Cruise Ship Law

THOMAS LOVEJOY VERSUS HARDIE BERGEAUX AND CRAIN BROTHERS,INC.

03-862
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
03-862 (La.App. 3 Cir, 12/11/03); 862 So. 2d 490; 2003 La. App. LEXIS 3436
December 11, 2003, Rendered

PROCEDURAL POSTURE: Plaintiff employee challenged a decision of the Fourteenth Judicial District Court, Parish of Calcasieu (Louisiana), which granted defendant employer's motion for summary judgment and found that there were no genuine issues of material fact as to the employee's status as a seaman for purposes of the Jones Act, 46 U.S.C.S. app. § 688(a).

OVERVIEW: The employer hired the employee to perform welding services on a project involving placing pipeline crossings under an intracoastal waterway. A particular boat transported the employees down the waterway to a crossing site on a daily basis. The employee was injured when someone dropped a bucket on the employee's head. The injury occurred on a levee when the pipelines were being welded together. After the accident, the employee spent a substantial part of his time on the boat, which included piloting it. The employee filed this action, but the trial court ruled in the employer's favor. The court reversed on appeal and remanded for a trial on the merits. The court did not find this to be a case where the undisputed facts revealed that a maritime worker had a clearly inadequate temporal connection to vessels in navigation. The court believed that a reasonable jury could have concluded that the employee spent more than 30 percent of his employment time aboard vessels owned or controlled by the employer. Thus, seaman status under the Act remained a genuine issue of material fact and the trial court erred in granting summary judgment on the issue.

OUTCOME: The court reversed and remanded for a trial.

MICHAEL GROS VERSUS FRED SETTOON, INC.

03-461
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
03-461 (La.App. 3 Cir, 12/23/03); 2003 La. App. LEXIS 3602
December 23, 2003, Opinions Rendered

PROCEDURAL POSTURE: The Sixteenth Judicial District Court, Parish of St. Martin (Louisiana), granted summary judgment to appellee employer dismissing appellant claimant's Jones Act claims for negligence, unseaworthiness, and maintenance and cure because the claimant received benefits under 33 U.S.C.S. § 905(b) of the Longshoreman's and Harbor Workers' Compensation Act (LHWCA). The claimant appealed.

OVERVIEW: The claimant alleged that he severely injured his back while attempting to lift and hold up a heavy load while working on a barge owned by the employer. The barge allegedly shifted and rolled due to the weight and movement of the operation. The employer filed a motion for partial summary judgment contending that all of the claimant's claims based on seaman status should be dismissed because of his voluntary receipt of LHWCA benefits. The claimant argued that the question of seaman status was never litigated during the trial for longshoreman's benefits, and therefore, he was entitled to a determination of his seaman status. The trial court granted the employer's partial motion for summary judgment and dismissed the claimant's Jones Act claims. Although the LHWCA credit provision did ostensibly prevent double recovery for the claimant, a real possibility existed that the employer could be forced to engage in repetitious litigation. Despite that possibility, the credit provision of the LHWCA clearly indicated an intent on Congress's part to allow for recovery under both the LHWCA and the Jones Act. Thus, the dismissal of the claimant's Jones Act claims was improper.

SAMUEL SAMUELOV, Appellant, vs. CARNIVAL CRUISE LINES, INC.,Appellee.

CASE NO. 3D03-215
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 18356; 28 Fla. L. Weekly D 2763
December 3, 2003, Opinion Filed

PROCEDURAL POSTURE: Plaintiffs, employee and spouse, sought review of the decision of the Thirty-Second Judicial District Court, Parish of Terrebonne (Louisiana), which granted summary judgment in favor of defendant employer in plaintiffs' action pursuant to the Jones Act (Act), 26 U.S.C.S. app. § 688.

