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DECEMBER 2002 ISSUE: |
* CRUISE LINE'S CONTRACTUAL ONE YEAR TIME LIMITATION FOR BRINGING SUIT WAS NOT ENFORCEABLE AGAINST A MINOR BUT WAS ENFORCEABLE AGAINST MINOR'S PARENTS' CLAIMS.
* CHIEF ENGINEER OF LAND BASED OPERATIONS OF A CASINO VESSEL WAS NOT COVERED BY THE LONGSHORE AND HARBOR WORKERS COMPENSATION ACT BECAUSE THE CASINO VESSEL WAS A "RECREATIONAL OPERATION" FOR THE PURPOSE OF THE LHWCA.
* ARBITRATION CLAUSE WITHIN SEAMAN'S CONTRACT ENFORCED EVEN AS TO NON-SIGNATORIES OF THE CONTRACT PURSUANT TO EQUITABLE ESTOPPEL.
* SEAMAN FOUND 90% CONTRIBUTORILY NEGLIGENT WHEN HE WAS STRUCK FROM THE REAR BY LEAD TONGS HE WAS OPERATING DESPITE SEAMAN'S ARGUMENTS THAT THE TONGS WERE HUNG IMPROPERLY AND THAT A COWORKER FAILED TO PREVENT THE ACCIDENT.
CRUISE LINE'S CONTRACTUAL ONE YEAR TIME LIMITATION FOR BRINGING SUIT WAS NOT ENFORCEABLE AGAINST A MINOR BUT WAS ENFORCEABLE AGAINST MINOR'S PARENTS' CLAIMS.
CHRISTIAN JOSEPH GIBBS, an infant by his Guardian ad Litem SUZANNE GIBBS; SUZANNE GIBBS; RICHARD GIBBS, Individually v. CARNIVAL CRUISELINES; CARNIVAL CORPORATION; ABC COMPANIES 1-10, (said names being fictitious as their identities are presently unknown); JOHN DOES 1-10, (said names being fictitious as their identities are presently unknown); Christian Joseph Gibbs; Suzanne Gibbs; Richard Gibbs, Appellants
No. 01-4101
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2002 U.S. App. LEXIS 26425
October 16, 2002, Argued
December 20, 2002, Filed
PRIOR HISTORY: On Appeal From the United States District Court For the District of New Jersey. (D.C. Civ. No. 00-cv-04089). District Judge: Honorable Katherine S. Hayden.
DISPOSITION: Affirmed in part, vacated in part and remanded for further proceedings.
PROCEDURAL POSTURE: Plaintiffs, a minor and his parents, challenged the United States District Court For the District of New Jersey's dismissal of their lawsuit against defendant cruise line, charging it with negligence, infliction of emotional distress, and breach of contract in connection with injuries the minor suffered aboard one of its ships.
OVERVIEW: The appeal concerned the application of 46 U.S.C.S. app. § 183b, which regulated contractual limitations on time for passengers to sue maritime carriers, to the personal injury claims of the minor and his parents. The district court applied equitable estoppel essentially to preclude plaintiffs from denying that a March 25, 1999 letter from their counsel constituted the appointment of the minor's mother as guardian ad litem under § 183b(c). On appeal, the court applied federal admiralty law of estoppel and found that the cruise line had failed to show detrimental reliance. Moreover, the district court should not have precluded plaintiffs from presenting their argument, which it found meritorious, that the time-bar in the passenger ticket contract had not expired because no legal representative had yet been appointed for the minor. Accordingly, use of equitable estoppel was mistaken. The court also found that the minor's claim was not time-barred under the passenger ticket contract and 46 U.S.C.S. app. § 183b(c). The district court correctly dismissed the parents' claims, since the lawsuit was filed well after the one-year time-bar in the passenger ticket contract.
OUTCOME: The court affirmed the order dismissing the parents' individual claims, but vacated the order dismissing the minor's claims and remanded for further proceedings.
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CHIEF ENGINEER OF LAND BASED OPERATIONS OF A CASINO VESSEL WAS NOT COVERED BY THE LONGSHORE AND HARBOR WORKERS COMPENSATION ACT BECAUSE THE CASINO VESSEL WAS A "RECREATIONAL OPERATION" FOR THE PURPOSE OF THE LHWCA
BOOMTOWN BELLE CASINO; LOUISIANA WORKERS' COMPENSATIONCORPORATION, Petitioners, versus JERRY KATE BAZOR, Widow of Ben Bazor; DIRECTOR,OFFICE OF WORKER'S COMPENSATION PROGRAMS, US DEPARTMENT OF LABOR; GREAT-WESTLIFE AND ANNUITY INSURANCE COMPANY, Respondents.
No. 01-60705
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
313 F.3d 300; 2002 U.S. App. LEXIS 24653
December 6, 2002, Decided
PRIOR HISTORY: Petition for Review of an Order of the Benefits Review Board. 00-0928B. Bazor v. Boomtown Belle Casino, 2001 DOLBRB LEXIS 22 (2001).
DISPOSITION: REVERSED.
PROCEDURAL POSTURE: Petitioners, the employer and the Louisiana Workers' Compensation Corporation, asked the court to set aside an order of the Benefit Review Board (BRB) affirming the award of compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. 901 et seq., to respondent widow, the widow of the decedent, and reimbursement to intervenor insurer, the decedent's health insurer.
