back injuries were not caused by this incident, but that, instead, they were likely the result of progressive degenerative disc disease.

OUTCOME: Jury verdict against the seaman on all issues was affirmed on appeal.

SHAUN O'ROURKE, ET AL VERSUS ROWAN COMPANIES, INC., ET AL

Case No. 00-1712
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2001 La. App. LEXIS 738
April 4, 2001, Rendered

PROCEDURAL POSTURE:The Fifteenth Judicial District Court, Parish of Lafayette (Louisiana) taxed costs against plaintiff British seaman for his dismissed maritime personal injury lawsuit with an order containing language restricting the enforcement of the judgment. Defendant employer was denied supervisory writs and appealed.

OVERVIEW:Plaintiff British seaman sued defendant employer for a maritime personal injury. Judgment was granted to defendant dismissing all negligence claims with full prejudice and awarding it expert witness and court costs. On plaintiff's appeal, the award was increased. Defendant moved to set and cumulate all costs into one final judgment. Plaintiff argued that his British social security income was minimal and that defendant's enforcement of the judgment against his disability benefits should have been prohibited as an arrestment or attachment of his maintenance and cure under 46 U.S.C.S. ß 11109. Judgment against plaintiff was rendered but with restrictive language in his favor per his ß 11109 argument. Defendant appealed. The court amended judgment to be for the ordered amount of $8,748 with no restrictive language, and otherwise affirmed. The district court reached issues not properly before it when it included in its judgment an order prohibiting any court from seizing plaintiff's benefits and wages under ß 11109. The district court was without jurisdiction to rule on such substantive issues in a limited summary proceeding to set and tax costs. La. Code Civ. Proc. Ann. art. 2088.
OUTCOME:The judgment was amended and affirmed.

LUIGI MALTA versus THE UNITED STATES OF AMERICA

CIVIL ACTION NO. 00-2047 SECTION "C" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 4769
March 30, 2001, Decided; April 2, 2001, Filed; April 3, 2001, Entered

PROCEDURAL POSTURE:Plaintiff was injured while working on a ship owned by defendant. After plaintiff received treatment, defendant's doctor declared that plaintiff had achieved maximum medical cure. A second doctor recommended a second operation on plaintiff's knee. Plaintiff sued, seeking maintenance and cure. The case was tried to the court.

OVERVIEW:Both doctors testified during the bench trial. The court found that both were credible and that they simply had a difference of opinion. Thus, relying on defendant's burden to prove unequivocally that plaintiff had reached the maximum medical cure, the court found for plaintiff. Plaintiff's expert testified that he hoped a second surgery on plaintiff's knee would both alleviate plaintiff's pain and improve the functioning of plaintiff's knee. Since the surgery was not to be merely palliative, plaintiff was entitled to receive maintenance and cure.
OUTCOME:The court found for plaintiff and ordered the parties' attorneys to attempt to reach settlement on the amount of maintenance and cure to which plaintiff was entitled. Equally strong evidence supported each party's position; thus, the outcome turned on who bore the burden of proof. The burden, and thus the loss, fell on defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 4978
April 11, 2001, Decided

PROCEDURAL POSTURE: Plaintiff alleged defendant, his former employer, ordered him to take a drug test which resulted in a false positive and led to his termination. He filed a petition for damages under the Jones Act. In response to defendant's motion to dismiss, plaintiff filed an amended complaint, alleging a violation of the Shipping Acts and asserting claims of negligence under Louisiana and general maritime law. Defendant moved for summary judgment.

OVERVIEW:The court construed plaintiff's amended complaint as an abandonment of his original wrongful discharge claim. Thus, although it may have been moot, the court granted defendant's motion to dismiss with respect to that claim. Also, the court agreed that the doctrine of seaworthiness did not contemplate plaintiff's claim that defendant violated its duty to provide medical care when a physician under its direction negligently administered a drug test and caused him to lose his job. Accordingly, the court granted defendant's motion with respect to plaintiff's general maritime medical malpractice claim. However, since defendant had not specifically challenged plaintiff's Louisiana state law medical malpractice claim, that claim survived the motion to dismiss. Because plaintiff was discharged after the voyage began and after one month's wages were earned, defendant argued that he could not recover under 46 U.S.C.S. ß 10313(c). As plaintiff offered no opposition, the motion to dismiss that claim was granted. Lastly, defendant failed to carry its summary judgment burden with respect to its Labor Management Relations Act preemption argument.
OUTCOME:Defendant's motion for summary judgment was granted in part and denied in part.

JOSEPH A. LEE v. SEAREX MANUFACTURING, LLC

CIVIL ACTION NO. 00-1161 SECTION: "R" (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 4977
April 12, 2001, Decided

PROCEDURAL POSTURE: Defendant moved for summary judgment against plaintiff's suit, which asserted claims arising under the Jones Act, 46 U.S.C.S. ß 688 and, in the alternative, under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. ß 905 (b).

OVERVIEW:Plaintiff brought amended suit against defendant insurer, asserting claims under the Jones Act, 46 U.S.C.S. ß 688 and, in the alternative, under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. ß 905(b). Plaintiff alleged that while working aboard the maritime vessel as a general maintenance worker, he sustained severe injuries to his right ankle when he fell while disembarking from a gangway. Defendant moved for summary judgment, claiming that plaintiff was not a Jones Act seaman and that he was precluded by ß 905(b) from filing suit as a longshoreman against his employer. However, defendant's motion for summary judgment was denied because at the time of the accident, the vessel had completed her sea trials. Furthermore, the vessel embarked on her second voyage and first job assignment the day after plaintiff's accident, which unequivocally negated the suggestion that the vessel was still under construction. Moreover, whether plaintiff qualified as an ordinary seaman for the purposes of the temporary certificate of inspection was irrelevant to a determination whether plaintiff was a seaman for the purposes of the Jones Act.
OUTCOME:Defendant's motion for summary judgment was denied.

HADWICK STERLING McGUIRE v. ENSCO MARINE COMPANY

CIVIL ACTION NO. G-99-380
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION
2001 U.S. Dist. LEXIS 5288
April 20, 2001, Decided

PROCEDURAL POSTURE:Plaintiff, sea captain, sued defendant, marine company and plaintiff's employer, in a Jones Act and general maritime law action alleging that defendant's negligence and the unseaworthiness of the vessel on which he was working caused plaintiff to sustain low back and neck injuries. The matter came before the court for a non-jury trial.

OVERVIEW:Having considered all the pleadings, submissions, and applicable law, the court made its findings of fact and conclusions of law and entered judgment for plaintiff. The court found that the failure to have chafing gear on board, the engineer's negligently grabbing the wrong lever which caused the towed barge to drift out of control, the failure to conduct a job safety analysis, and the captain's allowing crew to pull lines using a J-hook instead of the tugger contrary to the safety policy, all contributed to cause plaintiff's injuries. The lack of non-skid paint on the deck from the wear of the tow cable constituted an unseaworthy condition which contributed to cause plaintiff's injuries. The court believed plaintiff's testimony that he was injured when he was helping to connect an emergency tow cable. The medical testimony was that plaintiff suffered a herniated disc, he required surgery, and his injury was permanent. The court entered an award of $770,190.33 plus interest.
OUTCOME:The court found for plaintiff and entered an award against defendant together with pre-judgment and post-judgment interest.

JAMES A. JACKSON, JR., Plaintiff-Appellee / Cross-Appellant, VERSUS OMI CORPORATION, et al, Defendants, OMI COURIER TRANSPORT, INC., Defendant-Appellant / Cross-Appellee.

No. 00-40173
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
245 F.3d 525; 2001 U.S. App. LEXIS 5601
April 4, 2001, Decided

PROCEDURAL POSTURE:The United States District Court for Southern District of Texas found defendant vessel owner liable for injuries plaintiff chief steward sustained on the grounds that defendant's vessel was unseaworthy and that defendant was negligent. Defendant challenged the judgment and allocation of 50 percent contributory negligence to plaintiff. Plaintiff challenged the allocation of contributory negligence.

OVERVIEW:Plaintiff was injured when he attempted to pass through a doorway and fell. The trial court had determined that the vessel was unseaworthy for lack of a handhold at the doorway where the accident occurred. The appellate court concluded that the trial court's judgment was clearly erroneous because all of the evidence in the record, including expert testimony about the design of the doorway and plaintiff's own testimony, pointed to the conclusion that plaintiff simply tripped over the coaming. Thus, the conclusion that the doorway was not reasonably fit and safe for its intended use was clearly erroneous. On the same record, the trial court's judgment that defendant was negligent in failing to provide a safe place to work was also clearly erroneous.
OUTCOME:Judgment was reversed and rendered in favor of defendant because trial court's findings that vessel was unseaworthy and that defendant was negligent were clearly erroneous.

JAMES W. PERKINS, Plaintiff-Appellant, JUDITH LYNN PERKINS,Plaintiff, v. AMERICAN ELECTRIC POWER FUEL SUPPLY, INC.; INDIANA MICHIGAN POWERCOMPANY, INC., RIVER TRANSPORTATION DIVISION, Defendants-Appellees.

