Cruise Ship Law

Court Finds For Ship Operator And Against Seaman On Jones Act Negligence And Unseaworthiness Claims Based On Injury Allegedly Caused By Seaman Banging Knee On Lashing Device Protruding Into Walkway Where Court Found That Injury Could Be Caused By Repetitive Overuse And Exacerbated By Overweight.

LARRY EDGELL, Plaintiff, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant.

No. C 00-2549 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2002 U.S. Dist. LEXIS 15866
August 20, 2002, Decided
August 20, 2002, Filed

DISPOSITION: Judgment entered in favor of defendant.

PROCEDURAL POSTURE: Plaintiff maritime seaman filed a complaint against defendant ship management LLC, alleging causes of action for (1) negligence under the Jones Act, 46 U.S.C.S. § 688, (2) unseaworthiness as to its ship, and (3) for maintenance and cure.

OVERVIEW: While the seaman was walking on a catwalk inspecting containers, the electricity went out, the ship experienced a blackout, and he took one step and hit his right knee on a bent turnbuckle, a lashing device, which was protruding into the walkway. He testified that "it hurt," but that rubbed his right knee and shook it off. The court found the kind of plica syndrome plaintiff suffered could be caused by repetitive overuse and exacerbated by overweight. Under the Jones Act, the seaman had the burden of proving by a preponderance of the evidence the LLC was negligent and the negligence was a cause of his injury. He did not meet this burden. He did not prove, by a preponderance of the evidence, the LLC's negligence, if any, was a cause of his claimed knee injury. On the unseaworthiness claim, he did not prove by preponderance that the vessel was unseaworthy and its condition was a cause of his injury.

OUTCOME: The court entered judgment in favor of the LLC and against the seaman, since he failed to meet his burden of proof on any of his claims.

Court Finds For Ship Operator And Against Seaman On Jones Act Negligence And Unseaworthiness Claims Based On Injury Allegedly Caused By Seaman Banging Knee On Lashing Device Protruding Into Walkway Where Court Found That Injury Could Be Caused By Repetitive Overuse And Exacerbated By Overweight.

LARRY EDGELL, Plaintiff, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant.

No. C 00-2549 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2002 U.S. Dist. LEXIS 15866
August 20, 2002, Decided
August 20, 2002, Filed

DISPOSITION: Judgment entered in favor of defendant.

PROCEDURAL POSTURE: Plaintiff maritime seaman filed a complaint against defendant ship management LLC, alleging causes of action for (1) negligence under the Jones Act, 46 U.S.C.S. § 688, (2) unseaworthiness as to its ship, and (3) for maintenance and cure.

OVERVIEW: While the seaman was walking on a catwalk inspecting containers, the electricity went out, the ship experienced a blackout, and he took one step and hit his right knee on a bent turnbuckle, a lashing device, which was protruding into the walkway. He testified that "it hurt," but that rubbed his right knee and shook it off. The court found the kind of plica syndrome plaintiff suffered could be caused by repetitive overuse and exacerbated by overweight. Under the Jones Act, the seaman had the burden of proving by a preponderance of the evidence the LLC was negligent and the negligence was a cause of his injury. He did not meet this burden. He did not prove, by a preponderance of the evidence, the LLC's negligence, if any, was a cause of his claimed knee injury. On the unseaworthiness claim, he did not prove by preponderance that the vessel was unseaworthy and its condition was a cause of his injury.

OUTCOME: The court entered judgment in favor of the LLC and against the seaman, since he failed to meet his burden of proof on any of his claims.

Court Finds For Ship Operator And Against Seaman On Jones Act Negligence And Unseaworthiness Claims Based On Injury Allegedly Caused By Seaman Banging Knee On Lashing Device Protruding Into Walkway Where Court Found That Injury Could Be Caused By Repetitive Overuse And Exacerbated By Overweight.

LARRY EDGELL, Plaintiff, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant.

No. C 00-2549 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2002 U.S. Dist. LEXIS 15866
August 20, 2002, Decided
August 20, 2002, Filed

DISPOSITION: Judgment entered in favor of defendant.

PROCEDURAL POSTURE: Plaintiff maritime seaman filed a complaint against defendant ship management LLC, alleging causes of action for (1) negligence under the Jones Act, 46 U.S.C.S. § 688, (2) unseaworthiness as to its ship, and (3) for maintenance and cure.

OVERVIEW: While the seaman was walking on a catwalk inspecting containers, the electricity went out, the ship experienced a blackout, and he took one step and hit his right knee on a bent turnbuckle, a lashing device, which was protruding into the walkway. He testified that "it hurt," but that rubbed his right knee and shook it off. The court found the kind of plica syndrome plaintiff suffered could be caused by repetitive overuse and exacerbated by overweight. Under the Jones Act, the seaman had the burden of proving by a preponderance of the evidence the LLC was negligent and the negligence was a cause of his injury. He did not meet this burden. He did not prove, by a preponderance of the evidence, the LLC's negligence, if any, was a cause of his claimed knee injury. On the unseaworthiness claim, he did not prove by preponderance that the vessel was unseaworthy and its condition was a cause of his injury.

OUTCOME: The court entered judgment in favor of the LLC and against the seaman, since he failed to meet his burden of proof on any of his claims.

Court Finds For Ship Operator And Against Seaman On Jones Act Negligence And Unseaworthiness Claims Based On Injury Allegedly Caused By Seaman Banging Knee On Lashing Device Protruding Into Walkway Where Court Found That Injury Could Be Caused By Repetitive Overuse And Exacerbated By Overweight.

LARRY EDGELL, Plaintiff, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant.

No. C 00-2549 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2002 U.S. Dist. LEXIS 15866
August 20, 2002, Decided
August 20, 2002, Filed

DISPOSITION: Judgment entered in favor of defendant.

PROCEDURAL POSTURE: Plaintiff maritime seaman filed a complaint against defendant ship management LLC, alleging causes of action for (1) negligence under the Jones Act, 46 U.S.C.S. § 688, (2) unseaworthiness as to its ship, and (3) for maintenance and cure.

OVERVIEW: While the seaman was walking on a catwalk inspecting containers, the electricity went out, the ship experienced a blackout, and he took one step and hit his right knee on a bent turnbuckle, a lashing device, which was protruding into the walkway. He testified that "it hurt," but that rubbed his right knee and shook it off. The court found the kind of plica syndrome plaintiff suffered could be caused by repetitive overuse and exacerbated by overweight. Under the Jones Act, the seaman had the burden of proving by a preponderance of the evidence the LLC was negligent and the negligence was a cause of his injury. He did not meet this burden. He did not prove, by a preponderance of the evidence, the LLC's negligence, if any, was a cause of his claimed knee injury. On the unseaworthiness claim, he did not prove by preponderance that the vessel was unseaworthy and its condition was a cause of his injury.

OUTCOME: The court entered judgment in favor of the LLC and against the seaman, since he failed to meet his burden of proof on any of his claims.

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.

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.

CLLR ARCHIVE: 2004 | 2003 | 2002 | 2001 | 2000 | Current Issue
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.
TOP

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.

TOP

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.

TOP

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.

CLLR ARCHIVE: 2004 | 2003 | 2002 | 2001 | 2000 | Current Issue
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.
TOP

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.

TOP

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.

TOP

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.

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.

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.

RANDALL CUNNINGHAM VERSUS NOBLE DRILLING, CORPORATION

CIVIL ACTION NO. 01-2766 SECTION "K" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 21983
November 12, 2002, Filed, Entered

PROCEDURAL POSTURE: Defendant, off-shore drilling company, moved to adjust a damage award. A jury awarded plaintiff, seaman $25,000 for injuries he suffered while working on the drilling company's rig. The seaman claimed that the company's negligence and the unseaworthy conditions on the vessel were the causes of his injuries. He also claimed maintenance and cure.

OVERVIEW: The jury actually awarded $150,000 in damages, but found the seaman was 75 percent at fault, hence the $25,000 for past lost income. The jury made no award for maintenance. In advance of trial, the parties stipulated that the drilling company had paid $8,119.56 in maintenance and $9,120.32 in supplemental wages and/or advances. In its motion, the drilling company argued that because the parties stipulated to the amount of maintenance and supplemental wages and/or advances, the sum of these payments, $17,239.88, should be deducted from the total award for past lost income. The court agreed. The company also contended that the court should offset the stipulated $8,119.56 in maintenance payments against the award for past lost income. The company argued that the seaman could not recover maintenance plus wages for the identical period of time. Unlike the payments of advances and/or supplemental income, the court found that the award of maintenance in addition to past income was not duplicative of the jury's award for past loss of income. The company was not entitled to offset the paid maintenance from the past-income award.

OUTCOME: From the jury's original award of $25,000 in damages, the district court reduced the award by $9,120.32, the stipulated amount of advances and supplemental wages. Consequently, the revised award for past lost income, as offset by the payments of advances in the amount of $9,120.32, was 15,879.68.

IN THE MATTER OF THE COMPLAINT OF THE PARISH OF PLAQUEMINESAS OWNER OF THE M/ V POINTE-A-LA-HACHE FOR EXONERATION FROM OR LIMITATION OFLIABILITY

CIVIL ACTION NO. 01-2967 SECTION "L"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 22222
November 14, 2002, Decided
November 14, 2002, Filed, Entered

DISPOSITION: Court issued findings of fact and conclusions of law. Damages awarded and petition for exoneration from and/ or limitation of liability denied.

PROCEDURAL POSTURE: Petitioner vessel owner sought exoneration from and/ or limitation of liability arising from respondent deckhand's accident on the owner's passenger ferry. The deckhand claimed that his injuries and disabilities were caused or precipitated by the negligence of the owner and/ or the unseaworthiness of the vessel. The owner claimed that the deckhand's injuries were caused by his own negligence and his disabilities were unrelated to the accident.

OVERVIEW: The deckhand was injured after tying up the port stern mooring line and lowering the vehicle ramp. The ramp slipped off the bulwark and rested on the gate which dislodged from its track and fell on the deckhand. The deckhand's hip and foot were broken but he sustained no other injuries. After recovering from his injuries, the deckhand suffered a stroke which was unrelated to the accident that left him totally and permanently disabled. The deckhand received maintenance and care from the owner from the date of his injury and had no claim for past or current maintenance and cure. The court found that the accident was the result of the combined negligence of the deckhand, another seaman, and the unseaworthiness of the vessel. The owner had privity and knowledge of the unseaworthy condition and was not entitled to limit its liability. The vessel was 70 percent liable for the accident based on its own knowledge of the unseaworthiness and the fault attributed to the seaman. The seaman's negligence was within the scope of his employment and thus was attributed to the owner.

OUTCOME: The owner's petition for exoneration from and/ or limitation of liability was denied. The deckhand was awarded damages with an award of prejudgment interest as to the future damages. The owner was liable for only 70% of the damages because of the deckhand's contributory negligence.

IN THE MATTER OF THE COMPLAINT OF THE PARISH OF PLAQUEMINESAS OWNER OF THE M/ V POINTE-A-LA-HACHE FOR EXONERATION FROM OR LIMITATION OFLIABILITY

CIVIL ACTION NO. 01-2967 SECTION "L"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 22222
November 14, 2002, Decided
November 14, 2002, Filed, Entered

DISPOSITION: Court issued findings of fact and conclusions of law. Damages awarded and petition for exoneration from and/ or limitation of liability denied.

PROCEDURAL POSTURE: Petitioner vessel owner sought exoneration from and/ or limitation of liability arising from respondent deckhand's accident on the owner's passenger ferry. The deckhand claimed that his injuries and disabilities were caused or precipitated by the negligence of the owner and/ or the unseaworthiness of the vessel. The owner claimed that the deckhand's injuries were caused by his own negligence and his disabilities were unrelated to the accident.

OVERVIEW: The deckhand was injured after tying up the port stern mooring line and lowering the vehicle ramp. The ramp slipped off the bulwark and rested on the gate which dislodged from its track and fell on the deckhand. The deckhand's hip and foot were broken but he sustained no other injuries. After recovering from his injuries, the deckhand suffered a stroke which was unrelated to the accident that left him totally and permanently disabled. The deckhand received maintenance and care from the owner from the date of his injury and had no claim for past or current maintenance and cure. The court found that the accident was the result of the combined negligence of the deckhand, another seaman, and the unseaworthiness of the vessel. The owner had privity and knowledge of the unseaworthy condition and was not entitled to limit its liability. The vessel was 70 percent liable for the accident based on its own knowledge of the unseaworthiness and the fault attributed to the seaman. The seaman's negligence was within the scope of his employment and thus was attributed to the owner.

OUTCOME: The owner's petition for exoneration from and/ or limitation of liability was denied. The deckhand was awarded damages with an award of prejudgment interest as to the future damages. The owner was liable for only 70% of the damages because of the deckhand's contributory negligence.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMMANUEL ORMAND NEIL, aka Emmanuel Ormand Neil, Defendant-Appellant.

No. 01-50459
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
312 F.3d 419; 2002 U.S. App. LEXIS 23809; 2002 Cal. DailyOp. Service 11275; 2002 Daily Journal DAR 13110
November 20, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Central District of California. D.C. No. CR-00-01292-SVW-1. Stephen V. Wilson, District Judge, Presiding.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Appellant conditionally pleaded guilty to sexual contact with a minor in violation of 18 U.S.C.S. § 2244(a)(3), but asserted that the United States lacked jurisdiction since the crime occurred in foreign territorial waters. Appellant sought review of the judgment of conviction entered in the United States District Court for the Central District of California.

OVERVIEW: Appellant fondled a minor, a United States citizen, while appellant was an employee on a cruise ship which departed from a United States port and visited foreign ports before returning to the United States. Appellant contended that extraterritorial jurisdiction did not apply since all of his criminal conduct occurred in foreign territorial waters. The appellate court held, however, that the United States had territorial jurisdiction over appellant's offenses because § 2244(a)(3) expressly applied outside the United States and exercising jurisdiction did not offend any principle of international law. Both § 2244(a)(3) and the cross-referenced statute relating to minors, 18 U.S.C.S. § 2243(a), specifically invoked the special maritime and territorial jurisdiction of the United States. Further, the territorial principal of international law permitted United States jurisdiction since appellant's extraterritorial conduct had a detrimental effect on the victim in the United States. Also, under the passive personality principle, the United States could assert jurisdiction over appellant's offenses which were committed against a United States citizen.

OUTCOME: The judgment of conviction was affirmed.

COURT HOLDS THAT EMPLOYER'S MAINTENANCE AND CURE OBLIGATION CONTINUES WHERE THERE IS A CONFLICT AMONG DOCTORS AS TO WHETHER SEAMAN HAS REACHED MAXIMUM MEDICAL IMPROVEMENT; HOWEVER, SEAMAN'S CLAIM FOR PUNITIVE DAMAGES AND ATTORNEYS FEES DENIED.

CHARLES W. GORUM VERSUS ENSCO OFFSHORE COMPANY

CIVIL ACTION NO. 02-2030 c/ w 02-2031 SECTION: "R" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 21992
November 14, 2002, Decided
November 14, 2002, Filed, Entered

DISPOSITION: Plaintiff claim for continuing maintenance and cure from the date defendant discontinued maintenance and cure payments allowed. Plaintiff's claim for punitive damages and attorney's fees denied.

PROCEDURAL POSTURE: The court held a bench a trial on plaintiff seaman's claims for maintenance and cure against defendant ship owner, and for punitive damages, attorney's fees, and costs. The seaman had injured his knee while descending a derrick ladder on board the vessel. The ship owner had discontinued maintenance and cure, asserting the seaman had reached the point of maximum medical improvement (MMI).

OVERVIEW: The seaman received medical attention from numerous sources. It was undisputed that the seaman's injury occurred while in the service of the vessel, entitling him to cure and maintenance. The issue at trial was whether the ship owner continued to owe him maintenance and cure after the date two physicians opined that plaintiff reached MMI, while two others believed he would continue to improve. The seaman argued that the ship owner had discontinued maintenance arbitrarily and capriciously, and that he should be awarded punitive damages and attorney's fees as well. The court followed the general rule stated in Vaughan that where the evidence was conflicting, the court was required to resolve the conflict in favor of the seaman. The court granted judgment interest, but denied the claim for attorney's fees and punitive damages.

OUTCOME: The seaman was awarded continuing maintenance and cure from the date the ship owner had discontinued maintenance and cure payments. The claim for punitive damages and attorney's fees was denied.

LUIS BOLANOS, et al., Plaintiffs, -against-NORWEGIAN CRUISELINES LIMITED, d/ b/ a NORWEGIAN CRUISE LINES, et al., Defendants.

01 Civ. 4182 (RMB) (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 22791
November 26, 2002, Decided
November 26, 2002, Filed

DISPOSITION: Magistrate's Report was adopted in its entirety.

PROCEDURAL POSTURE: Plaintiff employees sued defendants, a cruise line and others, to recover overtime wages allegedly withheld in violation of employment contracts, collective bargaining agreements, and the Seaman's Wage Act. The employees moved for certification as a class under Fed. R. Civ. P. 23. The magistrate recommended that the motion be granted. Defendants objected to the recommendation.

OVERVIEW: The employees sought to certify a class of almost five thousand seafarer-employees who worked on defendants' ships and who worked, or would work, on the various defendants' vessels at some point in time during the period from January 1998 through the time of the suit. The magistrate found that the employees met the requirements under Fed. R. Civ. P. 23(a) including (1) numerosity, as the proposed class consisted of five thousand seafarers; (2) commonality, as they shared common factual and legal questions; (3) typicality, as they were all employees who had not been paid overtime; and (4) adequacy of representation, as this element was not challenged. The magistrate also found that certification under Rule 23(b)(3) was appropriate as the employees sought primarily damages and only secondarily injunctive relief. Defendants objected that the employees did not meet the predominance requirement. The court disagreed, finding that liability issues were common as the employees' claims were based on the alleged across-the-board deprivation of overtime wages, and only damage issues would differ.

OUTCOME: The magistrate's recommendation was adopted in its entirety, and the motion for class certification was granted.

LUIS BOLANOS, et al., Plaintiffs, -against-NORWEGIAN CRUISELINES LIMITED, d/ b/ a NORWEGIAN CRUISE LINES, et al., Defendants.

01 Civ. 4182 (RMB) (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 22791
November 26, 2002, Decided
November 26, 2002, Filed

DISPOSITION: Magistrate's Report was adopted in its entirety.

PROCEDURAL POSTURE: Plaintiff employees sued defendants, a cruise line and others, to recover overtime wages allegedly withheld in violation of employment contracts, collective bargaining agreements, and the Seaman's Wage Act. The employees moved for certification as a class under Fed. R. Civ. P. 23. The magistrate recommended that the motion be granted. Defendants objected to the recommendation.

OVERVIEW: The employees sought to certify a class of almost five thousand seafarer-employees who worked on defendants' ships and who worked, or would work, on the various defendants' vessels at some point in time during the period from January 1998 through the time of the suit. The magistrate found that the employees met the requirements under Fed. R. Civ. P. 23(a) including (1) numerosity, as the proposed class consisted of five thousand seafarers; (2) commonality, as they shared common factual and legal questions; (3) typicality, as they were all employees who had not been paid overtime; and (4) adequacy of representation, as this element was not challenged. The magistrate also found that certification under Rule 23(b)(3) was appropriate as the employees sought primarily damages and only secondarily injunctive relief. Defendants objected that the employees did not meet the predominance requirement. The court disagreed, finding that liability issues were common as the employees' claims were based on the alleged across-the-board deprivation of overtime wages, and only damage issues would differ.

OUTCOME: The magistrate's recommendation was adopted in its entirety, and the motion for class certification was granted.

MICHAEL J. SCARDINA versus MAERSK LINE, LTD.

CIVIL ACTION NO. 00-1512 SECTION: E/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 23135
November 27, 2002, Decided
December 2, 2002, Filed
December 3, 2002, Entered

DISPOSITION: Plaintiff's Motion for Judgment as a Matter of Law or, alternatively, for New Trial denied.

PROCEDURAL POSTURE: Plaintiff employee moved for judgment as a matter of law or, alternatively, for a new trial after the jury returned a verdict in favor of defendant employer in the employee's claims for injuries allegedly caused when he fell on a raised stepping block on the employer's ship while he was groggy due to medication taken at the direction of the employer's medical officer.

OVERVIEW: The court found that while there was certainly conflicting testimony and evidence before the jury, the jury was entitled to accept some testimony and evidence, and reject other testimony and evidence. The jury's verdict was entitled to appropriate deference and there was substantial evidence supporting the jury's verdict. Even presuming that the employee's complaints of back pain were real, the jury could have concluded that his back pain was due to some other aggravation of a pre-existing condition, and not to a fall as he described it. Conflicting evidence was presented relative to the employee's attitude and work habits and during voir dire, all jurors indicated that they had taken Benadryl, and that none had fallen as a result of taking the Benadryl. Finally, based on all of the evidence before it, the jury could have reasonably concluded, without impermissibly resolving any ambiguities in favor of the employee, that the employer properly investigated the employee's demand for aquatherapy, and reasonably refused to provide such cure.

OUTCOME: The employee's motion for judgment as a matter of law or, alternatively, for a new trial was denied.

ALLEN ILAN, Plaintiff and Appellant, v. PRINCESS CRUISES, INC., Defendant and Respondent.

B151303
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
2002 Cal. App. Unpub. LEXIS 9593
October 16, 2002, Filed

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. SC 058753. Cesar C. Sarmiento, Judge.

DISPOSITION: Affirmed.

OVERVIEW: Defendant Princess Cruises, Inc. (Princess) obtained summary judgment in the trial court on plaintiff Allen Ilan's (Ilan) complaint alleging negligence and breach of warranty. Seeking reversal of the summary judgment, Ilan contends on appeal that the trial court erred in granting summary judgment because triable issues of material fact existed with respect to whether Princess was negligent. We conclude that Ilan has waived any challenge to the summary adjudication of the warranty cause of action and that Princess met its burden to demonstrate that Ilan could not establish its negligence cause of action. In the absence of any evidence of disputed facts from Ilan to rebut Princess's showing with respect to the negligence cause of action, we affirm the judgment. Ilan alleged that he was been bitten by a hobo spider while in bed on a Princess cruise ship, and sued for negligence and breach of warranty. Princess moved for summary judgment, contending that (1) Ilan was not bitten by a hobo spider and that the ailments he claimed could not have arisen from a spider bite; (2) any spider bite was unforeseeable, so Princess bore Ilan no duty to insure against the presence of a spider on the ship; (3) Princess had no notice of a dangerous condition on the ship prior to the alleged incident and therefore could not as a matter of law have been negligent; and (4) as a matter of law there was no warranty against the presence of a spider on the ship, so there could not have been any breach of warranty. Princess set forth the following facts in its separate statement of undisputed facts: it is impossible for a hobo spider to have caused the physical problems of which Ilan complained; Ilan did not suffer any of the ailments commonly associated with hobo spider bites; the spider described by Ilan did not resemble a hobo spider; and some of the ailments alleged by Ilan were in fact associated with the prescription medications Ilan was taking. Princess also produced evidence concerning its pest control procedures and the absence of any prior reports of spiders on board.

OUTCOME: The Order Granting Princess' Motion for Summary Judgment was Affirmed.

ALLEN ILAN, Plaintiff and Appellant, v. PRINCESS CRUISES, INC., Defendant and Respondent.

B151303
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
2002 Cal. App. Unpub. LEXIS 9593
October 16, 2002, Filed

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. SC 058753. Cesar C. Sarmiento, Judge.

DISPOSITION: Affirmed.

OVERVIEW: Defendant Princess Cruises, Inc. (Princess) obtained summary judgment in the trial court on plaintiff Allen Ilan's (Ilan) complaint alleging negligence and breach of warranty. Seeking reversal of the summary judgment, Ilan contends on appeal that the trial court erred in granting summary judgment because triable issues of material fact existed with respect to whether Princess was negligent. We conclude that Ilan has waived any challenge to the summary adjudication of the warranty cause of action and that Princess met its burden to demonstrate that Ilan could not establish its negligence cause of action. In the absence of any evidence of disputed facts from Ilan to rebut Princess's showing with respect to the negligence cause of action, we affirm the judgment. Ilan alleged that he was been bitten by a hobo spider while in bed on a Princess cruise ship, and sued for negligence and breach of warranty. Princess moved for summary judgment, contending that (1) Ilan was not bitten by a hobo spider and that the ailments he claimed could not have arisen from a spider bite; (2) any spider bite was unforeseeable, so Princess bore Ilan no duty to insure against the presence of a spider on the ship; (3) Princess had no notice of a dangerous condition on the ship prior to the alleged incident and therefore could not as a matter of law have been negligent; and (4) as a matter of law there was no warranty against the presence of a spider on the ship, so there could not have been any breach of warranty. Princess set forth the following facts in its separate statement of undisputed facts: it is impossible for a hobo spider to have caused the physical problems of which Ilan complained; Ilan did not suffer any of the ailments commonly associated with hobo spider bites; the spider described by Ilan did not resemble a hobo spider; and some of the ailments alleged by Ilan were in fact associated with the prescription medications Ilan was taking. Princess also produced evidence concerning its pest control procedures and the absence of any prior reports of spiders on board.

OUTCOME: The Order Granting Princess' Motion for Summary Judgment was Affirmed.

DIMITRIOS KERAMIDAS VERSUS PROFILE SHIPPING LIMITED AND STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION LIMITED

NO. 2000-CA-1852
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
2000-1852 (La.App. 5 Cir, 10/16/02);
2002 La. App. LEXIS 3149
October 16, 2002, Decided

DISPOSITION: REVERSED AND REMANDED.

PROCEDURAL POSTURE: Appellant wife filed a maritime personal injury suit for the death of her husband. The trial court granted appellee employer summary judgment because the forum selection clause of the employment agreement precluded filing suit in the United States. The court of appeals upheld the summary judgment. Subsequently, the Louisiana Supreme Court granted a writ of certiorari and remanded for reconsideration in light of another case decision.

OVERVIEW: The supreme court remanded for reconsideration in light of a case decision holding that La. Rev. Stat. Ann. § 23:921A(2) prohibited the enforcement of forum selection clauses contained in employment contracts or collective bargaining agreements, that the statute applies to maritime cases, that it was to be applied prospectively and retroactively, and that it did not violate either the state or federal constitutional prohibitions against impairment of contracts. The wife argued that the case decision was on point and mandated reversal. The employer argued that the statute could not be applied constitutionally under the Commerce Clause and could not be applied retroactively. Upon reconsideration, the court of appeals reversed the grant of summary judgment. The court found that the case was on point and it disposed of the employer's arguments. Since the court of appeals was bound by the supreme court's holding, the court of appeals was required to reverse its initial ruling.

OUTCOME: The judgment was reversed and remanded.

Employer's Motion for Summary Judgment Granted against Shipowner's Indemnity / Contribution Claim for claim of a Longshore Worker whose injuries were caused by the negligence of the ship's crew despite a safe berth clause in the charter party contract because the Longshore Harbor Workers Compensation Act bars suits for indemnity from a vessel owner against an employer.

MONICA M. HERETICK, Plaintiff, v. AMBERLEY SHIPPING CORPORATION, Defendant and Third-Party Plaintiff, v. HONEYWELL INTERNATIONAL ,INC., (formerly ALLIED SIGNAL, INC.), Third-Party Defendant.

ACTION NO. 4:01cv98
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION
2002 U.S. Dist. LEXIS 19859
October 17, 2002, Decided
October 17, 2002, Opinion Filed

DISPOSITION: Third-party defendant's motion to dismiss granted.

PROCEDURAL POSTURE: Plaintiff employee filed an action under 46 U.S.C.S. § 740 against defendant vessel owner, alleging that her injuries were caused by the negligence of the ship's crew. The owner filed a third-party complaint for indemnity or contribution against third-party defendant employer. The employer moved to dismiss the third-party complaint, pursuant to Fed. R. Civ. P. 12(b)(6).

OVERVIEW: The employee was injured while assisting in the docking operation of the owner's vessel that was chartered to the employer. After her injury, the employee received benefits under the Longshore Harbor Workers Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., from the employer. The owner alleged that the employer breached the safe berth clause contained in the charter party contract because it failed to properly train its equipment operators, including the employee, in handling mooring lines, and that this failure created an unsafe berth for the docking ships. This breach of warranty required the employer to indemnify the owner for any judgment against it. The employer argued: (1) the safe berth clause provided no basis for indemnification for personal injuries; and (2) the LHWCA barred suits for indemnity by a vessel owner against an employer. Neither expressly, nor by implication, was the employer obligated to indemnify the owner against personal injury actions. Additionally, because the owner alleged that the employer was negligent only in its role as the employee's employer, not in its role as vessel operator, the LHWCA prohibited the employer from being held liable.

OUTCOME: The employer's motion to dismiss was granted.

Employer's Motion for Summary Judgment Granted against Shipowner's Indemnity / Contribution Claim for claim of a Longshore Worker whose injuries were caused by the negligence of the ship's crew despite a safe berth clause in the charter party contract because the Longshore Harbor Workers Compensation Act bars suits for indemnity from a vessel owner against an employer.

MONICA M. HERETICK, Plaintiff, v. AMBERLEY SHIPPING CORPORATION, Defendant and Third-Party Plaintiff, v. HONEYWELL INTERNATIONAL ,INC., (formerly ALLIED SIGNAL, INC.), Third-Party Defendant.

ACTION NO. 4:01cv98
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION
2002 U.S. Dist. LEXIS 19859
October 17, 2002, Decided
October 17, 2002, Opinion Filed

DISPOSITION: Third-party defendant's motion to dismiss granted.

PROCEDURAL POSTURE: Plaintiff employee filed an action under 46 U.S.C.S. § 740 against defendant vessel owner, alleging that her injuries were caused by the negligence of the ship's crew. The owner filed a third-party complaint for indemnity or contribution against third-party defendant employer. The employer moved to dismiss the third-party complaint, pursuant to Fed. R. Civ. P. 12(b)(6).