OVERVIEW: Plaintiffs appealed the dismissal by summary judgment of their action for Act damages against the employer based on the trial court's conclusion that the employee lacked the requisite seaman status necessary to recover under the federal compensation scheme. The employee had sustained personal injuries while assigned to an oil-drilling job working aboard a vessel. The court agreed and affirmed, stating that plaintiffs failed to produce factual support sufficient to satisfy their burden of proving a substantial connection to an identifiable group of vessels acting together or under one control. Accordingly, the court found no error in the trial court's conclusion that the plaintiffs failed to prove seaman status to support an action for damages under the Act.

OUTCOME: The judgment was affirmed.

SAMUEL SAMUELOV, Appellant, vs. CARNIVAL CRUISE LINES, INC.,Appellee.

CASE NO. 3D03-215
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 18356; 28 Fla. L. Weekly D 2763
December 3, 2003, Opinion Filed

PROCEDURAL POSTURE: The Circuit Court for Miami-Dade County (Florida) granted partial summary judgment to appellant passenger, and against appellee cruise ship, on the passenger's breach of a non-delegable duty claim. At trial, the cruise ship was granted a directed verdict on the remaining claims. Both parties sought further review.

OVERVIEW: The passenger appealed and the cruise ship cross-appealed the judgments entered. The cruise ship argued that, in accordance with its disclaimer of liability, it had no duty to the passenger while he was on a shore excursion that was operated by an independent contractor. The appeals court disagreed. The transportation provided to the passenger between the cruise ship and the shoreline was a tender, and the cruise ship had a non-delegable duty to provide passengers with safe transportation, under adequate supervision, to and from the ship to shore. With regard to the main appeal, the passenger alleged that the condition that caused his injury was open and obvious. The appeals court agreed. The fact that passengers had to cross the wet, slippery exposed upper deck of the tender should have been reasonably anticipated by the cruise ship. Therefore, the trial court should have allowed the case to proceed to a jury verdict on this issue.

OUTCOME: Partial summary judgment entered in favor of the passenger was affirmed. However, the directed verdict entered in favor of the cruise ship was reversed, and the case was remanded.

ENRIQUE WILLIAMS, Plaintiff, vs. CRUISE SHIPS CATERING AND SERVICE INTERNATIONAL, N.V.; PRESTIGE CRUISES N.V.; and COSTA CROCKER, SPA,Defendants

Case No. 03-60158-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2003 U.S. Dist. LEXIS 24048; 17 Fla. L. Weekly Fed. D 211
December 9, 2003, Decided
December 9, 2003, Filed

PROCEDURAL POSTURE: Defendant cruiseline owners filed a motion to dismiss on forum non conveniens grounds related to plaintiff seaman's allegations under the Jones Act, 46 U.S.C.S. app. § 688, and claims for unseaworthiness, failure to cure, and failure to treat.

OVERVIEW: Plaintiff seaman sued defendant cruise line owners for injuries he suffered while he worked aboard an Italian-flagged vessel. Defendants filed a motion to dismiss on forum non conveniens grounds contending, inter alia, that the place of the wrongful act was not the United States but the high seas, the law of the ship's flag was Italian; and plaintiff was domiciled in Costa Rica. However, the district court denied defendants' motion to dismiss on finding, inter alia, that defendants conducted substantial business in United States ports generating revenues for the ship's owner, plaintiff was treated for his medical condition in the United States while serving aboard defendants' vessel and in their employment, and important decisions relating to the plaintiff's care and maintenance were made by defendants' subsidiary in the United States. The district court held that defendant ship owner had a substantial base of operations in the United States, the law of the United States should be applied, and thus the case should not be dismissed for forum non conveniens.

OUTCOME: Defendants' motion to dismiss on forum non conveniens grounds was denied.

MARK P. DISHONG, Plaintiff, v. PEABODY CORP., Defendant andThird-Party Plaintiff, v. TIDEWATER ORTHOPAEDIC ASSOCIATES, INC. and TIDEWATERPHYSICAL THERAPY, INC., Third-Party Defendants.