No. 99-4500
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2001 U.S. App. LEXIS 5653; 2001 FED App. 0101P (6th Cir.)
November 29, 2000, Argued
April 6, 2001, Decided

PROCEDURAL POSTURE: Plaintiff, seamen, appealed from an order of the United States District Court for the Southern District of Ohio entering judgment in favor of defendants, ship owners, after a bench trial on his claims for negligence under the Jones Act, 46 U.S.C.S. ß 688, and unseaworthiness under general maritime law.

OVERVIEW: Plaintiff and his wife filed suit against Defendants alleging that Defendants were liable for negligence under the Jones Act and for the unseaworthiness of Defendants' vessels under general admiralty law, because the ratchet Plaintiff used was defective and was the cause of his injuries, and that Defendants failed to take adequate safety precautions and provide training for Plaintiff. The district court found that Defendants were not negligent and that the vessels were seaworthy. Plaintiff appealed. The court of appeals reversed-in-part and held that the district court erred in determining that Defendants were not negligent in failing to provide adequate safety measures. The facts indicated that Defendants knew of the risk that the ratchet could fail and that, as result, a seaman could fall from the tow knee and injure himself. Nevertheless, Defendants failed to adequately guard against these risks. Moreover, the appellate court added given that Defendants had installed safety ropes in other areas of their vessel indicated that it would not have been excessively burdensome in light of these risks for Defendants to install safety ropes.
OUTCOME:The district court's order was affirmed denying recovery under the Jones Act and the unseaworthiness doctrine based on inadequate training, and denying recovery based on the defective ratchet. The order was reversed-in-part and remanded denying recovery under the Jones Act and the unseaworthiness doctrine based on the adequacy of safety measures available on defendants' vessel.

JOSEPH ORSINI, Plaintiff-Appellant, v. O/S SEABROOKE O.N.,614,410 her engines, gear, tackle furniture and appurtenances in rem; SEABROOKE,INC., an Alaska corporation; WILLARD S. FERRIS, Defendants-Appellees.

No. 99-35588
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 7398; 2001 Cal. Daily Op. Service 3226
February 15, 2001, Argued and Submitted, Seattle, Washington
April 24, 2001, Filed

PROCEDURAL POSTURE: Plaintiff appealed from an order of the United States District Court for the District of Alaska granting summary judgment in favor of defendants, the ship and its owners, on his claims for negligence under the Jones Act, unseaworthiness, maintenance and cure, and attorneys' fees.

OVERVIEW: Plaintiff injured his right arm and wrist while working aboard a crab-fishing vessel and sued the ship, in rem, as well as the ship's owner. Plaintiff asserted claims for negligence under the Jones Act, unseaworthiness, maintenance and cure, and attorneys' fees. The district court granted the defendants' motion for summary judgment, ruling that in exchange for cure, earned wages, airfare home, and $500, plaintiff signed an enforceable release that precluded his claims. The court of appeals reversed summary judgment because defendants had not established the enforceability of the release. The appellate court found that the defendants failed to meet their burden of showing that the release was executed freely, without deception or coercion and that it was made by the plaintiff with full understanding of his rights. Notably the court of appeals concluded the consideration given for plaintiff's release was "patently inadequate" because for the $500 he received, he gave up his right to maintenance, unearned wages, and the opportunity to sue for negligence under the Jones Act and unseaworthiness under maritime law.
OUTCOME:The district court's order granting summary judgment in favor of defendants was reversed and remanded where defendants failed to meet their burden of showing that the release was executed freely and the consideration given for plaintiff's release was "patently inadequate."

Barbara Tateosian et al. v. Celebrity Cruise Services,Ltd.

No. 99-517-Appeal.
SUPREME COURT OF RHODE ISLAND
768 A.2d 1248; 2001 R.I. LEXIS 95
April 12, 2001, Filed

PROCEDURAL POSTURE: Plaintiff passengers appealed the judgment of the Superior Court, Kent County (Rhode Island) which granted summary judgment to defendant cruise line and dismissed the negligence action.

OVERVIEW:Plaintiff couple purchased two cruise line tickets on defendant's ship. Attached to their ticket was a contract which limited the time to bring a negligence action to one year and selected the forum. After embarking on their cruise, the wife became sick from food poisoning. Plaintiffs did not file their suit until 18 months after the accident. The ticket contract required suit be brought within one year of the time of injury as allowed by maritime law. The trial court dismissed their action. The appellate court found the contract gave clear notice of the cruise contract terms because the warnings on the embarkation coupons were sufficiently obvious and were emphatically brought to the plaintiffs' attention. In addition, after receiving notice of the injury, defendant reminded plaintiffs that all rights were reserved including those set out in the cruise ticket contract. Therefore, the contract was fundamentally fair and plaintiffs were bound by its terms.
OUTCOME:The judgment of the trial court was affirmed.

DIMITRIOS KERAMIDAS VERSUS PROFILE SHIPPING LIMITED AND STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION LIMITED, AND GUISE SHIPPING ENTERPRISES CORPORATION

NO. 00-CA-1852
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
2001 La. App. LEXIS 812
April 11, 2001, Decided

PROCEDURAL POSTURE: Plaintiffs, a widow, her minor son, and the executor of the decedent's estate, brought suit against defendants, a ship owner, an underwriting association, and a shipping enterprise, in the Twenty-ninth Judicial District Court, Parish of St. Charles (Louisiana). The trial court granted summary judgment to defendants and dismissed the suit. Plaintiffs appealed the judgment.

OVERVIEW: The decedent was a Greek seaman who became ill on board a ship that was docked in Louisiana. He died from his illness after being treated in a Louisiana hospital and returned to Greece. Defendants argued that under the forum selection clause in the seaman's employment agreement, the country of Cyprus, not the United States was the proper forum for the lawsuit. Plaintiffs' argued that Cyprus was not the proper forum and the forum selection clause was invalid. The appellate court found enforcement of the forum selection clause was reasonable under the facts. Louisiana law did not apply to the maritime forum selection clause because federal law applied instead. Under federal law, the forum selection clause was prima facie valid. Therefore, it had to be enforced because there was no clear showing that enforcement would be unreasonable under the circumstances, unjust, invalid for reason of fraud or overreaching, or would contravene a strong public policy of Louisiana.
OUTCOME:Judgment was affirmed.

CARNIVAL CRUISE LINES, INC., Appellant, vs. DIANALEVALLEY, et al., Appellees

CASE NOS. 3D99-232, 3D99-497
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 4753; 26 Fla. L. Weekly D 974
April 11, 2001, Opinion Filed

PROCEDURAL POSTURE: Appellant cruise line company challenged a judgment of the Circuit Court for Dade County, Florida, awarding appellees a $660,000 judgment after finding that appellee wife was not comparatively negligent for a diving accident in which she was severely injured.

OVERVIEW:While appellee wife was on appellant's cruise she was severely injured during a scuba class conducted under appellant's auspices. Appellees sued the dive instructor for negligence in failing to adequately instruct or supervise, and appellant, both for its instructor's negligence and for the failure of other employees to investigate, supervise, and employ competent personnel to conduct the scuba program. Appellees settled their claim against the instructor, and the case went to the jury against appellant specifically based only on its alleged vicarious liability. The jury found in appellees' favor, but assessed appellee wife's comparative negligence at 33 percent. The trial judge later found no comparative negligence had been demonstrated, transferred appellee wife's 33 percent share to appellant, and denied any setoff for the instructor's settlement. Judgment was reversed. The court concluded a new trial on all liability issues was required because of the trial judge's peremptory instruction that an asthmatic condition from which appellee wife suffered prior to the dive was not a causative factor in the accident, and his exclusion of proffered expert testimony to the contrary.
OUTCOME:The judgment against appellant was reversed as to all issues of liability only. Evidence appellee wife concealed her asthmatic condition from the dive instructor and appellant was directly relevant to the issues of the legal causation of her dive accident. It should have been admitted. The same was true of proffered expert testimony that such a condition significantly increased the chances of causing a panicked reaction to a diving mishap.

MARTIN GOULD, JR. VERSUS M/V GOLDEN DESTINY, ET AL

CIVIL ACTION NO. 00-304 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 5969
April 27, 2001, Decided

PROCEDURAL POSTURE: In a tort action arising from a diving accident, among the damages sought, plaintiff family members sued for negligent infliction of emotional distress. Defendants moved for partial summary judgment.

OVERVIEW: Plaintiff victim was struck by defendant's boat while diving. He alleged six causes of action and sought monetary damages. Plaintiff victim's family members also sought damages for the negligent infliction of emotional distress. These plaintiffs were not with plaintiff victim at the time of the accident. Defendants' motion for partial summary judgment was granted regarding the plaintiff family members' claims. Under federal maritime law, a plaintiff could not recover damages for negligent infliction of emotional distress for injury sustained by another unless he or she was near the scene of the accident. The court rejected the plaintiffs' assertion that admiralty rules did not apply in this case because of inconsistent Puerto Rican legislation, specifically 12 P.R. Laws Ann. ß 1395(e)(h). This statute dealt with the negligent operation of a vessel by a third party. It did not pertain to a negligent infliction of emotional distress claim in an admiralty case.
OUTCOME:Defendants' motion for partial summary judgment was granted.