OVERVIEW: The employee was injured while assisting in the docking operation of the owner's vessel that was chartered to the employer. After her injury, the employee received benefits under the Longshore Harbor Workers Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., from the employer. The owner alleged that the employer breached the safe berth clause contained in the charter party contract because it failed to properly train its equipment operators, including the employee, in handling mooring lines, and that this failure created an unsafe berth for the docking ships. This breach of warranty required the employer to indemnify the owner for any judgment against it. The employer argued: (1) the safe berth clause provided no basis for indemnification for personal injuries; and (2) the LHWCA barred suits for indemnity by a vessel owner against an employer. Neither expressly, nor by implication, was the employer obligated to indemnify the owner against personal injury actions. Additionally, because the owner alleged that the employer was negligent only in its role as the employee's employer, not in its role as vessel operator, the LHWCA prohibited the employer from being held liable.

OUTCOME: The employer's motion to dismiss was granted.

Employer's Motion to Dismiss for Lack of Jones Act Seaman Status Denied Where Factual Issues Existed As To Whether The Vessel Was Out Of Navigation At The Time The Employee Sustained His Injuries and Whether The Employee Was Acting In The Scope of His Employment At The Time of His Injury.

RICHARD CARTER VERSUS BISSO MARINE CO., INC.

NO. 01-2448 SECTION "K" MAGISTRATE "4"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 20127
October 17, 2002, Decided
October 17, 2002, Filed, Entered

DISPOSITION: Defendant Bisso Marine Company, Inc.'s Motion for Summary Judgment as to Plaintiff's Alleged Seaman Status denied. Defendant Bisso Marine Company, Inc.'s Motion for Partial Summary Judgment as to Plaintiff's Claim for Unseaworthiness denied. Defendant Bisso Marine Company, Inc.'s Motion as to Plaintiff's Accident of December 2000 denied, and Defendant Bisso Marine Company, Inc.'s Motion For Partial Summary Judgment on Grounds of Statute of Limitations granted.

PROCEDURAL POSTURE: Defendant ship owner filed motions for summary judgment and motions for partial summary judgment in plaintiff employee's admiralty action to recover damages under the Jones Act and general maritime law for his back injuries.

OVERVIEW: The ship owner claimed that the employee was not a seaman under the Jones Act, that the vessel worked on by the employee was not in navigation at the time of the employee's injuries, that the employee was not acting in the course of his employment at the time of his latest injury, and that the employee's earlier injury claims were time-barred. The court initially held that there were disputed factual issues regarding whether the employee fell short of the thirty percent temporal threshold for seaman status. The court the held that, due to the incomplete and contradictory evidence, it could not say as a matter of law that the vessel was out of navigation when the employee sustained his injuries. The court further held that there were issues of material fact as to whether the employee was acting in the scope of his employment at the time of his latest injury. The court finally held that the employee's earlier injury claims were time-barred under 46 U.S.C.S. Appx. § 183(g) and La. Rev. Stat. Ann. § 9:5628(A).

OUTCOME: Partial summary judgment was granted for the ship owner regarding the employee's earlier injury claims. The remaining motions were denied.

Payments made by shipowner to an injured seaman in excess of its maintenance and cure obligation may not be sought by shipowner from insurer for a third party tortfeasor pursuant to contribution or indemnity where the third party insurer entered into a separate damage settlement with the injured seaman.

STEVEN DURGIN VERSUS CRESCENT TOWING & SALVAGE, INC., ET AL

CIVIL ACTION NO. 00-1602 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 20126
October 18, 2002, Decided
October 18, 2002, Filed, Entered

DISPOSITION: West of England's Motion in Limine to Strike Crescent's Contribution and Indemnity Claims seeking recovery of payments made above and beyond its legal obligation to pay maintenance and cure was granted.

PROCEDURAL POSTURE: Plaintiff seaman sued defendants, a shipowner and the insurer for a third party tortfeasor, for injuries received at sea under the Jones Act. The seaman settled its damage claims with both defendants separately. The shipowner filed a cross-claim against the insurer for contribution and indemnity. The insurer moved to strike the shipowner's claim for payments above and beyond maintenance and cure.

OVERVIEW: The insurer's insured's defective mooring lines popped, striking the shipowner's vessel and injuring the seaman. The shipowner loaned $10,713.11 to the seaman and then paid him $57,897.84 in payments, which could be characterized as temporary partial disability or supplemental wage payments. The insurer did not dispute the shipowner's rights to seek indemnity for maintenance and cure payments, but contended that any other payments made were voluntary and not subject to any right of indemnification. The court agreed, holding that (1) maintenance and cure was the implied contractual right of a seaman who was injured in the service of the ship, regardless of fault, to payments from the shipowner through the time of maximum recovery; (2) the shipowner failed to show the requisite nexus between payments made in excess of its maintenance and cure obligation to the injured seamen and any legal obligation owed by the shipowner, as the payments were made before suit was filed, and the seaman had not pressed an unseaworthiness claim against the shipowner; and (3) the liability for damages was settled by all parties so there was no legal obligation to support the indemnification claim.

OUTCOME: The motion to strike was granted.

After employer attempts to remove an injured worker's Jones Act claim to Federal Court claiming that the injured worker was not a Jones Act Seaman, the Federal Court grants a remand to state Court where the injured worker spent nearly two thirds of his time aboard vessels and received a permanent assignment to work aboard an oil rig prior to the injury.

ZACHARIAH N. ANGLIN VERSUS DIAMOND OFFSHORE DRILLING, INC. AND CONTINENTAL LABORATORIES, INC.

CIVIL ACTION NO. 02-1617 SECTION A(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 20121
October 22, 2002, Decided
October 22, 2002, Filed, Entered

DISPOSITION: Plaintiff's Motion to Remand GRANTED IN PART AND DENIED IN PART.

PROCEDURAL POSTURE: Plaintiff putative seaman sued defendants, contract employer and drilling rig leasing company, for personal injuries in state court. Defendants disputed plaintiff's seaman status under the Jones Act, 46 U.S.C.S. app. § 688. They alleged fraudulent joinder of the Jones Act claim to defeat jurisdiction. The leasing company removed the case. The seaman moved to remand and for attorney's fees and costs.

OVERVIEW: The leasing company asserted that the putative seaman's assignments were based solely upon the oil companies' selection of drilling contractors, and not as assigned or made by his contract employer. Since he did not work aboard a vessel or fleet of vessels owned by his employer, there was no possibility that he could establish a Jones Act, 46 U.S.C.S. app. § 688, claim. The putative seaman argued that, he spent nearly two-thirds of his time aboard vessels owned by the leasing company. Further, he received a permanent assignment from his employer to work aboard the leasing company's rig. There was a reasonable basis for predicting that the putative seaman might establish that he was a seaman. His duties might be reasonably considered as contributing to the function of the vessel or to the accomplishment of its mission. His connection to the leasing company's oil rigs might be reasonably considered as substantial in terms of both its duration and its nature. At the time of the injury, he was assigned to work aboard the leasing company's vessel for an indefinite period of time.

OUTCOME: The putative seaman's motion to remand was granted, but the request for attorney's fees and costs was denied.

Passenger Claim Against Cruise Line Transferred to Florida Where Carnival Cruise Line Passenger Ticket Included Forum Selection Clause Selecting Florida Despite Passenger's Arguments That The Forum Selection Clause Was Not Reasonably Communicated to Passenger And That It Was Unreasonably Arduous In Light of Her Advanced Age and Difficulty Traveling.

LOUISE FERKETICH, Plaintiff, v. CARNIVAL CRUISE LINES, Defendant.

CIVIL ACTION No. 02-CV-3019
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 20052
October 17, 2002, Filed

DISPOSITION: Motion to Dismiss for lack of personal jurisdiction, or improper venue, or in the alterative, to transfer filed by the Defendant, Carnival Cruise Lines was granted. This action was transferred to the United States District Court for the Southern District of Florida.

PROCEDURAL POSTURE: Plaintiff passenger brought a personal injury action against defendant cruise line following her injury aboard a vessel owned by the cruise line. Following removal, the cruise line filed a motion to dismiss for lack of personal jurisdiction, improper venue or, in the alternative, to transfer venue.

OVERVIEW: The cruise line claimed that it did not maintain contacts with the forum state necessary to exercise either specific or general jurisdiction, and that the forum selection clause provided in the passenger's ticket booklet was valid and enforceable and required the transfer of venue. The passenger claimed that she was provided inadequate notice of the forum selection clause, and that the forum selection clause imposed an unfair and arduous burden on her because of her advanced age and difficulty traveling. The court initially held that the passenger was provided with reasonable notice of the forum selection clause, and, thus, the clause satisfied the reasonable communication standard. The court then held that the passenger failed to offer any evidence suggesting that the forum selection clause was a product of the cruise line's bad faith. The court finally held that, although the passenger was elderly and experienced difficulty in traveling, the inconvenience was not severe enough to demonstrate that transfer of venue would be so inconvenient for her that she would be deprived her day in court.

OUTCOME: The motion was granted. The action was transferred to a different venue.

Summary Judgment granted against Seaman's claim for Jones Act Negligence and Unseaworthiness where Seaman failed to respond to employer's statement of uncontested facts which constituted an admission which negated the underlying alleged negligent and unseaworthy condition.

PETER AUKSTUOLIS, Plaintiff, v. HARRAH'S ILLINOIS CORP.,d/b/a HARRAH'S CASINO-JOLIET, Defendant.

Case Number: 99c3593
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2002 U.S. Dist. LEXIS 16680
September 3, 2002, Decided
September 5, 2002, Docketed

DISPOSITION: Defendant's Motion for Summary Judgment GRANTED.

PROCEDURAL POSTURE: Plaintiff employee filed suit under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime and admiralty laws against defendant employer to recover for an injury he sustained during his employment on board the employer's gaming vessel. The employer moved for summary judgment.

OVERVIEW: The crux of the employee's allegation was that the straight-line configuration of the slot machines on the employer's ship did not provide employees with adequate space to access the reserve compartment. However, by failing to respond to the employer's supplemental U.S. Dist. Ct., N.D. Ill., R. 56.1 statement of uncontested facts, the employee admitted that the straight-line configuration of the machines had always offered adequate space for employees to access and service the inner workings of the machines. Thus, the employee's willing or unwitting admission was equivalent to a withdrawal of his allegation that the employer was negligent. The employee's allegation of the employer's failure to maintain a seaworthy vessel was based on the same evidence used to support his allegation of the employer's negligence under the Jones Act. Therefore, given the employee's self-defeating admission, the court held that the evidence presented by the employee was insufficient to show that a reasonable jury could find that the employer's vessel was unseaworthy.

OUTCOME: The motion for summary judgment was granted.

KIM E. GARDNER VERSUS WATERMAN STEAMSHIP CORP.

CIVIL ACTION NO: 01-3224 SECTION: "J"(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 17929
September 20, 2002, Decided
September 23, 2002, Filed; September 23, 2002, Entered

DISPOSITION: Defendant's motion for summary judgment granted in part. Plaintiff's Jones Act claim for emotional injuries suffered as result of harassment dismissed.

PROCEDURAL POSTURE: Plaintiff seaman's complaint, brought under the Jones Act and General Maritime Law, alleged that she suffered emotional injuries as a result of harassment by her supervisor and co-employees, and a physical injury as the result of a slip and fall on the deck of defendant's vessel, while working for the defendant owner. The seaman also sought maintenance and cure. The owner moved for summary judgment.

OVERVIEW: The owner moved for summary judgment based on two arguments: (1) the seaman had failed to present any evidence of physical injury while working aboard the vessel; and (2) the seaman was not entitled to maintenance and cure because she intentionally concealed the fact that she was taking certain medications from her employer. While the court noted that the seaman's deposition testimony that she was injured might not be overwhelming to a jury or translate into huge damages, it did represent a material fact issue which precluded summary judgment on the question whether the seaman suffered a physical injury as a result of a slip and fall on defendant's vessel. The court further held that absent evidence of a physical manifestation of her emotional injuries the seaman could not recover under the Jones Act for damages due to harassment on the vessel. Accordingly, her Jones Act claim for compensatory damages for harassment was dismissed. Lastly, the court did not find that there was any intentional concealment or misrepresentation by the seaman as to the medication she was taking, and thus the owner had failed to satisfy the requirements of McCorpen to deny her maintenance and cure.

OUTCOME: The vessel owner's motion for summary judgment was granted in part. The seaman's Jones Act claim for emotional injuries suffered as a result of harassment was dismissed. The motion was denied in all other respects.

Summary Judgment for seaman's employer reversed where injured seaman failed to disclose prior back injury which occurred shortly before he began working for employer but where injured seaman presented sufficient evidence to create a fact issue about whether the employer would hired him if he had fully disclosed the medical facts of his back injuries and that there was a shortage of available workers aboard the vessel.

Robert N. Britton, Appellant, v. U.S.S. Great Lakes Fleet, Inc., Appellee.

No. 01-3567
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
302 F.3d 812; 2002 U.S. App. LEXIS 18437
June 10, 2002, Submitted
September 9, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the District of Minnesota. Britton v. U.S.S. Great Lakes Fleet, Inc., 2001 U.S. Dist. LEXIS 17804 (D. Minn. Oct. 15, 2001).

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: In a maritime law case, plaintiff deckhand sued defendant employer, seeking recovery of maintenance and cure, and damages for negligence under the Jones Act and for unseaworthiness. The United States District Court for the District of Minnesota granted summary judgment in favor of the employer. The deckhand appealed.

OVERVIEW: The district court held that (1) the deckhand's failure to disclose to the employer a back injury the deckhand had suffered shortly before he began working for the employer precluded the deckhand from obtaining maintenance and cure; (2) the deckhand's testimony about the number of available hands on deck at the time of his injury was insufficient to create an issue of material fact regarding his Jones Act and unseaworthiness claims; and (3) the deckhand failed to present evidence that the doctors who treated him committed malpractice. The appeals court disagreed. The deckhand presented sufficient evidence to create a fact issue about whether the employer would hired him if he had fully disclosed the medical facts of his back injuries. The deckhand's testimony that a shortage of deckhands required him to perform work that was too strenuous for one person to manage, aggravating his back injury, was sufficient to create a material fact dispute regarding both his Jones Act and his unseaworthiness claims. Finally, the deckhand produced sufficient evidence to create an issue of material fact to allow his negligent assignment claim to survive summary judgment and proceed before a jury.

OUTCOME: The court reversed the district court's summary judgment and remanded the case for further proceedings.

Floating Fish Processing Factory which traveled between Seattle and Alaska twice each year is held to be a vessel in navigation for purpose of determining whether injured Fish Processing Factory worker was a Jones Act Seaman despite it being moored at the time of, and for several months prior to, the injury.

ARTHUR MARTINEZ, Plaintiff-Appellant, v. SIGNATURE SEA FOODS INC; LUCKY BUCK F/V, Official # 567411, her machinery, appurtenances, equipment and cargo, in rem, Defendants-Appellees.

No. 01-35768
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
303 F.3d 1132; 2002 U.S. App. LEXIS 18648; 2002 Cal. Daily Op. Service 9360; 2002 Daily Journal DAR 10500
July 8, 2002, Submitted
September 11, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-00-01293-MJP. Marsha J. Pechman, District Judge, Presiding. Martinez v. Signature Seafoods, Inc., 170 F. Supp. 2d 1070, 2001 U.S. Dist. LEXIS 17889 (W.D. Wash. 2001).

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: In the course of his employment on a fish processing barge, plaintiff employee developed carpal tunnel syndrome. The employee filed a personal injury action, raising claims under the Jones Act and the federal maritime doctrine of unseaworthiness. Defendants moved for summary judgment. The United States District Court for the Western District of Washington granted the motion, finding that the employee lacked seaman status. The employee appealed.

OVERVIEW: While also a fish processing factory, the vessel at issue was actually seaworthy. Specifically, the vessel was not permanently moored, and it had the ability to navigate the seas. The vessel had a transportation function, as it carried the fish processing plant, crew quarters, and incidental supplies between Seattle and Alaska twice each year. Even if the transportation function of the vessel was incidental to its primary purpose of serving as a floating fish processing factory, that fact did not preclude a finding that it was a vessel in navigation. Further, there was evidence that the barge was designed as a fish processing vessel which operated in and processes fish on the coasts of Alaska, Washington, Oregon, and/or California. The fact that it was designed to be transported among various fish processing sites raised a substantial factual issue about its status.

OUTCOME: The judgment of the district court was reversed and the action was remanded for further proceedings.

Floating Fish Processing Factory which traveled between Seattle and Alaska twice each year is held to be a vessel in navigation for purpose of determining whether injured Fish Processing Factory worker was a Jones Act Seaman despite it being moored at the time of, and for several months prior to, the injury.

ARTHUR MARTINEZ, Plaintiff-Appellant, v. SIGNATURE SEA FOODS INC; LUCKY BUCK F/V, Official # 567411, her machinery, appurtenances, equipment and cargo, in rem, Defendants-Appellees.

No. 01-35768
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
303 F.3d 1132; 2002 U.S. App. LEXIS 18648; 2002 Cal. Daily Op. Service 9360; 2002 Daily Journal DAR 10500
July 8, 2002, Submitted
September 11, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-00-01293-MJP. Marsha J. Pechman, District Judge, Presiding. Martinez v. Signature Seafoods, Inc., 170 F. Supp. 2d 1070, 2001 U.S. Dist. LEXIS 17889 (W.D. Wash. 2001).

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: In the course of his employment on a fish processing barge, plaintiff employee developed carpal tunnel syndrome. The employee filed a personal injury action, raising claims under the Jones Act and the federal maritime doctrine of unseaworthiness. Defendants moved for summary judgment. The United States District Court for the Western District of Washington granted the motion, finding that the employee lacked seaman status. The employee appealed.

OVERVIEW: While also a fish processing factory, the vessel at issue was actually seaworthy. Specifically, the vessel was not permanently moored, and it had the ability to navigate the seas. The vessel had a transportation function, as it carried the fish processing plant, crew quarters, and incidental supplies between Seattle and Alaska twice each year. Even if the transportation function of the vessel was incidental to its primary purpose of serving as a floating fish processing factory, that fact did not preclude a finding that it was a vessel in navigation. Further, there was evidence that the barge was designed as a fish processing vessel which operated in and processes fish on the coasts of Alaska, Washington, Oregon, and/or California. The fact that it was designed to be transported among various fish processing sites raised a substantial factual issue about its status.

OUTCOME: The judgment of the district court was reversed and the action was remanded for further proceedings.

Ninth Circuit holds that cruise line limitation of liability clause printed within passenger ticket, attempting to limit liability to the terms set forth in the Athens Convention, did not reasonably communicate a liability limitation and was therefore not enforceable.

BOBBIE JO WALLIS, in her individual capacity as Administrator of the Estate and Personal Representative of Joel Anderson Wallis, Deceased, for the benefit of Ervin B. Wallis, Helen Wallis, Joel Shannon Wallis, Stacy Trent Wallis, Jolie Amanda Wallis and Vallie Jo Wallis, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; FAIRLANE SHIPPING INTERNATIONAL CORPORATION, LTD.; PRINCESS CRUISE LINES, LTD., Defendants-Appellees.

No. 01-56700
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 20097; 2002 Cal. Daily Op. Service9829; 2002 Daily Journal DAR 11080
June 5, 2002, Argued and Submitted, Pasadena, California
September 24, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Central District of California. D.C. No. CV-00-07239-WJR. William J. Rea, District Judge, Presiding.

DISPOSITION: Reversed in part, affirmed in part and remanded for further proceedings.

PROCEDURAL POSTURE: Plaintiff, spouse of deceased passenger, appealed from an order of the United States District Court for the Central District of California granting defendants', cruise line and related parties, summary judgment, except for the spouse's Death on the High Seas Act (DOHSA), 46 U.S.C.S. §§ 761-767, claim, and limiting the cruise line's liability in accordance with a clause printed on the back of the passenger's ticket.

OVERVIEW: The spouse brought an action against the cruise line for damages based on the death of her husband, who drowned off the coast of Greece after falling in an undetermined manner from the cruise line's cruise ship. Upon review of the district court granted the cruise line's motions for summary judgment, the court of appeals reversed the grant of partial summary judgment limiting recoverable damages, and held that a contract clause printed on a passenger's that merely refers to the "Convention Relating to the Carriage of Passengers and Their Luggage by Sea' of 1976 (Athens Convention)" does not reasonably communicate a liability limitation. Notably the court determined that it was unrealistic to assume the average passenger with no legal background would even attempt to analyze the conditions under which the Athens Convention would or would not apply. Further the court found that even if a passenger was motivated to undertake such effort, it would require some legal and financial sophistication, and that the ticket's failure to provide an approximate monetary limitation did not meaningfully inform a passenger of a liability limitation, and was therefore unenforceable.

OUTCOME: The district court's grant of partial summary judgment limiting the cruise lines' liability was reversed, and the district court's grant of summary judgment in favor of the cruise line on the claim for intentional infliction of emotional distress was affirmed, and the case was remanded for further proceedings.

K. RANA, M.D., Appellant, vs. MARION FLYNN, Appellee.

CASE NO. 3D02-216
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2002 Fla. App. LEXIS 11555; 27 Fla. L. Weekly D 1837
August 14, 2002, Opinion Filed

PROCEDURAL POSTURE: Plaintiff patient sued defendant doctor for medical malpractice. The doctor moved to dismiss for lack of personal jurisdiction. The Circuit Court for Miami-Dade County (Florida) denied the motion to dismiss, and the doctor appealed the order.

OVERVIEW: The patient had a heart attack while a passenger on a cruise ship. The doctor was the physician on board the ship. The doctor treated the patient as the ship sailed into Florida waters, docked at the Port of Miami, and transport to a local hospital was arranged. The patient claimed that that the care received was inadequate. The appellate court held the trial court properly determined that personal jurisdiction under the long-arm statute was proper over the doctor, who allegedly committed a tort within Florida, Fla. Stat. ch. 48.193(1)(b) (2002). The doctor ministered to the patient's condition in Florida waters and while in the Port of Miami awaiting transportation to a Miami hospital. These facts were sufficient to establish that the doctor committed a tort within Florida, satisfying jurisdiction under the long-arm statute. In addition, the multiplicity of contacts set forth in the complaint satisfied the minimum contacts requirements. The doctor's conduct was such that he could reasonably have anticipated being haled into court in Florida.

OUTCOME: The order was affirmed.

PRESTON P. JOSEPH VERSUS TIDEWATER MARINE, LLC

CIVIL ACTION NO: 01-3594 SECTION: "J"(4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15711
August 13, 2002, Decided
August 13, 2002, Filed; August 14, 2002, Entered

PROCEDURAL POSTURE: Plaintiff seaman alleged he was injured when he fell on board defendant's vessel. In his suit for liability for maintenance and cure he moved in limine to preclude the vessel owner from putting on evidence of its liability and of his contributory negligence due to failure to report the accident in violation of 46 C.F.R. § 4.05-10, and to exclude testimony of one of his own doctors.

OVERVIEW: The seaman argued that because the owner failed to report his accident as required by 46 C.F.R. § 4.05-10 it was precluded from putting on evidence of the seaman's contributory negligence; that its submission of an inaccurate accident report created a presumption that the owner was responsible and liable for his injuries. The court disagreed. Even if the owner was required to file a maritime injury report, its failure to do so was not a cause of the injuries. The court also found there was no basis for denying a treating doctor's testimony that was adverse with respect to the causation of the seaman's current injured status.

OUTCOME: Plaintiff's motions in limine on liability for maintenance and cure and to preclude his doctor's testimony were denied.

TANNOUS L. BACHIR, Plaintiff, -against- TRANSOCEANIC CABLE SHIP COMPANY and C. S. LONG LINES, L.P., Defendants.

98 Civ. 4625 (JFK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2002 U.S. Dist. LEXIS 14908
August 14, 2002, Decided
August 14, 2002, Filed

PROCEDURAL POSTURE: A jury awarded plaintiff seaman past maintenance at a rate of $80 per day. Defendants argued in post-trial motions that the seaman was not entitled to the $80 rate, that he was entitled to recover his individual costs and not those of his family members, and that the award should not extend beyond the date that he was declared fit for duty. The court ordered the seaman to submit evidence establishing his actual expenses.

OVERVIEW: Upon a review of the evidence, the court found as follows: that $10 for food per day was a reasonable amount; the $300 utilities amount did not appear reasonable and since no documentation was provided to support it, that amount was disallowed in its entirety; the seaman's salary paid the full mortgage amount, the amount was reasonable, and such amount was allowed because to award the seaman any less for a home he shared with his family would cause him to lose his home; the award period extended only to the date the seaman was declared fit; no maintenance was allowed for automobile expenses.

OUTCOME: The court reduced the amount of maintenance awarded by the jury and limited the period for which maintenance was to be paid.

WALTER C. KRETZER, Plaintiff/Appellant, v. HESS OIL VIRGINISLANDS CORP., Defendant/Appellee.

Civ. App. No. 2001-0019
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX, APPELLATE DIVISION
2002 U.S. Dist. LEXIS 15576
April 12, 2002, Considered
August 16, 2002, Decided
August 16, 2002, Filed

PRIOR HISTORY: On Appeal from the Territorial Court of the Virgin Islands. Re: Terr. Ct. Civ. No. 913/1991.

DISPOSITION: Decision of Territorial Court affirmed.

PROCEDURAL POSTURE: Appellant seaman appealed the order of the Territorial Court of the Virgin Islands the Territorial Court which entered judgment on the pleadings in favor of appellee, the seaman's former employer, and found that federal maritime law preempted the seaman, as a seaman operating in territorial waters, from bringing any claim under the Virgin Islands Wrongful Discharge Act (VIWDA), 24 V.I. Code Ann. § 76.

OVERVIEW: The employer specifically stated that the seaman refused to pilot small ships under the observation of an experienced pilot. The seaman alleged that the employer lacked just cause for terminating him and attempted, but was unable, to meet with the employer to discuss the reasons for his termination. The court agreed with the trial court that maritime law governed the case. The trial judge applied its preemptive effect too broadly in effectively ruling that the seaman, as an at-will employee under federal maritime law, could never bring a claim for wrongful discharge under the VIWDA. Substantive maritime law recognized a public policy exception to the at-will maritime employment, whether such a public policy exception was grounded in the VIWDA or elsewhere. The court also agreed with the trial court, however, that the complaint as it was pleaded did not state a claim for a maritime tort for wrongful discharge and was therefore properly dismissed. Accordingly, the court affirmed the trial court's judgment, which dismissed the seaman's complaint on the pleadings.

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

OBEDEAN CREAR, JR. VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION NUMBER 99-420, REF: ALL CASES SECTION "L" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15759
August 20, 2002, Decided
August 21, 2002, Filed; August 22, 2002, Entered

DISPOSITION: Defendant's motion to dismiss denied and Defendant's motion for summary judgment denied as premature.

PROCEDURAL POSTURE: Plaintiff crewmember was struck in the head as he worked on defendant vessel owner's vessel. The crewmember filed suit against the vessel owner under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law. The crewmember killed his grandmother. The children of the deceased brought suit against the vessel owner and alleged negligence. The suits were consolidated. The vessel owner moved to dismiss and for summary judgment.

OVERVIEW: The deceased's children alleged that the proximate cause of the crewmember's act was the vessel owner's negligence in injuring the crewmember and in failing to live up to its obligations under the general maritime law, which exacerbated his mental impairment. The vessel owner argued that the claims were governed by general maritime law and that the crew member's intentional murder of his grandmother, was an unforeseeable, superseding cause of harm for which the vessel owner was not liable. The court found that the incident in which the crewmember killed his grandmother fell within admiralty jurisdiction since the alleged damages were "consummated on land" but were allegedly "caused by a vessel on navigable waters." The incidents complained of, maritime negligence and/ or unseaworthiness, and failure to provide maintenance and cure, had the potential to disrupt maritime commerce and the general character of the activity showed a substantial relationship to traditional maritime activity. Because the children's' claims stemmed from the death of a non-seafarer, and Congress had not prescribed a comprehensive remedy for such claims, state law could supplement general maritime law.

OUTCOME: The vessel owner's motion to dismiss was denied and the vessel owner's motion for summary judgment was denied as premature, and the vessel owner's right to rearurge the motion at a later date was reserved.

OBEDEAN CREAR, JR. VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION NUMBER 99-420, REF: ALL CASES SECTION "L" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15759
August 20, 2002, Decided
August 21, 2002, Filed; August 22, 2002, Entered

DISPOSITION: Defendant's motion to dismiss denied and Defendant's motion for summary judgment denied as premature.

PROCEDURAL POSTURE: Plaintiff crewmember was struck in the head as he worked on defendant vessel owner's vessel. The crewmember filed suit against the vessel owner under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law. The crewmember killed his grandmother. The children of the deceased brought suit against the vessel owner and alleged negligence. The suits were consolidated. The vessel owner moved to dismiss and for summary judgment.

OVERVIEW: The deceased's children alleged that the proximate cause of the crewmember's act was the vessel owner's negligence in injuring the crewmember and in failing to live up to its obligations under the general maritime law, which exacerbated his mental impairment. The vessel owner argued that the claims were governed by general maritime law and that the crew member's intentional murder of his grandmother, was an unforeseeable, superseding cause of harm for which the vessel owner was not liable. The court found that the incident in which the crewmember killed his grandmother fell within admiralty jurisdiction since the alleged damages were "consummated on land" but were allegedly "caused by a vessel on navigable waters." The incidents complained of, maritime negligence and/ or unseaworthiness, and failure to provide maintenance and cure, had the potential to disrupt maritime commerce and the general character of the activity showed a substantial relationship to traditional maritime activity. Because the children's' claims stemmed from the death of a non-seafarer, and Congress had not prescribed a comprehensive remedy for such claims, state law could supplement general maritime law.