CIVIL ACTION NO. 4:03cv107
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION
219 F.R.D. 382; 2003 U.S. Dist. LEXIS 22348
December 12, 2003, Decided
December 12, 2003, Opinion Filed

PROCEDURAL POSTURE: Plaintiff seaman sued defendant shipowner for injuries sustained due to the shipowner's alleged negligence and the unseaworthiness of the shipowner's vessel. The seaman sought maintenance and cure. The shipowner filed a third-party complaint against third-party defendant medical facilities seeking contribution and indemnification for all liability. The medical facilities moved for a more definite statement and to strike the third-party complaint.

OVERVIEW: Pursuant to Fed. R. Civ. P. 14, the court did not permit the shipowner to implead the medical facilities because introduction of the third-party claims would have unduly complicated the case, possibly to the prejudice of the seaman and the medical facilities. Specifically, even if the shipowner was permitted to recover maintenance and cure payments made to the seaman from the medical facilities whose alleged negligence caused the seaman's disability, that theory of recovery would have required the shipowner to prove that the medical facilities were tortfeasors. In other words, the shipowner would have to prove that the medical facilities' medical malpractice was the cause of the seaman's damages for maintenance and cure. The issues involved in medical malpractice were unrelated to those presented by the seaman and almost all of the evidence that would have been relevant to the medical malpractice claim had no connection to the seaman's claims. Thus, permitting the third-party claim to remain in the lawsuit would not have served the purposes of Fed. R. Civ. P. 14 and would likely have prejudiced the seaman and the medical facilities.

OUTCOME: The third-party complaint was dismissed without prejudice. The medical facilities' pending motions were moot.

PROCEDURAL POSTURE: In a Jones Act, 46 U.S.C.S. app. § 688, case, plaintiff employee sued defendant foreign cruise line in state court for damages for injuries he allegedly sustained on a cruise ship. Following removal pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), 9 U.S.C.S. § 201-208, the cruise line moved to compel arbitration. The employee moved to remand.

OVERVIEW: The employee argued that removal was improper for six reasons. While the employment contract did not expressly include an arbitration agreement, the contract was an approved Philippines Overseas Employment Administration (POEA) contract that vested original and exclusive jurisdiction over all disputes under the contract with the POEA or the Philippine National Labor Relations Commission (NLRC). Since the NLRC was a body of labor arbitrators, arbitration was effectively mandated. The court rejected the assertion that the Convention did not apply to the employment contracts of seaman. Based on United States Supreme Court precedent, the court rejected the employee's argument that his employment contract was not a commercial contract. While the employee cited authority for the proposition that a foreign seaman could bring a Jones Act claim, he did not show that the claim could not be removed by a foreign company under the Convention. The arbitration agreement between the parties was valid under U.S. law. The contract was not one of adhesion and was valid under Philippine law. Finally, the court could not determine whether the agreement was enforceable under Philippine law.

OUTCOME: The employee's motion to remand was denied. The cruise line's motion to compel arbitration was granted. Any pending motions were denied as moot.

JOSEPH LODRIGUE VERSUS DELTA TOWING, L.L.C.

CIVIL ACTION NUMBER: 03-0363 SECTION: "R"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2003 U.S. Dist. LEXIS 22933
December 19, 2003, Decided
December 19, 2003, Filed
December 22, 2003, Entered

PROCEDURAL POSTURE: In response to plaintiff seaman's motion for an expedited trial of his maintenance and cure claims against defendant shipowner, the court held a trial on the seaman's maintenance and cure claim severed from his claims alleging Jones Act negligence and unseaworthiness of a vessel. The seaman also requested compensatory damages, prejudgment interest, and attorney fees.