MARTIN GOULD, JR. VERSUS M/V GOLDEN DESTINY, ET AL

CIVIL ACTION NO. 00-304 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 5969
April 27, 2001, Decided

PROCEDURAL POSTURE: On February 6, 1999, plaintiff Martin Gould, Jr., a veteran Mississippi river pilot, guided the oil tanker M/V Golden Destiny from New Orleans, Louisiana to the GATX Refinery in Good Hope, Louisiana. Because Gould did not like the dock access at GATX, he made arrangements for a launch to pick him up from the ship's ladder on the port side. Gould has brought the instant suit against the owners [*3] of the Golden Destiny, alleging that they negligently caused his ankle injury by failing to properly escort him from the ship when he made a misstep in an unauthorized area of the vessel due to lack of an escort off of the vessel. Defendant claims an escort was offered but turned down by the Plaintiff. The defendants move for summary judgment on the grounds that the uncontested facts prove that they were not negligent.

OVERVIEW:A vessel owner owes a business visitor[*5] like Gould "the duty to exercise reasonable care under the circumstances." Kermarac v. Compagnie Generale TransAtlantique, 358 U.S. 625, 632, 3 L. Ed. 2d 550, 79 S. Ct. 406 (1959). Relevant to the case at bar, this duty of care "includes provision for safe means of ingress and egress from the vessel . . ." 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW ß 5-5 (3d ed. 2001).
OUTCOME:Since the captain admits that he normally escorts pilots from his ship, the Court finds that the issue of whether Gould was offered an escort is material to the question of whether the defendants exercised reasonable care under [*7] the circumstances. Accordingly, the defendants' motion for summary judgment is DENIED.

CRUISE HOLDINGS, LTD., Appellant, vs. MORTEN MATHIESEN,Appellee.

CASE NO. 3D00-925
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 2495; 26 Fla. L. Weekly D 663
March 7, 2001, Opinion Filed

OVERVIEW:Cruise Holdings, Ltd. moves for a stay of this appeal on account of pending bankruptcy proceedings. We grant the stay.
Cruise Holdings suffered an adverse judgment in the trial court and appealed to this court.
OUTCOME:Premier Operations, Ltd. is the successor in interest to Cruise Holdings, Ltd. Premier is a Bermuda company.

VIVIAN L. BOEHNEN, etc., et al., Appellants, vs. CARNIVAL CRUISE LINES, INC., et al., Appellees.

CASE NO. 3D99-2001
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 2487; 26 Fla. L. Weekly D 666
March 7, 2001, Opinion Filed

PROCEDURAL POSTURE: Appellant mentally handicapped daughter sued appellee cruise line for breach of contract of carriage and vicarious liability for sexual assault and battery. Appellants challenged the judgment of the Circuit Court for Miami-Dade County (Florida) dismissing their original and their amended complaints against appellee.

OVERVIEW: Appellant mentally handicapped daughter accompanied appellant mother on a cruise aboard appellee cruise line. During the cruise, appellee's entertainer sexually assaulted appellant daughter. As a result, appellant daughter became pregnant and gave birth to a boy. Appellant daughter brought suit against appellee, in her own capacity, alleging breach of contract of carriage and vicarious liability for sexual assault and battery. The court held that appellee could not shorten the statute of limitations period in 46 U.S.C.S. ß 763a for appellant daughter's maritime injury action because she was a mentally incompetent person without a legal guardian. The court concluded that 46 U.S.C.S. ß 183b(c) allowed a mentally incompetent person without a legal guardian, like appellant daughter, to bring an action up to three years from the date of appointment of guardian that was appointed within 3 years. Thus, appellant daughter timely filed her original complaint within three years and the trial court improperly dismissed her complaint.
OUTCOME:Judgment reversed and remanded; appellant daughter was mentally handicapped; thus, appellee cruise line could not limit the statute of limitations for her to file her complaint alleging breach of contract of carriage and vicarious liability for sexual assault and battery. Thus, trial court improperly dismissed appellant daughter's complaint.

D'ARTGNAN MCGLOTHEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case Number: C-00-1052-SC
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2001 U.S. Dist. LEXIS 3190
March 21, 2001, Decided

OVERVIEW:According to the Galaxy's medical logs, during the Holiday Cruise -- from 2 p.m. on December 20 through 2 p.m. on December 27 -- a total of 64 passengers, including members of the Petitt and Hirschhorn Groups, and a total of 14 crew members visited the ship's medical facility and were diagnosed by ship doctors with cold or URTI symptoms. The 64 passengers represent 3.3 percent of[*22] the 1,934 passengers on the Holiday Cruise. The 14 crew members represent 1.6 percent of the approximately 880 crew members on the Holiday Cruise.
For the purposes of the summary judgment motion only, Celebrity concedes the first two elements of the test, namely that it failed to clean and/or sanitize its passenger cabins adequately and permitted certain of its crew members to remain on active duty despite being sick with URTIs, without isolating them or requiring that[*35] they visit a doctor. (Memorandum of Law in Support of Celebrity's Motion for Summary Judgment ("Def. Mem.") at 2-3.) Celebrity then argues that plaintiffs' negligence claim must be dismissed as a matter of law because plaintiffs are unable to establish that their injuries were caused by Celebrity's misconduct. (Id. at 24, 12-16.) Plaintiffs acknowledge that they "cannot prove that Celebrity's negligence was the only potential cause of [their] illnesses." (Plaintiffs' Memorandum of Law in Opposition to Celebrity's Motion for Summary Judgment ("Pl. Mem.") at 19.) However, they nevertheless assert that "on the balance of probabilities it seems a reasonable inference that Celebrity's negligence was the proximate cause." (Id. at 24.)
OUTCOME:The Court disagrees. The Court finds, as Dr. Gwaltney concludes, that based on the record, a reasonable jury could not conclude that Celebrity's alleged misconduct was the proximate cause of plaintiffs' illnesses.

MARJORIE HOLESAPPLE, Plaintiff-Appellant, v. DANIEL BARRETT,III, Defendant-Appellee.

No. 00-1537
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2001 U.S. App. LEXIS 3128
January 26, 2001, Argued; March 2, 2001, Decided

PROCEDURAL POSTURE: Plaintiff sued defendant in admiralty for negligence. The United States District Court for the District of Maryland, at Baltimore, entered summary judgment in favor of defendant. Plaintiff appealed.

OVERVIEW: Plaintiff alleged that defendant, her son-in-law, was negligent in the operation of his small power boat during a family outing, causing plaintiff's injuries. Plaintiff appealed the district court's refusal to consider plaintiff's expert's affidavit and entry of summary judgment for defendant. The present court affirmed. The district court did not abuse its discretion in holding that the expert's opinion in the present matter was unreliable. The expert's opinion did not rely on any of the standard indicia associated with the incident in question. There was no mention of weather reports, wave height, or complaints from other vessels in the immediate area. Without the expert opinion, the only evidence of defendant's negligence was plaintiff's testimony that defendant (1) should have gotten her consent before entering the ocean, (2) was operating at an excessive speed, (3) failed to keep a proper lookout, and (4) failed to warn. There was insufficient evidence from which to establish a standard of care against which to measure defendant's conduct.
OUTCOME:Judgment was affirmed. There was no showing of the appropriate standard of care, the assertions of lack of due care come entirely from the opinion of plaintiff, and plaintiff presented no more than, at best, a mere scintilla, or less, of evidence of defendant's negligence.

Santiago Paris, Plaintiff-Appellant, v. Waterman SteamshipCorporation, Defendant-Respondent.

Case Number 3406
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRSTDEPARTMENT
2001 N.Y. App. Div. LEXIS 1951
March 1, 2001, Decided

PROCEDURAL POSTURE: Plaintiff seaman sued defendant ship owner for personal injuries. Plaintiff moved to amend the complaint so as to allege failure to treat and to seek consequential and punitive damages therefor. The Supreme Court, New York County (New York) denied plaintiff's motion. Plaintiff appealed the decision.

OVERVIEW: The court held plaintiff's motion to amend the complaint was properly denied on the basis of law of the case established by a prior order of the court reversing a judgment in plaintiff's favor, and dismissing plaintiff's claims for consequential and punitive damages and maintenance and cure predicated on mental illness, and remanding for a new trial solely on plaintiff's claim for maintenance and cure predicated upon findings that he was unfit for duty. The prior order specifically rejected plaintiff's claims for consequential and punitive damages not only as unpleaded but also on the merits, and there was nothing new about plaintiff's claim of failure to treat, which closely tracked claims that had already been dismissed. The court also held plaintiff's claim that the $8 a day rate for maintenance and cure set forth in his union's collective bargaining agreement was unconscionably inadequate and should not be enforced was improperly raised for the first time on appeal, and the court declined to review the claim.
OUTCOME:The court affirmed the decision, because a prior order of the court specifically rejected plaintiff's claims for consequential and punitive damages not only as unpleaded but also on the merits, and there was nothing new about plaintiff's claim of failure to treat, and the claim was therefore barred by law of the case.