OUTCOME: The vessel owner's motion to dismiss was denied and the vessel owner's motion for summary judgment was denied as premature, and the vessel owner's right to rearurge the motion at a later date was reserved.

OBEDEAN CREAR, JR. VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION NUMBER 99-420, REF: ALL CASES SECTION "L" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15759
August 20, 2002, Decided
August 21, 2002, Filed; August 22, 2002, Entered

DISPOSITION: Defendant's motion to dismiss denied and Defendant's motion for summary judgment denied as premature.

PROCEDURAL POSTURE: Plaintiff crewmember was struck in the head as he worked on defendant vessel owner's vessel. The crewmember filed suit against the vessel owner under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law. The crewmember killed his grandmother. The children of the deceased brought suit against the vessel owner and alleged negligence. The suits were consolidated. The vessel owner moved to dismiss and for summary judgment.

OVERVIEW: The deceased's children alleged that the proximate cause of the crewmember's act was the vessel owner's negligence in injuring the crewmember and in failing to live up to its obligations under the general maritime law, which exacerbated his mental impairment. The vessel owner argued that the claims were governed by general maritime law and that the crew member's intentional murder of his grandmother, was an unforeseeable, superseding cause of harm for which the vessel owner was not liable. The court found that the incident in which the crewmember killed his grandmother fell within admiralty jurisdiction since the alleged damages were "consummated on land" but were allegedly "caused by a vessel on navigable waters." The incidents complained of, maritime negligence and/ or unseaworthiness, and failure to provide maintenance and cure, had the potential to disrupt maritime commerce and the general character of the activity showed a substantial relationship to traditional maritime activity. Because the children's' claims stemmed from the death of a non-seafarer, and Congress had not prescribed a comprehensive remedy for such claims, state law could supplement general maritime law.

OUTCOME: The vessel owner's motion to dismiss was denied and the vessel owner's motion for summary judgment was denied as premature, and the vessel owner's right to rearurge the motion at a later date was reserved.

OBEDEAN CREAR, JR. VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION NUMBER 99-420, REF: ALL CASES SECTION "L" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15759
August 20, 2002, Decided
August 21, 2002, Filed; August 22, 2002, Entered

DISPOSITION: Defendant's motion to dismiss denied and Defendant's motion for summary judgment denied as premature.

PROCEDURAL POSTURE: Plaintiff crewmember was struck in the head as he worked on defendant vessel owner's vessel. The crewmember filed suit against the vessel owner under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law. The crewmember killed his grandmother. The children of the deceased brought suit against the vessel owner and alleged negligence. The suits were consolidated. The vessel owner moved to dismiss and for summary judgment.

OVERVIEW: The deceased's children alleged that the proximate cause of the crewmember's act was the vessel owner's negligence in injuring the crewmember and in failing to live up to its obligations under the general maritime law, which exacerbated his mental impairment. The vessel owner argued that the claims were governed by general maritime law and that the crew member's intentional murder of his grandmother, was an unforeseeable, superseding cause of harm for which the vessel owner was not liable. The court found that the incident in which the crewmember killed his grandmother fell within admiralty jurisdiction since the alleged damages were "consummated on land" but were allegedly "caused by a vessel on navigable waters." The incidents complained of, maritime negligence and/ or unseaworthiness, and failure to provide maintenance and cure, had the potential to disrupt maritime commerce and the general character of the activity showed a substantial relationship to traditional maritime activity. Because the children's' claims stemmed from the death of a non-seafarer, and Congress had not prescribed a comprehensive remedy for such claims, state law could supplement general maritime law.

OUTCOME: The vessel owner's motion to dismiss was denied and the vessel owner's motion for summary judgment was denied as premature, and the vessel owner's right to rearurge the motion at a later date was reserved.

OBEDEAN CREAR, JR. VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION NUMBER 99-420, REF: ALL CASES SECTION "L" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15759
August 20, 2002, Decided
August 21, 2002, Filed; August 22, 2002, Entered

DISPOSITION: Defendant's motion to dismiss denied and Defendant's motion for summary judgment denied as premature.

PROCEDURAL POSTURE: Plaintiff crewmember was struck in the head as he worked on defendant vessel owner's vessel. The crewmember filed suit against the vessel owner under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law. The crewmember killed his grandmother. The children of the deceased brought suit against the vessel owner and alleged negligence. The suits were consolidated. The vessel owner moved to dismiss and for summary judgment.

OVERVIEW: The deceased's children alleged that the proximate cause of the crewmember's act was the vessel owner's negligence in injuring the crewmember and in failing to live up to its obligations under the general maritime law, which exacerbated his mental impairment. The vessel owner argued that the claims were governed by general maritime law and that the crew member's intentional murder of his grandmother, was an unforeseeable, superseding cause of harm for which the vessel owner was not liable. The court found that the incident in which the crewmember killed his grandmother fell within admiralty jurisdiction since the alleged damages were "consummated on land" but were allegedly "caused by a vessel on navigable waters." The incidents complained of, maritime negligence and/ or unseaworthiness, and failure to provide maintenance and cure, had the potential to disrupt maritime commerce and the general character of the activity showed a substantial relationship to traditional maritime activity. Because the children's' claims stemmed from the death of a non-seafarer, and Congress had not prescribed a comprehensive remedy for such claims, state law could supplement general maritime law.

OUTCOME: The vessel owner's motion to dismiss was denied and the vessel owner's motion for summary judgment was denied as premature, and the vessel owner's right to rearurge the motion at a later date was reserved.

Jocelyn D. Angeles, Plaintiff, -against- Norwegian Cruise Lines, Inc., Defendant.

No. 01 CV 9441(RCC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 16134
August 28, 2002, Decided
August 29, 2002, Filed

DISPOSITION: Defendant's motion for summary judgment denied without prejudice.

PROCEDURAL POSTURE: Plaintiff former employee brought a maritime action against defendant former employer, a cruise line, alleging sexual harassment and gender discrimination. The employer filed a motion for summary judgment contending that the employment arrangement between the parties was subject to a forum selection clause.

OVERVIEW: The employee claimed that she was sexually harassed and discriminated against primarily because of conduct of her supervisor. The employer filed a motion for summary judgment, contending that the employment agreement signed by the employee and the employer contained a forum selection clause that gave the Philippine Overseas Employment Administration (POEA) or the National Labor Relations Commission (NLRC) exclusive jurisdiction over the action. The employee had signed a one-page document, which referred to two other standard documents. The forum selection clause was contained in the two standard documents, but the employee claimed in her affidavit that she had never received copies of the two standard documents. The court denied the employer's motion for summary judgment without prejudice. The court found that the employer had not provided any evidence to rebut the employee's assertion that she had not been given notice of the forum selection clause. The court indicated that it would reconsider the employer's motion at a later time, if appropriate after discovery.

OUTCOME: The court denied the employer's motion for summary judgment without prejudice. The court indicated that it would re-hear the employer's motion, if appropriate, after the employer and the employee had conducted discovery.

Jocelyn D. Angeles, Plaintiff, -against- Norwegian Cruise Lines, Inc., Defendant.

No. 01 CV 9441(RCC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 16134
August 28, 2002, Decided
August 29, 2002, Filed

DISPOSITION: Defendant's motion for summary judgment denied without prejudice.

PROCEDURAL POSTURE: Plaintiff former employee brought a maritime action against defendant former employer, a cruise line, alleging sexual harassment and gender discrimination. The employer filed a motion for summary judgment contending that the employment arrangement between the parties was subject to a forum selection clause.

OVERVIEW: The employee claimed that she was sexually harassed and discriminated against primarily because of conduct of her supervisor. The employer filed a motion for summary judgment, contending that the employment agreement signed by the employee and the employer contained a forum selection clause that gave the Philippine Overseas Employment Administration (POEA) or the National Labor Relations Commission (NLRC) exclusive jurisdiction over the action. The employee had signed a one-page document, which referred to two other standard documents. The forum selection clause was contained in the two standard documents, but the employee claimed in her affidavit that she had never received copies of the two standard documents. The court denied the employer's motion for summary judgment without prejudice. The court found that the employer had not provided any evidence to rebut the employee's assertion that she had not been given notice of the forum selection clause. The court indicated that it would reconsider the employer's motion at a later time, if appropriate after discovery.

OUTCOME: The court denied the employer's motion for summary judgment without prejudice. The court indicated that it would re-hear the employer's motion, if appropriate, after the employer and the employee had conducted discovery.

Cruise Line's Summary Judgment Motion Was Granted As To (1) The Retroactive Application Of The Harbor Maintenance Tax For Layover Stops, (2) The Inclusion Of "Port Taxes" And Other Federal Agency Charges; (3) The Inclusion Of Some Charges For Airfare And Land-Based Services, And (4) The Assessment Of "Pre-Billing" Interest On The Principal Owed For Harbor Maintenance Tax.

PRINCESS CRUISES, INC., Plaintiff, v. THE UNITED STATES, Defendant.

Consol. Court No. 94-06-00352, (98-03-00463)
UNITED STATES COURT OF INTERNATIONAL TRADE
2002 Ct. Intl. Trade LEXIS 99; SLIP OP. 2002-99
August 29, 2002, Dated

DISPOSITION: Princess's motion for summary judgment granted in part and Customs' cross-motion for summary judgment granted in part.

PROCEDURAL POSTURE: In this consolidated action, plaintiff cruise lines contested the assessment and calculation of the Harbor Maintenance Tax (HMT) on passenger cruise ships by defendant, the United States Customs Service (Customs), and Customs' assessment of pre-billing interest on allegedly underpaid HMT and Arriving Passenger Fee (APF) amounts. The matter was on remand from the Court of Appeals for the Federal Circuit.

OVERVIEW: Customs notified the cruise line that it had underpaid HMT and APF and owed substantial pre-billing interest on both amounts. The court had previously ruled the HMT unconstitutional, but was reversed on appeal. The appellate court ruled that the Customs' APF regulation and the HMT statute and regulation were entitled to Chevron deference. The court found that the cruise line was not liable for the HMT on cruises which made only layover stops at HMT covered ports prior to the issuance of the Customs' ruling resolving the ambiguity in the statute and regulation to include such stops. The court also held that Customs should not have included port taxes and charges for Customs and United States Immigration and Naturalization services in the cruise value on which the HMT was assessed, but was correct in assessing the HMT on the price paid for the cruise exclusive of land-based services and commissions. Thus, the cruise line was not liable for interest on those amounts, but it was liable for interest on the APF amounts.

OUTCOME: The cruise line's summary judgment motion was granted as to (1) the retroactive application of the Customs' assessment of the HMT for layover stops, (2) the inclusion of "port taxes" and other federal agency charges; (3) the inclusion of some charges for airfare and land-based services, and (4) the assessment of "pre-billing" interest on the HMT principal. Customs' cross-motion for summary judgment was granted as to all other issues.

Cruise Line's Summary Judgment Motion Was Granted As To (1) The Retroactive Application Of The Harbor Maintenance Tax For Layover Stops, (2) The Inclusion Of "Port Taxes" And Other Federal Agency Charges; (3) The Inclusion Of Some Charges For Airfare And Land-Based Services, And (4) The Assessment Of "Pre-Billing" Interest On The Principal Owed For Harbor Maintenance Tax.

PRINCESS CRUISES, INC., Plaintiff, v. THE UNITED STATES, Defendant.

Consol. Court No. 94-06-00352, (98-03-00463)
UNITED STATES COURT OF INTERNATIONAL TRADE
2002 Ct. Intl. Trade LEXIS 99; SLIP OP. 2002-99
August 29, 2002, Dated

DISPOSITION: Princess's motion for summary judgment granted in part and Customs' cross-motion for summary judgment granted in part.

PROCEDURAL POSTURE: In this consolidated action, plaintiff cruise lines contested the assessment and calculation of the Harbor Maintenance Tax (HMT) on passenger cruise ships by defendant, the United States Customs Service (Customs), and Customs' assessment of pre-billing interest on allegedly underpaid HMT and Arriving Passenger Fee (APF) amounts. The matter was on remand from the Court of Appeals for the Federal Circuit.

OVERVIEW: Customs notified the cruise line that it had underpaid HMT and APF and owed substantial pre-billing interest on both amounts. The court had previously ruled the HMT unconstitutional, but was reversed on appeal. The appellate court ruled that the Customs' APF regulation and the HMT statute and regulation were entitled to Chevron deference. The court found that the cruise line was not liable for the HMT on cruises which made only layover stops at HMT covered ports prior to the issuance of the Customs' ruling resolving the ambiguity in the statute and regulation to include such stops. The court also held that Customs should not have included port taxes and charges for Customs and United States Immigration and Naturalization services in the cruise value on which the HMT was assessed, but was correct in assessing the HMT on the price paid for the cruise exclusive of land-based services and commissions. Thus, the cruise line was not liable for interest on those amounts, but it was liable for interest on the APF amounts.

OUTCOME: The cruise line's summary judgment motion was granted as to (1) the retroactive application of the Customs' assessment of the HMT for layover stops, (2) the inclusion of "port taxes" and other federal agency charges; (3) the inclusion of some charges for airfare and land-based services, and (4) the assessment of "pre-billing" interest on the HMT principal. Customs' cross-motion for summary judgment was granted as to all other issues.

Cruise Line's Summary Judgment Motion Was Granted As To (1) The Retroactive Application Of The Harbor Maintenance Tax For Layover Stops, (2) The Inclusion Of "Port Taxes" And Other Federal Agency Charges; (3) The Inclusion Of Some Charges For Airfare And Land-Based Services, And (4) The Assessment Of "Pre-Billing" Interest On The Principal Owed For Harbor Maintenance Tax.

PRINCESS CRUISES, INC., Plaintiff, v. THE UNITED STATES, Defendant.

Consol. Court No. 94-06-00352, (98-03-00463)
UNITED STATES COURT OF INTERNATIONAL TRADE
2002 Ct. Intl. Trade LEXIS 99; SLIP OP. 2002-99
August 29, 2002, Dated

DISPOSITION: Princess's motion for summary judgment granted in part and Customs' cross-motion for summary judgment granted in part.

PROCEDURAL POSTURE: In this consolidated action, plaintiff cruise lines contested the assessment and calculation of the Harbor Maintenance Tax (HMT) on passenger cruise ships by defendant, the United States Customs Service (Customs), and Customs' assessment of pre-billing interest on allegedly underpaid HMT and Arriving Passenger Fee (APF) amounts. The matter was on remand from the Court of Appeals for the Federal Circuit.

OVERVIEW: Customs notified the cruise line that it had underpaid HMT and APF and owed substantial pre-billing interest on both amounts. The court had previously ruled the HMT unconstitutional, but was reversed on appeal. The appellate court ruled that the Customs' APF regulation and the HMT statute and regulation were entitled to Chevron deference. The court found that the cruise line was not liable for the HMT on cruises which made only layover stops at HMT covered ports prior to the issuance of the Customs' ruling resolving the ambiguity in the statute and regulation to include such stops. The court also held that Customs should not have included port taxes and charges for Customs and United States Immigration and Naturalization services in the cruise value on which the HMT was assessed, but was correct in assessing the HMT on the price paid for the cruise exclusive of land-based services and commissions. Thus, the cruise line was not liable for interest on those amounts, but it was liable for interest on the APF amounts.

OUTCOME: The cruise line's summary judgment motion was granted as to (1) the retroactive application of the Customs' assessment of the HMT for layover stops, (2) the inclusion of "port taxes" and other federal agency charges; (3) the inclusion of some charges for airfare and land-based services, and (4) the assessment of "pre-billing" interest on the HMT principal. Customs' cross-motion for summary judgment was granted as to all other issues.

NORTHERN QUEEN INC., an Alaska corporation, as owner and operator of the F/V LIN J, Official No. 538018, for exoneration from or limitation of liability, Plaintiff-Appellee, v. KATHRYN KINNEAR, the Estate of Blake Kinnear, Claimant-Appellant.

No. 00-36093
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
298 F.3d 1090; 2002 U.S. App. LEXIS 15775
June 13, 2002, Argued and Submitted, Seattle, Washington
August 7, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-99-1113-MJP. Marsha J. Pechman, District Judge, Presiding. In re N. Queen, Inc., 2000 U.S. Dist. LEXIS 20142, 2001 A.M.C. 556 (W.D. Wash. 2000).

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Claimant estate of decedent sea captain appealed from an order of the United States District Court for the Western District of Washington, that entered judgment in favor of plaintiff vessel owner and operator limiting its liability under the Limitation of Liability Act, 46 U.S.C.S. app. § 181 et seq., to the decedent's estate under the primary duty doctrine.

OVERVIEW: Decedent's estate sought recovery for his death in a shipping accident. The vessel was captained by the decedent, and capsized with the loss of all hands in icy waters off Alaska. At trial, the district court found it was more probable than not that the vessel was traveling too rapidly before the casualty to avoid excessive icing or to permit removal of the ice build-up, and that the presence of 62 crab pots on board prevented the situation involving bilge in the lazarette from being corrected. As captain of the vessel, the decedent assumed responsibility for operating the vessel safely. Since he was the one person on board who could have given orders that could have corrected that situation, his own failure to perform duties imposed on him by his employment precluded his recovery from the vessel owner under the primary duty rule.

OUTCOME: The judgment of the district court was affirmed.

NORTHERN QUEEN INC., an Alaska corporation, as owner and operator of the F/V LIN J, Official No. 538018, for exoneration from or limitation of liability, Plaintiff-Appellee, v. KATHRYN KINNEAR, the Estate of Blake Kinnear, Claimant-Appellant.

No. 00-36093
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
298 F.3d 1090; 2002 U.S. App. LEXIS 15775
June 13, 2002, Argued and Submitted, Seattle, Washington
August 7, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-99-1113-MJP. Marsha J. Pechman, District Judge, Presiding. In re N. Queen, Inc., 2000 U.S. Dist. LEXIS 20142, 2001 A.M.C. 556 (W.D. Wash. 2000).

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Claimant estate of decedent sea captain appealed from an order of the United States District Court for the Western District of Washington, that entered judgment in favor of plaintiff vessel owner and operator limiting its liability under the Limitation of Liability Act, 46 U.S.C.S. app. § 181 et seq., to the decedent's estate under the primary duty doctrine.

OVERVIEW: Decedent's estate sought recovery for his death in a shipping accident. The vessel was captained by the decedent, and capsized with the loss of all hands in icy waters off Alaska. At trial, the district court found it was more probable than not that the vessel was traveling too rapidly before the casualty to avoid excessive icing or to permit removal of the ice build-up, and that the presence of 62 crab pots on board prevented the situation involving bilge in the lazarette from being corrected. As captain of the vessel, the decedent assumed responsibility for operating the vessel safely. Since he was the one person on board who could have given orders that could have corrected that situation, his own failure to perform duties imposed on him by his employment precluded his recovery from the vessel owner under the primary duty rule.

OUTCOME: The judgment of the district court was affirmed.

ALISTAIR J. MACPHAIL, Plaintiff-Appellee, VERSUS OCEANEERING INTERNATIONAL, INC., Defendant-Appellant.

No. 02-40317
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 15782
August 7, 2002, Decided

PRIOR HISTORY: Appeal from the United States District Court For the Southern District of Texas. G-01-CV-266. Samuel B Kent, US District Judge. MacPhail v. Oceaneering Int'l, Inc., 186 F. Supp. 2d 704, 2002 U.S. Dist. LEXIS 2428 (S.D. Tex. 2002).

DISPOSITION: VACATED in part, STAYED, and REMANDED.

PROCEDURAL POSTURE: Appellant employer appealed the decision of the United States District Court for the Southern District of Texas regarding the admiralty and maritime law claim appellee employee brought against the employer. Specifically, the appeal concerned the validity of contractual forum selection clause and an injunction preventing the employer from further prosecuting any action against the employee in Australia.

OVERVIEW: The suit involved injuries the employee suffered while on a deep ocean diving job for the employer. The employer presented two issues on appeal: (1) whether the district court abused its discretion when it enjoined the employer from prosecuting its contract claims against the employee in Australia; and (2) whether the district court erred when it denied the employer's motion to dismiss. The court held that the employer instituting an enforcement action in Australia was not duplicitous or vexatious. The two suits were not duplicitous because even though the suit filed by the employee in the Texas arose out of facts contemplated in the release, it was a maritime tort claim. If the District Court of Australia had proper jurisdiction to rule on the validity of the release, as it already had, it was hard for the appellate court to imagine how seeking enforcement of that ruling was vexatious. Whether or not Texas had jurisdiction was a function of whether or not the Australian court had jurisdiction of the suit filed by the employee to secure that court's approval of his original settlement agreement and release with the employer, which it did.

OUTCOME: The appellate court vacated the district court's order granting the employee's motion to enjoin and the employer's motion for reconsideration. Further, the appellate court stayed the district court proceedings pending judgment by the Australian court. The case was remanded for proceedings consistent with the instant opinion.

Summary Judgment Granted For Employer On Claim For Jones Act Negligence For Injury Sustained In Port When Seaman Was Running A Personal Errand And Summary Judgment Denied As To Maintenance And Cure Claim Where Triable Issue Remains As To Whether Seaman Was Acting In The Scope Of His Employment When He Was Injured.

EDWIN V. CALLBREATH, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee.

No. 00-35478
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 16339
July 8, 2002, Argued and Submitted, Seattle, Washington
August 8, 2002, Filed

PROCEDURAL POSTURE: Appellant crewmember aboard a ship owned by appellee the United States that was docked at a port facility was injured upon returning from a personal errand. The crewmember sued the government for negligence under the Jones Act, 46 U.S.C.S. app. § 688(a), as well as for maintenance and cure. The United States District Court for the Western District of Washington granted the government's motion for summary judgment. The crewmember appealed.

OVERVIEW: The crewmember was injured on railroad tracks that were adjacent to the port facility where his ship was docked. The district court granted summary judgment to the government on the ground that the crewmember was not within the scope of his employment when the accident occurred. The appellate court affirmed the grant of summary judgment on the claim under the Jones Act, 46 U.S.C.S. app. § 688(a), because the crewmember adduced no evidence of employer negligence. Even construing all of the evidence in the light most favorable to the crewmember, he could not prove that the government had any duty to provide for his safe passage across the railroad tracks, which were not under its direct control. Because there was a triable jury question as to whether the crewmember was acting within the scope of his employment while returning to ship on the night of the accident, the district court's determination to the contrary on the maintenance and cure claim was in error. As maintenance and cure was in no sense predicated on the fault or negligence of the ship owner, the absence of negligence on the government's part was not sufficient to deny recovery at the summary judgment stage.

OUTCOME: The district court's order which granted the government's motion for summary judgment was affirmed as to the Jones Act claim, but was reversed as to the claim for maintenance and cure, and was remanded for further proceedings. Costs on appeal were awarded to the crewmember.

Summary Judgment Granted For Employer On Claim For Jones Act Negligence For Injury Sustained In Port When Seaman Was Running A Personal Errand And Summary Judgment Denied As To Maintenance And Cure Claim Where Triable Issue Remains As To Whether Seaman Was Acting In The Scope Of His Employment When He Was Injured.

EDWIN V. CALLBREATH, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee.

No. 00-35478
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 16339
July 8, 2002, Argued and Submitted, Seattle, Washington
August 8, 2002, Filed

PROCEDURAL POSTURE: Appellant crewmember aboard a ship owned by appellee the United States that was docked at a port facility was injured upon returning from a personal errand. The crewmember sued the government for negligence under the Jones Act, 46 U.S.C.S. app. § 688(a), as well as for maintenance and cure. The United States District Court for the Western District of Washington granted the government's motion for summary judgment. The crewmember appealed.

OVERVIEW: The crewmember was injured on railroad tracks that were adjacent to the port facility where his ship was docked. The district court granted summary judgment to the government on the ground that the crewmember was not within the scope of his employment when the accident occurred. The appellate court affirmed the grant of summary judgment on the claim under the Jones Act, 46 U.S.C.S. app. § 688(a), because the crewmember adduced no evidence of employer negligence. Even construing all of the evidence in the light most favorable to the crewmember, he could not prove that the government had any duty to provide for his safe passage across the railroad tracks, which were not under its direct control. Because there was a triable jury question as to whether the crewmember was acting within the scope of his employment while returning to ship on the night of the accident, the district court's determination to the contrary on the maintenance and cure claim was in error. As maintenance and cure was in no sense predicated on the fault or negligence of the ship owner, the absence of negligence on the government's part was not sufficient to deny recovery at the summary judgment stage.

OUTCOME: The district court's order which granted the government's motion for summary judgment was affirmed as to the Jones Act claim, but was reversed as to the claim for maintenance and cure, and was remanded for further proceedings. Costs on appeal were awarded to the crewmember.

LUIS BOLANOS, et al., Plaintiffs, -against- NORWEGIAN CRUISE LINES LIMITED, d/b/a NORWEGIAN CRUISE LINES, et al., Defendants.

IN THE MATTER OF THE COMPLAINT OF PMD ENTERPRISES, INC., AS OWNER OF THE VESSEL BETH DEE BOB, FOR EXONERATION FROM AND LIMITATION OF LIABILITY; LISA MCLAUGHLIN, as wife and Personal Representative of the Estate of Edward J. McLaughlin, Deceased, Appellant v. CAPE MAY FOODS, INC. and PETER A. LAMONICA

No. 01-4144
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2002 U.S. App. LEXIS 17281

PRIOR HISTORY: On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 00-cv-00161). District Judge: Hon. Garrett E. Brown, Jr.

DISPOSITION: Appeal was dismissed.

PROCEDURAL POSTURE: Plaintiff widow filed a wrongful death suit against defendants, the employer of her deceased seaman husband, and others (claims against which were dismissed), under the Jones Act, 46 U.S.C.S. § 688. The employer filed a counterclaim for loss of its ship. The widow moved to dismiss the counterclaim. The United States District Court for the District of New Jersey denied the motion. Relying on 28 U.S.C.S. § 1292(a)(3), the widow appealed.

OVERVIEW: The district court treated the widow's motion to dismiss as a motion for summary judgment. The issue for the appellate court was whether the denial of summary judgment determined the rights and liabilities of the parties under 28 U.S.C.S. § 1292(a)(3). The appellate court held that no right or liability of the parties had been conclusively determined. Rather, the district court simply allowed the case to proceed. If the employer proved successful at trial with respect to its counterclaim, the widow could then, on appeal, advance what the appellate court described as an "interesting argument" that the employer could not counterclaim against the seaman's estate under the Jones Act, 46 U.S.C.S. § 688. Because the district court had not made a decision establishing the rights and liabilities of the parties, 28 U.S.C.S. § 1292(a)(3) did not permit an interlocutory appeal. The widow misconstrued the purpose of 28 U.S.C.S. § 1292(a)(3) in admiralty proceedings -- to allow a party found liable in an admiralty proceeding to take an immediate appeal without submitting to a protracted trial of the damage issues.

OUTCOME: The appellate court dismissed the appeal for lack of jurisdiction.

LUIS BOLANOS, et al., Plaintiffs, -against- NORWEGIAN CRUISE LINES LIMITED, d/b/a NORWEGIAN CRUISE LINES, et al., Defendants.

IN THE MATTER OF THE COMPLAINT OF PMD ENTERPRISES, INC., AS OWNER OF THE VESSEL BETH DEE BOB, FOR EXONERATION FROM AND LIMITATION OF LIABILITY; LISA MCLAUGHLIN, as wife and Personal Representative of the Estate of Edward J. McLaughlin, Deceased, Appellant v. CAPE MAY FOODS, INC. and PETER A. LAMONICA

No. 01-4144
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2002 U.S. App. LEXIS 17281

PRIOR HISTORY: On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 00-cv-00161). District Judge: Hon. Garrett E. Brown, Jr.

DISPOSITION: Appeal was dismissed.

PROCEDURAL POSTURE: Plaintiff widow filed a wrongful death suit against defendants, the employer of her deceased seaman husband, and others (claims against which were dismissed), under the Jones Act, 46 U.S.C.S. § 688. The employer filed a counterclaim for loss of its ship. The widow moved to dismiss the counterclaim. The United States District Court for the District of New Jersey denied the motion. Relying on 28 U.S.C.S. § 1292(a)(3), the widow appealed.

OVERVIEW: The district court treated the widow's motion to dismiss as a motion for summary judgment. The issue for the appellate court was whether the denial of summary judgment determined the rights and liabilities of the parties under 28 U.S.C.S. § 1292(a)(3). The appellate court held that no right or liability of the parties had been conclusively determined. Rather, the district court simply allowed the case to proceed. If the employer proved successful at trial with respect to its counterclaim, the widow could then, on appeal, advance what the appellate court described as an "interesting argument" that the employer could not counterclaim against the seaman's estate under the Jones Act, 46 U.S.C.S. § 688. Because the district court had not made a decision establishing the rights and liabilities of the parties, 28 U.S.C.S. § 1292(a)(3) did not permit an interlocutory appeal. The widow misconstrued the purpose of 28 U.S.C.S. § 1292(a)(3) in admiralty proceedings -- to allow a party found liable in an admiralty proceeding to take an immediate appeal without submitting to a protracted trial of the damage issues.

OUTCOME: The appellate court dismissed the appeal for lack of jurisdiction.

DIAMOND OFFSHORE MANAGEMENT COMPANY, Appellant v. LELA GUIDRY, individually and as next friend of HUNTER GUIDRY and as Independent Administratix of THE ESTATE OF CRAIG GUIDRY, Appellees

NO. 09-01-367 CV
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2002 Tex. App. LEXIS 5219
April 4, 2002, Submitted
July 25, 2002, Opinion Delivered

PRIOR HISTORY: On Appeal from the 136th District Court. Jefferson County, Texas. Trial Case No. D-159, 548.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Appellant employer appealed an unfavorable jury verdict and judgment in the 136th District Court of Jefferson County, Texas, in a Jones Act death case that arose from an automobile accident in which an employee was killed. The action was brought Appellees, survivors of the deceased employee, one of whom acted in the capacity of the independent administratrix of the deceased employee's estate.