OVERVIEW: The seaman slipped and fell while working as a captain on the vessel. The shipowner paid for the seaman's initial medical expenses, but the seaman was discharged from employment two months after the accident because he gave a false excuse for an absence. When an orthopedic surgeon subsequently recommended surgery, the shipowner denied the seaman's request for maintenance and cure. The court held that the seaman was entitled to maintenance and cure because he advanced credible medical testimony as to his back and knee injuries and potential for medical improvement. Although the shipowner presented contrary evidence from a qualified physician who testified that the seaman had reached maximum medical improvement, the court found that the testimony merely raised doubts as to the seaman's entitlement to maintenance and cure, which the court was required to resolve in favor of the seaman. Although the seaman did not disclose a pre-existing knee injury during a pre-employment physical, the court found that the shipowner failed to show that the injury would have affected its decision to hire the seaman. No damages or attorney fees were assessed because the denial was not unreasonable.

OUTCOME: The court held that the seaman was entitled to maintenance and cure and that he was entitled to prejudgment interest on the award. The court held that the seaman was not entitled to compensatory damages or attorney fees. The court sustained the seaman's objection to the admissibility of bills of information that charged the seaman with issuing worthless checks.

MARGARET PERKS, v. SCOTIA PRINCE CRUISES, LTD.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2003 U.S. Dist. LEXIS 23208
December 29, 2003, Decided

PROCEDURAL POSTURE: Plaintiff passenger brought an action against defendant cruise ship to recover for personal injuries sustained while on board the ship. The ship filed a motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment. The matter was referred to a magistrate judge.

OVERVIEW: The ship's motion was based on a one-year time limitation imposed by the terms and conditions in its ticketing materials. After she sustained the injury, the passenger obtained a refund and filed a notice of claim. However, she filed suit after the one-year ticket limitation had passed. The magistrate found that he could only consider the ticketing material by considering the ship's motion as seeking summary judgment. The magistrate recommended that this summary judgment be granted. The court found that 46 U.S.C.S. app. § 183b(a) permitted the one-year limitation, but that the ship had to make a reasonable effort to warn passengers of the limitation. In particular, the ticket contract had to be sufficiently obvious and understandable and the passenger had to be familiar with the ticket terms, although actual knowledge was not required. The court further found that both of these requirements were met. The ticket jacket containing the limitations was sent directly to the passenger before the trip. Further, she had a sufficient opportunity to become aware of this information, as evidenced by the fact that she obtained a refund and contacted counsel to file a notice of claim.

OUTCOME: The magistrate recommended that the ship's motion for summary judgment be granted. The parties were granted time to file objections.

WILLIAM T. WRIGHT -v- MAERSK LINE,LTD.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
84 Fed. Appx. 123; 2003 U.S. App. LEXIS 26524
December 31, 2003, Decided

PROCEDURAL POSTURE: Defendant ship operator appealed from the judgment of the United States District Court for the Southern District of New York following a jury trial awarding plaintiff seaman damages under 46 U.S.C.S. § 688 of the Jones Act of 1920, and from the court's denial of the operator's post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50.

OVERVIEW: The seaman became ill on the operator's vessel. The options were to leave the seaman at St. Helena, which had no airport and only monthly mail boat service, or at Ascension Island, which would require an additional 41 hours to reach, but had a hospital and an airport, allowing for easier return to the United States. The captain chose St. Helena, where doctors advised that the seaman probably had passed a gallstone. When the seaman returned to the United States, gallstones and sludge were found in his gallbladder. His treating physician opined that the delay in returning to the United States caused significant damage to his liver. The operator argued that it fulfilled its duty to the seaman by pulling into the nearest port known to have adequate medical facilities. However, the court of appeals found that the "nearest port" consideration was not the sole and determinative factor, and that other factors should also have been considered in ascertaining whether the captain acted reasonably in responding to the seaman's illness, including his ability to return home. The evidence sufficiently supported the jury's finding that the operator negligently responded to the seaman's illness.

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

ROGER C. BENSON and PATRICIA HARDY-SMITH, individually andas Co-Personal Representatives of the Estate of NOAH BENJAMIN BENSON, a minor,Appellants, vs. NORWEGIAN CRUISE LINE LIMITED, and CARLA VON BENECKE, M.D.,Appellees.