CARNIVAL CORPORATION, Petitioner, vs. ARIEL S. VELCHEZ,Respondent.

CASE NO. 3D01-288
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 2493; 26 Fla. L. Weekly D 663
March 7, 2001, Opinion Filed

OVERVIEW:Carnival Corporation petitions for a writ of prohibition contending that the trial judge should have disqualified herself.
OUTCOME:We disagree and deny the petition.

In the Matter of the Complaint of HYGRADE OPERATORS, INC. and SPENTONBUSH/RED STAR COMPANIES, INC., Owner and Operator of the barge ETHELH, for Exoneration from or Limitation of Liability.

99 Civ. 3851 (VM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2001 U.S. Dist. LEXIS 2277
March 2, 2001, Decided; March 6, 2001, Filed

DISPOSITION: [*1] Judgment entered in favor of Claimant James Davis in amount of One Hundred Nine Thousand Five Hundred Seventy Five Dollars ($109,575.00).

PROCEDURAL POSTURE: Claimant injured his knee while working for plaintiffs on their vessel. Plaintiffs filed the instant lawsuit seeking exoneration from or limitation of liability for claimant's injuries based on the Jones Act, 46 U.S.C.S. app. ß 183 et seq. The court conducted a bench trial on the matter and, in the instant decision and order, issued its findings of fact, conclusions of law, and order.

OVERVIEW: Claimant injured his knee in 1997 when he fell backward after forcing a stuck loading valve closed. In 1998, he re-injured the knee. After both injuries, he underwent surgery on the knee. In 1999, he returned to work, performing light duties, but was not offered that work on a full time basis. When he did not return to that position, his employment was terminated. Later still, he sought medical treatment for back pain he claimed was related to his 1997 accident. The court found that claimant did not prove his injury resulted from any negligence on plaintiffs' part. However, the stuck loading valve did make plaintiffs' vessel unseaworthy, and that unseaworthiness caused claimant's injury. Thus, claimant was entitled to compensation for the damages he sustained as a result of the injury. However, the court found that claimant's own negligence contributed to 50 percent of the accident, and that claimant failed to mitigate his damages by seeking other employment. Claimant did not prove that his back injury was the result of his 1997 injury and, thus, the court denied all damages associated with the back injury. The court also found claimant's other damages requests excessive.
OUTCOME:The court granted judgment to claimant, but awarded considerably less in damages than claimant requested. A stuck loading valve made plaintiffs' vessel unseaworthy, and that unseaworthiness caused claimant's injury. However, claimant's own negligence contributed to the accident, he failed to mitigate damages, he did not prove his back injury was related to that accident, and his damages requests were excessive.

DEIRDRE LYNN HURD, as Personal Representative of the Estate of Bobby Lee Hurd, Jr., deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MARY E. MOORE CORNETT, as Personal Representative of the Estate of Michael Paul Cornett, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MARY E. MOORE CORNETT, as Personal Representative of the Estate of Michael Wayne Cornett, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. MARY E. MOORE CORNETT, as Personal Representative of the Estate of James Daniel Cornett, deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CIVIL ACTION NO.: 2:99-0240-18, CIVIL ACTION NO.:2:99-0241-18, CIVIL ACTION NO.: 2:99-0242-18, CIVIL ACTION NO.: 2:99-0243-18
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTHCAROLINA, CHARLESTON DIVISION
2001 U.S. Dist. LEXIS 3032
March 8, 2001, Decided; March 8, 2001, Filed

DISPOSITION: [*1] Judgment entered for DEIRDRE LYNN HURD AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BOBBY LEE HURD, JR., DECEASED, against Defendant, under the Survival Action in this matter, in the sum of Three Hundred Thousand and No/100ths ($300,000.00) Dollars and against Defendant for Wrongful Death Act, in the sum of Six Million and No/100ths ($6,000,000.00) Dollars (2:99-0240-18). Judgment entered for MARY E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL PAUL CORNETT, DECEASED, against Defendant, under the Survival Action in this matter, in the sum of Three Hundred Thousand and No/100ths ($300,000.00) Dollars and against Defendant for Wrongful Death, in the sum of Six Million and No/100ths ($6,000,000.00) Dollars (2:99-0241-18 & 2:99-0243-18). Judgment entered for MARY E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES DANIEL CORNETT, DECEASED, against Defendant, under the Survival Action in this matter, in the amount of Three Hundred Thousand and No/100ths ($300,000.00) Dollars and against Defendant for Wrongful Death, in the amount of Six Million and No/100ths ($6,000,000.00) Dollars (2:99-0241-18 & 2:99-0243-18). Judgment entered for MARY E. MOORE [*2]CORNETT, against Defendant in the amount of Fifty-Seven Thousand, Five Hundred Sixty-Three and 89/100ths ($57,563.89) Dollars for her pecuniary loss (2:99-0241-18 & 2:99-0243-18). Judgment entered for the UNITED STATES OF AMERICA in Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Wayne Cornett, deceased v. United States of America (2:99-0242-18).

PROCEDURAL POSTURE: Plaintiffs sued defendant under the Federal Tort Claims Act, 28 U.S.C.S. ßß 1346(b), 2671 et seq., and alternatively as a claim in admiralty with jurisdiction under general maritime law, 28 U.S.C.S. ß 1333, the Suits in Admiralty Act, 48 U.S.C.S. ßß 741-752, and the Public Vessels Acts, 46 U.S.C.S. ßß 781-790, for wrongful death arising out of defendant's negligence in attempting to rescue the decedents.

OVERVIEW: A father, son and cousins went for a sailboat ride. During the night the father was knocked overboard. One of the children radioed a distress call to the coast guard and a passing boat radioed that they thought they heard screaming from the water. The cost guard ignored the distress call from the child, thinking it was a prank. The private boat went to investigate the screams they heard, but the defendant coast guard did nothing further after a private boat reported back that they could not find anything. All the parties drowned. Plaintiffs brought wrongful death suits. The court found that the coast guard had initiated a rescue when it instructed the private boat to investigate the screams, and was negligent in calling off the search after no one was initially located. The coast guard's actions were reckless and wanton, and worsened the position of the children by inducing the private boat to cease their efforts. The defendant's actions did not fall within the scope of the discretionary function exception to the Suits in Admiralty Act, 46 U.S.C.S. ßß 741-752. The court further found that the children did not exacerbate their condition or hinder their rescue.
OUTCOME:The court awarded damages in the wrongful death and survivor suits.

WILLIAM SCHUPPMAN, Plaintiff, -against- PORT IMPERIAL FERRYCORPORATION and NEW YORK WATERWAY, Defendants

99 Civ. 3597 (SWK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 2682
March 14, 2001, Decided
March 15, 2001, Filed

PROCEDURAL POSTURE: Plaintiff ferry captain filed a complaint for a personal injury claim alleging unseaworthiness and negligence under the Jones Act, 46 U.S.C.S. ß 688 and a retaliatory disciplinary action claim. Defendant moved for partial summary judgment, for the retaliatory discharge, under Fed. R. Civ. P. 56.

OVERVIEW: Plaintiff, a ferry captain employed by the defendant slipped and fell down a ladder on a ferry boat and injured his knee. A letter was sent informing the defendant of the personal injury claim before the claim was filed. Defendant moved to dismiss the retaliatory disciplinary claim. The court granted the motion. The eighteen months between defendant's knowledge of the claim and plaintiffs termination did not establish a causal connection for a retaliatory discharge claim. There was no evidence of temporal proximity or disparate treatment and no rational trier of fact could find that the discharge was motivated by the claim. Defendant had legitimate reasons for termination when plaintiff crashed into another vessel and failed to report the incident, left passengers on the dock, and ran out of fuel on the river.
OUTCOME:Summary judgment was granted on the retaliatory discharge claim.

DONNA BAVARO, Plaintiff, v. GRAND VICTORIA CASINO, Defendant.

Case No. 97 C 7921
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 3091
March 14, 2001, Decided
March 15, 2001, Docketed

OVERVIEW:Plaintiff Donna Bavaro (Bavaro) brought suit against her employer, defendant Grand Victoria Casino (Grand Victoria), under the Jones Act, 46 U.S.C. ß 688, and general maritime law alleging that she suffered personal injury as a result of Grand Victoria's negligence and the unseaworthiness of its riverboat casino vessel, and that Grand Victoria willfully breached its obligation to pay her maintenance and cure, giving rise to a duty to compensate her for medical expenses incurred and for emotional distress caused by its failure[*2] to pay, as well as punitive damages. Grand Victoria filed two motions for summary judgment: one regarding Bavaro's Jones Act negligence and unseaworthiness claims, and the other regarding Bavaro's claim for maintenance and cure.
OUTCOME:Grand Victoria's motion for summary judgment on Jones Act negligence and unseaworthiness is denied as to Bavaro's negligence claim arising from her slip and fall; it is granted as to Bavaro's claim for unseaworthiness and for emotional damages arising from Grand Victoria's negligent failure to pay maintenance and cure. Grand Victoria's motion[*23] for summary judgment on issues of maintenance and cure is denied as to the issue of whether Bavaro was in the service of her ship at the time of her accident, and granted as to Grand Victoria's right to a set-off of maintenance and cure benefits for payments made to Bavaro under Grand Victoria's health insurance plan (to the extent Bavaro would otherwise realize a double recovery for those expenses.