OVERVIEW: The decedent's employer was a company that provided work crews for offshore oilrigs. The decedent was killed when another employee lost control of his vehicle. The appellate court rejected the employer's argument that the trial court erred as a matter of law in denying its motion for partial remittitur and entering judgment based on the jury's award of $400,000 for decedent's son's loss of nurture and services. The award was not so large as to shock the judicial conscience. The appellate court also rejected the employer's argument that there was insufficient evidence the decedent was "on ship's business" at the time of his death. The appellate court concluded that if the crews' going to see another oil rig was "business related," then the return trip also was business related. Finally, the jury instructions clearly informed the jury of the requirement that the driver must have been acting in the course of his employment (or in the service of the vessel) for the employer to be vicariously and of the requirement that the decedent must have been acting in the course of his employment (or in the service of the vessel) in order to recover under the Jones Act.

OUTCOME: The judgment of the trial court was affirmed.

Louisiana Trial Court Finds That Seaman Who Slipped And Fell While Walking Down A Ship's Stairwell While Carrying Items In Each Hand Against The Employer's Written Policy Was The Sole Cause Of His Accident And Denies His Claims For Jones Act Negligence And Unseaworthiness.

SADAT MUHAMMAD VERSUS DIAMOND OFFSHORE COMPANY

2002-0172
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2002-0172 (La.App. 3 Cir, 07/10/02); 2002 La. App. LEXIS 2340
July 10, 2002, Rendered

PRIOR HISTORY: APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT. PARISH OF IBERIA, NUMBER 86,273. HONORABLE WILLIAM D. HUNTER.

DISPOSITION: Affirmed in part and reversed in part.

PROCEDURAL POSTURE: Plaintiff seaman filed suit against defendant employer, seeking damages for injuries he sustained, pursuant to the Jones Act, 46 U.S.C.S. § 688, and the general maritime law claim of unseaworthiness. The Sixteenth Judicial District Court, Iberia Parish, Louisiana, found that the seaman failed to prove the employer was negligent and denied his claim of unseaworthiness. The seaman appealed.

OVERVIEW: On review, the appellate court found that the seamen slipped and fell while walking down a ship's stairwell while carrying items in each hand, against the employer's written policy. The trial court did not err in finding the employee was the sole cause of his accident; thus, denial of his Jones Act claim was proper. As the trial court was presented with contradictory evidence, the appellate court could not say that the trial court erred in denying the employee damages based on his general maritime law claim of unseaworthiness. Although the seaman testified that the employees were instructed to clean the rig, because personnel were arriving for a visit, the appellate court did not find that this was the type of diverting circumstance that would absolve the seaman under the momentary forgetfulness doctrine. The future cure award was improper, and the trial court erred in awarding attorney fees based on its finding that the employer improperly withheld maintenance and cure benefits, as the record revealed no instance in which the employer acted in a willful, callous, or persistent manner.

OUTCOME: The awards of future cure and attorney fees were reversed; the remainder of the judgment was affirmed.

Louisiana Trial Court Finds That Seaman Who Slipped And Fell While Walking Down A Ship's Stairwell While Carrying Items In Each Hand Against The Employer's Written Policy Was The Sole Cause Of His Accident And Denies His Claims For Jones Act Negligence And Unseaworthiness.

SADAT MUHAMMAD VERSUS DIAMOND OFFSHORE COMPANY

2002-0172
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2002-0172 (La.App. 3 Cir, 07/10/02); 2002 La. App. LEXIS 2340
July 10, 2002, Rendered

PRIOR HISTORY: APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT. PARISH OF IBERIA, NUMBER 86,273. HONORABLE WILLIAM D. HUNTER.

DISPOSITION: Affirmed in part and reversed in part.

PROCEDURAL POSTURE: Plaintiff seaman filed suit against defendant employer, seeking damages for injuries he sustained, pursuant to the Jones Act, 46 U.S.C.S. § 688, and the general maritime law claim of unseaworthiness. The Sixteenth Judicial District Court, Iberia Parish, Louisiana, found that the seaman failed to prove the employer was negligent and denied his claim of unseaworthiness. The seaman appealed.

OVERVIEW: On review, the appellate court found that the seamen slipped and fell while walking down a ship's stairwell while carrying items in each hand, against the employer's written policy. The trial court did not err in finding the employee was the sole cause of his accident; thus, denial of his Jones Act claim was proper. As the trial court was presented with contradictory evidence, the appellate court could not say that the trial court erred in denying the employee damages based on his general maritime law claim of unseaworthiness. Although the seaman testified that the employees were instructed to clean the rig, because personnel were arriving for a visit, the appellate court did not find that this was the type of diverting circumstance that would absolve the seaman under the momentary forgetfulness doctrine. The future cure award was improper, and the trial court erred in awarding attorney fees based on its finding that the employer improperly withheld maintenance and cure benefits, as the record revealed no instance in which the employer acted in a willful, callous, or persistent manner.

OUTCOME: The awards of future cure and attorney fees were reversed; the remainder of the judgment was affirmed.

SHELLEY A. HORAK, Administrator of the Estate of Leticia B. Morales, and ANTONIA RAMONA HOLGUIN, FRANCISCO HOLGUIN MORALES, and MARC ANTHONY ABNEY, Appellees, vs. ARGOSY GAMING CO. d/b/a BELLE CASINO OF SIOUX CITY, IOWA, Appellant.

No. 199 / 99-1941
SUPREME COURT OF IOWA
2002 Iowa Sup. LEXIS 147
July 17, 2002, Filed

PRIOR HISTORY: Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge. Riverboat casino challenges adverse rulings concerning admiralty law, evidentiary objections and sufficiency of evidence to support jury's verdict in action brought under Iowa's dram shop statute.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiff administrator and children sued defendant riverboat casino under the Dram Shop Act, specifically Iowa Code § 123.92 (1999), for the death of their decedent. The casino answered with a general denial and an affirmative defense denying proximate cause. The Iowa District Court for Woodbury County, after a jury trial, awarded the children consortium damages of $1,250,000. The casino appealed.

OVERVIEW: A mother dropped her daughter off at a birthday party and went with two men to the casino. After some hours, the casino kicked her out for drunkenness. The men said they would drive her home but that did not happen. The car missed a turn and flipped over. An off-duty officer witnessed the crash and found her body thrown from the car, topless and wrapped in a blanket similar to those from a nearby hotel. The district court refused to apply federal admiralty law. The Supreme Court found that because there was no federal maritime dram shop law, federal preemption principles did not apply. Although the administrator and children did not produce the actual drink servers at trial, the evidence was sufficient. The decedent's blood alcohol count had been 0.250. The trial court's limine ruling against the evidence of undress was proper given the speculativeness of any sexual assault theory and prejudice to the administrator and children. As to the damage awards, the decedent's excessive partying on the night in question did not accurately reflect her usual devotion as a parent.

OUTCOME: The judgment was affirmed.

SHELLEY A. HORAK, Administrator of the Estate of Leticia B. Morales, and ANTONIA RAMONA HOLGUIN, FRANCISCO HOLGUIN MORALES, and MARC ANTHONY ABNEY, Appellees, vs. ARGOSY GAMING CO. d/b/a BELLE CASINO OF SIOUX CITY, IOWA, Appellant.

No. 199 / 99-1941
SUPREME COURT OF IOWA
2002 Iowa Sup. LEXIS 147
July 17, 2002, Filed

PRIOR HISTORY: Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge. Riverboat casino challenges adverse rulings concerning admiralty law, evidentiary objections and sufficiency of evidence to support jury's verdict in action brought under Iowa's dram shop statute.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiff administrator and children sued defendant riverboat casino under the Dram Shop Act, specifically Iowa Code § 123.92 (1999), for the death of their decedent. The casino answered with a general denial and an affirmative defense denying proximate cause. The Iowa District Court for Woodbury County, after a jury trial, awarded the children consortium damages of $1,250,000. The casino appealed.

OVERVIEW: A mother dropped her daughter off at a birthday party and went with two men to the casino. After some hours, the casino kicked her out for drunkenness. The men said they would drive her home but that did not happen. The car missed a turn and flipped over. An off-duty officer witnessed the crash and found her body thrown from the car, topless and wrapped in a blanket similar to those from a nearby hotel. The district court refused to apply federal admiralty law. The Supreme Court found that because there was no federal maritime dram shop law, federal preemption principles did not apply. Although the administrator and children did not produce the actual drink servers at trial, the evidence was sufficient. The decedent's blood alcohol count had been 0.250. The trial court's limine ruling against the evidence of undress was proper given the speculativeness of any sexual assault theory and prejudice to the administrator and children. As to the damage awards, the decedent's excessive partying on the night in question did not accurately reflect her usual devotion as a parent.

OUTCOME: The judgment was affirmed.

RUPERT GAULT, Plaintiff and Appellant, v. MODERN CONTINENTAL/ ROADWAY CONSTRUCTION COMPANY, INC. JOINT VENTURE, Defendant and Respondent.

B152722
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2002 Cal. App. LEXIS 4464
July 10, 2002, Filed

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. TC013629. Rose Hom, Judge.

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: In a suit brought by plaintiff employee under the Jones Act, specifically 46 U.S.C.S. § 688; the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq.; and general maritime law, the Los Angeles County Superior Court, California, granted defendant employer's motion for summary judgment, finding as a matter of law that the employee was not a "seaman" on a "vessel in navigation" in "navigable waters." The employee appealed.

OVERVIEW: The employee, who was employed as a construction worker in a project to build a bridge over a flood control channel, was injured when, as the barge he was working on was being separated into sections, a heavy load on the section on which the employee was standing shifted and the section flipped over, throwing him into the water and causing him to lose a finger. The employer argued that the employee was not a seaman, the barge was neither a vessel nor in navigation, the flood control channel was not a navigable waterway, and the employee was not a maritime worker. The instant court concluded that there was a triable issue of material fact as to the employee's entitlement to a Jones Act remedy. The fact that the barge was in transit raised a material issue of fact regarding whether it was a "vessel in navigation." There was also a triable issue whether the channel was a navigable waterway. The uncontradicted evidence that the employee had responsibilities involved with movement of the vessel, and that those responsibilities were exercised two to three times per week for three months, weighed in favor of finding his connection to the barge to be substantial in nature.

OUTCOME: The judgment was reversed, and the case was remanded to the trial court for further proceedings. The employee was awarded costs on appeal.

RUPERT GAULT, Plaintiff and Appellant, v. MODERN CONTINENTAL/ ROADWAY CONSTRUCTION COMPANY, INC. JOINT VENTURE, Defendant and Respondent.

B152722
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2002 Cal. App. LEXIS 4464
July 10, 2002, Filed

PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. TC013629. Rose Hom, Judge.

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: In a suit brought by plaintiff employee under the Jones Act, specifically 46 U.S.C.S. § 688; the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq.; and general maritime law, the Los Angeles County Superior Court, California, granted defendant employer's motion for summary judgment, finding as a matter of law that the employee was not a "seaman" on a "vessel in navigation" in "navigable waters." The employee appealed.

OVERVIEW: The employee, who was employed as a construction worker in a project to build a bridge over a flood control channel, was injured when, as the barge he was working on was being separated into sections, a heavy load on the section on which the employee was standing shifted and the section flipped over, throwing him into the water and causing him to lose a finger. The employer argued that the employee was not a seaman, the barge was neither a vessel nor in navigation, the flood control channel was not a navigable waterway, and the employee was not a maritime worker. The instant court concluded that there was a triable issue of material fact as to the employee's entitlement to a Jones Act remedy. The fact that the barge was in transit raised a material issue of fact regarding whether it was a "vessel in navigation." There was also a triable issue whether the channel was a navigable waterway. The uncontradicted evidence that the employee had responsibilities involved with movement of the vessel, and that those responsibilities were exercised two to three times per week for three months, weighed in favor of finding his connection to the barge to be substantial in nature.

OUTCOME: The judgment was reversed, and the case was remanded to the trial court for further proceedings. The employee was awarded costs on appeal.

Forum Selection Clause In Seaman's Contract, Requiring Suit In Federal Court Only, Is Held Not Enforceable By Alaska Supreme Court Pursuant To The Savings To Suitors Clause In 28 U.S.C. §1333 And The Seaman's Right To Sue In Any Eligible Forum Under The Jones Act.

MIGUEL NUNEZ, Appellant, v. AMERICAN SEAFOODS, Appellee.

Supreme Court No. S-9875, No. 5593
SUPREME COURT OF ALASKA
2002 Alas. LEXIS 98
July 12, 2002, Decided

PRIOR HISTORY: Appeal from the Superior Court of the State of Alaska, Third Judicial District, Dillingham, Fred Torrisi, Judge. Superior Court No. 3DI-99-141 CI.

DISPOSITION: Reversed.

PROCEDURAL POSTURE: Appellant employee filed suit against appellee employer for injuries sustained while working on a fishing vessel. The employer moved to dismiss based a contract clause requiring the employee to file any suit in federal court. The Superior Court, Third Judicial District, Dillingham (Alaska), upheld the forum clause, and granted the employer's motion to dismiss without prejudice to re-file in federal court. The employee appealed.

OVERVIEW: On appeal, the employee challenged the judgment of the trial court, which held that a contractual forum selection clause required him to sue in federal court. The employee argued that the forum selection clause was void, as it violated federal law. The appellate court held that the employment contract's forum selection clause was invalid, as it violated the employee's right to sue under the Jones Act in any eligible forum. The saving to suitors clause in 28 U.S.C.S. § 1333 gave the employee a comparable right to select a state or federal forum. Under the Jones Act, the employee stood in a position perfectly analogous to that of a railroad worker under the Federal Employer's Liability Act (FELA). Section 5 of FELA required that the employee's right to bring suit in "any eligible forum" be deemed substantive and that any contractual provision purporting to limit it be deemed void.

OUTCOME: The judgment was reversed.

LUIS BOLANOS, et al., Plaintiffs, -against- NORWEGIAN CRUISE LINES LIMITED, d/b/a NORWEGIAN CRUISE LINES, et al., Defendants.

01 Civ. 4182 (RMB) (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 13243
July 22, 2002, Decided

DISPOSITION: Recommended that this court certify the proposed plaintiff class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.

PROCEDURAL POSTURE: Seeking to recover wages, overtime wages, and penalty wages under collective bargaining agreements (CBAs) and 46 U.S.C.S. § 10313, of the Seaman's Wage Act, plaintiff cruise ship workers moved to certify a class of 5,000 under Fed. R. Civ. P. 23. Defendant cruise line objected, arguing that department heads on each vessel made different decisions, making class certification inappropriate despite uniform wage requirements under the CBAs.

OVERVIEW: Even if different ships and departments kept track of overtime using different methods, the magistrate found that differences in departments, duties, and factual variations would not defeat certification, where all the workers claimed a denial of overtime pay. The common factual and legal questions satisfied commonality and typicality under Fed. R. Civ. P. 23(a)(2), (3). The cruise line's policy was the CBA. The workers asserted the same wrongful acts in the same manner against all class members, establishing typicality, which did not require that the representative claims be identical to those of the class. Differences in damages did not destroy typicality under Fed. R. Civ. P. 23(a)(3). Because the workers predominantly sought damages, and injunctive relief only secondarily, certification was inappropriate under Fed. R. Civ. P. 23(b)(2), but was proper under Fed. R. Civ. P. 23(b)(3). The workers claimed across-the-board deprivation of overtime wages; Rule 23(b)(3)'s predominance requirement was satisfied. Individual suits would not be economical, since many of the workers were foreign nationals. The court was familiar with the case from managing discovery and ruling on motions.

OUTCOME: The magistrate judge recommended that the court certify the proposed class.

LUIS BOLANOS, et al., Plaintiffs, -against- NORWEGIAN CRUISE LINES LIMITED, d/b/a NORWEGIAN CRUISE LINES, et al., Defendants.

01 Civ. 4182 (RMB) (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 13243
July 22, 2002, Decided

DISPOSITION: Recommended that this court certify the proposed plaintiff class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.

PROCEDURAL POSTURE: Seeking to recover wages, overtime wages, and penalty wages under collective bargaining agreements (CBAs) and 46 U.S.C.S. § 10313, of the Seaman's Wage Act, plaintiff cruise ship workers moved to certify a class of 5,000 under Fed. R. Civ. P. 23. Defendant cruise line objected, arguing that department heads on each vessel made different decisions, making class certification inappropriate despite uniform wage requirements under the CBAs.

OVERVIEW: Even if different ships and departments kept track of overtime using different methods, the magistrate found that differences in departments, duties, and factual variations would not defeat certification, where all the workers claimed a denial of overtime pay. The common factual and legal questions satisfied commonality and typicality under Fed. R. Civ. P. 23(a)(2), (3). The cruise line's policy was the CBA. The workers asserted the same wrongful acts in the same manner against all class members, establishing typicality, which did not require that the representative claims be identical to those of the class. Differences in damages did not destroy typicality under Fed. R. Civ. P. 23(a)(3). Because the workers predominantly sought damages, and injunctive relief only secondarily, certification was inappropriate under Fed. R. Civ. P. 23(b)(2), but was proper under Fed. R. Civ. P. 23(b)(3). The workers claimed across-the-board deprivation of overtime wages; Rule 23(b)(3)'s predominance requirement was satisfied. Individual suits would not be economical, since many of the workers were foreign nationals. The court was familiar with the case from managing discovery and ruling on motions.

OUTCOME: The magistrate judge recommended that the court certify the proposed class.

DIAMOND OFFSHORE MANAGEMENT COMPANY, Appellant v. LELA GUIDRY, individually and as next friend of HUNTER GUIDRY and as Independent Administratix of THE ESTATE OF CRAIG GUIDRY, Appellees

NO. 09-01-367 CV
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2002 Tex. App. LEXIS 5219
April 4, 2002, Submitted
July 25, 2002, Opinion Delivered

PRIOR HISTORY: On Appeal from the 136th District Court. Jefferson County, Texas. Trial Case No. D-159, 548.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Appellant employer appealed an unfavorable jury verdict and judgment in the 136th District Court of Jefferson County, Texas, in a Jones Act death case that arose from an automobile accident in which an employee was killed. The action was brought Appellees, survivors of the deceased employee, one of whom acted in the capacity of the independent administratrix of the deceased employee's estate.

OVERVIEW: The decedent's employer was a company that provided work crews for offshore oilrigs. The decedent was killed when another employee lost control of his vehicle. The appellate court rejected the employer's argument that the trial court erred as a matter of law in denying its motion for partial remittitur and entering judgment based on the jury's award of $400,000 for decedent's son's loss of nurture and services. The award was not so large as to shock the judicial conscience. The appellate court also rejected the employer's argument that there was insufficient evidence the decedent was "on ship's business" at the time of his death. The appellate court concluded that if the crews' going to see another oil rig was "business related," then the return trip also was business related. Finally, the jury instructions clearly informed the jury of the requirement that the driver must have been acting in the course of his employment (or in the service of the vessel) for the employer to be vicariously and of the requirement that the decedent must have been acting in the course of his employment (or in the service of the vessel) in order to recover under the Jones Act.

OUTCOME: The judgment of the trial court was affirmed.

Court Holds That An Individual Injured While Working On A Barge Afloat In Louisiana Navigable Waters Which Had No Working Equipment On Board, No Crew, No Kitchen And Incomplete Crew Quarters Was Not A Jones Act Seaman Because The Barge Was Not A "Vessel In Navigation".

JODY TAYLOR versus DELTA SEABOARD WELL SERVICE, INC.

CIVIL ACTION NO. 01-3409 SECTION: E/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 10429
June 3, 2002, Decided
June 3, 2002, Filed; June 4, 2002, Entered

DISPOSITION: Defendant Delta Seaboard Well Service, Inc.'s motion for summary judgment GRANTED.

PROCEDURAL POSTURE: Plaintiff employee filed a "seaman's complaint" against defendant employer for maintenance and cure, negligence, and unseaworthiness. The employer moved for summary judgment. The issue was whether the employee qualified as a "seaman" under the Jones Act.

OVERVIEW: A worker was a seaman if he was (1) assigned permanently to or performed a substantial part of his work on (2) a vessel in navigation (3) contributing to the function of the vessel or to the accomplishment of its mission. The key to seaman status was employment related connection to a vessel in navigation. The essence of the employer's argument was that the rig on which the employee was injured was not a vessel in navigation at the time of the accident. The employee argued that at the time of the accident, the rig was a barge afloat in Louisiana navigable waters and as such was a vessel in navigation. The court found that whether a vessel may have been in navigation at some point before and after a particular casualty was immaterial to whether it was in navigation at the time of that casualty. There was no dispute that the rig, which was being refurbished, was not engaged in its expected duties at the time of the accident. It had no working equipment on board, no deck, no crew, no kitchen, and incomplete crew quarters. Therefore, the court found that it was not a vessel in navigation. Since the rig was not a vessel in navigation, the employee was not a Jones Act seaman.

OUTCOME: Defendant's motion for summary judgment was granted.

Court Holds That An Individual Injured While Working On A Barge Afloat In Louisiana Navigable Waters Which Had No Working Equipment On Board, No Crew, No Kitchen And Incomplete Crew Quarters Was Not A Jones Act Seaman Because The Barge Was Not A "Vessel In Navigation".

JODY TAYLOR versus DELTA SEABOARD WELL SERVICE, INC.

CIVIL ACTION NO. 01-3409 SECTION: E/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 10429
June 3, 2002, Decided
June 3, 2002, Filed; June 4, 2002, Entered

DISPOSITION: Defendant Delta Seaboard Well Service, Inc.'s motion for summary judgment GRANTED.

PROCEDURAL POSTURE: Plaintiff employee filed a "seaman's complaint" against defendant employer for maintenance and cure, negligence, and unseaworthiness. The employer moved for summary judgment. The issue was whether the employee qualified as a "seaman" under the Jones Act.

OVERVIEW: A worker was a seaman if he was (1) assigned permanently to or performed a substantial part of his work on (2) a vessel in navigation (3) contributing to the function of the vessel or to the accomplishment of its mission. The key to seaman status was employment related connection to a vessel in navigation. The essence of the employer's argument was that the rig on which the employee was injured was not a vessel in navigation at the time of the accident. The employee argued that at the time of the accident, the rig was a barge afloat in Louisiana navigable waters and as such was a vessel in navigation. The court found that whether a vessel may have been in navigation at some point before and after a particular casualty was immaterial to whether it was in navigation at the time of that casualty. There was no dispute that the rig, which was being refurbished, was not engaged in its expected duties at the time of the accident. It had no working equipment on board, no deck, no crew, no kitchen, and incomplete crew quarters. Therefore, the court found that it was not a vessel in navigation. Since the rig was not a vessel in navigation, the employee was not a Jones Act seaman.

OUTCOME: Defendant's motion for summary judgment was granted.

Barge Owner And Steel Company's Motions To Dismiss Based On Lack Of Subject Matter Jurisdiction Denied Where Longshoreman Conceded That He Suffered No Injury On Navigable Water But Contended That The Admiralty Extension Act Applied Because Of The Longshoreman's Allegations Of Negligence Against The Barge Itself.

RODRIGO MAGANA and MARIA MAGANA, Plaintiffs, v. HAMMER & STEEL, INC., POSTON INDUSTRIAL MAINTENANCE COMPANY, INC. and ROBERT B. MILLER &ASSOCIATES, Defendants.

CIVIL ACTION NO. G-02-180
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2002 U.S. Dist. LEXIS 10272
June 5, 2002, Decided
June 6, 2002, Entered

DISPOSITION: Defendant Miller's Motion to Dismiss for Lack of Subject Matter Jurisdiction DENIED. Defendant Hammer's Motion to Dismiss respectfully DENIED.

PROCEDURAL POSTURE: Plaintiffs, a longshoreman and his wife brought a personal injury lawsuit against defendants, a barge owner, the company responsible for the steel on the barge, and a maintenance corporation. The owner and company brought motions to dismiss. The longshoreman maintained that both 33 U.S.C.S. § 905(b) and Article III of the United States Constitution conferred federal jurisdiction over the instant suit.

OVERVIEW: The longshoreman attempted to unload an eighty-five foot long steel-piling sheet from a floating barge. Unbeknownst to the longshoreman, however, the steel-piling sheet was covered with a sticky coating applied by the maintenance corporation. Consequently, a loose chunk of concrete aboard the barge adhered to the sticky steel. The concrete dislodged from the top of the steel sheet and plummeted downward towards him and the longshoreman sustained serious injuries. The longshoreman alleged that all three defendants were negligent. The longshoreman admitted that the he suffered no injury on navigable water and, consequently, could not invoke the court's admiralty and maritime jurisdiction. However, the longshoreman's allegations of negligence by the personnel aboard the barge were equivalent to allegations of negligence by the barge itself, thus, the longshoreman obtained jurisdiction against the barge owner under the Admiralty Extension Act (AEA), 46 U.S.C.S. app. § 740. The longshoreman's claims against the company and the maintenance corporation were so related, that those claims fell within the court's maritime jurisdiction under the AEA.

OUTCOME: The court denied the barge owner's and the company's motions to dismiss.

Barge Owner And Steel Company's Motions To Dismiss Based On Lack Of Subject Matter Jurisdiction Denied Where Longshoreman Conceded That He Suffered No Injury On Navigable Water But Contended That The Admiralty Extension Act Applied Because Of The Longshoreman's Allegations Of Negligence Against The Barge Itself.

RODRIGO MAGANA and MARIA MAGANA, Plaintiffs, v. HAMMER & STEEL, INC., POSTON INDUSTRIAL MAINTENANCE COMPANY, INC. and ROBERT B. MILLER &ASSOCIATES, Defendants.

CIVIL ACTION NO. G-02-180
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2002 U.S. Dist. LEXIS 10272
June 5, 2002, Decided
June 6, 2002, Entered

DISPOSITION: Defendant Miller's Motion to Dismiss for Lack of Subject Matter Jurisdiction DENIED. Defendant Hammer's Motion to Dismiss respectfully DENIED.

PROCEDURAL POSTURE: Plaintiffs, a longshoreman and his wife brought a personal injury lawsuit against defendants, a barge owner, the company responsible for the steel on the barge, and a maintenance corporation. The owner and company brought motions to dismiss. The longshoreman maintained that both 33 U.S.C.S. § 905(b) and Article III of the United States Constitution conferred federal jurisdiction over the instant suit.

OVERVIEW: The longshoreman attempted to unload an eighty-five foot long steel-piling sheet from a floating barge. Unbeknownst to the longshoreman, however, the steel-piling sheet was covered with a sticky coating applied by the maintenance corporation. Consequently, a loose chunk of concrete aboard the barge adhered to the sticky steel. The concrete dislodged from the top of the steel sheet and plummeted downward towards him and the longshoreman sustained serious injuries. The longshoreman alleged that all three defendants were negligent. The longshoreman admitted that the he suffered no injury on navigable water and, consequently, could not invoke the court's admiralty and maritime jurisdiction. However, the longshoreman's allegations of negligence by the personnel aboard the barge were equivalent to allegations of negligence by the barge itself, thus, the longshoreman obtained jurisdiction against the barge owner under the Admiralty Extension Act (AEA), 46 U.S.C.S. app. § 740. The longshoreman's claims against the company and the maintenance corporation were so related, that those claims fell within the court's maritime jurisdiction under the AEA.

OUTCOME: The court denied the barge owner's and the company's motions to dismiss.

Cruise Line's Motion To Dismiss Denied Under The Americans With Disabilities Act Where Cruise Line Failed To Provide Passenger With A Ventilator And Failed To Make Reasonable Modifications In Its Policies To Allow Passenger To Use Telephone To Obtain A Ventilator After The Passenger's Ventilator Was Damaged By The Cruise Line.

STEVEN LARSEN and KIMBERLY LARSEN, Plaintiffs, vs. CARNIVAL CORP., INC., Defendant.

Case No. 02-20218-CIV-GRAHAM
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2002 U.S. Dist. LEXIS 10553
June 11, 2002, Decided
June 12, 2002, Filed

DISPOSITION: Defendant's motion to dismiss was denied.

PROCEDURAL POSTURE: In an amended complaint, plaintiff husband and wife alleged that defendant cruise line violated the Americans with Disabilities Act, the Florida Civil Rights Act, Fla. Stat. ch. 413.08, 760.07, and 509.092, and the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. ch. 501.204. They also asserted state tort and contract claims. The cruise line moved to dismiss the federal and two state statutory claims.

OVERVIEW: The cruise line did not dispute that the husband was a qualified individual with a disability, or that a cruise ship was a public accommodation. Rather it argued that a ventilator was personal device and that under the personal device exclusion, it was expressly excluded from Title III of the Americans with Disabilities Act's reasonable modification requirement. Plaintiffs argued that the complaint did not simply allege that the cruise line failed to obtain a ventilator, but that it failed to make reasonable modifications in its policies or procedures by failing to allow the husband to use the telephone to obtain a ventilator for himself after his was alleged damaged by the cruise line. The complaint also alleged that the cruise line failed to make numerous other reasonable modifications. The cruise line faired no better in arguing for dismissal of the Florida Civil Rights Act (FCRA) claims. While the FCRA may not have not required the modification of services to accommodate individuals with disabilities, the plaintiffs argued that even if the FCRA did not require reasonable modifications, at a minimum it protected the plaintiffs' right to equal treatment.

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

JUAN TORRES, Plaintiff, - against - BUCHANAN MARINE INC., et al., Defendants.

98 Civ. 3298 (KMW) (RLE)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 11675
June 25, 2002, Decided

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

PROCEDURAL POSTURE: Plaintiff longshoreman filed a complaint against defendant shipping company and alleged negligence and related damages in violation of general maritime tort law. The shipping company filed a motion for summary judgment. The case was referred to a magistrate judge for report and recommendation.