CASE NO. 3D01-1845
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 16714
November 5, 2003, Opinion Filed

PRIOR HISTORY: An appeal from the Circuit Court for Dade County, Judith L. Kreeger, Judge. LOWER TRIBUNAL NO. 99-4704. Opinion Substituted for Opinion dated January 15, 2003 reported at: Benson v. Norwegian Cruise Line Ltd., 834 So. 2d 915, 2003 Fla. App. LEXIS 225 (Fla. Dist. Ct. App. 3d Dist., 2003)

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: The court withdrew an earlier opinion and substituted the instant opinion. Appellant parents brought a wrongful death action asserting medical malpractice against appellees, a cruise line and a cruise ship doctor. The court ruled that the ship was outside Florida's territorial waters at the relevant times and granted a motion to dismiss as to the doctor. The parents appealed from the Dade County Circuit Court (Florida).

OVERVIEW: Where alleged medical malpractice aboard a cruise ship occurred when the ship was 11.7 nautical miles east of the Florida shore, the medical malpractice incident occurred within Florida's territorial waters. The ship had not yet reached the edge of the Gulf Stream, which was 14 nautical miles east of the relevant portion of Florida's coastline on the day in question. Thus, based on the boundary as stated in Fla. Const. art. II, § 1 (1968), the claimed incident occurred within Florida's territorial boundaries. The doctor argued that under the federal Submerged Lands Act, 43 U.S.C.S. § 1301 et seq., Florida was not allowed to claim an Atlantic territorial sea greater than three nautical miles. That was not so. The present case did not involve any claim of ownership of the ocean bed or the resources contained therein and the Submerged Lands Act did not prevent Florida from asserting a territorial sea beyond three miles in the Atlantic, and exercising police powers thereon. The conduct at issue occurred on the ocean's surface, not on the ocean bottom. International law was not addressed, as the incident occurred when the cruise ship was less than 12 nautical miles offshore.

OUTCOME: The appellate court reversed the judgment dismissing the doctor from the lawsuit, and remanded for further proceedings. In light of the opinion, the motion for rehearing and certification of a question of great public importance were denied.

GLEN A. BAUMGART, Plaintiff, -against- TRANSOCEANIC CABLE SHIP COMPANY, INC. and C/S GLOBAL MARINER, L.P., Defendants.

No. 01 Civ. 5990 (LTS) (HBP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2003 U.S. Dist. LEXIS 19921
November 7, 2003, Decided

SUBSEQUENT HISTORY: Motions ruled upon by Baumgart v. Transoceanic Cable Ship Co., 2003 U.S. Dist. LEXIS 19921 (S.D.N.Y., Nov. 7, 2003)

DISPOSITION: Defendant's motion for summary judgment was granted in part and denied in part.

PROCEDURAL POSTURE: Plaintiff seaman sued defendant vessel owner, employer, and another company for injuries he sustained while serving on board a vessel, including claims of unseaworthiness, negligence under the Jones Act, 46 U.S.C.S. app. § 688, and maintenance and cure. Defendants moved for summary judgment.

OVERVIEW: The employer and vessel owner were not entitled to summary judgment on the unseaworthiness claims because it was undisputed that the seaman was employed exclusively by the employer, that the vessel owner owned the vessel upon which he was injured, and that the employer was the demise charterer at the time the injuries were incurred. However, the unseaworthiness, negligence, and maintenance and cure claims against the other company did not survive as the seaman offered no evidence as to that company's role other than pointing out that it was named in the preamble to a collective bargaining agreement between the seamen's union and the employer. The Jones Act and maintenance and cure claims against the vessel owner were dismissed as those claims could only be asserted against a seaman's employer.

OUTCOME: The motion for summary judgment was granted with respect to the claims against the other company, and the negligence and maintenance and cure claims against the vessel's owner, but was otherwise denied.