VICTOR CAMERON v. UNITED STATES OF AMERICA and APEX MARINECREW MANAGEMENT CO., LTD.

CIVIL ACTION NO. G-99-511
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, GALVESTON
2001 U.S. Dist. LEXIS 3316
March 20, 2001, Decided

PROCEDURAL POSTURE: Plaintiff seaman sued defendants, a ship owner and its principal, alleging under maritime law that the unseaworthiness of defendants' vessel, and defendants' negligence, caused plaintiff to fall and sustain injuries while employed aboard the vessel. The court conducted a trial without a jury.

OVERVIEW: While plaintiff was attempting to begin cleanup of a fuel oil spill in the vessel's engine room, plaintiff slipped and fell down a stairwell. Plaintiff alleged that the stairwell was unsafe, and that he sustained injuries to his wrist and neck. The court first held that defendant principal was the proper party defendant, and that defendant principal was liable to plaintiff for his injuries. The stairwell was unseaworthy since the steps and handrails lacked any substance to prevent plaintiff from slipping, and were covered with a thick enamel paint. Plaintiff was not negligent for failing to begin cleaning at the top of the stairwell, since defendants directed plaintiff to go below to assess the damage, which was also where cleaning supplies were located, and the stairwell was the only access. However, plaintiff was partially responsible for failing to take special precautions when he knew the stairs were covered with oil. Finally, the medical evidence indicated that plaintiffs' injuries were caused by the fall, and defendant principal was thus proportionately liable for past and future damages for lost wages, pain and suffering, unpaid cure, and medical expenses.
OUTCOME:Judgment was entered in favor of plaintiff and against defendant principal. The unsafe, and thus unseaworthy, stairwell on defendants' vessel was the primary cause of plaintiff's fall and injuries, although plaintiff was partially responsible for failing to take proper precautions on the oil-covered stairs.

D'ARTGNAN MCGLOTHEN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case Number: C-00-1052-SC
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2001 U.S. Dist. LEXIS 3190
March 21, 2001, Decided
March 21, 2001, Filed, Entered in Civil Docket

PROCEDURAL POSTURE: Plaintiff seaman filed an action in admiralty for damages from defendant United States of America for personal injuries sustained while employed as a seaman and crewmember on defendant's vessel. Defendant filed a motion to dismiss with prejudice, arguing plaintiff's complaint was not filed within the two-year period of 46 U.S.C.S. ß 745, and, thus, the court lacked subject matter jurisdiction over the action under the Suits in Admiralty Act.

OVERVIEW: The court found the evidence showed plaintiff was injured while following orders to secure loose gear, stow materials, and wash the deck. Plaintiff's complaint and deposition testimony stated the injury occurred while the vessel was approaching the Panama Canal, which was March 21, 1998, and an accident report indicated the date of the incident as March 21, 1998. Plaintiff's deposition testimony was that he was hurt at sea before the vessel reached the Panama Canal. It was undisputed that the vessel reached the Canal on March 21, 1998. Plaintiff contended the accident actually happened on March 27, but submitted no evidence. He merely noted that at his deposition he testified that March 27 was the date of injury. Plaintiff submitted no objections or responses to defendant's evidentiary submissions. The court found plaintiff sustained his injury on or before March 21, 1998, prior to arrival at the Canal's western terminus. Plaintiff's action was filed March 27, 2000. Although plaintiff exhausted his administrative remedies under the Clarification Act, his suit was not brought within the required two years. 46 U.S.C.S. ß 745 had to be strictly complied with. Defendant was immune.
OUTCOME:Defendants' motion to dismiss for lack of subject matter jurisdiction was granted. Plaintiff's suit was not brought within the two-year period required under the Suits in Admiralty Act. Defendant United States was immune from the suit and the court did not have jurisdiction.

TONI MARTINEZ, Plaintiff-Appellant, VERSUS BALLY'SLOUISIANA, INC., doing business as Bally's Casino Lakeshore Resort, doingbusiness as Belle of Orleans, LLC, Defendant-Appellee

No. 00-30119
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2001 U.S. App. LEXIS 4556
March 26, 2001, Decided

PROCEDURAL POSTURE: Plaintiff employee appealed from the decision of the United States District Court for the Eastern District of Louisiana granting summary judgment in favor defendant employer in plaintiff's action filed under the Jones Act, 46 U.S.C.S. ß 688.

OVERVIEW: Plaintiff sued her employer claiming sexual harassment, vilification and infliction of mental distress by her supervisor. Defendant filed a motion for summary judgment on the ground that plaintiff had no available remedy under the Jones Act because her claim stated purely emotional, non-physical injury and that such claims, unaccompanied by claims for physical injury, were not viable under the Jones Act. The district court granted defendant's motion for summary judgment. Plaintiff appealed and the appellate court affirmed. In evaluating the evidence, the district court judge properly held that plaintiff failed to claim any physical injury, and no evidence on the record demonstrated such injury. Plaintiff's affidavit regarding her physical manifestations of her alleged emotional injury was properly denied consideration as a contradiction of her attorney's judicial admission. She provided no other evidence that she suffered any physical injuries. Therefore, it was proper for the district court to conclude that she failed to allege and adduce any evidence on an essential element of her case under the Jones Act.
OUTCOME:The appellate court affirmed the decision of the district court finding it did not err in holding that plaintiff failed to raise a material issue of physical injury and thus could not recover for physical injury under the Jones Act, and plaintiff could not recover for her alleged emotional injuries in the absence of physical manifestations.

WESLEY H. ENDERSON and LINDA ENDERSON, Plaintiffs, vs.CARNIVAL CRUISE LINES, INC., and CARNIVAL CORPORATION, Defendants.

5:00CV160-H
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OFNORTH CAROLINA, STATESVILLE DIVISION
2001 U.S. Dist. LEXIS 1608
February 7, 2001, Decided

OVERVIEW: Plaintiffs contracted with defendants for a seven-day cruise. During the cruise, one plaintiffs developed appendicitis and had to undergo emergency surgery at a land-based hospital. Plaintiffs sued for negligence and breach of contract for defendants' failure to provide adequate medical facilities and treatment on ship and to promptly transport the plaintiff to a hospital. Defendants moved to dismiss for lack of personal jurisdiction and improper venue. The motion was granted on the grounds of improper forum. Because of this, the court did not address the issue of personal jurisdiction. The contract between plaintiffs and defendants contained a forum selection clause. Plaintiffs were given notice of this clause in at least four ways. The court found that the forum selection clause was valid, enforceable, and fundamentally fair because cruise lines have special interests in 1) limiting the fora in which they may be subject to suit, 2) dispelling confusion, and 3) reducing fares.
OUTCOME:The motion to dismiss was granted. The contract between plaintiffs and defendants contained a valid and enforceable forum selection clause which required that any litigation be heard in a different forum.

SHIPOWNER'S COMPLAINT FOR DECLARATORY DECREE AS TO MAINTENANCE AND CURE IN FEDERAL COURT PROPERLY BROUGHT IN STATE WHERE SEAMAN RESIDED AND SUBSEQUENT STATE COURT ACTION FILED BY SEAMAN IN STATE COURT WHICH INCLUDED MAINTENANCE AND CURE CLAIM ENJOINED FROM PROCEEDING

UNITED STATES OF AMERICA, Plaintiff, v. HERMAN MARTIN,Defendant.

CIVIL ACTION No. 00-CV-303
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFPENNSYLVANIA
2001 U.S. Dist. LEXIS 1223

OVERVIEW: Defendant was a merchant seaman employed aboard a United States vessel operated by an agent of plaintiff United States. He allegedly injured his back while working. A Navy physician diagnosed a lumbar sacral sprain. He was discharged and sent home. He later sued the agent in federal court in Texas under the Jones Act, 46 U.S.C.S. ß 688 (1994). That suit was dismissed for lack of jurisdiction and improper venue, as defendant lived in Pennsylvania. Plaintiff then filed for declaratory judgment in federal court in Pennsylvania, seeking a declaration that it owed no more maintenance and cure payments to defendant. Defendant was served at home in Pennsylvania. A month later he sued plaintiff in Texas under the Jones Act, claiming Texas was his home. He then moved to dismiss or to transfer venue from Pennsylvania. His motion was denied. Venue was proper in the district where the plaintiff resided. Defendant was the de facto plaintiff in the underlying controversy and lived in Pennsylvania when plaintiff's case was filed and he was served. As both cases sought to define his entitlement to maintenance and cure, he was enjoined from pursuing the Texas action.
OUTCOME: Defendant's motion was denied and defendant was enjoined from litigating the issue of maintenance and cure in another jurisdiction, as defendant was the de facto plaintiff in the underlying controversy and venue was proper in Pennsylvania.