OVERVIEW: The longshoreman claimed that he was injured as a result of the shipping company's negligence while working as part of a dock crew on a barge owned by the company The court identified three duties owed to stevedores and longshoremen by the vessel owner. The longshoreman alleged violations of all three duties. The longshoreman argued that defendants breached their "turnover duty" because they failed to sound signals to warn the longshoreman of the oncoming barge. The longshoreman contended, inter alia, that the shipping company breached its "active control" duty, its duty to intervene, its duty to warn, and its duty of due care. The court held that the breaking of the winch cable occurred after the longshoreman and at least two others had taken the barge from a mooring bay to a dock owned by a different company. Consequently, the longshoreman failed to establish any factual allegations indicating the shipping company's failure to exercise reasonable care or maintain its turnover duty. Furthermore, the longshoreman failed to present evidence demonstrating that the shipping company breached any other duties.

OUTCOME: The magistrate judge recommended that the shipping company's motion for summary judgment be granted.

JUAN TORRES, Plaintiff, - against - BUCHANAN MARINE INC., et al., Defendants.

98 Civ. 3298 (KMW) (RLE)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 11675
June 25, 2002, Decided

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

PROCEDURAL POSTURE: Plaintiff longshoreman filed a complaint against defendant shipping company and alleged negligence and related damages in violation of general maritime tort law. The shipping company filed a motion for summary judgment. The case was referred to a magistrate judge for report and recommendation.

OVERVIEW: The longshoreman claimed that he was injured as a result of the shipping company's negligence while working as part of a dock crew on a barge owned by the company The court identified three duties owed to stevedores and longshoremen by the vessel owner. The longshoreman alleged violations of all three duties. The longshoreman argued that defendants breached their "turnover duty" because they failed to sound signals to warn the longshoreman of the oncoming barge. The longshoreman contended, inter alia, that the shipping company breached its "active control" duty, its duty to intervene, its duty to warn, and its duty of due care. The court held that the breaking of the winch cable occurred after the longshoreman and at least two others had taken the barge from a mooring bay to a dock owned by a different company. Consequently, the longshoreman failed to establish any factual allegations indicating the shipping company's failure to exercise reasonable care or maintain its turnover duty. Furthermore, the longshoreman failed to present evidence demonstrating that the shipping company breached any other duties.

OUTCOME: The magistrate judge recommended that the shipping company's motion for summary judgment be granted.

ARNE G. SVENDSEN, Plaintiff, v. HOLLYWOOD CASINO - AURORA, INC. and the M/V CITY OF LIGHTS 1, in rem, Defendants.

No. 01 C 8408
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2002 U.S. Dist. LEXIS 11907
June 27, 2002, Decided
July 1, 2002, Docketed

DISPOSITION: [*1] Motion to dismiss granted.

PROCEDURAL POSTURE: Plaintiff employee sued defendants, his employer, a casino, and in rem against the employer's ship where the casino was located. He claimed coverage under the Jones Act, 46 U.S.C.S. Appx. § 688, for personal injuries as a seaman due to the employer's negligence and the unseaworthiness of the ship. The employer filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of admiralty jurisdiction under 28 U.S.C.S. § 1331.

OVERVIEW: The district court noted that in order for the employee to have asserted federal admiralty jurisdiction, the key question was whether the specific area of the river where casino ship was located was navigable. The district court found that this area was clearly not navigable in fact. The casino ship was bounded by two bridges - one to the north and one to the south. Because the height of the casino ship exceeded the available clearance under both bridges, the ship was not able to pass beneath either of the bridges. Further, a lockless dam existed across the river that would have prohibited southern travel beyond this obstruction. Other obstructions prohibited northern travel. Finally, because the waterway was located entirely within the state of Illinois, interstate travel and commerce was not possible. The location test having failed, the court did not have admiralty jurisdiction under 28 U.S.C.S. § 1331(1). Accordingly, because the ship was not located in navigable waters, the employee was not covered under the Jones Act, 46 U.S.C.S. Appx. § 688.

OUTCOME: The district court granted the motion to dismiss.

ERNESTO FRANCISCO, Plaintiff-Appellant, versus STOLT ACHIEVEMENT MT, a vessel bearing official number 1973; STOLT ACHIEVEMENT, INC.;STOLT-NIELSEN TRANSPORTATION GROUP, LTD.; STOLT PARCEL TANKERS, INC., the operator and/or owner of the M/T Stolt Achievement, Defendants-Appellees.

No. 01-30694
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 10683
June 4, 2002, Decided

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Louisiana. 00-CV-3532. Sarah S. Vance, US District Judge.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Appellant seaman sued appellee vessel, and various shippers under the Jones Act, and under general maritime law for unseaworthiness, maintenance, and cure. The United States District Court for the Eastern District of Louisiana ordered the case to arbitration. The seaman appealed.

OVERVIEW: The seaman, a Philippine national, was injured on a chemical tanker ship located on the Mississippi River. Previously, the seaman had signed an employment contract agreeing to arbitrate claims against the shippers in the Philippines, and that the contract was subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention Act), 9 U.S.C.S. § 201 nt. In regard to arbitration, the appellate court held that arbitration was proper. Specifically, the seaman had signed a written employment contract stating that claims and disputes arising from his employment, including personal injury claims, were subject to arbitration in the Philippines. Further, the employment contract stated that it was governed by the law of the Philippines and such conventions and treaties to which the Philippines was a signatory. Moreover, the Philippines and the United States were both signatories to the Convention Act. Furthermore, the exclusion of seamen employment contracts in the Arbitration Act, 9 U.S.C.S. § 1 et seq., conflicted with the Convention Act as ratified by the United States, and was therefore not applicable to the Convention Act.

OUTCOME: The judgment of the district court was affirmed.

IN A JONES ACT CASE, TOLLING OF STATUTE OF LIMITATIONS IS APPROPRIATE WHERE (1) A PLAINTIFF BEGINS AN ACTION IN A COURT OF COMPETENT JURISDICTION, (2) THE PLAINTIFF MAKES SERVICE OF PROCESS ON THE OPPOSING PARTY, AND (3) THE STATE COURT DISMISSES THE ACTION BECAUSE OF IMPROPER VENUE

THOMAS D. NASH, Plaintiff-Appellant/Cross-Appellee, v USSGREAT LAKES FLEET, INC, Defendant-Appellee/Cross-Appellant.

No. 228948
COURT OF APPEALS OF MICHIGAN
2002 Mich. App. LEXIS 712
May 14, 2002, Decided

PRIOR HISTORY: Presque Isle Circuit Court. LC No. 98-002281-NO.

DISPOSITION: Affirmed.

OVERVIEW: Plaintiff sought to recover for injuries he sustained while employed as a seaman aboard defendant's ship. Plaintiff asserted two theories of recovery: 1) defendant's negligence under the Jones Act, 46 USC 688, and 2) defendant's failure to provide a safe workplace under the common-law maritime doctrine of "unseaworthiness." Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), contending plaintiff had not filed the action within the three-year statute of limitation. 46 USC 763a. Plaintiff did not dispute that it filed this action more than three years after his injury aboard defendant's ship. However, the circuit court denied defendant's motion, finding that plaintiff's previous filing of these claims in a Pennsylvania state court equitably tolled the limitations period. Equitable tolling of a federal statute of limitations is appropriate where the congressional purpose in enacting a statute and the corresponding limitations period is effectuated by tolling that period in given circumstances. In a Jones Act action, the congressional purpose is served, and tolling appropriately applied, when (1) a plaintiff begins an action in a state court of competent jurisdiction, (2) the plaintiff makes service of process on the opposing party, and (3) the state court dismisses the action because of improper venue. As such, because plaintiff did not properly serve defendant in Pennsylvania, plaintiff's filing in that state was insufficient to equitably toll the statute of limitations. Accordingly, plaintiff's Michigan claim was time-barred, and the trial court erred in denying defendant's motion for summary disposition.

OUTCOME: The trial court correctly granted defendant's motion for summary disposition.

COMPLAINT FILED IN FEDERAL COURT DISMISSED FOR LACK OF JURISDICTION WHERE SEAMEN ALLEGE VIOLATION OF OVERTIME PROVISIONS OF FAIR LABOR STANDARDS ACT (FLSA) - COURT HOLDS THAT THE FLSA DOES NOT CREATE MARITIME JURISDICTION AND THERE WAS NO DIVERSITY AMONG THE PARTIES

JASON MCMICHAEL, et al., PLAINTIFFS v. FALLS CITY TOWING COMPANY, et al., DEFENDANTS

CIVIL ACTION NO. 3:01CV-278-H
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, LOUISVILLE DIVISION
2002 U.S. Dist. LEXIS 8170; 7 Wage & Hour Cas. 2d (BNA) 1463
May 2, 2002, Decided

DISPOSITION: Plaintiff's motion for summary judgment DENIED. Plaintiff's complaint for lack of jurisdiction DISMISSED.

PROCEDURAL POSTURE: Plaintiffs, employees, sued defendants, employers, to recover alleged overtime compensation under Ky. Rev. Stat. Ann. § 337.285. Both sides moved for summary judgment.

OVERVIEW: The employees worked as deck hands on harbor boats that traversed the Ohio River between Kentucky and Indiana. The Kentucky Labor Cabinet, which was responsible for administering the wage and hour laws, determined not to apply or enforce Ky. Rev. Stat. Ann. § 337.285 to seamen such as the employees. The employees sought to enforce the state law in federal court due to the cabinet's position on the issue. The employers asserted that the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq., preempted the state statute as applied to seamen because the FLSA specifically exempted any employee who worked as a seaman from the FLSA's overtime wage provision. The court held that the parties were not diverse and the employees did not state a clam that arose under the Constitution, laws, or treaties of the United States. The FLSA was not a maritime statue, nor did it create maritime jurisdiction. Under Kentucky law, the employees were required to submit their claims to the Kentucky Labor Cabinet prior to filing an action in court.

OUTCOME: The employees' motion for summary judgment was denied. The employers' motions for summary judgment were sustained and the complaint was dismissed for lack of jurisdiction.

In re: HORIZON CRUISES LITIGATION; In re: LITIGATION JOINT DISCOVERY M/V HORIZON LEGIONNAIRES DISEASE; CELEBRITY CRUISES INC., and FANTASIACRUISING INC., Plaintiffs, - against - ESSEF CORP., PAC-FAB, INC., and STRUCTURAL EUROPE N.V. (f/n/a SFC), Defendants.

Master File 94 Civ. 5270 (JCF), 94 Civ. 6147 (JCF), 95 Civ.0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 8679
May 15, 2002, Decided
May 15, 2002, Filed

DISPOSITION: Defendants' motion to extend the time to file an appeal in each of the Horizon actions granted. Defendants' application to direct the clerk of court to enter judgments denied. Silivanch plaintiffs' motion for sanctions denied. Defendants' motion for a stay of execution of the judgments pending appeal granted.

PROCEDURAL POSTURE: In related lawsuits, plaintiff passengers obtained judgments against defendants, cruise lines and manufacturers and distributors, because the passengers contracted Legionnaire's Disease aboard a cruise ship. Included among the postjudgment applications were the manufacturer's motions to extend the time to file a notice of appeal and to stay enforcement of the judgments pending appeal, and one set of passengers' motion for sanctions.

OVERVIEW: The first issue presented was whether the manufacturer timely filed and properly served its motion for an extension. A technical defect in the motion had been corrected, so the court accepted the motion as timely filed. The manufacturer, however, served only on the attorney for one set of passengers -- the attorney who served as liaison counsel with respect to discovery and other matters. Good cause existed to excuse the manufacturer's error; despite this technical flaw, the court's scheduling order gave counsel in all of the cases notice of the manufacturer's motion, and the prejudice to the manufacturer would be extraordinary if the court rejected the motion. On the merits of the motion, excusable neglect justified granting the manufacturer the extension; the manufacturer's attorney relied on the cruise lines' attorney's misstatement of the appeal deadline. Regarding the passengers' motion, although some of the manufacturer's arguments were unfounded, it ultimately prevailed on the motion; thus, sanctions were not warranted. Finally, the court granted the manufacturer's motion for a stay provided that the manufacturer post the required bond.

OUTCOME: The court granted the manufacturer's motion to extend the time to file a notice of appeal. The court conditionally granted the manufacturer's motion for a stay of enforcement of the judgments pending appeal. The court denied the passengers' motion for sanctions.

In re: HORIZON CRUISES LITIGATION; In re: LITIGATION JOINT DISCOVERY M/V HORIZON LEGIONNAIRES DISEASE; CELEBRITY CRUISES INC., and FANTASIACRUISING INC., Plaintiffs, - against - ESSEF CORP., PAC-FAB, INC., and STRUCTURAL EUROPE N.V. (f/n/a SFC), Defendants.

Master File 94 Civ. 5270 (JCF), 94 Civ. 6147 (JCF), 95 Civ.0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 8679
May 15, 2002, Decided
May 15, 2002, Filed

DISPOSITION: Defendants' motion to extend the time to file an appeal in each of the Horizon actions granted. Defendants' application to direct the clerk of court to enter judgments denied. Silivanch plaintiffs' motion for sanctions denied. Defendants' motion for a stay of execution of the judgments pending appeal granted.

PROCEDURAL POSTURE: In related lawsuits, plaintiff passengers obtained judgments against defendants, cruise lines and manufacturers and distributors, because the passengers contracted Legionnaire's Disease aboard a cruise ship. Included among the postjudgment applications were the manufacturer's motions to extend the time to file a notice of appeal and to stay enforcement of the judgments pending appeal, and one set of passengers' motion for sanctions.

OVERVIEW: The first issue presented was whether the manufacturer timely filed and properly served its motion for an extension. A technical defect in the motion had been corrected, so the court accepted the motion as timely filed. The manufacturer, however, served only on the attorney for one set of passengers -- the attorney who served as liaison counsel with respect to discovery and other matters. Good cause existed to excuse the manufacturer's error; despite this technical flaw, the court's scheduling order gave counsel in all of the cases notice of the manufacturer's motion, and the prejudice to the manufacturer would be extraordinary if the court rejected the motion. On the merits of the motion, excusable neglect justified granting the manufacturer the extension; the manufacturer's attorney relied on the cruise lines' attorney's misstatement of the appeal deadline. Regarding the passengers' motion, although some of the manufacturer's arguments were unfounded, it ultimately prevailed on the motion; thus, sanctions were not warranted. Finally, the court granted the manufacturer's motion for a stay provided that the manufacturer post the required bond.

OUTCOME: The court granted the manufacturer's motion to extend the time to file a notice of appeal. The court conditionally granted the manufacturer's motion for a stay of enforcement of the judgments pending appeal. The court denied the passengers' motion for sanctions.

STEVEN DURGIN VERSUS CRESCENT TOWING & SALVAGE, INC., ET AL

CIVIL ACTION NO: 00-1602 SECTION: "N" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 9650
May 17, 2002, Filed; May 20, 2002, Entered

DISPOSITION: Motion to file second amended complaint granted in part and denied in part.

PROCEDURAL POSTURE: Plaintiff seaman filed a motion to file a second amended complaint and requested leave to amend his complaint to add a reinsurer as a defendant and to request a trial by jury. The seaman had initiated his original action for negligence against defendants, employer, insurer, and company. The matter was submitted to the magistrate judge for determination.

OVERVIEW: The seaman was injured while he was a crewman on a tug that was assisting an oceangoing vessel. The injury occurred in June 1997 and the seaman filed his original complaint in June 2000. The court denied the seaman's motion to amend his complaint to add the reinsurer as a defendant. The court, through the magistrate judge, held that the seaman's action would be time barred under the three year statute of limitations set forth in 46 U.S.C.S. § 736(a). Moreover, there was nothing that would make the amended complaint timely under the relation back provisions of Fed. R. Civ. P. 15(c) because there was no showing that the reinsurer received actual notice of the action or should have known about the action. The reinsurer was not in privity with the employer and there was no identity of interest sufficient to allow the seaman's claim to relate back under Rule 15(c). The seaman's request for a jury trial was not within the 10 day requirement of Fed. R. Civ. P. 38, but the seaman's late jury demand would be granted under Fed. R. Civ. P. 39 (b) because the case was one that was normally tried to a jury and defendants had not established that they would be prejudiced thereby.

OUTCOME: The court through the magistrate judge denied the seaman's motion to amend his complaint to add the reinsurer as a defendant in the seaman's action for negligence. The court granted the seaman's request for a trial by jury.

STEVEN DURGIN VERSUS CRESCENT TOWING & SALVAGE, INC., ET AL

CIVIL ACTION NO: 00-1602 SECTION: "N" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 9650
May 17, 2002, Filed; May 20, 2002, Entered

DISPOSITION: Motion to file second amended complaint granted in part and denied in part.

PROCEDURAL POSTURE: Plaintiff seaman filed a motion to file a second amended complaint and requested leave to amend his complaint to add a reinsurer as a defendant and to request a trial by jury. The seaman had initiated his original action for negligence against defendants, employer, insurer, and company. The matter was submitted to the magistrate judge for determination.

OVERVIEW: The seaman was injured while he was a crewman on a tug that was assisting an oceangoing vessel. The injury occurred in June 1997 and the seaman filed his original complaint in June 2000. The court denied the seaman's motion to amend his complaint to add the reinsurer as a defendant. The court, through the magistrate judge, held that the seaman's action would be time barred under the three year statute of limitations set forth in 46 U.S.C.S. § 736(a). Moreover, there was nothing that would make the amended complaint timely under the relation back provisions of Fed. R. Civ. P. 15(c) because there was no showing that the reinsurer received actual notice of the action or should have known about the action. The reinsurer was not in privity with the employer and there was no identity of interest sufficient to allow the seaman's claim to relate back under Rule 15(c). The seaman's request for a jury trial was not within the 10 day requirement of Fed. R. Civ. P. 38, but the seaman's late jury demand would be granted under Fed. R. Civ. P. 39 (b) because the case was one that was normally tried to a jury and defendants had not established that they would be prejudiced thereby.

OUTCOME: The court through the magistrate judge denied the seaman's motion to amend his complaint to add the reinsurer as a defendant in the seaman's action for negligence. The court granted the seaman's request for a trial by jury.

SANDRA JACKSON, individually and on behalf of her deceased husband, RONNIE LEE JACKSON, and on behalf of her minor children, ASHLEE JACKSON, ARIC JACKSON, and AUSTIN JACKSON, Plaintiffs, vs. CARNIVAL CRUISELINES, INC., CRAIG LUNN, and JOYCE BOYD-LITTLE, Defendant.

CASE NO. 99-1813-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9192
May 20, 2002, Decided
May 21, 2002, Filed

DISPOSITION: Defendant Carnival's motion for summary judgment GRANTED.

PROCEDURAL POSTURE: Plaintiffs, cruise ship passenger who also sued on behalf of her minor children and deceased husband, sued defendants, cruise line, the ship's doctor, and a ship's nurse, for the death of her husband shortly after the family's disembarkation from cruise ship. The decedent had been ill while on board the ship. The cruise line moved for summary judgment.

OVERVIEW: The cruise line hired the doctor and the nurse as independent contractors. The passenger claimed the cruise line negligently hired and trained its medical staff. The court found the cruise line presented sufficient evidence, in the form of employment records and credentials, to support its position that it exercised reasonable care in hiring, training, and retaining the individual defendants. The passenger failed to submit any evidence to refute the cruise line's evidence. The passenger's contention that the employment files had documents missing was without merit because the missing documents were not relevant to the allegations. The court rejected the passenger's contention that the cruise line impliedly guaranteed its passengers safe passage. The ticket contract had no language that would have created such an obligation. In fact, the contract specifically disavowed responsibility for the actions of the medical staff provided aboard the cruise ship. Given this language, the court also rejected the passenger's claim that the cruise line failed to warn her that it was immune from its medical staff's negligent acts or that it was not obligated to provide medical care.

OUTCOME: The district court granted the motion for summary judgment on behalf of the cruise line.

SANDRA JACKSON, individually and on behalf of her deceased husband, RONNIE LEE JACKSON, and on behalf of her minor children, ASHLEE JACKSON, ARIC JACKSON, and AUSTIN JACKSON, Plaintiffs, vs. CARNIVAL CRUISELINES, INC., CRAIG LUNN, and JOYCE BOYD-LITTLE, Defendant.

CASE NO. 99-1813-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9192
May 20, 2002, Decided
May 21, 2002, Filed

DISPOSITION: Defendant Carnival's motion for summary judgment GRANTED.

PROCEDURAL POSTURE: Plaintiffs, cruise ship passenger who also sued on behalf of her minor children and deceased husband, sued defendants, cruise line, the ship's doctor, and a ship's nurse, for the death of her husband shortly after the family's disembarkation from cruise ship. The decedent had been ill while on board the ship. The cruise line moved for summary judgment.

OVERVIEW: The cruise line hired the doctor and the nurse as independent contractors. The passenger claimed the cruise line negligently hired and trained its medical staff. The court found the cruise line presented sufficient evidence, in the form of employment records and credentials, to support its position that it exercised reasonable care in hiring, training, and retaining the individual defendants. The passenger failed to submit any evidence to refute the cruise line's evidence. The passenger's contention that the employment files had documents missing was without merit because the missing documents were not relevant to the allegations. The court rejected the passenger's contention that the cruise line impliedly guaranteed its passengers safe passage. The ticket contract had no language that would have created such an obligation. In fact, the contract specifically disavowed responsibility for the actions of the medical staff provided aboard the cruise ship. Given this language, the court also rejected the passenger's claim that the cruise line failed to warn her that it was immune from its medical staff's negligent acts or that it was not obligated to provide medical care.

OUTCOME: The district court granted the motion for summary judgment on behalf of the cruise line.

SANDRA JACKSON, individually and on behalf of her deceased husband, RONNIE LEE JACKSON, and on behalf of her minor children, ASHLEE JACKSON, ARIC JACKSON, and AUSTIN JACKSON, Plaintiffs, vs. CARNIVAL CRUISELINES, INC., CRAIG LUNN, and JOYCE BOYD-LITTLE, Defendant.

CASE NO. 99-1813-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9192
May 20, 2002, Decided
May 21, 2002, Filed

DISPOSITION: Defendant Carnival's motion for summary judgment GRANTED.

PROCEDURAL POSTURE: Plaintiffs, cruise ship passenger who also sued on behalf of her minor children and deceased husband, sued defendants, cruise line, the ship's doctor, and a ship's nurse, for the death of her husband shortly after the family's disembarkation from cruise ship. The decedent had been ill while on board the ship. The cruise line moved for summary judgment.

OVERVIEW: The cruise line hired the doctor and the nurse as independent contractors. The passenger claimed the cruise line negligently hired and trained its medical staff. The court found the cruise line presented sufficient evidence, in the form of employment records and credentials, to support its position that it exercised reasonable care in hiring, training, and retaining the individual defendants. The passenger failed to submit any evidence to refute the cruise line's evidence. The passenger's contention that the employment files had documents missing was without merit because the missing documents were not relevant to the allegations. The court rejected the passenger's contention that the cruise line impliedly guaranteed its passengers safe passage. The ticket contract had no language that would have created such an obligation. In fact, the contract specifically disavowed responsibility for the actions of the medical staff provided aboard the cruise ship. Given this language, the court also rejected the passenger's claim that the cruise line failed to warn her that it was immune from its medical staff's negligent acts or that it was not obligated to provide medical care.

OUTCOME: The district court granted the motion for summary judgment on behalf of the cruise line.

IAN THOMAS, Plaintiff, v. NEW COMMODORE CRUISE LINESLIMITED, INC., Defendant.

CASE NO. 99-3313-CIV-HOEVELER
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9909
May 22, 2002, Decided
May 22, 2002, Filed

DISPOSITION: Defendant's motion for summary judgment granted. All pending motions denied as moot.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant cruise line to recover maintenance and cure. The court denied the cruise line's first motion for summary judgment on the basis that more discovery was required. After taking the seaman's deposition, the cruise line again moved for summary judgment.

OVERVIEW: The cruise line hired the seaman contingent upon a physical that included testing for HIV. The test revealed that the seaman was HIV positive, and he sought to recover maintenance and cure on that basis. The cruise line argued that the seaman was not entitled to maintenance and cure because that remedy was not available for injuries resulting from venereal disease. The court found no basis for distinguishing HIV from other venereal diseases, and noted that employers had a very limited ability to prevent employees from contracting HIV. The seaman argued that he might not have contracted HIV through sexual conduct, but he failed to raise more than a mere possibility of some other source. There was no evidence that the cruise line was aware of or tolerated promiscuity or other dangerous sexual activities; the fact that condoms were provided by the ship's medical facility did not suggest that the cruise line knew of or encouraged promiscuity. The Americans with Disabilities Act (ADA) did not displace the venereal disease defense in general or with respect to HIV in particular, nor could the seaman complain that the cruise line had violated the ADA.

OUTCOME: The cruise line's summary judgment motion was granted.

IAN THOMAS, Plaintiff, v. NEW COMMODORE CRUISE LINESLIMITED, INC., Defendant.

CASE NO. 99-3313-CIV-HOEVELER
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9909
May 22, 2002, Decided
May 22, 2002, Filed

DISPOSITION: Defendant's motion for summary judgment granted. All pending motions denied as moot.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant cruise line to recover maintenance and cure. The court denied the cruise line's first motion for summary judgment on the basis that more discovery was required. After taking the seaman's deposition, the cruise line again moved for summary judgment.

OVERVIEW: The cruise line hired the seaman contingent upon a physical that included testing for HIV. The test revealed that the seaman was HIV positive, and he sought to recover maintenance and cure on that basis. The cruise line argued that the seaman was not entitled to maintenance and cure because that remedy was not available for injuries resulting from venereal disease. The court found no basis for distinguishing HIV from other venereal diseases, and noted that employers had a very limited ability to prevent employees from contracting HIV. The seaman argued that he might not have contracted HIV through sexual conduct, but he failed to raise more than a mere possibility of some other source. There was no evidence that the cruise line was aware of or tolerated promiscuity or other dangerous sexual activities; the fact that condoms were provided by the ship's medical facility did not suggest that the cruise line knew of or encouraged promiscuity. The Americans with Disabilities Act (ADA) did not displace the venereal disease defense in general or with respect to HIV in particular, nor could the seaman complain that the cruise line had violated the ADA.

OUTCOME: The cruise line's summary judgment motion was granted.

JIM KLINGENBERG, Plaintiff, v. PERE MARQUETTE SHIPPING, Defendant.

File No. 1:01-CV-90
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2002 U.S. Dist. LEXIS 10095
May 28, 2002, Decided
May 28, 2002, Filed

DISPOSITION: Plaintiff's motion for summary judgment as to liability GRANTED. JUDGMENT AS TO LIABILITY ONLY entered against Defendant Pere Marquette Shipping.

PROCEDURAL POSTURE: Plaintiff seaman brought a negligence claim under the Jones Act of 1920, codified at 46 U.S.C.S. app. § 688, and an unseaworthiness claim under admiralty law against his employer. The seaman moved for summary judgment as to liability only.

OVERVIEW: The seaman was lead operator on the employer's vessel that hauled cargo on the Great Lakes. He was responsible for loading and unloading, which was by means of a conveyor cat that was accessed by a catwalk. A crew member/welder fabricated a platform to facilitate such access. The seaman was injured due to the employer's negligence when the platform collapsed under him when all of its welds failed, because the conveyor vibrated so much as to cause welds to fail on various points on the machine. The evidence was uncontroverted that the vessel was unseaworthy when the seaman was injured, as the platform failed to fulfill its intended purposes during ordinary use. The employer alleged that the seaman was comparatively negligent. There was no evidence that he was negligent for using the platform when he fell, but the employer alleged negligence for the seaman's failure to fulfill his alleged sole responsibility as lead operator to inspect, maintain, and repair the equipment. The court assumed this was so, but noted that this did not mean that a failure in equipment was due to his negligence, and the employer produced no evidence that the seaman failed to adequately inspect.

OUTCOME: The court granted the seaman's motion for summary judgment as to liability, and entered judgment against the employer as to liability only.

JIM KLINGENBERG, Plaintiff, v. PERE MARQUETTE SHIPPING, Defendant.

File No. 1:01-CV-90
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2002 U.S. Dist. LEXIS 10095
May 28, 2002, Decided
May 28, 2002, Filed

DISPOSITION: Plaintiff's motion for summary judgment as to liability GRANTED. JUDGMENT AS TO LIABILITY ONLY entered against Defendant Pere Marquette Shipping.

PROCEDURAL POSTURE: Plaintiff seaman brought a negligence claim under the Jones Act of 1920, codified at 46 U.S.C.S. app. § 688, and an unseaworthiness claim under admiralty law against his employer. The seaman moved for summary judgment as to liability only.

OVERVIEW: The seaman was lead operator on the employer's vessel that hauled cargo on the Great Lakes. He was responsible for loading and unloading, which was by means of a conveyor cat that was accessed by a catwalk. A crew member/welder fabricated a platform to facilitate such access. The seaman was injured due to the employer's negligence when the platform collapsed under him when all of its welds failed, because the conveyor vibrated so much as to cause welds to fail on various points on the machine. The evidence was uncontroverted that the vessel was unseaworthy when the seaman was injured, as the platform failed to fulfill its intended purposes during ordinary use. The employer alleged that the seaman was comparatively negligent. There was no evidence that he was negligent for using the platform when he fell, but the employer alleged negligence for the seaman's failure to fulfill his alleged sole responsibility as lead operator to inspect, maintain, and repair the equipment. The court assumed this was so, but noted that this did not mean that a failure in equipment was due to his negligence, and the employer produced no evidence that the seaman failed to adequately inspect.

OUTCOME: The court granted the seaman's motion for summary judgment as to liability, and entered judgment against the employer as to liability only.