OVERVIEW: The decedent was a chief engineer of the land-based operations of a casino. The casino itself was a boat floating in a canal. The decedent had a stroke while at work, and eventually died, without regaining consciousness. The employer argued that whether an employee was excluded from coverage under 33 U.S.C.S. § 902(3)(B) was determined by the nature of his employer. The employer asserted that because a casino was a "recreational operation," its employees were categorically denied LHWCA coverage under § 902(3)(B). The court held that a floating casino was a "recreational operation" for purposes of § 902(3)(B). Consequently, decedent, as an employee of a recreational operation, was not covered by the LHWCA even if some of his duties exposed him to the hazards associated with maritime commerce. Whether an adjoining area was a 33 U.S.C.S. § 903(a) situs was determined by the nature of the adjoining area at the time of injury. At the time of decedent's stroke, the employer's facility had yet to be used for a maritime purpose. Nobody had loaded or unloaded cargo, and nobody had repaired, dismantled, or built a vessel.
OUTCOME: The order was reversed.
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ARBITRATION CLAUSE WITHIN SEAMAN'S CONTRACT ENFORCED EVEN AS TO NON-SIGNATORIES OF THE CONTRACT PURSUANT TO EQUITABLE ESTOPPEL
ERNESTO FRANCISCO VERSUS STOLT-NIELSEN, S.A., STOLT TANKERSJOINT SERVICES, and STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION LIMITED
CIVIL ACTION NO. 02-2231 SECTION: "R" (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 23134
December 2, 2002, Decided
December 3, 2002, Filed, Entered
DISPOSITION: Plaintiff's motion to remand denied. Defendants' motion to compel arbitration as to Stolt-Nielsen, S.A. and Stolt Tankers Joint Services granted. Defendants' motion to stay plaintiff's claims against Steamship Mutual Underwriting Association granted. Plaintiff's motion to sever denied.
PROCEDURAL POSTURE: Plaintiff seaman sued defendants, a boat owner, a transportation company, and an insurer, for injuries suffered. The seaman moved for a jury trial on the issue of remand. Defendants moved to dismiss the action, to compel arbitration, or to stay the proceedings pending resolution of an arbitration proceeding in a related action. The seaman also moved to sever the insurer.
OVERVIEW: The seaman claimed that he was injured while working on the boat-owner's boat. As to the motion to remand, the court held that under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and its enabling legislation, 9 U.S.C. S. § 201 et seq., the court had jurisdiction over the matter because the subject matter of the litigation related to an arbitration agreement. Further, although some of the defendants were not signatories of the seaman's employment contract, which included the arbitration clause, since the arbitration agreement could have conceivably affected the outcome of the case, the agreement related to the seaman's suit. Moreover, any inquiry into the enforceability of the arbitration agreement was barred by res judicata since the enforceability of the agreement was determined in the related action. As to the motion to dismiss, the court held that it could not compel arbitration on the ground of res judicata against defendants in the instant which were not defendants in the related action (non-signatories). However, the arbitration clause was applicable to the non-signatories under the doctrine of equitable estoppel.
OUTCOME: The seaman's motion to remand was denied. Defendants' motion to compel arbitration as to the non-signatories was granted. Defendants' motion to stay the claims against the insurer was granted. The seaman's motion to sever was denied.
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SEAMAN FOUND 90% CONTRIBUTORILY NEGLIGENT WHEN HE WAS STRUCK FROM THE REAR BY LEAD TONGS HE WAS OPERATING DESPITE SEAMAN'S ARGUMENTS THAT THE TONGS WERE HUNG IMPROPERLY AND THAT A COWORKER FAILED TO PREVENT THE ACCIDENT.
CARL AYCOCK VERSUS ENSCO OFFSHORE COMPANY
NUMBER 2002-0853 COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2002-0853 (La.App. 3 Cir, 12/18/02);
2002 La. App. LEXIS 3926
December 18, 2002, Decided
PRIOR HISTORY: APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT. PARISH OF LAFAYETTE, NO. 982046. HONORABLE J. BYRON HEBERT, DISTRICT JUDGE.
DISPOSITION: AFFIRMED.
PROCEDURAL POSTURE: Plaintiff employee challenged a judgment from the Fifteenth Judicial District, Parish of Lafayette (Louisiana), which found that defendant offshore company was negligent in injuries the employee sustained while working aboard an oil rig and that the vessel was unseaworthy, but apportioned 90 percent of the fault for the injuries to the employee.
OVERVIEW: The employee sustained serious injuries when he was struck from the rear by the lead tongs he was operating. The employee argued that the offshore company was responsible for his injuries under general maritime principles and the Jones Act due to improperly hung tongs and a coworker failing to prevent the tongs from striking him. The offshore company argued that the operator was responsible for control of the tongs. A jury found that the offshore company was negligent and that the vessel was unseaworthy, but that the employee was contributorily negligent. General damages, past lost earnings, and future loss of earnings were awarded, reduced by 90 percent for the employee's fault. On appeal, the court affirmed. The entirety of the evidence permitted the jury to conclude, even in light of findings of unseaworthiness and negligence, that the employee bore a substantial amount of the fault in the accident. The employee, as lead tong operator, was primarily responsible for his own safety. The jury was free to conclude that the future damages awarded would compensate the employee while he continued toward maximum medical cure and after that time the employee could return to other work.
OUTCOME: The court affirmed the apportionment of fault and the award of damages to the employee in his maritime action.