12(b)(3).

JASON FORTENBERRY VERSUS ATWOOD OCEANICS, INC.

CIVIL ACTION NO. 00-528 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2001 U.S. Dist. LEXIS 1800
February 9, 2001, Decided
February 9, 2001, Filed; February 12, 2001, Entered

The Court agrees with Atwood that these tapes constitute substantive evidence of Fortenberry's claims and, therefore, are relevant. See Chiasson. The Court has absolutely no way, however, to evaluate whether these tapes were produced in discovery. The Plaintiff says they were not, the Defendant says they were. Since Fortenberry knows about the tapes, the Court assumes that they were produced at some point, but, as the party seeking to introduce the tapes into evidence, Atwood bears the burden of establishing their admissibility. Atwood, therefore, should be prepared to prove to the Court that the tapes were produced.

NANCY LEE SMITH, JOSHUA OSBORNE, JONATHAN OSBORNE, THOMASOSBORNE, KEVIN McGINN, ERIN McGINN, CONNOR McGINN, REBECCA McGINN, DAWN HACKETT,JOSEPH PECORARO, LINDA PECORARO and MICHAEL HUREWITZ, Plaintiffs, - against -JOSEPH MITLOF, et al., Defendants.

99 Civ. 10833 (WCC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2001 U.S. Dist. LEXIS 1874
February 16, 2001, Decided

Mitlof operated a charter and water taxi service on the Hudson River serving Tarrytown, Nyack and Pierpont, New York. On August 23, 1998, Mitlof's pontoon boat Conservator left Nyack allegedly carrying twenty-seven passengers - though Mitlof claims there were only twenty-five - and two crewmen, including the boat's master, Sheehan, and capsized north of the Tappan Zee Bridge. All persons on board were sent into the water, and one passenger was trapped and drowned.

The Maritime Center at Norwalk ("Norwalk Maritime"), Conservator's prior owner, [*4] had the boat certified by the United States Coast Guard ("USCG") to operate out of Norwalk, Connecticut and carry a maximum of twenty-one persons. Mitlof purchased Conservator from Norwalk Maritime in June 1998. Plaintiffs allege that Mitlof failed to obtain a new USCG certificate of inspection ("COI") after purchasing Conservator, and that he operated the boat without a valid COI, or, alternatively, that if there was a valid COI in effect, he violated its provisions. Mitlof claims that he received verbal assurance from the USCG that he would not need to have the vessel re-inspected and re-certified, but he never sought or secured this assurance in writing. The USCG investigated the accident, conducted a formal hearing on August 26 and 28, 1998, and issued two marine casualty reports. Mitlof and Sheehan invoked their Fifth Amendment privilege against self-incrimination and refused to testify at the hearing.

Plaintiffs now move for summary judgment pursuant to FED. R. Civ. P. 56. They invoke the Pennsylvania Rule, see The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L. Ed. 148 (1874), arguing that because Mitlof violated a navigation law statute, [*5] he bears the burden of proving not only that his violation did not cause or contribute to the casualty, but that his violation could not have caused or contributed to the casualty. See id. at 136. Mitlof, appearing pro se, contends that Conservator in fact possessed a valid COI on August 23, 1998. Alternatively, he argues that Sheehan was an independent contractor who violated Hudson Valley Waterways's company policies by overloading Conservator, and that because Mitlof was not in physical control of the boat when Sheehan did this, Sheehan's actions release him from liability. Plaintiffs counter that Mitlof is liable for Sheehan's actions under respondeat superior. For the reasons stated hereinafter, plaintiffs' motion is granted.

JAMES HALL, Plaintiff-Appellee, versus NOBLE DRILLING (U.S.)INC.; NOBLE DRILLING SERVICES, INC., Defendants-Appellants. CHARLES BYRONSTUART, Plaintiff-Appellee, versus NOBLE DRILLING (U.S.) INC.; NOBLE DRILLINGSERVICES, INC., Defendants-Appellants.

No. 00-60063, 00-60065
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2001 U.S. App. LEXIS 2149
February 14, 2001, Decided

OVERVIEW: Plaintiff alleged that they were entitled to daily maintenance for the cost of food and lodging during the period of recovery after their injuries. Defendants acknowledged plaintiffs' entitlement to maintenance, but argued that the maintenance rate awarded improperly considered the full amount of plaintiffs' home mortgage costs, rather than prorating such costs between plaintiffs and their family members. The court held that, while maintenance was admittedly provided solely for the benefit of plaintiffs rather than their families, no proration was required to determine the proper maintenance rate. Plaintiffs actually paid, and were obligated to pay, the entire amounts of their mortgages, and such amounts represented plaintiffs' actual costs of lodging. Such actual costs provided a proper basis for comparison with reasonable costs for single seamen in their localities. The maintenance awards to plaintiffs were thus reasonably calculated based on consideration of plaintiffs' non-prorated lodging costs.
OUTCOME: Order awarding maintenance was affirmed. Plaintiffs' evidence of their actual food and lodging expenses properly included the full amount of plaintiffs' mortgage expenses, since plaintiffs actually paid the entire amount. Thus the court's consideration of such evidence in determining reasonable maintenance was proper.

JAMES F. LEWIS, PETITIONER v. LEWIS & CLARK MARINE, INC.

No. 99-1331
SUPREME COURT OF THE UNITED STATES
2001 U.S. LEXIS 1698; 69 U.S.L.W. 4129; 2001 Daily Journal 1877
November 29, 2000, Argued
February 21, 2001, Decided

OVERVIEW: The lower court concluded that the trial court erred in dissolving the injunction on the grounds that respondent had a right to contest liability in federal court and that petitioner did not have a saved remedy in state court. The lower court erred in reversing the decision, however, because the Limitation of Liability Act of 1851, 46 U.S.C.S. App. ß 181 et seq., allowed vessel owners to limit their liability to the value of the vessel only in cases where limitation of liability was an issue. Since petitioner had stipulated that his claim would not have exceeded the value of the vessel and had waived any res judicata claim arising from the state court action, the trial court was well within its discretion to dissolve the injunction based on its conclusion that respondent's right to seek limitation was protected. Petitioner had sought a saved remedy in state court because the savings to suitors clause, 28 U.S.C.S. ß 1333(1), reserved all remedies available to petitioner, not just the right to receive a jury trial. Thus, petitioner's failure to demand a jury trial in state court did not render his personal injury action a matter of exclusive federal jurisdiction.
OUTCOME: Judgment was reversed and the case was remanded because the trial court was well within its discretion in determining that respondent's right to seek liability limitation was protected and petitioner's failure to demand a jury trial in state court did not render his personal injury action a matter of exclusive federal jurisdiction.

FRED T. RICHOUX, JR v. R & G SHRIMP CO. ET AL

CIVIL ACTION NO. G-00-299
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2000 U.S. Dist. LEXIS 18996
December 21, 2000, Decided
December 22, 2000, Entered

PROCEDURAL POSTURE: In a Jones Act suit for injury to a deck hand while at sea, defendants moved to dismiss for improper venue or, in the alternative, to transfer venue.

OVERVIEW: Plaintiff was injured while working as a deck hand off the coast. He brought suit under the Jones Act in that division closest to the accident. Defendants moved to dismiss for improper venue or, in the alternative, to transfer venue to another division within the same district. The motion to dismiss for improper venue was denied. The court rejected defendants' argument that venue had to be the division in which plaintiff's employer resided because it was based on a case decided under a repealed federal statute. Under admiralty law, venue was proper in any district where the court had jurisdiction over the defendant. In admiralty law, venue and personal jurisdiction analyses merged. The motion to transfer venue was denied. Defendants failed to demonstrate that transfer was necessary to serve the interests of justice or the convenience of the witnesses and parties. The court refused to disturb the forum selection made by the plaintiff.
OUTCOME: The motion to dismiss was denied because under admiralty law, venue was in any district where the district court had jurisdiction over the defendants. The fact that defendants resided in another division of the district did not make the venue incorrect. The motion to transfer venue was denied because defendants failed to show that transfer was needed to serve the interests of justice or the convenience of the witnesses and parties.

CARLOS MARTINEZ VERSUS EDISON CHOUEST OFFSHORE, INC.

CIVIL ACTION NO. 00-2930 SECTION "R" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 126
January 2, 2001, Decided
January 2, 2001, Filed, Entered

PROCEDURAL POSTURE: Plaintiff seaman moved to sever his maintenance and cure claims from his Jones Act claims and sought an expedited trial of those issues.

OVERVIEW: Plaintiff seaman sought severance of his maintenance and cure claims from the rest of his complaint and for an expedited trial of those claims based on his doctor's recommendation for surgery. Defendant opposed an expedited trial because it claimed that doubts existed whether plaintiff sustained a work-related injury and was entitled to maintenance and cure. While he could, plaintiff was not obligated to join his claim for maintenance and the other general maritime law claims with his Jones Act claim. Plaintiff was entitled to severance because he could either sue separately or, having filed one suit, ask for severance of the maintenance claim and an expedited trial by the court. Plaintiff had not asked for a jury trial, thus the entire matter would be heard by the court. The court also believed that hearing the claims separately might clarify the issues for the Jones Act trial, since if surgery were delayed, it would make the damages determination in the Jones Act case speculative.
OUTCOME: Motion was granted to sever maintenance and cure claims from Jones Act claim, and to seek expedited trial on those claims because plaintiff was entitled to sue separately or, having filed one suit, to ask for severance of maintenance claims.