ELEVENTH CIRCUIT HOLDS THAT FEDERAL FORUM NON CONVENIENS LAW TRUMPS FLORIDA FORUM NON CONVENIENS LAW IN DIVERSITY CASES WHERE THERE IS A FEDERAL COUNERVAILING INTEREST AT STAKE - REVERSING DISTRICT COURT JUDGMENT OF DISMISSAL OF PASSENGER INJURY CLAIMS AGAINST ITALIAN CRUISE LINE WITH MIAMI MARKETING, SALES, AND ADVERTISING OFFICE

PATRICIA ESFELD, DONALD ESFELD, her husband, Plaintiffs-Appellants, versus COSTA CROCIERE, S.P.A., a foreign corporation doing business in Miami-Dade County, Florida, Defendant-Appellee. ELEANOR COHON,JULIAN COHON, her husband, Plaintiffs-Appellants, versus COSTA CROCIERE, S.P.A.,a foreign corporation, Defendant-Appellee. BELLE BESTOR, STANLEY BESTOR, her husband, Plaintiffs-Appellants, versus COSTA CROCIERE, S.P.A., a foreign corporation doing business in Miami-Dade County, Florida, Defendant-Appellee.

No. 01-11072, No. 01-11073, No. 01-11074
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2002 U.S. App. LEXIS 7867
April 30, 2002, Decided
April 30, 2002, Filed

PRIOR HISTORY: Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 00-01662 CV-SH, D.C. Docket No. 00-01661 CV-SH, D.C. Docket No. 99-01914 CV-SH. Bestor v. Costa Crociere, S.P.A., 128 F. Supp. 2d 1356, 2000 U.S. Dist. LEXIS 19714 (2000, S.D. Fla., Oct. 25).

OVERVIEW: These consolidated cases arise out of an accident that occurred during a guided van tour through the Da Nang area of Vietnam. Appellants are three elderly married couples that were injured in the accident, which occurred in January of 1994. All three couples are United States citizens, the Bestors residing in the State of California, and the Cohons and Esfelds residing in the State of Washington. At the time of the accident, the Appellants were on a Western Pacific cruise that had begun in Singapore and was set to terminate in Hong Kong. The cruise ship upon which they were traveling, the Ocean Pearl, was owned and operated by Costa. The three couples had contracted with Costa in 1993 to take the 13-night cruise of the Western Pacific aboard the Ocean Pearl. Although Costa is an Italian corporation, n2 the Appellants have argued throughout this litigation that all of Costa's marketing, advertising, and sales for the United States are done through an office in Miami with over 110 employees. These marketing and sales activities, the Appellants assert, generate between 30,000 and 52,000 United States customers per year. They also argue that Costa advertises in all major United States markets, runs an Internet site from Miami, and issues cruise brochures that list Miami as its address. According to the Appellants, the advertising was successful with respect to them, for they contracted for the Western Pacific cruise only after receiving uninvited solicitations in the United States from Costa, through American travel agents. The travel agents booked the cruise for them, and arrangements for the trip then were made through a company affiliated with Costa that was located in South Florida. It is as a result of these Miami-based sales activities by Costa, the Appellants maintain, that they contracted for the Western Pacific cruise that took them to Vietnam. After the accident in this case, Costa was acquired in part by Carnival Corporation, which is headquartered in Miami, Florida. Costa moved to dismiss pursuant to the doctrine of forum non-conveniens. The court determined that the primary question in these consolidated cases is whether there is a federal countervailing interest at stake that trumps the application of Florida law on forum non-conveniens in diversity cases. The court decided that federal law on forum non-conveniens should apply. This decision was based on the court's analysis showing that several federal interests, other than restricting access to the federal docket, are at stake in the forum non-conveniens context. Such interests include the federal goal of ensuring that United States citizens generally have access to the courts of this country for resolution of their disputes; the federal government's interest in foreign relations; and the federal concern over maintaining a national, unified set of venue rules among the several circuits. These federal interests trump outcome-determinative state law on forum non-conveniens.

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

LAZARO HERNANDEZ VERSUS BUNGE CORPORATION, MCKINNEY TOWING,INC., ZEN-NOH GRAIN CORPORATION, WELCOME FLEET & STATE OF LOUISIANA BARGE SERVICE, INC., ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY AND XYZ INSURANCE COMPANY

NO. 01-CA-1201
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-1201 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 993
April 10, 2002, Decided

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Plaintiff employee filed a petition for damages for injuries he sustained while working for defendant barge company. In his original petition, the employee asserted a Jones Act, specifically 46 U.S.C.S. § 688, and an unseaworthiness claim. The employee also asserted a claim for maintenance and cure against the barge company. The 29th Judicial District Court, Parish of St. Charles, State of Louisiana, dismissed his claims. The employee appealed.

OVERVIEW: The employee was working as a deckhand when he injured his back and shoulder. The employee, however, had been previously injured. The employee's physician testified that the employee had a permanent disability of 10 to 20 percent after the first accident, which did not change after the second accident. On appeal, the employee argued that the information about the first accident that was not disclosed to the barge company was immaterial, and was not connected to the second injury. The employee did not refute that he fraudulently filled out his employment application. He also lied to the physician chosen by the barge company. There was no indication that the barge company was privy to the information that the employee suffered a prior work related back injury. Under these circumstances, the trial court was correct in it's finding that the employee forfeited his right to maintenance and cure benefits through his misrepresentations. The trial court also correctly found that the employee failed to meet his burden to support his negligence claim. Finally, the appellate court could not say the trial court erred in finding that there was no showing of unseaworthiness in this case.

OUTCOME: The appellate court affirmed the trial court's judgment.

LAZARO HERNANDEZ VERSUS BUNGE CORPORATION, MCKINNEY TOWING,INC., ZEN-NOH GRAIN CORPORATION, WELCOME FLEET & STATE OF LOUISIANA BARGE SERVICE, INC., ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY AND XYZ INSURANCE COMPANY

NO. 01-CA-1201
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-1201 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 993
April 10, 2002, Decided

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Plaintiff employee filed a petition for damages for injuries he sustained while working for defendant barge company. In his original petition, the employee asserted a Jones Act, specifically 46 U.S.C.S. § 688, and an unseaworthiness claim. The employee also asserted a claim for maintenance and cure against the barge company. The 29th Judicial District Court, Parish of St. Charles, State of Louisiana, dismissed his claims. The employee appealed.

OVERVIEW: The employee was working as a deckhand when he injured his back and shoulder. The employee, however, had been previously injured. The employee's physician testified that the employee had a permanent disability of 10 to 20 percent after the first accident, which did not change after the second accident. On appeal, the employee argued that the information about the first accident that was not disclosed to the barge company was immaterial, and was not connected to the second injury. The employee did not refute that he fraudulently filled out his employment application. He also lied to the physician chosen by the barge company. There was no indication that the barge company was privy to the information that the employee suffered a prior work related back injury. Under these circumstances, the trial court was correct in it's finding that the employee forfeited his right to maintenance and cure benefits through his misrepresentations. The trial court also correctly found that the employee failed to meet his burden to support his negligence claim. Finally, the appellate court could not say the trial court erred in finding that there was no showing of unseaworthiness in this case.

OUTCOME: The appellate court affirmed the trial court's judgment.

COURT'S RULING ON JONES ACT CLAIM AFFIRMED DESPITE EMPLOYER'S MOTION TO RECUSE THE TRIAL JUDGE BECAUSE HE AND THE SEAMAN'S COUNSEL WERE FRIENDS, THE SEAMAN'S COUNSEL HAD REPRESENTED THE JUDGE IN AN ELECTION DISPUTE, THE SEAMAN'S COUNSEL HAD HELPED WITH THE JUDGE'S JUDICIAL CAMPAIGN AND THE SEAMAN'S COUNSEL'S IN-LAWS HAD PURCHASED THE JUDGE'S FORMER OFFICE BUILDING.

HAROLD YOUNCE VERSUS PACIFIC GULF MARINE, INC. AND ABC INSURANCE COMPANY

NO. 01-CA-546
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-546 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 991
April 10, 2002, Decided

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant employer in the Twenty-Fourth Judicial District Court, Jefferson Parish (Louisiana), for damages under the Jones Act and general maritime law for injuries incurred unloading a vessel, and attorney fees because the employer stopped his maintenance and cure payments. The employer's motion to recuse the trial judge was denied. Judgment was awarded to the seaman for damages and attorney fees. The employer appealed.

OVERVIEW: The employer argued that the trial court erred in denying its recusal motion because the trial judge and the seaman's co-counsel were personal friends, co-counsel had helped with the judicial campaign, co-counsel had represented the judge in an election dispute, and co-counsel's in-laws had purchased the judge's former office building. The trial judge stated their friendship had been disclosed. The appellate court saw no reason to disturb the ruling on the motion to recuse the trial judge. The employer also argued that the trial judge's findings of unseaworthiness and negligence were manifestly erroneous, the findings regarding medical causation and lost income were not correct, and they disputed the amount of the general damage awards and the finding that the seaman was entitled to attorney's fees on the maintenance and cure claim. Finally, they raised several errors regarding the admission of evidence during the trial. The appellate court found no manifest error in any of the trial judge's findings or rulings. The appellate court noted that the trial judge's findings were amply supported in the record.

OUTCOME: The appellate court affirmed the trial court's judgment.

COURT'S RULING ON JONES ACT CLAIM AFFIRMED DESPITE EMPLOYER'S MOTION TO RECUSE THE TRIAL JUDGE BECAUSE HE AND THE SEAMAN'S COUNSEL WERE FRIENDS, THE SEAMAN'S COUNSEL HAD REPRESENTED THE JUDGE IN AN ELECTION DISPUTE, THE SEAMAN'S COUNSEL HAD HELPED WITH THE JUDGE'S JUDICIAL CAMPAIGN AND THE SEAMAN'S COUNSEL'S IN-LAWS HAD PURCHASED THE JUDGE'S FORMER OFFICE BUILDING.

HAROLD YOUNCE VERSUS PACIFIC GULF MARINE, INC. AND ABC INSURANCE COMPANY

NO. 01-CA-546
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-546 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 991
April 10, 2002, Decided

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant employer in the Twenty-Fourth Judicial District Court, Jefferson Parish (Louisiana), for damages under the Jones Act and general maritime law for injuries incurred unloading a vessel, and attorney fees because the employer stopped his maintenance and cure payments. The employer's motion to recuse the trial judge was denied. Judgment was awarded to the seaman for damages and attorney fees. The employer appealed.

OVERVIEW: The employer argued that the trial court erred in denying its recusal motion because the trial judge and the seaman's co-counsel were personal friends, co-counsel had helped with the judicial campaign, co-counsel had represented the judge in an election dispute, and co-counsel's in-laws had purchased the judge's former office building. The trial judge stated their friendship had been disclosed. The appellate court saw no reason to disturb the ruling on the motion to recuse the trial judge. The employer also argued that the trial judge's findings of unseaworthiness and negligence were manifestly erroneous, the findings regarding medical causation and lost income were not correct, and they disputed the amount of the general damage awards and the finding that the seaman was entitled to attorney's fees on the maintenance and cure claim. Finally, they raised several errors regarding the admission of evidence during the trial. The appellate court found no manifest error in any of the trial judge's findings or rulings. The appellate court noted that the trial judge's findings were amply supported in the record.

OUTCOME: The appellate court affirmed the trial court's judgment.

REYNOLD KALLOO and TYRONE STEVENSON VERSUS TT BOAT CORPORATION

CIVIL ACTION NO. 02-138 SECTION "N"(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 7416
April 15, 2002, Decided
April 15, 2002, Filed; April 16, 2002, Entered

DISPOSITION: Defendant T. T. Boat Corporation's Rule 12(b)(6) Motion to Dismiss, summary judgment GRANTED. Plaintiffs' claims dismissed in their entirety as barred by the doctrine of res judicata.

PROCEDURAL POSTURE & OVERVIEW: Plaintiffs originally filed suit against TT Boat in the Civil District Court for the Parish of Orleans, State of Louisiana asserting causes of action under the Jones Act, 46 U.S.C. § 688, the general maritime law for unseaworthiness, along with various state and foreign law claims. The state court suit was prosecuted only against TT Boat, since the Louisiana court was without jurisdiction over the Tidewater entities. TT boat filed a Motion for Summary Judgment in the Civil District Court proceeding seeking dismissal of the plaintiffs' state court suit arguing that 46 U.S.C. § 688(b), which precludes actions in United States courts by certain foreign seamen, served to bar plaintiffs' claims subject to the jurisdiction of the courts of either Trinidad-Tobago or Colombia. The trial court denied TT Boat's Motion for Summary Judgment. The Louisiana Fourth Circuit Court of Appeals unanimously reversed and granted summary judgment in favor of TT Boat -- precisely the same relief requested by that defendant in its motion for summary judgment -- dismissing plaintiffs' claims against it (i.e., with prejudice as to the plaintiffs' Jones Act, General Maritime Law, and State law claims, and without prejudice as to plaintiffs' right to proceed with foreign law claims in foreign venues with jurisdiction over such claims). The Louisiana Supreme Court denied plaintiffs' Application for Writ of Certiorari and Review from the Decision of the Court of Appeal for the Louisiana Fourth Circuit. Plaintiffs did not file a writ application with the United States Supreme Court. Instead, the foreign plaintiffs filed an identical complaint in U.S. District Court for the Eastern District of Louisiana, urging the same claims which are the subject of the Louisiana Fourth Circuit Court of Appeal's ruling granting TT Boat's Motion for Summary Judgment, seeking dismissal of the plaintiffs' federal and state law claims with prejudice, and dismissal of the plaintiffs' foreign law claims without prejudice to any right they may have to proceed in the foreign jurisdictions aforestated. Plaintiffs base their arguments on exceptional circumstances because their time to file suit in the foreign jurisdictions lapsed.

OUTCOME: Considering that the Louisiana Fourth Circuit previously considered the issue of exceptional circumstances and rejected plaintiffs' argument in that regard, re-litigating that issue again in this Court would permit an end-run around the doctrine of res judicata, which Louisiana courts broadly construe. Principles of comity counsel in favor of respecting final decisions of Louisiana courts, and in this case the Court is presented with all of the facts necessary to make the determination that res judicata serves to bar the plaintiffs' claims in the captioned proceeding.

NANCY LEE SMITH, individually and on her own behalf and on behalf of: JOSHUA OSBORNE, JONATHAN OSBORNE and THOMAS OSBORNE, minors by their parent and guardian Nancy Lee Smith, KEVIN McGINN, individually and on his own behalf and on behalf of: ERIN McGINN, CONNOR McGINN and REBECCA McGINN, minors by their parent and guardian Kevin McGinn, DAWN HACKETT, JOSEPH PECORARO, LINDA PECORARO and MICHAEL HUREWITZ, Plaintiffs, - against - JOSEPH MITLOF, et al.,Defendants/Third-Party Plaintiff, - against - THE MARITIME AQUARIUM AT NORWALK,INC., Third-Party Defendant. SUSAN THORSON, WILLIAM L. THORSON, DENNY JACOBSON,ELEANOR BUDOFF, HELEN GURVITCH, JOHN L. RUSSO and FRANCIS O'BRIEN, Plaintiffs, -against - THE MARITIME AQUARIUM AT NORWALK, INC., et al., Defendants.

99 Civ. 10833 (WCC), 01 Civ. 7880 (WCC) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2002 U.S. Dist. LEXIS 6931 April 17, 2002, Decided

DISPOSITION: Plaintiffs' claims of negligent repair or maintenance, negligent misrepresentation, fraud, violation of statutory duty, breach of contract and breach of express and implied warranties against defendant Norwalk Maritime dismissed with prejudice. Defendant Norwalk Maritime's motion to dismiss with respect to plaintiffs' claim of negligent failure to warn denied.

PROCEDURAL POSTURE: The instant case involved two related actions brought by plaintiff, passengers, who suffered injuries when a pontoon boat they were riding in capsized. Defendants, individual buyer of the boat, the seller and others, moved to dismiss both claims. The passengers maintained that their numerous claims in contract and tort were brought pursuant to the court's admiralty jurisdiction pursuant to 28 U.S.C.S. § 1333(1).

OVERVIEW: The passengers alleged that the corporation was aware that the boat was dangerous and non-compliant with the federal regulations, including regulations regarding stability and hull integrity. This information was not disclosed to the individual when he purchased the boat. The court held that the contract was unequivocally one for the sale of a vessel. Therefore, passengers' breach of contract claims against the corporation did not come within the court's admiralty contract jurisdiction. Nor did admiralty tort jurisdiction apply. The pivotal issue presented was whether the corporation owed a duty to the passengers. If the corporation knew or had reason to know that, as a result of the vessel's latent defects and limitations, the boat would be dangerous for the individual's intended use, and had reason to believe that the individual would not discover these defects, it could be found liable to prospective passengers for failure to warn of the dangerous conditions. Because the corporation may have owed the boat's users a duty to warn of defects, corporation's motion to dismiss the passengers' claims involving its negligent failure to warn was denied.

OUTCOME: The passenger's claims of negligent repair or maintenance, negligent misrepresentation, fraud, violation of statutory duty, breach of contract and breach of express and implied warranties against the corporation were dismissed with prejudice. However, the corporation's motion to dismiss with respect to the passengers' claim of negligent failure to warn was denied.

ERNANY DE JOSEPH, Plaintiff, v. ODFJELL TANKERS (USA), INC.,ODFJELL TANKERS A.S.A., ODFJELL A.S.A., and M/T BOW FAGUS, Defendants.

CIVIL ACTION NO. G-01-215
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2002 U.S. Dist. LEXIS 7643
April 18, 2002, Decided
April 18, 2002, Entered

DISPOSITION: Defendants' Motion to Dismiss GRANTED, and Plaintiff's action DISMISSED WITHOUT PREJUDICE.

OVERVIEW: A Filipino seaman was injured aboard a Norwegian-flagged vessel. Like all other Filipino seamen hired to work aboard foreign vessels, the Plaintiff executed a contract of employment approved by the Philippine Overseas Employment Agency ("POEA") which stipulates: "All claims, complaints or controversies relative to the implementation of this overseas employment contract shall be resolved through the established Grievance Machinery in the Revised Employment Contract for Seafarers. If result of the procedure is unsatisfactory to any of the parties, it may be appealed to the management of the company or with the Philippine Labor Attaché or consular office overseas. This procedure shall be without prejudice to any action that the parties may take before the appropriate authority." As a result of the injuries sustained while he was in the service of the vessel, the Plaintiff filed suit against Defendants seeking to recover damages under the Jones Act and the General Maritime Law of the United States for injuries arising from the August 3, 2000 incident. Defendants thereafter filed a Motion to Dismiss, asking the Court to dismiss Plaintiff's action on the basis of the forum selection clause contained in Plaintiff's POEA employment contract, or in the alternative, on the grounds of forum non-conveniens. The court held the forum selection clause at issue is both valid and enforceable. The Court wholly rejects Plaintiff's insinuation that the last sentence of Paragraph 4 somehow renders the POEA forum selection clause permissive or ambiguous. In stark contrast, the Court unequivocally holds that the instant POEA forum selection clause is mandatory and exclusive, such that the Plaintiff is required by its plain terms to adjudicate his grievance solely in a Filipino venue. Although the Court admittedly sympathizes with Plaintiff's plight, as it does in any and every case involving an injured seaman, it also realizes that the POEA forum selection clause was designed to protect Filipino seamen working aboard international vessels. That vessel owners, who are also obliged to accept the POEA terms, rather than Filipino seamen, have thus far been the parties seeking to enforce these clauses, does not in any way diminish the beneficent and liberal purposes behind the enactment.

OUTCOME: Plaintiff's claims were dismissed to bring in the Philippines under the POEA contract provisions.

GERARD O'HARA and LISA O'HARA, Plaintiffs-Appellants, v. WEEKS MARINE, INC. and COLLAZO CONTRACTORS, INC., Defendants-Appellees.

Docket No. 00-7872
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2002 U.S. App. LEXIS 6419
March 15, 2001, Argued
April 1, 2002, Decided

PRIOR HISTORY: Appeal from two orders of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) granting the defendants' motions for summary judgment on the plaintiffs' claims under the Jones Act and the Longshore and Harbor Workers' Compensation Act, and denying the plaintiffs leave to amend their complaint to add state law claims. We hold that the district court correctly dismissed the Jones Act claims against both defendants. We conclude, however, that the plaintiffs proffered evidence sufficient to withstand Weeks Marine, Inc.'s motion for summary judgment on their claims under the Longshore and Harbor Workers' Compensation Act. We further hold that this evidence may suffice to state a claim under New York State law. We therefore vacate in part and remand for the district court's further consideration of these issues.

DISPOSITION: Affirmed in part, vacated in part, and remanded.

PROCEDURAL POSTURE: Plaintiffs, a dockworker and his wife, appealed from a judgment of the United States District Court for the Eastern District of New York granting the defendants, subcontractor/employer and general contractor's summary judgment on claims under the Jones Act, 42 U.S.C.S. App. 688, and the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., and denying them leave to amend their complaint.

OVERVIEW: The dockworker's Jones Act claims against both the employer/subcontractor and the general contractor were dismissed because the barge on which the dockworker sustained his injury was not a "vessel in navigation;" and because he did not qualify as a "seaman" within the meaning of the Jones Act. On review, the court of appeals agreed with the district court that the dockworker did not qualify as a "seaman" under the Jones Act, and agreed that the dockworker's connection to the vessel qua vessel (a barge) was insufficiently substantial in terms of both its duration and its nature, to support the conclusion that he qualified as a seaman. Notably, he spent more than half his working hours during a five-month period aboard the barges, but spent all of that time performing tasks related to repair of the Staten Island pier, while the barges were secured to the pier. However, because issues within the province of the trier of fact could subject the employer/subcontractor to liability as a third-party vessel owner pursuant to 33 U.S.C.S. § 905(b), the court of appeals concluded that the district court's grant of summary judgment to the employer/subcontractor on the LHWCA claim was mistaken.

OUTCOME: The district court's dismissal of the dockworker's Jones Act claims and his LHWCA claim against defendant, general contractor were affirmed. The district court's grant of summary judgment to employer/subcontractor on the dockworker's claims under the LHWCA and its denial of O'Hara's motion to amend his complaint were reversed and remanded for further proceedings.

MILFRED J. NUNEZ Plaintiff - Appellee - Cross-Appellant VERSUS B & B DREDGING, INC. ET AL, Defendants; CLARENDON AMERICA INSURANCE COMPANY, Defendant - Appellant - Cross-Appellee

No. 00-30993
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 7410
April 23, 2002, Decided

PRIOR HISTORY: Appeals from the United States District Court For the Eastern District of Louisiana, New Orleans. 98-CV-2572-S. Mary Ann Vial Lemmon, US District Judge.

DISPOSITION: Reversed and rendered.

PROCEDURAL POSTURE: The United States District Court For the Eastern District of Louisiana, New Orleans, granted summary judgment against appellants, employer and insurer, holding that appellee land-based employee was a seaman as a matter of law, and thus could enjoy seaman status. The appeal followed.

OVERVIEW: The court of appeals agreed that it was error to conclude that the employee was a seaman. The employee's job as dump foreman contributed to the function and mission of the vessel. This was uncontested. His connection to the vessel had to be substantial in both duration and nature. The duration and the nature of his activities had to be considered together. The ultimate inquiry was whether the worker was a crewmember or simply a land-based employee who worked on the vessel. The employee argued that this was disjunctive, because he was permanently assigned to the dredge, and as such, had the requisite connection to a vessel. The court disagreed. This interpretation ignored the fact that a seaman's connection with a vessel included a temporal requirement. A worker who divided his work time between the shore and the vessel had to demonstrate that he spent a substantial part of his time aboard. The employee spent approximately 10 percent of his work time aboard the dredge, which was insubstantial. Also, since the tortfeasor already settled, the damage award was reduced. Although the employee cross-appealed the reduction, the court's holding rendered this cross-appeal irrelevant.

OUTCOME: The judgment was reversed and rendered in favor of the employer.

APPELLATE COURT HOLDS THAT WHERE A DAILY MAINTENANCE RATE WAS FIXED UNDER THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT, THE AGREEMENT IS TO BE ACCEPTED BY REVIEWING COURTS AS REASONABLE ABSENT EVIDENCE THAT THE COLLECTIVE BARGAINING CONTRACT AS A WHOLE IS UNFAIR OR THAT THE UNION DID NOT ADEQUATELY REPRESENT THE CLAIMANT - EVEN WHEN THE CLAIMANT IS NOT A MEMBER OF THE UNION.

BOUCHARD TRANSPORTATION CO., INC., Appellant, v. CHRISTOPHER CONNORS, Appellee.

CASE NO. 4D01-2424
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2002 Fla. App. LEXIS 3033; 27 Fla. L. Weekly D 587
March 13, 2002, Opinion Filed

PRIOR HISTORY: Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John Wessel, Judge; L.T. Case No. CL 00-12694 AE.

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: Appellee worker sued appellant transportation company under the Jones Act for injury received while working on its ship. The Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County (Florida), concluded that the worker was not bound by a union contract because he was not a member of the union, and entered a partial final judgment on the issue of "maintenance and cure." The company appealed.

OVERVIEW: The worker was an assistant engineer on the ship. That position was part of a bargaining unit represented by the union, although he himself was not a union member. The worker submitted an affidavit detailing living expenses of approximately $30 per day. In opposition, the company filed an affidavit stating that the worker was party to a collective bargaining agreement with the union representing the seamen. Evidence showed that he was paid pursuant to the terms of the agreement. Under the contract, the maintenance rate was fixed at $15 per day. The appellate court found that the maintenance damages awarded were in excess of the daily living expenses provided for under the agreement. Where a daily maintenance rate was fixed under the terms of a collective bargaining agreement, it was to be accepted by reviewing courts as reasonable, absent evidence that the collective bargaining contract as a whole was unfair or that the union did not adequately represent the claimant. Labor agreements benefitted all employees within bargaining units, not just union members.

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

GRANT ROSCOE VERSUS BRITISH-BORNEO USA, INC.

CIVIL ACTION NO. 01-1238 SECTION "N"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 4141
March 4, 2002, Decided
March 5, 2002, Filed; March 6, 2002, Entered

DISPOSITION: British-Borneo U.S.A., Inc's Motion for Summary Judgment regarding third party demand DENIED. Atwood Oceanic, Inc.'s Motion for Summary Judgment regarding third party demand DENIED. Expro Americas, Inc.'s Motion for Summary Judgment regarding the third-party claims against it DENIED.

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer, a drilling operator, and the owner of a drilling rig under the Jones Act and the General Maritime Law, for injuries sustained while on the drilling floor of the drilling rig. The operator cross-claimed against the employer for indemnity. The owner and the operator moved for summary judgment against the employer. The employer moved for summary judgment, seeking dismissal of the indemnity claims.

OVERVIEW: The employer and the operator entered into a contract which required that the employer provide the operator with a defense and indemnity for any claims brought by an employee of the employer for personal injuries. The court held that to the extent that the contract required indemnification for the operator's fault, it would be unenforceable under La. Rev. Stat. § 9:2780. However, the indemnification provisions of the contract would have been enforceable under maritime law, provided that indemnification for the operator's own negligence was clearly and unequivocally expressed. It was not disputed that the contract stated that the employer would fully defend, indemnify and hold the operator harmless, even where the accident was solely caused by the operator's own negligence, for any claims brought by the employer's employees arising from, or incidental to, the work performed under the contract. However, there were disputed issues of fact as to whether the contract was a maritime or non-maritime contract. Specifically, the contract work appeared to be more analogous to casing service and well completion, which activities had historically been characterized as maritime work.

OUTCOME: Each parties' motion for summary judgment was denied.

EMPLOYER'S MOTION FOR SUMMARY JUDGMENT ON JONES ACT NEGLIGENCE DENIED WHERE SEAMAN / CROUPIER'S INJURY WAS CAUSED BY HER DEALING CARDS AND EMPLOYER REFUSED TO REASSIGN SEAMAN; SUMMARY JUDGMENT ON UNSEAWORTHINESS GRANTED BECAUSE FAILURE TO REASSIGN SEAMAN / CROUPIER ON TWO OCCASIONS FELL SHORT OF A "CONTINUOUS COURSE OF CONDUCT"; EMPLOYER'S OBLIGATION TO PAY MAINTENANCE AND CURE IS NOT RELIEVED WHERE SEAMAN / CROUPIER REFUSED TO ACCEPT LIGHT DUTY POSITION.

ELIZABETH PUTNAM, Plaintiff, vs. EMPRESS CASINO JOLIET CORP.,Defendant.

No. 01 C 4245 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 2002 U.S. Dist. LEXIS 4486 March 12, 2002, Decided March 19, 2002, Docketed

DISPOSITION: Defendant's motion for summary judgment granted as to Counts II and IV, granted in part and denied in part as to Count III and denied as to Count I.

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer for personal injuries sustained during her employment on a casino river boat, and alleged negligence under the Jones Act, 46 U.S.C.S. § 688 et seq. (count one), unseaworthiness of the casino under general admiralty and maritime law (count two) and maintenance and cure under general admiralty and maritime law (count three) and the Jones Act (count four). The employer moved for summary judgment.

OVERVIEW: The employer claimed summary judgment was appropriate as to the Jones Act negligence claim because she could not establish all the elements of her claim. The employee's supervisor knew she was experiencing pain in her arm from dealing and denied her requests for reassignment. Under these circumstances, a reasonable fact finder could have concluded the risk of injury was foreseeable to the employer. The employee advanced sufficient evidence to establish that the employer's failure to reassign her played some part in causing her injury. However, her supervisor's failure to reassign her on two occasions fell short of establishing a continuous course of conduct, thus her unseaworthiness claim failed. The employer's obligation to pay the employee maintenance until maximum cure was not affected by her refusal to accept the light duty position. The employee achieved maximum cure and the employer paid her medical expenses until that date, thus was entitled to judgment as a matter of law on the cure claim. The employee did not allege any additional injuries resulting from the employer's failure to provide maintenance, thus her claim for maintenance and cure under the Jones Act failed.

OUTCOME: The employer's motion for summary judgment was granted as to counts two and four, granted in part and denied in part as to count three, and denied as to count one.

CAPTAIN HARTMUT RATHJE, et al., Plaintiffs vs. SCOTIA PRINCE CRUISES, LTD., Defendant

Civil No. 01-123-P-DMC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2002 U.S. Dist. LEXIS 4078
March 13, 2002, Decided

DISPOSITION: Judgment entered in favor of Sjostrom and against Defendant on Count I of the complaint, in favor of Defendant and against Rathje and Persson, on the Plaintiffs' claim surviving summary judgment and against Defendant on all of Defendant's counterclaims.

PROCEDURAL POSTURE: Plaintiffs, former captain, chief engineer, and superintendent, brought a claim in admiralty for breach of contract/wrongful termination against defendant vessel owner and a pendent state-law wage claim. The owner filed a counterclaimed against each plaintiff for breach of fiduciary duty and a motion for summary judgment on their complaint.

OVERVIEW: Plaintiffs asserted that the vessel owner breached their respective employment contracts by wrongfully terminating them and by failing to pay them their wages and vacation and days off, which they would have earned or accrued had they worked for the notice periods contained in the contracts. The court granted in part and denied in part the vessel owner's motion for summary judgment and dismissed the pendent state law claim. The court entered judgment for the superintendent and against the captain and chief engineer on their breach of employment contract claim and for each plaintiff on the owner's counterclaims. The court found that the owner breached the notice provision of the superintendent's contract by terminating his job without either permitting him to work during the nine-month notice period or paying him for that time. As the captain and chief engineer resigned without the notice that was required by their employment contracts, they were not entitled to the notice-period pay. The owner's counterclaims failed because no evidence existed that plaintiffs had engaged in self-dealing or that they had failed to maintain properly the vessel's accounts.

OUTCOME: The court entered judgment for the superintendent on his breach of employment contract claim against the vessel owner and awarded him compensation. The court entered judgment for the owner against the captain and chief engineer. The court entered judgment for plaintiffs on all of the owner's counterclaims. The court granted the owner's motion for summary judgment in part and dismissed plaintiffs' pendent state law claim.

CAPTAIN HARTMUT RATHJE, et al., Plaintiffs vs. SCOTIA PRINCE CRUISES, LTD., Defendant

Civil No. 01-123-P-DMC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2002 U.S. Dist. LEXIS 4078
March 13, 2002, Decided

DISPOSITION: Judgment entered in favor of Sjostrom and against Defendant on Count I of the complaint, in favor of Defendant and against Rathje and Persson, on the Plaintiffs' claim surviving summary judgment and against Defendant on all of Defendant's counterclaims.

PROCEDURAL POSTURE: Plaintiffs, former captain, chief engineer, and superintendent, brought a claim in admiralty for breach of contract/wrongful termination against defendant vessel owner and a pendent state-law wage claim. The owner filed a counterclaimed against each plaintiff for breach of fiduciary duty and a motion for summary judgment on their complaint.

OVERVIEW: Plaintiffs asserted that the vessel owner breached their respective employment contracts by wrongfully terminating them and by failing to pay them their wages and vacation and days off, which they would have earned or accrued had they worked for the notice periods contained in the contracts. The court granted in part and denied in part the vessel owner's motion for summary judgment and dismissed the pendent state law claim. The court entered judgment for the superintendent and against the captain and chief engineer on their breach of employment contract claim and for each plaintiff on the owner's counterclaims. The court found that the owner breached the notice provision of the superintendent's contract by terminating his job without either permitting him to work during the nine-month notice period or paying him for that time. As the captain and chief engineer resigned without the notice that was required by their employment contracts, they were not entitled to the notice-period pay. The owner's counterclaims failed because no evidence existed that plaintiffs had engaged in self-dealing or that they had failed to maintain properly the vessel's accounts.

OUTCOME: The court entered judgment for the superintendent on his breach of employment contract claim against the vessel owner and awarded him compensation. The court entered judgment for the owner against the captain and chief engineer. The court entered judgment for plaintiffs on all of the owner's counterclaims. The court granted the owner's motion for summary judgment in part and dismissed plaintiffs' pendent state law claim.

TANNOUS L. BACHIR, Plaintiff, -against- TRANSOCEANIC CABLE SHIP COMPANY and C. S. LONG LINES, L.P., Defendants.

98 Civ. 4625 (JFK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 4340
March 15, 2002, Decided
March 15, 2002, Filed

DISPOSITION: Defendants' motion for judgment as a matter of law granted in part and denied in part. Future maintenance award vacated. Defendants' motion for new trial denied in all respects.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant shipowners, alleging that the shipowners were liable for maintenance and cure for injuries the seaman suffered while working aboard the shipowners' vessel. The jury returned a verdict in favor of the seaman, and the shipowners moved for judgment as a matter of law and for a new trial.

OVERVIEW: The shipowners contended that the lump sum award for future maintenance was based on the erroneous finding that the seaman had not reached maximum cure, and that the past maintenance rate was limited to the collective bargaining agreement rate. The shipowners also argued that expert medical testimony was erroneous and improperly admitted, and that the award for pain and suffering was excessive. The court first held that, while the evidence supported the finding that the seaman had not reached maximum cure, the future maintenance award based on the seaman's estimated working life failed to account for the possibility of prior maximum cure. Further, the maintenance rate provided by the collective bargaining agreement was clearly inadequate, but the seaman failed to provide evidence to determine a proper past maintenance award. Nonetheless, the shipowners had a full opportunity to challenge the diagnosis that the seaman's accident caused psychological problems, and the alleged prior fraud of one expert was too remote in time to be probative of the truthfulness of the witness. Finally, the jury's award for pain and suffering, while substantial, was not excessive

OUTCOME: The shipowners' motion for judgment as a matter of law was granted in part with regard to the lump sum future maintenance and past maintenance awards, but the motion was otherwise denied. The shipowners' motion for a new trial was denied.

TANNOUS L. BACHIR, Plaintiff, -against- TRANSOCEANIC CABLE SHIP COMPANY and C. S. LONG LINES, L.P., Defendants.

98 Civ. 4625 (JFK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 4340
March 15, 2002, Decided
March 15, 2002, Filed

DISPOSITION: Defendants' motion for judgment as a matter of law granted in part and denied in part. Future maintenance award vacated. Defendants' motion for new trial denied in all respects.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant shipowners, alleging that the shipowners were liable for maintenance and cure for injuries the seaman suffered while working aboard the shipowners' vessel. The jury returned a verdict in favor of the seaman, and the shipowners moved for judgment as a matter of law and for a new trial.

OVERVIEW: The shipowners contended that the lump sum award for future maintenance was based on the erroneous finding that the seaman had not reached maximum cure, and that the past maintenance rate was limited to the collective bargaining agreement rate. The shipowners also argued that expert medical testimony was erroneous and improperly admitted, and that the award for pain and suffering was excessive. The court first held that, while the evidence supported the finding that the seaman had not reached maximum cure, the future maintenance award based on the seaman's estimated working life failed to account for the possibility of prior maximum cure. Further, the maintenance rate provided by the collective bargaining agreement was clearly inadequate, but the seaman failed to provide evidence to determine a proper past maintenance award. Nonetheless, the shipowners had a full opportunity to challenge the diagnosis that the seaman's accident caused psychological problems, and the alleged prior fraud of one expert was too remote in time to be probative of the truthfulness of the witness. Finally, the jury's award for pain and suffering, while substantial, was not excessive

OUTCOME: The shipowners' motion for judgment as a matter of law was granted in part with regard to the lump sum future maintenance and past maintenance awards, but the motion was otherwise denied. The shipowners' motion for a new trial was denied.

LONNY PELLEGRIN VERSUS INTCO INC.

CIVIL ACTION NO. 01-2066 SECTION "A" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 5252
March 20, 2002, Decided
March 21, 2002, Filed

DISPOSITION: Defendant's motion for summary judgment denied.

OVERVIEW: Seaman employed aboard tug pushing barge was ordered by tug's operator to tighten the cables that secure the tug to the barge at which time the seaman discovered that the winch was cracked. Shortly thereafter, the barge began to separate from the tug. The seaman was then instructed to jump over to the barge to get some rope to secure the barge to the tug. As the rope was being retrieved by the seaman, it got caught on the bottom of a shed door which the seaman then kicked to free the rope, simultaneously slipping on a puddle of oil. The seaman filed suit alleging Jones Act negligence and unseaworthiness. His employer moved for summary judgment alleging that the seaman was injured by kicking the door in anger rather than attempting to free the rope with his hands. In support of its summary judgment, the employer submitted affidavits that the seaman had kicked the door in anger when he slipped. The court concluded that it could not grant summary judgment where the facts of the incident were in dispute.

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

FADEL NASSER, Plaintiff, against CSX LINES, LLC, Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 4512
March 20, 2002, Decided

DISPOSITION: Final judgment entered in favor of Plaintiff against Defendant in the sum $10,000 in addition to the amount of cure due and owing to be determined.

PROCEDURAL POSTURE: Plaintiff seaman brought and action against defendant shipowner for injuries he received on the ship under both the Jones Act, 46 U.S.C.S. App. § 688 et seq., and general maritime law. The court conducted a bench trial, reviewed the parties' submissions and the evidentiary exhibits, and assessed the credibility of all witnesses, and was ready to set forth its findings of fact and conclusions of law.

OVERVIEW: The seaman was injured when a coworker heaved a line, throwing the seaman about two feet into the air. The court found that although the seaman was not credible about his delay in seeking treatment and his complaints of pain were exaggerated, he did suffer from a severe contusion of the low back and post-trauma disorder. The court found that the seaman's unseaworthiness claim failed as he did not show that the rope that struck him was not reasonably fit for its intended purpose or that its condition caused his injuries. Rather, his injury was caused by the negligence of a coworker. Thus, the court found that all of the elements of negligence under the Jones Act were proved: (1) the ship had a duty to provide a reasonably safe place to work; (2) the ship vicariously breached that duty when its employee negligently heaved the line without instruction, command, or independent investigation; and (3) such negligence was the proximate cause of the seaman's injury. Last, the court found that under the maximum medical recovery date the seaman was not entitled to any maintenance but the shipowner had to provide the cure that it withheld from December 31, 1998 to November 21, 1999.

OUTCOME: Final judgment was entered in favor of the seaman against the shipowner in the sum of $10,000, in addition to the amount of cure due and owing to be determined.

FADEL NASSER, Plaintiff, against CSX LINES, LLC, Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 4512
March 20, 2002, Decided

DISPOSITION: Final judgment entered in favor of Plaintiff against Defendant in the sum $10,000 in addition to the amount of cure due and owing to be determined.

PROCEDURAL POSTURE: Plaintiff seaman brought and action against defendant shipowner for injuries he received on the ship under both the Jones Act, 46 U.S.C.S. App. § 688 et seq., and general maritime law. The court conducted a bench trial, reviewed the parties' submissions and the evidentiary exhibits, and assessed the credibility of all witnesses, and was ready to set forth its findings of fact and conclusions of law.

OVERVIEW: The seaman was injured when a coworker heaved a line, throwing the seaman about two feet into the air. The court found that although the seaman was not credible about his delay in seeking treatment and his complaints of pain were exaggerated, he did suffer from a severe contusion of the low back and post-trauma disorder. The court found that the seaman's unseaworthiness claim failed as he did not show that the rope that struck him was not reasonably fit for its intended purpose or that its condition caused his injuries. Rather, his injury was caused by the negligence of a coworker. Thus, the court found that all of the elements of negligence under the Jones Act were proved: (1) the ship had a duty to provide a reasonably safe place to work; (2) the ship vicariously breached that duty when its employee negligently heaved the line without instruction, command, or independent investigation; and (3) such negligence was the proximate cause of the seaman's injury. Last, the court found that under the maximum medical recovery date the seaman was not entitled to any maintenance but the shipowner had to provide the cure that it withheld from December 31, 1998 to November 21, 1999.

OUTCOME: Final judgment was entered in favor of the seaman against the shipowner in the sum of $10,000, in addition to the amount of cure due and owing to be determined.

WIDOW RECOVERS ACCIDENTAL DEATH BENEFITS UNDER TRAVEL INSURANCE POLICY WHERE PASSENGER DIED WHILE ATTEMPTING TO RE-BOARD A SCUBA DIVING BOAT DESPITE COVERAGE CLAUSE WHICH COVERED INJURIES THAT OCCURRED WHILE THE INSURED BOARDED A COMMON CARRIER AND WHERE THE FATAL INJURY STARTED BEFORE RE-BOARDING THE VESSEL

Linda Fuller, Plaintiff-Appellee, vs. Hartford Life Insurance Company, Defendant-Appellant.

No. 01-1132
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
281 F.3d 704; 2002 U.S. App. LEXIS 3479
December 10, 2001, Submitted
March 6, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Arkansas.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiff widow sued defendant insurer to recover accidental death benefits under a travel insurance policy purchased by her husband before he died. The United States District Court for the Eastern District of Arkansas granted summary judgment in favor of the widow and denied the insurer's motion for summary judgment. The district court also awarded the widow $125,000 in attorney's fees. The insurer appealed.

OVERVIEW: The widow's husband drowned while attempting to re-board the boat from which he had gone scuba diving. The insurance policy covered injuries that occurred while the insured boarded a common carrier. The district court held that the boat was a common carrier and that the husband's drowning injuries occurred while he was boarding the boat. The appeals court agreed. Arkansas, rather than Texas, law governed the claim, so a Texas common law definition of "common carrier" was irrelevant. Further, any common law definition was immaterial because the policy defined the term. Although the husband had taken water into his lungs before attempting to re-board the boat, the policy did not exclude coverage for a continuing injury that began before the insured attempted to board the common carrier. The term "directly" required a causal connection between accident and injury, but not a simultaneous temporal relationship. The policy did not require a connection between the risks associated with boarding a common carrier and the insured's accident. Finally, regarding the attorney's fees award, the district court considered appropriate factors when determining what fee would be reasonable.

OUTCOME: The court affirmed the judgment of the district court.

WIDOW RECOVERS ACCIDENTAL DEATH BENEFITS UNDER TRAVEL INSURANCE POLICY WHERE PASSENGER DIED WHILE ATTEMPTING TO RE-BOARD A SCUBA DIVING BOAT DESPITE COVERAGE CLAUSE WHICH COVERED INJURIES THAT OCCURRED WHILE THE INSURED BOARDED A COMMON CARRIER AND WHERE THE FATAL INJURY STARTED BEFORE RE-BOARDING THE VESSEL

Linda Fuller, Plaintiff-Appellee, vs. Hartford Life Insurance Company, Defendant-Appellant.

No. 01-1132
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
281 F.3d 704; 2002 U.S. App. LEXIS 3479
December 10, 2001, Submitted
March 6, 2002, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Arkansas.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiff widow sued defendant insurer to recover accidental death benefits under a travel insurance policy purchased by her husband before he died. The United States District Court for the Eastern District of Arkansas granted summary judgment in favor of the widow and denied the insurer's motion for summary judgment. The district court also awarded the widow $125,000 in attorney's fees. The insurer appealed.

OVERVIEW: The widow's husband drowned while attempting to re-board the boat from which he had gone scuba diving. The insurance policy covered injuries that occurred while the insured boarded a common carrier. The district court held that the boat was a common carrier and that the husband's drowning injuries occurred while he was boarding the boat. The appeals court agreed. Arkansas, rather than Texas, law governed the claim, so a Texas common law definition of "common carrier" was irrelevant. Further, any common law definition was immaterial because the policy defined the term. Although the husband had taken water into his lungs before attempting to re-board the boat, the policy did not exclude coverage for a continuing injury that began before the insured attempted to board the common carrier. The term "directly" required a causal connection between accident and injury, but not a simultaneous temporal relationship. The policy did not require a connection between the risks associated with boarding a common carrier and the insured's accident. Finally, regarding the attorney's fees award, the district court considered appropriate factors when determining what fee would be reasonable.

OUTCOME: The court affirmed the judgment of the district court.

SUERTELO M. YEE, Appellant, vs. NEW COMMODORE CRUISE LINES, LIMITED, INC., Appellee. NEW COMMODORE CRUISE LINES, LIMITED, INC.,Appellant, vs. RALSTON MOODIE, Appellee.

CASE NO. 3D00-2740, CASE NO. 3D01-1989
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2002 Fla. App. LEXIS 1684
February 13, 2002, Opinion Filed

PRIOR HISTORY: Appeals from Non-Final orders from the Circuit Court for Miami-Dade County, Celeste Hardee Muir and Thomas S. Wilson, Jr, Judges. LOWER TRIBUNAL NO. 00-10380; LOWER TRIBUNAL NO. 00-13540

OVERVIEW: New Commodore Cruise Lines Limited, Inc., appeals an order denying its motion to transfer venue in a Jones Act negligence action brought by Ralston Moodie. This appeal was consolidated with the appeal brought by Suertelo Yee from a trial court order granting NCCL's motion to transfer venue in Yee's negligence action. We affirm the denial in Moodie's action and reverse the order transferring venue in Yee's case. The court finds that the Defendant has agents or other representatives in Miami-Dade County within the meaning of Section 47.051, Florida Statutes, to wit: Blanca Santos and Jeffrey Binder. Accordingly, venue is proper in Miami-Dade County according to Section 47.051, Florida Statutes.

JOHN and JOYCE SILIVANCH, Plaintiffs, - against - CELEBRITY CRUISES, INC., FANTASIA CRUISING INC., ESSEF CORP., PRE-FAB, and STRUCTURALEUROPE N.V. (f/n/a SFC), Defendants. CELEBRITY CRUISES, INC. and FANTASIACRUISING INC., Third-Party Plaintiffs, - against - STRUCTURAL EUROPE, ESSEFCORP., and PRE-FAB, Third-Party Defendants.

95 Civ. 0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 3270
February 28, 2002, Decided
February 28, 2002, Filed

DISPOSITION: Celebrity's motion for a stay of execution of judgment pending appeal granted.

OVERVIEW: Defendants Celebrity Cruises, Inc. and Fantasia Cruising, Inc. (collectively "Celebrity") have moved for an order staying execution of judgment pending appeal. Celebrity seeks to be relieved of the obligation of posting a bond and suggests, instead, that it would submit a Club Letter of Undertaking from its insurer United Kingdom Mutual (the "U.K. Club"). The plaintiffs object to this alternative, primarily on the ground that, should they prevail on appeal, they could be faced with further litigation to collect on the undertaking, rather than simply being able to draw down on a bond. In this case, the plaintiffs can be reasonably assured of obtaining full and prompt relief pursuant to the alternative proposed by Celebrity. "Celebrity is part of a multi-billion dollar company with hundreds of millions of dollars in net income." Moreover, the U.K. Club, which would submit the Club Letter of Undertaking, is the largest P & I club in the world and is itself "double-A" rated. In response to the Plaintiff's concerns, the court attached certain conditions to Celebrity's proposal. It shall be required to submit a Club Letter of Undertaking in which the U.K. Club: (1) consents to jurisdiction in this Court for all purposes relating to execution of the judgment, (2) appoints local counsel with authority to accept service of process here, and (3) concedes liability, jointly and severally with Celebrity, for any attorneys' fees and costs that may be incurred by the plaintiffs in the event that Celebrity's share of the judgment is not promptly paid to the extent affirmed on appeal.

JOHN and JOYCE SILIVANCH, Plaintiffs, - against - CELEBRITY CRUISES, INC., FANTASIA CRUISING INC., ESSEF CORP., PRE-FAB, and STRUCTURALEUROPE N.V. (f/n/a SFC), Defendants. CELEBRITY CRUISES, INC. and FANTASIACRUISING INC., Third-Party Plaintiffs, - against - STRUCTURAL EUROPE, ESSEFCORP., and PRE-FAB, Third-Party Defendants.

95 Civ. 0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 3270
February 28, 2002, Decided
February 28, 2002, Filed

DISPOSITION: Celebrity's motion for a stay of execution of judgment pending appeal granted.

OVERVIEW: Defendants Celebrity Cruises, Inc. and Fantasia Cruising, Inc. (collectively "Celebrity") have moved for an order staying execution of judgment pending appeal. Celebrity seeks to be relieved of the obligation of posting a bond and suggests, instead, that it would submit a Club Letter of Undertaking from its insurer United Kingdom Mutual (the "U.K. Club"). The plaintiffs object to this alternative, primarily on the ground that, should they prevail on appeal, they could be faced with further litigation to collect on the undertaking, rather than simply being able to draw down on a bond. In this case, the plaintiffs can be reasonably assured of obtaining full and prompt relief pursuant to the alternative proposed by Celebrity. "Celebrity is part of a multi-billion dollar company with hundreds of millions of dollars in net income." Moreover, the U.K. Club, which would submit the Club Letter of Undertaking, is the largest P & I club in the world and is itself "double-A" rated. In response to the Plaintiff's concerns, the court attached certain conditions to Celebrity's proposal. It shall be required to submit a Club Letter of Undertaking in which the U.K. Club: (1) consents to jurisdiction in this Court for all purposes relating to execution of the judgment, (2) appoints local counsel with authority to accept service of process here, and (3) concedes liability, jointly and severally with Celebrity, for any attorneys' fees and costs that may be incurred by the plaintiffs in the event that Celebrity's share of the judgment is not promptly paid to the extent affirmed on appeal.

JOHN and JOYCE SILIVANCH, Plaintiffs, - against - CELEBRITY CRUISES, INC., FANTASIA CRUISING INC., ESSEF CORP., PRE-FAB, and STRUCTURALEUROPE N.V. (f/n/a SFC), Defendants. CELEBRITY CRUISES, INC. and FANTASIACRUISING INC., Third-Party Plaintiffs, - against - STRUCTURAL EUROPE, ESSEFCORP., and PRE-FAB, Third-Party Defendants.

95 Civ. 0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 3270
February 28, 2002, Decided
February 28, 2002, Filed

DISPOSITION: Celebrity's motion for a stay of execution of judgment pending appeal granted.

OVERVIEW: Defendants Celebrity Cruises, Inc. and Fantasia Cruising, Inc. (collectively "Celebrity") have moved for an order staying execution of judgment pending appeal. Celebrity seeks to be relieved of the obligation of posting a bond and suggests, instead, that it would submit a Club Letter of Undertaking from its insurer United Kingdom Mutual (the "U.K. Club"). The plaintiffs object to this alternative, primarily on the ground that, should they prevail on appeal, they could be faced with further litigation to collect on the undertaking, rather than simply being able to draw down on a bond. In this case, the plaintiffs can be reasonably assured of obtaining full and prompt relief pursuant to the alternative proposed by Celebrity. "Celebrity is part of a multi-billion dollar company with hundreds of millions of dollars in net income." Moreover, the U.K. Club, which would submit the Club Letter of Undertaking, is the largest P & I club in the world and is itself "double-A" rated. In response to the Plaintiff's concerns, the court attached certain conditions to Celebrity's proposal. It shall be required to submit a Club Letter of Undertaking in which the U.K. Club: (1) consents to jurisdiction in this Court for all purposes relating to execution of the judgment, (2) appoints local counsel with authority to accept service of process here, and (3) concedes liability, jointly and severally with Celebrity, for any attorneys' fees and costs that may be incurred by the plaintiffs in the event that Celebrity's share of the judgment is not promptly paid to the extent affirmed on appeal.

EDWIN TORRES, Plaintiff-Appellee, v. CARIBBEAN FISHINGCOMPANY, INC., STARKIST FOODS, INC. and the M/V FUIONO, Defendants-Appellants, and DOES 1 - 50, Defendants.

No. 01-55263
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2220
January 16, 2002, Argued and Submitted, Pasadena, California
February 6, 2002, Filed

PROCEDURAL POSTURE: The United States District Court for the Southern District of California found that appellant vessel was unseaworthy and that appellee injured party was entitled to an award of maintenance and cure. The vessel appealed.

OVERVIEW: The district court made extensive findings of fact regarding a crewmember's conduct prior to and during the incident with the injured party. However, the facts as found by the district court did not support the legal conclusion that the vessel was unseaworthy due to the crewmember's presence on the vessel. The specific incidences of fighting in the crewmember's past did not reflect a vicious nature unequal to that of the ordinary men in the calling. Further, the fight between the crewmember and the injured party did not itself make the vessel unseaworthy, but only provided facts by which to measure the crewmember's disposition. It was significant that the crewmember did not provoke the fight but was reacting in self-defense of the injured party's unprovoked knife attack. The district court erred in concluding that the vessel was unseaworthy under the facts of this case. The district court allocated 50 percent responsibility for the injury party's injuries to both the injured party and the crewmember. The district court did not err in awarding the injured party maintenance and cure because his willful misconduct was not the sole cause of his injuries.

OUTCOME: The appellate court reversed the judgment in part, and affirmed it in part.

HARLEY AMANQUITON, Appellant, v. JONNY PETERSON, a foreign corporation, and PARTENREEDERI M.S. "KERSTIN," a foreign corporation, Appellees.

CASE NO. 4D01-217
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2002 Fla. App. LEXIS 1402
February 13, 2002, Opinion Filed

PROCEDURAL POSTURE: Plaintiff injured employee sued defendant employer, a foreign corporation, under the Jones Act, 46 U.S.C.S. § 688. The Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), entered a final judgment of dismissal for the employer. The employee appealed.

OVERVIEW: The employee was injured aboard a ship owned by his employer. His Jones Act complaint against the employer was served on a Miami corporation that had chartered the ship from the employer. After a jury awarded the employee $900,000, and judgment was entered against the employer in that amount, the employer filed a post-trial motion for new trial or rehearing. During the motions hearing, the question of subject matter jurisdiction under the Jones Act was addressed and memoranda were submitted. The employer argued that the trial court lacked jurisdiction to award damages to a Philippine seaman, employed by a German national, as a seaman upon a German flag vessel, employed under a Philippine Overseas Employment Administration contract, for an injury in Jamaica. The trial court granted the employer's motion to dismiss on the grounds of void service and lack of Jones Act jurisdiction, vacated the final judgment, and entered a judgment favoring the employer. The appellate court concluded the trial court did not abuse its discretion in deciding the employer did not have a sufficient nexus with Florida or the United States to confer Jones Act jurisdiction.

OUTCOME: The judgment was affirmed.

IN RE AIR CRASH DISASTER NEAR PEGGY'S COVE, NOVA SCOTIA ON SEPTEMBER 2, 1998

MDL NO. 1269 THIS DOCUMENT RELATES TO: ALL CASES
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 3309
February 27, 2002, Filed

PROCEDURAL POSTURE: Plaintiffs, the heirs of passengers killed in a plane crash within the territorial waters of Canada, filed several actions against defendants, the airline companies and the manufacturers, to recover for the deaths. The cases were transferred to the court for coordinated and consolidated pretrial proceedings. The airlines and the manufacturers moved to dismiss the punitive damages claims.

OVERVIEW: The airlines and the manufacturers argued that the punitive damages claims were precluded by the Death on the High Seas Act (DOHSA), 46 U.S.C.S. app. § 761 et seq., because the 2000 amendments to the DOHSA demonstrated that the term high seas was to be given a geographic meaning. The heirs argued that in enacting the 2000 amendments, Congress intended to adopt the definition of high seas as developed in the most recent case law prior to the passage of the amendments. The court found that the DOHSA, as amended, applied to aviation incidents in foreign territorial waters because the case law cited by the heirs did not address whether the DOHSA applied to foreign territorial waters. Rather, the decision was limited to whether the DOHSA applied to domestic waters between three and 12 miles from the shores of the United States. Since the amended DOHSA did not allow recovery for punitive damages, 46 U.S.C.S. app. § 762(b)(1), the airlines' and the manufacturers' motion to dismiss all claims for punitive damages under United States law was granted.

OUTCOME:The motion to dismiss the punitive damages claims was granted.

IN RE AIR CRASH DISASTER NEAR PEGGY'S COVE, NOVA SCOTIA ON SEPTEMBER 2, 1998

MDL NO. 1269 THIS DOCUMENT RELATES TO: ALL CASES
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 3309
February 27, 2002, Filed

PROCEDURAL POSTURE: Plaintiffs, the heirs of passengers killed in a plane crash within the territorial waters of Canada, filed several actions against defendants, the airline companies and the manufacturers, to recover for the deaths. The cases were transferred to the court for coordinated and consolidated pretrial proceedings. The airlines and the manufacturers moved to dismiss the punitive damages claims.

OVERVIEW: The airlines and the manufacturers argued that the punitive damages claims were precluded by the Death on the High Seas Act (DOHSA), 46 U.S.C.S. app. § 761 et seq., because the 2000 amendments to the DOHSA demonstrated that the term high seas was to be given a geographic meaning. The heirs argued that in enacting the 2000 amendments, Congress intended to adopt the definition of high seas as developed in the most recent case law prior to the passage of the amendments. The court found that the DOHSA, as amended, applied to aviation incidents in foreign territorial waters because the case law cited by the heirs did not address whether the DOHSA applied to foreign territorial waters. Rather, the decision was limited to whether the DOHSA applied to domestic waters between three and 12 miles from the shores of the United States. Since the amended DOHSA did not allow recovery for punitive damages, 46 U.S.C.S. app. § 762(b)(1), the airlines' and the manufacturers' motion to dismiss all claims for punitive damages under United States law was granted.

OUTCOME:The motion to dismiss the punitive damages claims was granted.

SILVERINO BASUEL ESTIGOY, Plaintiff-Appellant, v. OSG CARCARRIERS, INC., In personam; MARITIME OVERSEAS CORPORATION, In personam,Defendants-Appellees, and M/V OVERSEAS JOYCE O.N. D921012, In Rem, Defendant.