IN THE MATTER OF THE COMPLAINT OF PRIDE OFFSHORE, INC. AS OWNER AND/OR OPERATOR OF THE PRIDE WYOMING FOR EXONERATION FROM OR LIMITATION OF LIABILITY AND DECLARATORY ACTION

CIVIL ACTION NO. 00-2489 SECTION "K"(3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 150
January 3, 2001, Decided
January 5, 2001, Filed, Entered

PROCEDURAL POSTURE: Plaintiff, owner of the vessel on which defendant was injured, sought a declaration exonerating it and denying defendant's maintenance and cure claims. Before receiving summons, defendant filed a Jones Act, general maritime law, and maintenance and cure suit in state court. Defendant moved to dismiss plaintiff's declaratory relief action.

OVERVIEW: In seeking dismissal of plaintiff vessel owner's declaratory judgment action, defendant injured employee argued that the action was being used as a tool to deprive him of the right to choose a forum, to litigate his Jones Act and maritime law claims, and to bring his action in state court. The court granted the motion. The pending state case provided an adequate forum for the fair adjudication of defendant's injury claims against plaintiff. It appeared to the court that the declaratory judgment action was an attempt to obtain a federal forum for the claim, or forum shop. It was inequitable to allow plaintiff to control defendant's litigation. Defendant had a right to litigate his maintenance and cure claim along with his Jones Act claim in front of a jury in the forum of his own choosing. Finally, judicial economy would be served by the dismissal of the declaratory judgment in that all but the exoneration/ limitation issues would be tried before one court.
OUTCOME: Motion to dismiss granted because plaintiff's declaratory judgment action was an attempt to forum shop, defendant had the right to litigate his maintenance and cure claim along with Jones Act claim before a jury in forum of his choosing, and judicial economy would be served.

ELISHA WOODARD VERSUS NABORS OFFSHORE CORPORATION

CIVIL ACTION NO. 00-2461 SECTION "N" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 177
January 4, 2001, Decided
January 4, 2001, Filed; January 5, 2001, Entered

PROCEDURAL POSTURE: Plaintiff was allegedly employed by defendant on its offshore oil rig, was injured, and brought Jones Act claims. Plaintiff's counsel hired a private investigator who contacted two of defendant's employees, and took a statement from one. Defendant moved to compel production of the statement and for a protective order.

OVERVIEW: Defendant first sought to compel plaintiff to produce the statement of an employee who gave an ex parte statement to plaintiff's counsel. Second, relying on its counsel's assertion that it would make its employees available to plaintiff for depositions, defendant sought a protective order prohibiting plaintiff's counsel from any further ex parte contacts with its current employees. The court held that defendant's motion to compel was governed by Fed. R. Civ. P. 26(b)(3). If the employee in question was defendant's agent, then defendant, a party, was entitled to receive his statement. It appeared that defendant's employee, who had supervisory authority over plaintiff, was defendant's agent when the statement was taken. Addressing the motion for protective order, the court found that the employee who gave the statement was a "party" under La. State Bar art. XVI, R. 4.2, and thus plaintiff's counsel could not contact him or employees like him without defendant's consent or unless authorized by law. The court then concluded that 45 U.S.C.S. § 60 did not authorize an attorney to conduct ex parte interviews of an opponent's employees under La. State Bar art. XVI, R. 4.2.
OUTCOME: Defendant's motion to compel production of its employee's statement was granted. The employee's statement was defendant's statement and defendant was entitled to receive a copy of it upon request, with no further showing. Defendant's motion for a protective order was granted as to employees who could be considered defendant's agents.

WILLIAM CARRIER AND HIS WIFE, JENNIFER CARRIER VERSUS ENSCO INTERNATIONAL, INC., ENSCO OFFSHORE CORPORATION, ENSCO DRILLING CORPORATION,ENSCO MARINE CORPORATION AND JOHNSON BIG BUILDERS, INC.

CIVIL ACTION NO: 99-1030 SECTION: "R"(4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 326
January 5, 2001, Decided
January 5, 2001, Filed; January 8, 2001, Entered

PROCEDURAL POSTURE: Defendants moved the court to dismiss this Jones Act, 46 U.S.C.S. § 688, § 905(b) of the Longshore and Harbor's Worker Act, 33 U.S.C.S. § 905(b), and Sieracki seaman doctrine case pursuant to Fed. R. Civ. P. 56 and to dismiss the case for lack of subject matter jurisdiction.overlapping federal statutes.

OVERVIEW: Plaintiffs injured party and his wife began an action for injuries sustained while doing construction work on a derrick in Singapore. Plaintiffs sued defendants for negligence under the general maritime law, the Jones Act, 46 U.S.C.S. § 688, § 905(b) of the Longshore and Harbor's Worker Act, 33 U.S.C.S. § 905(b), and the Sieracki seaman doctrine. Defendants moved to dismiss on summary judgment, arguing plaintiff injured party was not a seaman as defined under the acts. The court found plaintiffs did not submit any opposition to defendants' contention that plaintiff injured party was not a seaman under the Jones Act. Further, defendants submitted evidence that plaintiff worked only sporadically over a period of eight months and that during this period he also worked for other rig builders. All of the work he performed in Singapore was on land. None of these facts supported a finding that plaintiff had the required attachment to a vessel or an identifiable fleet of vessels, to justify classifying him as a seaman. Thus, the court found plaintiff was not a "seaman" and dismissed plaintiffs' Jones Act claim.
OUTCOME: The court dismissed one claim, finding plaintiff injured failed to present evidence showing he was a seaman; the court deferred decision on the other claims pending further briefing.

ATMA SINGH, Plaintiff, -v- OMI CORPORATION et al.,Defendants.

00 Civ. 156 (JSR)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 86
January 8, 2001, Decided
January 10, 2001, Filed

PROCEDURAL POSTURE: Plaintiff father of foreign citizen who was presumed drowned off the coast of a foreign country brought suit to recover damages on his claims of wrongful death, negligence, and unseaworthiness under the Jones Act, 46 U.S.C.S. § 688, and the Death on the High Seas Act, 46 U.S.C.S. § 761. Defendants vessel and owners moved to dismiss and for summary judgment.

OVERVIEW: Defendants moved to dismiss plaintiff's claims on the ground that plaintiff failed to show a sufficient nexus between his son's death and the United States to give the court subject matter jurisdiction under with the Jones Act, 46 U.S.C.S. § 688, or the Death on the High Seas Act (DOHSA), 46 U.S.C.S. § 761. Applying the Lauritzen factors, the court concluded that only three factors supporting a connection to the United States, the United States supplied the law of the forum, and defendant vessel owner had its base of operations in the United States and was a United States citizen. However, the fact that the United States supplied the law of the forum was accorded little weight because defendants had involuntarily been made a party. The remaining factors were of no great moment given the unrefuted evidence that defendant vessel never called on ports in the United States during the period of plaintiff's son's employment. Accordingly, as there was no substantial contact between the transaction at issue and the United States, the court lacked subject matter jurisdiction under the Jones Act and the DOHSA.
OUTCOME: Motion to dismiss was granted because there was no substantial contact between the transaction at issue and the United States.

CEDRIC A. KENDRICK VERSUS ILLINOIS CENTRAL RAILROAD COMPANY

CIVIL ACTION NO: 99-3894 SECTION: "J"(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 293
January 8, 2001, Decided
January 9, 2001, Filed; January 10, 2001, Entered

PROCEDURAL POSTURE: Defendant moved for an order excluding any argument by the plaintiff or testimony by his physician that plaintiff might develop traumatic arthritis in the future in plaintiff's Federal Employers' Liability Act/ Jones Act case.

OVERVIEW: In plaintiff's Federal Employers' Liability Act (FELA)/ Jones Act case, defendant sought to preclude an argument by the plaintiff or testimony from his physician that plaintiff might develop traumatic arthritis in the future. Plaintiff recognized that the general rule excluded such testimony, but argued that a different rule was applicable to FELA/ Jones Act cases and presented a case in support of that position. The court found plaintiff's case law was distinguishable. In the case cited by plaintiff, the issue was not whether the plaintiff might have an injury in the future as a result of the trauma. Plaintiff's physician said there was a possibility that the trauma to plaintiff would produce arthritis in the future, but that had not occurred. That statement was the only evidence that arthritis might develop. Standing alone it was insufficient to support a verdict that plaintiff would develop arthritis from the trauma. Plaintiff's case did not change the general rule nor did it create a special rule in a FELA/ Jones Act case.
OUTCOME: The court granted defendant's motion, finding no special rule existed which would allow plaintiff to present evidence of future possible, but unrealized, injuries.

VICTOR FRANCIS BARCLAY, Plaintiff, v. KEYSTONE SHIPPING COMPANY, Defendant.