No. 00-16915
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2538
January 17, 2002, Argued and Submitted, San Francisco, California
February 14, 2002, Filed

PROCEDURAL POSTURE: Appellant seaman sued appellee employer under the Jones Act, 46 U.S.C.S. § 688, for negligence, unseaworthiness, and maintenance and cure. The United States District Court for the District of Hawaii dismissed the seaman's claims against the employer for lack of personal jurisdiction. The seaman appealed.

OVERVIEW: The seaman argued that the employer had sufficient contacts with Hawaii to create general personal jurisdiction. The district court and, in turn, the appeals court found that the contacts were not sufficient to create either general or specific jurisdiction. The employer had no agent, office, or property in Hawaii; the employer did not advertise and was not authorized to do business in Hawaii; and the employer's ships did not call on ports within Hawaii except in cases of emergency. The employer paid the seaman's airfare and arbitrated the dispute in Hawaii pursuant to a collective bargaining agreement. Those "contacts" did not constitute purposeful acts by which the employer invoked the benefits and protections of Hawaii's laws. Further, the court would not attribute to the employer the acts of another entity that served as the exclusive bargaining agent for seamen employed by the employer.

OUTCOME: The court affirmed the judgment of the district court.

SILVERINO BASUEL ESTIGOY, Plaintiff-Appellant, v. OSG CARCARRIERS, INC., In personam; MARITIME OVERSEAS CORPORATION, In personam,Defendants-Appellees, and M/V OVERSEAS JOYCE O.N. D921012, In Rem, Defendant.

No. 00-16915
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2538
January 17, 2002, Argued and Submitted, San Francisco, California
February 14, 2002, Filed

PROCEDURAL POSTURE: Appellant seaman sued appellee employer under the Jones Act, 46 U.S.C.S. § 688, for negligence, unseaworthiness, and maintenance and cure. The United States District Court for the District of Hawaii dismissed the seaman's claims against the employer for lack of personal jurisdiction. The seaman appealed.

OVERVIEW: The seaman argued that the employer had sufficient contacts with Hawaii to create general personal jurisdiction. The district court and, in turn, the appeals court found that the contacts were not sufficient to create either general or specific jurisdiction. The employer had no agent, office, or property in Hawaii; the employer did not advertise and was not authorized to do business in Hawaii; and the employer's ships did not call on ports within Hawaii except in cases of emergency. The employer paid the seaman's airfare and arbitrated the dispute in Hawaii pursuant to a collective bargaining agreement. Those "contacts" did not constitute purposeful acts by which the employer invoked the benefits and protections of Hawaii's laws. Further, the court would not attribute to the employer the acts of another entity that served as the exclusive bargaining agent for seamen employed by the employer.

OUTCOME: The court affirmed the judgment of the district court.

SILVERINO BASUEL ESTIGOY, Plaintiff-Appellant, v. OSG CARCARRIERS, INC., In personam; MARITIME OVERSEAS CORPORATION, In personam,Defendants-Appellees, and M/V OVERSEAS JOYCE O.N. D921012, In Rem, Defendant.

No. 00-16915
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2538
January 17, 2002, Argued and Submitted, San Francisco, California
February 14, 2002, Filed

PROCEDURAL POSTURE: Appellant seaman sued appellee employer under the Jones Act, 46 U.S.C.S. § 688, for negligence, unseaworthiness, and maintenance and cure. The United States District Court for the District of Hawaii dismissed the seaman's claims against the employer for lack of personal jurisdiction. The seaman appealed.

OVERVIEW: The seaman argued that the employer had sufficient contacts with Hawaii to create general personal jurisdiction. The district court and, in turn, the appeals court found that the contacts were not sufficient to create either general or specific jurisdiction. The employer had no agent, office, or property in Hawaii; the employer did not advertise and was not authorized to do business in Hawaii; and the employer's ships did not call on ports within Hawaii except in cases of emergency. The employer paid the seaman's airfare and arbitrated the dispute in Hawaii pursuant to a collective bargaining agreement. Those "contacts" did not constitute purposeful acts by which the employer invoked the benefits and protections of Hawaii's laws. Further, the court would not attribute to the employer the acts of another entity that served as the exclusive bargaining agent for seamen employed by the employer.

OUTCOME: The court affirmed the judgment of the district court.

SILVERINO BASUEL ESTIGOY, Plaintiff-Appellant, v. OSG CARCARRIERS, INC., In personam; MARITIME OVERSEAS CORPORATION, In personam,Defendants-Appellees, and M/V OVERSEAS JOYCE O.N. D921012, In Rem, Defendant.

No. 00-16915
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2538
January 17, 2002, Argued and Submitted, San Francisco, California
February 14, 2002, Filed

PROCEDURAL POSTURE: Appellant seaman sued appellee employer under the Jones Act, 46 U.S.C.S. § 688, for negligence, unseaworthiness, and maintenance and cure. The United States District Court for the District of Hawaii dismissed the seaman's claims against the employer for lack of personal jurisdiction. The seaman appealed.

OVERVIEW: The seaman argued that the employer had sufficient contacts with Hawaii to create general personal jurisdiction. The district court and, in turn, the appeals court found that the contacts were not sufficient to create either general or specific jurisdiction. The employer had no agent, office, or property in Hawaii; the employer did not advertise and was not authorized to do business in Hawaii; and the employer's ships did not call on ports within Hawaii except in cases of emergency. The employer paid the seaman's airfare and arbitrated the dispute in Hawaii pursuant to a collective bargaining agreement. Those "contacts" did not constitute purposeful acts by which the employer invoked the benefits and protections of Hawaii's laws. Further, the court would not attribute to the employer the acts of another entity that served as the exclusive bargaining agent for seamen employed by the employer.

OUTCOME: The court affirmed the judgment of the district court.

JUDGMENT NOTHWITHSTANDING THE VERDICT ENTERED IN FAVOR OF TUGBOAT OPERATOR WHERE SHIPOWNER NOT FOUND NEGLIGENT BUT SHIP FOUND UNSEAWORTHY FOR HAVING AN ICY DECK - COURT FINDS THE HAZARDS OF SNOW, SLEET, AND ICE ON VESSELS' DECKS DO NOT AUTOMATICALLY RENDER A VESSEL UNSEAWORTHY BECAUSE THEY ARE UNAVOIDABLE INCIDENTS OF SHIPBOARD LIFE

ROBERT C. FOSTER AND ANN I, FOSTER, his wife, Appellees v. MARITRANS, INC., MARITRANS GP, INC. AND MARITRANS OPERATING PARTNERS, L.P.,Appellants

No. 240 EDA 2001
SUPERIOR COURT OF PENNSYLVANIA
2002 PA Super 4; 2002 Pa. Super. LEXIS 3
June 26, 2001, Argued
January 9, 2002, Filed

PRIOR HISTORY: Appeal from the Judgment entered December 11, 2000. In the Court of Common Pleas of Philadelphia County. Civil No. 001070 - February Term, 1998. Before DEMBE, J.

DISPOSITION: Reversed in part, and remanded. Affirmed in part. Jurisdiction relinquished.

PROCEDURAL POSTURE: Defendant tugboat operator appealed from that portion of a judgment that awarded plaintiff injured seaman and his wife damages for injuries resulting from the tugboat's alleged unseaworthiness under the Jones Act, 46 U.S.C.S. § 688 et seq.

OVERVIEW: A seaman was injured when he slipped on the icy deck of the tugboat. In a lawsuit under the Jones Act, 46 U.S.C.S. § 688 et seq., he sought damages for negligence, as well as the traditional maritime remedies of maintenance and cure, as to which the tugboat operator did not question its liability. The appeals court held that after the jury found the tugboat operator not negligent but that the tugboat was still unseaworthy, the trial court should have granted judgment notwithstanding the verdict in favor of the operator. The hazards of snow, sleet, and ice on vessels' decks did not automatically render a vessel unseaworthy, given that they were unavoidable incidents of shipboard life. So long as the deck was not unreasonably slippery, the operator should not have been held liable.

OUTCOME: The court reversed the judgement to the extent appealed from and remanded with directions to enter judgment notwithstanding the verdict in favor of the tugboat operator, and affirmed the remainder of the judgment.

WIDOW AND MINOR CHILDREN OF DECEASED SEAMAN AWARDED PRE-DEATH PAIN AND SUFFERING, FUTURE LOSS OF EARNINGS, HOUSEHOLD SERVICES, AND LOSS OF GUIDANCE AND SUPPORT WHERE SHIPOWNER FAILED TO PROVIDE PROMPT, PROPER, AND ADEQUATE MEDICAL TREATMENT FOR BACTERIAL MENINGITIS

REBECCA J. LABAT, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, MEGAN SCOTT AND TIFFANY SCOTT, AND ON BEHALF OF THE ESTATE OF ROBERT LABAT VERSUS MALLARD BAY DRILLING COMPANY, INC.

NO. 2000-CA-2098
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2000-2098 (La.App. 4 Cir, 01/16/02); 2002 La. App. LEXIS 82
January 16, 2002, Decided

PRIOR HISTORY: APPEAL FROM PLAQUEMINES 25TH JUDICIAL DISTRICT COURT. NO. 41-375, DIVISION "A". Honorable Anthony Ragusa, Judge.

DISPOSITION: Reversed and rendered.

PROCEDURAL POSTURE: Appellant widow, individually and on behalf of her minor children, sued appellee employer in a wrongful death and survival action. The district court found that the employer was not responsible for causing or worsening deceased's condition and that employer did not unfairly or improperly withhold or fail to provide proper maintenance and cure to the decedent. The widow appealed.

OVERVIEW: The decedent worked for the employer and was on board a vessel on a well on a lake. The decedent became ill. He was taken by boat to shore, but when it was discovered his wife could not immediately come for him, he was returned to the vessel to rest and was left in isolation. When his fellow workers came to get the decedent they found him to be very ill. He was taken to shore and then a hospital. He died days later from bacterial meningitis. On appeal, the court found that the employer owed the decedent the duty of maintenance and cure as an employee aboard its vessel, whether injured or ill. Further, the failure of the employer to reasonably assess the decedent's condition and to allow his condition to manifest while under its care and control gave rise to the employer's responsibility to the decedent's survivors. Finally, the record supported awards for pre-death pain and suffering, loss of future income, household services, and loss of guidance and support.

OUTCOME: The judgment was reversed and the appellate court rendered an award in favor of the widow for pre-death pain and suffering, future loss of earnings, household services, and loss of guidance and support.

MARY FREEZE, Plaintiff and Appellant, v. LOST ISLE PARTNERS, Defendant and Appellant.

A093146 /A093390
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
2002 Cal. App. LEXIS 281
January 9, 2002, Filed

PRIOR HISTORY: San Francisco County Super. Ct. No. 997994.

DISPOSITION: REVERSED.

PROCEDURAL POSTURE: After jury determined barge worker was not a "seaman" under the Jones Act, barge worker appealed alleging the trial court erred in not properly charging the jury with regard to the barge worker's claims under the general maritime law.

OVERVIEW: Plaintiff Mary Freeze was injured while she moored a barge owned by her employer, defendant Lost Isle Partners (Lost Isle). In her amended complaint, she sought relief under the Jones Act (46 U.S.C. App. § 688(a)) and the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 U.S.C. § 905(b)). Additionally, Freeze alleged claims of negligence and unseaworthiness of a vessel under general maritime law. During the trial, Freeze abandoned her LHWCA claim because she was excluded from coverage under that Act. She requested the court to instruct the jury on her other causes of action, in the alternative, contending that the negligence and unseaworthiness claims were not dependent on her entitlement to relief under the Jones Act. The trial court refused to charge the jury as requested by Freeze. Instead, the jury was directed not to consider the general maritime causes of action if they found Freeze was not a "seaman" under the Jones Act. The jury found in favor of Lost Isle on the Jones Act claim, determining that Freeze was not a "seaman." After a judgment in favor of Lost Isle was filed on September 7, 2000, Freeze filed a timely notice of appeal. By a subsequent order filed November 8, 2000, the trial court granted Freeze's motion to strike Lost Isle's bill of costs after judgment. Lost Isle filed a timely notice of appeal from the November 8, 2000 order. On appeal from the judgment, Freeze correctly argues that the trial court's instruction to the jury limiting their consideration of her general maritime claims was prejudicial error.

OUTCOME: Reversed and remanded for new trial.

SHIPOWNER'S MOTION TO DISMISS SEAMAN'S INJURY ACTION AND CLAIM FOR MAINTENANCE AND CURE GRANTED WHERE SHIPOWNER DID NOT HAVE CONTINUOUS AND SYSTEMATIC CONTACTS NECESSARY TO SUPPORT GENERAL JURISDICTION AND SEAMAN COULD NOT SHOW THAT SHIPOWNER EXERCISED SIGNIFICANT CONTROL OVER LOCAL UNION WHICH CREWED SHIPOWNER'S VESSEL

CHARLES FRISELLA VERSUS TRANSOCEANIC CABLE SHIP COMPANY,ET AL

CIVIL ACTION NO. 01-1855 SECTION "F"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 943
January 11, 2002, Decided
January 11, 2002, Filed

DISPOSITION: Defendant TCSC's Motion to Dismiss for Lack of Personal Jurisdiction GRANTED.

PROCEDURAL POSTURE: Plaintiff seaman filed an action against defendant shipping company, seeking damages for his injury and for maintenance and cure. Defendant moved to dismiss, contending that it did not have sufficient minimum contacts with Louisiana to support the court's assertion of personal jurisdiction over it.

OVERVIEW: The seaman was hired by the company pursuant to an agreement between the company and his seafarer's union. The seaman's complaint alleged that the company did business in Louisiana and failed to provide an adequate crew. The court held that the company did not have the type of continuous and systematic contacts with Louisiana necessary to support general jurisdiction. The court then examined the seaman's claims of specific jurisdiction that: (1) the seafarer's union acted as the company's agent, and so its activities should have been imputed to the company and (2) the union hired an "inadequate" crew inasmuch as the crew members' intentional actions caused his injuries. The court found that there was no evidence that the company exercised significant control over the union's activities in Louisiana. Instead, it was more accurate (and more factual) to say that the union acted as an agent for the seaman and the other union members who paid the union for its services. Furthermore, the court found that the connection between the seaman's injury and the union's hiring practices was tenuous at best.

OUTCOME: The shipping company's motion to dismiss was granted.

SEAMAN'S PETITION TO COMPEL HIS EMPLOYER TO PAY FOR PSYCHOLOGICAL COUNSELING AS PART OF THEIR CURE OBLIGATION WAS DENIED WHERE SEAMAN FAILED TO PROVIDE MEDICAL RECOMMENDATIONS FOR SUCH COUNSELING OR EVIDENCE THAT THE CONDITION FOR WHICH HE NEEDS COUNSELING IS RELATED TO THE PHYSICAL INJURY HE SUSTAINED WHILE IN THE SERVICE OF THE VESSEL

IN RE GULF SOUTH MARINE TRANSPORTATION, INC., OWNER AND OPERATOR OF THE M/V MR. T

CIVIL ACTION NO.01-1755 SECTION: "R" (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 1312
January 16, 2002, Decided
January 17, 2002, Filed, Entered

DISPOSITION: Claimant's motion for summary judgment on the issue of his entitlement to cure for psychological treatment was denied.

PROCEDURAL POSTURE: Seaman field petition for cure against his employer/owner/operator of the vessel for psychological counseling.

OVERVIEW: Plaintiff claims that he is entitled to cure because his anxiety about being unable to pay his child support payments resulted from the physical injury he sustained that left him unable to work. He asserts that before the accident he did not suffer from anxiety because he was able to work and pay his child support obligations. However, the record reflects that plaintiff had a long history of being derelict in child support, which predates his injury. The only medical evidence in the record is a progress note written by claimant's treating physician, an orthopedic surgeon, in which the doctor merely restates claimant's claim that he is "fairly stressed" about his failure to pay child support. The physician, however, does not state anywhere in the referral form that the anxiety accompanied injuries plaintiff allegedly suffered on the ship or indeed arose as a result of anything that happened on the ship. Nor is the statement a diagnosis of anxiety. Plaintiff does not submit medical records or physician testimony.

OUTCOME: The Seaman's petition to compel his employer to pay for psychological counseling as part of their cure obligation was denied.

SUMMARY JUDGMENT IN FAVOR OF SHIPOWNER AND AGAINST SEAMAN ON JONES ACT NEGLIGENCE AND UNSEAWORTHINESS AFFIRMED WHERE SEAMAN WHO WAS INJURED WHEN HANDLING A STEEL CABLE COULD NOT SHOW ANY EVIDENCE OF SHIPOWNER'S NEGLIGENT FAILURE TO TRAIN SEAMAN OR ANY NOTICE OF A RISK

GENE A. RUTHERFORD, JR., Plaintiff-Appellant, v. LAKE MICHIGAN CONTRACTORS, INC., Defendant-Appellee.

No. 00-1850
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2002 U.S. App. LEXIS 441
January 7, 2002, Filed

PRIOR HISTORY: On Appeal from the United States District Court for the Western District of Michigan. 98-00769. Miles. 07-18-00.
Rutherford v. Lake Mich. Contrs., Inc., 132 F. Supp. 2d 592, 2000 U.S. Dist. LEXIS 1631 (W.D. Mich. 2000)

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiff injured worker appealed the decision from the United States District Court for the Western District of Michigan, which entered summary judgment in favor of defendant tugboat owner in the injured worker's suit for negligence under 46 U.S.C.S. § 688 of the Jones Act and under the doctrine of unseaworthiness. The tugboat owner alleged a lack of negligence.

OVERVIEW: The injured worker hurt his back when he was handling a steel cable. The appellate court affirmed. Under the Jones Act, there was a reduced standard of causation. After negligence was proven, a plaintiff only needed to show that a shipowner's negligence was the cause in whole or in part of the injuries. Even under the reduced standard, there was no evidence of the tugboat owner's negligence. There was no evidence that handling the steel cable was a foreseeable risk nor was there evidence of notice of any risk, if one existed. The appellate court rejected the lack of training argument since there was no evidence of the negligent failure to train. Any evidence on the weight of the cable or unfamiliarity with pulling techniques went to causation, not breach. The injured worker did not identify whether proper safety equipment was used, and the appellate court was not required to search the entire record for this information. Under the seaworthiness doctrine, a shipowner was not required to furnish an accident-free ship. Based on many of the same facts, there was no evidence of defective cables, equipment, or and insufficient number of workers.

OUTCOME: Summary judgment in favor of the tugboat owner was affirmed. Under either the Jones Act claim or the unseaworthiness claim there was insufficient evidence of the tugboat owner's negligence.

VESSEL OWNER SANCTIONED FOR REFUSING TO ALLOW OSHA TO BOARD VESSEL TO INSPECT WORK AREAS OF SHIPYARD EMPLOYEES - COAST GUARD AUTHORITY OVER REGULATING SAFETY OF SEAMAN'S WORK PLACE DID NOT DISPLACE OSHA AUTHORITY TO INSPECT AREAS OF VESSEL WHERE SHIPYARD EMPLOYEES WORK

ELAINE CHAO, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, Plaintiff-Appellee, VERSUS TRANSOCEAN OFFSHORE, INC., Defendant-Appellant

No. 00-60535
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 292
January 9, 2002, Decided

PRIOR HISTORY: Appeal from the United States District Court For the Southern District of Mississippi. 1:99-CV-157-GR. Walter J Gex, III, US District Judge.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Defendant vessel owner appealed the judgment of the United States District Court for the Southern District of Mississippi against it for civil contempt and the award of attorneys fees and costs to the Secretary of Labor (secretary) in the secretary's action for civil contempt.

OVERVIEW: The secretary filed an action against the vessel owner for civil contempt arising from the vessel owner's refusal to honor a warrant obtained by the Occupational Safety and Health Administration (OSHA) to inspect the work areas of a shipyard's employees, who were working aboard the vessel owner's vessel. The court entered a judgment of civil contempt against the vessel owner and was in the process of determining an award of attorneys fees and costs when the vessel owner appealed the judgment. The court remanded the case for the determination of fees and sanctions. After the award of fees and costs, the vessel owner appealed. On appeal, the court affirmed the judgment. The court held that OSHA had jurisdiction to board the vessel for inspection, pursuant to the warrant, because the workplace of the shipyard employees, not the workplace of the seamen, was being inspected, and OSHA had the authority to adopt safety regulations for such employees pursuant to 33 U.S.C.S. § 941. OSHA's regulatory power was not displaced by the fact that if it were the seamen's workplace that was being inspected, the Coast Guard would have such authority. Good faith was not a defense to civil contempt.

OUTCOME: The court affirmed the judgment of the trial court against the vessel owner for civil contempt and the award of attorneys fees and costs in favor of the secretary.

COURT AFFIRMS JURY VERDICT FOR SHIPOWNER ON UNSEAWORTHINESS WHERE AN ENGINE SURGE CAUSED THE CAPTAIN OF THE VESSEL TO FALL OUT OF THE VESSEL AND SUFFER INJURIES AND, AT TRIAL, THE COURT INSTRUCTED THE JURY THAT THE RELEVANT TIME OF UNSEAWORTHINESS TO CONSIDER WAS THE TIME SURROUNDING THE ACCIDENT AND LEADING UP TO THE CAPTAIN BEING HURT

ROBERT F. GIFFORD, Plaintiff, Appellant, v. AMERICAN CANADIAN CARIBBEAN LINE, INC., Defendant, Appellee.

No. 00-1688
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2002 U.S. App. LEXIS 584
January 10, 2002, Decided

PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Rya W. Zobel, U.S. District Judge.

DISPOSITION: Affirmed.

PROCEDURAL POSTURE: Plaintiff captain of a cruise ship sued defendant ship owner, alleging inter alia that the unseaworthiness of the ship's rescue boat caused the captain to fall out of the boat and suffer injuries. The captain appealed the judgment in favor of the owner, entered on a jury verdict in the United States District Court for the District of Massachusetts, contending that the jury was improperly instructed.

OVERVIEW: The captain asserted that engine problems caused the rescue boat to operate intermittently, and that an engine surge caused the captain to fall out of the boat, after which he suffered severe injuries from the boat's propeller. During deliberations, the jury requested clarification concerning the time at which they were to determine the seaworthiness of the boat. The district court responded that the relevant time was the time surrounding the accident and leading up to the captain being hurt, but then directed the jury to focus on the time when the captain was hurt. The appellate court held that the jury was properly and repeatedly instructed that they were to determine whether the unseaworthiness of the boat was a substantial direct cause of the captain's injuries, and the isolated reference to the time when the injury occurred was insufficient to lead the jury to believe that unseaworthiness at the time of the fall was insufficient to establish causation. The one remark, taken in the context of the instructions as a whole, thus did not have a tendency to confuse or mislead the jury.

OUTCOME: The judgment in favor of the owner was affirmed.

CARROLL P. BOUDREAUX, Plaintiff-Appellant, v. UNITED STATES OF AMERICA (US Department of Transportation, Maritime Administration); BAY SHIP MANAGEMENT INC, Defendants-Appellees. CARROLL P. BOUDREAUX, Plaintiff-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee

No. 00-30705, No. 00-31358
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 615
January 15, 2002, Decided

PRIOR HISTORY: Appeals from the United States District Court for the Eastern District of Louisiana. 97-CV-1592-C. Helen Ginger Berrigan, US District Judge.
Boudreaux v. Unites States, 2000 U.S. Dist. LEXIS 3933 (E.D. La. Mar. 16, 2000)

DISPOSITION: District court's attribution of 50% comparative negligence to Boudreaux and the court's finding that the OSPREY was not unseaworthy, affirmed. District court's allocation of an additional 20% negligence to Boudreaux for lifting the valve despite his prior back injury reversed. On remand, the court should restore to Boudreaux $59,941.17 representing the 20% of actual tort damages.

PROCEDURAL POSTURE: Plaintiff seaman filed suit against defendants the United States and ship management company for injuries he sustained on the ship. The United States District Court for the Eastern District of Louisiana found that the seaman was comparatively negligent, and reduced his damages. The seaman filed a motion to alter or amend, which was denied in part, and filed a suit for maintenance and cure, which was dismissed. The seaman appealed.

OVERVIEW: The seaman had injured his back while working on another ship, and was limited to light industrial work. The seaman was injured again at work when he and a pumpman had to carry a valve that weighed about 300 pounds. The seaman filed suit against the government and the ship management company under general maritime law and the Jones Act, 46 U.S.C.S. app. § 688. The district court found that the government was negligent, but that the seaman was comparatively negligent to the extent of 70 percent, and reduced the seaman's actual damages accordingly. The seaman filed a motion to alter or amend the judgment, which was partially granted and denied. The seaman filed a new lawsuit and sought maintenance and cure. The suit was dismissed. The two appeals were consolidated. The court found that the government failed to identify any record evidence that the seaman's decision to lift the object despite his back condition in any way caused his injuries, so the finding of an additional 20 percent negligence was clearly erroneous. There was no showing that the ship was not reasonably safe for the purposes for which it was used. The seaman had not reached maximum medical cure.

OUTCOME: The judgment of the district court was affirmed in part, and reversed and remanded in part.

BORA DO, Plaintiff-Appellant, v. OCEAN PEACE INC, inpersonam; OCEAN PEACE F/T, official no 677399, her engine, machinery, appurtenances and cargo, in rem, Defendants-Appellees. TINH PHAM,Plaintiff-Appellant, v. OCEAN PEACE INC, in personam; UNITED STATES SEAFOODS LP,in personam; SEAFREEZE ALASKA F/T, official no 517242, her engines, machinery, apurtenances, and cargo, in rem, Defendants-Appellees.

No. 01-35177, No. 01-35179
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 1200
December 5, 2001, Argued and Submitted, Seattle, Washington
January 29, 2002, Filed

PRIOR HISTORY: Appeals from the United States District Court for the Western District of Washington. D.C. No. CV-00-00315-TSZ D.C. No. CV-00-00321-TSZ. Thomas S. Zilly, District Judge, Presiding.
Boro Do v. Ocean Peace, Inc., 2000 U.S. Dist. LEXIS 19810 (W.D. Wash. 2000)

DISPOSITION: AFFIRMED in part, REVERSED in part, and REMANDED.

PROCEDURAL POSTURE: Plaintiff employees sued defendants, employer and vessels, in the United States District Court for the Western District of Washington, seeking wages owed them for work performed aboard the employer's fishing trawlers. The district court granted summary judgment in favor of the employer on (1) claims under the Fair Labor Standards Act (FLSA), and (2) the employees' remaining wage claims. The employees appealed.

OVERVIEW: The employees worked on different vessels for the employer. One worked as a fish processor, the other as a housekeeper. They each signed an employment contract with the employer, but the ships' masters did not sign them. The court of appeals found that the employees' duties were exempt from the FLSA, under the "first processing" exemption of 29 U.S.C.S. § 213(a)(5). Though the statute was ambiguous, the regulations under it, including 29 C.F.R. § 784.133, squarely addressed the issue of the definition of "first processing." That definition included the employees' duties, even though one of them was not actually engaged in fishing. The parties' contracts were entered into pursuant to 46 U.S.C.S. § 10601, and included a six-month limitation period for in rem actions that was also provided in 46 U.S.C.S. § 10602. However, the contracts' failure to include the ships' masters' signatures rendered them void, and the six-month limitations periods did not apply.

OUTCOME:The court of appeals affirmed the district court's grant of summary judgment in part, as to FLSA claims, and denied it in part, as to in rem wage claims.

NOTE: Another case holding that the master must sign a written contract with each crew member before a voyage pursuant to 46 U.S.C. § 10601 decided this month is: HARPER v. UNITED STATES SEA FOODS LP, 2002 U.S. App. LEXIS 1201 (9th Cir. 2002)

TERRY J. WILLIAMS, Plaintiff, -against- WILMINGTON TRUST COMPANY, Defendant.

01 Civ. 7590 (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 816
January 22, 2002, Decided

DISPOSITION: Wilmington's motion to dismiss DENIED.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant, the ultimate owner of the vessel on which he had been employed as a seaman, for statutory wage penalties pursuant to 46 U.S.C.S. § 10313(g). The vessel owner moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

OVERVIEW: The vessel owner asserted that it was not the "owner" of the vessel within the meaning of the statute, because its bareboat charter to another company relieved it of the obligations of ownership. In interpreting § 10313(g), the court noted that absent a "clearly expressed legislative intention to the contrary," the wage penalty clearly applied to the vessel owner. As there was no such clearly expressed intention to the contrary, the vessel owner was liable. The court further noted that when the statute was revamped in 1983, Congress left intact the words that the owner or master was liable for the wages due. There were no exceptions for, explanations of, or references to non-employing owners and no distinctions were made.

OUTCOME: Vessel owner's motion to dismiss was denied.

DARYL HENRY v CANDY FLEET CORP., et al.

CIVIL ACTION NO. 98-1747 c/w 98-2196 SECTION "T" (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 4966
April 10, 2001, Decided

PROCEDURAL POSTURE:Plaintiff seaman filed a motion to amend judgment following a favorable judgment in his admiralty action against defendant corporations for his personal injuries.

OVERVIEW: Plaintiff seaman brought an admiralty action against defendant corporations following his personal injuries allegedly caused by defendants. The court entered judgment for plaintiff, awarding him damages. Subsequently, plaintiff filed a motion to amend judgment, seeking to add defendant insurer as a judgment debtor, seeking admiralty pre-judgment interest, seeking additur, non-admiralty cure past and future medical costs, and seeking to cancel the court's finding that he caused a small percentage of his own damages. The court granted the motion in part, holding that it was necessary to add defendant insurer as a judgment debtor, and that plaintiff was entitled to prejudgment interest as there were no peculiar or exceptional circumstances to justify denial of prejudgment interest. The court denied the motion in part, holding that plaintiff failed to show that the court's damage awards or fault apportionment were erroneous, contained a clear error of law, or would work an injustice upon the parties.
OUTCOME:Motion was granted in part because defendant insurer was a necessary judgment debtor, and plaintiff seaman was entitled to prejudgment interest. Motion was denied in part because the court's damage awards and fault apportionment were not in error.