CIVIL ACTION NO. 00-1572
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2001 U.S. Dist. LEXIS 201
January 11, 2001, Decided

PROCEDURAL POSTURE: After leaving a vessel before his marine contract expired, plaintiff seaman brought intentional tort claims, a claim for overtime pay under a marine contract, and defamation claims against defendant vessel operator. Defendant brought a counterclaim for breach of contract. Defendant moved for summary judgment on plaintiff's claims.

OVERVIEW: Plaintiff was not entitled to wages under 46 U.S.C.S. § 11106(a) as no investigation of his claims occurred and no consular officer ordered that he be paid additional wages or receive passage back to the United States. Summary judgment was granted on the intentional infliction of emotional distress claim because the alleged harassment by defendant's employees did not amount to outrageousness conduct. Plaintiff was not falsely imprisoned as he was not prevented from leaving the vessel. Defendant was granted summary judgment on the invasion of privacy claims because the entry into plaintiff's room by two ship officers was related to legitimate ship-board duties and the general derogatory statements that plaintiff identified were not directed at him. Since fact issues remained regarding unsafe vessel conditions, summary judgment was denied on the breach of contract claim. The defamation claims failed because defendant's communications to the Coast Guard that plaintiff had deserted the vessel made in connection with an investigation were subject to conditional privilege, and plaintiff failed to produce any evidence that defendant abused the privilege.
OUTCOME: Summary judgment was granted on claims of intentional infliction of emotional distress, false imprisonment, invasion of privacy, and defamation, as well as on claim for additional wages. Summary judgment was denied on breach of contract claim.

JOHN BLYTHE VERSUS TORCH, INC., ET AL

CIVIL ACTION NO. 00-498 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 595
January 12, 2001, Decided
January 12, 2001, Filed; January 16, 2001, Entered

PROCEDURAL POSTURE: Defendant filed a motion to enforce a settlement agreement. Plaintiff seaman filed a motion to vacate the dismissal of his action.

OVERVIEW: Plaintiff alleged that (1) he was pressured into signing the settlement agreement and (2) he believed the agreement was revocable within 48 hours. The settlement amount was reached during a conference before a federal magistrate judge. The court found that the negotiations were conducted at arms-length and in good faith. Plaintiff's attorney did not advise him that the agreement was revocable, and at no time during the negotiations did plaintiff ask about the right to revoke or mention that he believed it existed. Accordingly, the court could not have found that plaintiff settled his claims with incompetent counsel or faulty legal advice. Because there was a three and a half hour settlement conference before a federal magistrate judge before the final agreement was prepared, the court could not have found that plaintiff was coerced into releasing his claims.
OUTCOME: Defendant's motion to enforce a settlement agreement was granted and plaintiff's motion was denied; the negotiations were conducted at arms-length and in good faith, plaintiff did not settle his claims with incompetent counsel or faulty legal advice, and plaintiff was not coerced into releasing his claims.

WILLIAM T. WRIGHT, Plaintiff, -against- MAERSK LINE, LTD.,Defendant.

99 Civ. 11282 (LMM)(AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 539
January 23, 2001, Decided; Nunc Pro Tunc, January 9, 2001

PROCEDURAL POSTURE: Defendant moved for summary judgment of plaintiff seaman's claims for negligence and seaworthiness.

OVERVIEW: Plaintiff seaman sued defendant shipping line for negligence and unseaworthiness as a result of the decision to put plaintiff ashore on the island of St. Helena so that plaintiff could receive medical treatment. Plaintiff contended that that decision resulted in him receiving poor medical care, and being stranded on the island for a considerable amount of time. Defendant moved for summary judgment. The court granted the motion as to unseaworthiness, but denied it as to negligence. It held that there remained issues of material fact as to whether the decision to land plaintiff on the island was negligent, because of the paucity of the evidence, and the fact that the condition did not appear to be life threatening. The unseaworthiness claim failed because of the only complaint was over the decision to put plaintiff ashore and the decision could constitute negligence, but not seaworthiness.
OUTCOME: Motion for summary judgment was granted in part and denied in part, where material issue of fact remained as to negligence, but acts of defendant clearly did not constitute unseaworthiness.

ANDREZJ SAWICKI VERSUS K/S STAVANGER PRINCE AND ASSURANCEFORENINGEN SKULD

NO. 99-CA-1459
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
99-1459 (La.App. 4 Cir, 12/27/00); 2000 La. App. LEXIS 3545
December 27, 2000, Decided

OVERVIEW: Appellant was injured while working on a ship owned by defendant company. Following receipt of disability compensation pursuant to a collective bargaining agreement, appellant sued appellees, alleging Appellee Company committed an intentional or negligent tort in Louisiana. Appellant challenged the trial court's decisions granting a continuance and partial summary to appellees and dismissing plaintiff's suit. The court held the trial had not begun at the time appellees filed the motion for summary judgment, and the motion did not violate La. Code Civ. Proc. Ann. art. 966(D). Testimony by appellant was only for perpetuation purposes, and was not part of a formal trial. The court held the trial court properly enforced a forum selection clause in the collective bargaining agreement which specified either Norway or Poland as the forum for any suit. The collective bargaining agreement was incorporated into the employment contract signed by appellant. The court held that once appellant collected disability compensation under the collective bargaining agreement, he ratified the contract's applicability.
OUTCOME: The court affirmed the decision, because the trial had not begun when appellees filed the motion for summary judgment, and a forum selection clause contained in a collective bargaining agreement was valid, and stated the jurisdiction of any dispute was Norway or Poland.

MICHAEL GRIVESMAN, et al., Plaintiffs, vs. CARNIVAL CRUISE LINES, Defendants.

No. 00 C 2091
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 661
January 24, 2001, Decided
January 25, 2001, Docketed

PROCEDURAL POSTURE: Plaintiffs filed a pro se lawsuit against defendants, alleging breach of contract and negligence. Defendants moved to dismiss.

OVERVIEW: Plaintiffs claimed that delays and poor service ruined the Caribbean vacation they took aboard a cruise ship operated by Defendants Corporation and president. Plaintiffs filed an admiralty action. Defendants argued that the complaint should be dismissed for improper venue. The court dismissed the action. The contracts attached to plaintiffs' tickets contained a clear and conspicuous forum selection clause. The cover of the tickets included a statement in bold type and all capitals directing plaintiffs' attention to the contract contained therein. Plaintiffs received the relevant information more than a month before the cruise was scheduled to begin, in time to cancel the trip with little penalty. Plaintiffs failed to show undue hardship. The expense and inconvenience of litigating the case in Florida were not enough to nullify the forum selection clause.
OUTCOME: Motion to dismiss was granted, because the forum selection clause in plaintiffs' cruise ticket contracts was valid and enforceable.

OTTILIE MORRIS, Individually and as Executrix of the Estate of Roy I. Morris, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; AMERICAN INTERNATIONAL ASSISTANCE SERVICE, INC.; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; BERKELYCARE LIMITED; CRUISE CONSULTANTS, Defendants-Appellees.

No. 99-55092
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 318

OVERVIEW: Plaintiff passenger sued defendants, cruise line and insurance companies, in state court, alleging various tort and contract claims arising out of events occurring during a cruise ship vacation. Defendants removed the action to federal court. The district court denied plaintiff's motion to remand and granted summary judgment for defendants on all claims. On appeal the key issue was whether the district court properly acquired and retained removal jurisdiction over the action. The court held defendant cruise consultants' joinder as a defendant was correctly ignored by the district court and removal was proper based on diversity of citizenship. The court concluded the district court's removal jurisdiction was not destroyed by joinder of the non-diverse defendant insurers since plaintiff failed to seek remand of claims falling within the court's admiralty jurisdiction. The district court properly granted defendants summary judgment on all claims because plaintiff failed to adduce any genuine dispute of material fact suggesting that defendants were liable for any legally cognizable injury she suffered.
OUTCOME: Judgment affirmed because removal was initially proper based on diversity and plaintiff's failure to move for remand upon joining the non-diverse defendants waived any possible objection to removal jurisdiction; additionally, summary judgment was proper because plaintiff failed to establish a legally cognizable claim against defendants.

RANDEAN HENRY VERSUS GULF DUMAR MARINE, INC.

CIVIL ACTION NO. 98-3497 SECTION "I" (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 11786
August 4, 2000, Decided
August 4, 2000, Filed
August 7, 2000, Entered

OVERVIEW: Plaintiff seaman failed to submit a response to the facts set forth in defendant ship owner's motion for partial summary judgment; however, in the interest of justice, the court reviewed the record to determine whether defendant established a prima face case to entitle it to summary judgment. The court found that defendant failed to establish a prima facie case of maximum medical cure because the report from the physician was inconclusive and plaintiff's lack of evidence to show that he had not reached maximum medical cure was immaterial. The court also found that the medical history form, on which plaintiff checked "no" for prior back injury but "yes" for prior surgeries and benefits, created a genuine issue of material fact about plaintiff's intent to misrepresent or conceal precluding summary judgment on the basis of forfeiture.