Cruise Ship Law

JANE DOE, Plaintiff-Appellant-Cross Appellee, versusCELEBRITY CRUISES, INC., in personam, ZENITH SHIPPING CORPORATION, in personam,APOLLO SHIP CHANDLERS, INC., in personam, CELEBRITY CATERING SERVICESPARTNERSHIP, in personam, Defendants-Appellees-Cross-Appellants, BARIS AYDIN, inpersonam, M/V ZENITH, her engines, boilers, tackle, etc., in rem,Defendants-Appellees.

No. 03-15321
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2004 U.S. App. LEXIS 26743
December 22, 2004, Decided
December 22, 2004, Filed

PROCEDURAL POSTURE: Plaintiff cruise line passenger sued defendant cruise line, vessel owner, and two other service providers after she was allegedly raped by a cruise crew member. The U.S. District Court for the Southern District of Florida, after a verdict favoring the passenger, granted a Fed. R. Civ. P. 50(b) judgment to all defendants concluding it had not been proven that any single defendant was both a common carrier and the employer. The passenger appealed.

OVERVIEW: The alleged rape occurred off the ship at a port of call in a park near a disco that the crew member, as the passenger's waiter, had recommended to the passenger and her friends. The court held that: (1) it had admiralty jurisdiction; (2) the district court had clearly erred because it lacked authority to enter judgment under Fed. R. Civ. P. 50(b) for defendants on a ground not raised prior to the submission of the case to the jury; (3) defendants owed a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their cruise passengers; (4) thus the district court had not erred in concluding that defendants were strictly liable for crew member assaults on their passengers during the cruise; and (5) the common carrier- passenger relationship did not have a strict spatial limit and thus was not severed when the passenger and the crew member left the ship's premises. The court could not conclude that the interaction between them was outside the scope of the on-going carrier- passenger relationship. The court concluded that the sexual battery and sexual assault charges, and the jury's verdict as to those charges, were in no way inconsistent.

OUTCOME: The entry of judgment for defendants was reversed because the district court lacked authority to enter judgment as a matter of law on a new ground not raised by any party prior to submission of the case to the jury. The jury's verdict for plaintiff was reinstated and affirmed and the case was remanded to the district court to enter final judgment on the jury's verdict for plaintiff and against defendants.

JOSEPH THIBODAUX VERSUS C & G BOATS INC.

CIVIL ACTION NO. 03-3617 SECTION "J" (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 25638
December 15, 2004, Decided
December 15, 2004, Filed
December 15, 2004, Entered

PROCEDURAL POSTURE: Defendant ship owner filed a motion to limit the testimony of plaintiff seaman's marine safety expert in connection with an action for negligence under the Jones Act, 46 U.S.C.S. § 688.

OVERVIEW: The seaman was removing P-tank covers to inspect the water tight integrity of the void around the hold. While he was removing one of the covers, he was allegedly injured as a result of the negligence of the ship owner. The ship owner argued that the report and testimony of the seaman's expert should have been limited because: (1) he was not qualified to testify as an ergo dynamics expert; (2) his report was replete with references to OSHA and NIOSH regulations; and, (3) his opinions regarding the ship owner's duty to supervise the seaman's work were within the common understanding of lay jurors. Exercising its gatekeeping function under Fed. R. Evid. 702, the court held that, because the case was to have a non-jury trial, the danger of confusion that might have existed in a jury trial did not exist. The court would consider the report, along with all of the evidence presented at trial, in deciding the merits of the case. At trial, the court would properly limit or disregard any expert testimony that was neither helpful nor within the scope of the witness's expertise.

OUTCOME: The court denied the ship owner's motion to limit expert testimony and report without prejudice to urge any objections to specific testimony at trial.

APRIL FASOLD, Appellant v. DELAWARE RIVER & BAY AUTHORITY

No. 03-3624
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2004 U.S. App. LEXIS 26709
December 6, 2004, Argued
December 21, 2004, Filed

PROCEDURAL POSTURE: Plaintiff, a supervisor for the food service crew on a passenger ferry, appealed from a judgment of the United States District Court for the District of New Jersey, granting summary judgment to defendant precluding the supervisor's pursuit of her claims under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law.

OVERVIEW: The supervisor supervised the food service crew on a passenger ferry traveling between Lewes, Delaware and Cape May, New Jersey. Among her responsibilities was keeping clean the kitchen and galley area. While cleaning the walk-in refrigerator located in the ferry's galley, the supervisor injured her back moving a keg of beer stored there. The supervisor claimed that the refrigerator was "filthy" and that, in order for her to do her job, the keg had to be moved so food and debris behind it could be picked up. The supervisor alleged that defendant failed to, inter alia, provide a safe place to work, properly stow the keg, provide the proper equipment to move the keg, and provide a sufficient number of able-bodied crew. The instant court found that the record demonstrated that there had been problems in the past with women having to lift heavy objects, the unsuitability of hand trucks and the size of the crew being insufficient to handle all the work aboard the ship. While a jury might determine that the supervisor's actions contributed to her injury and apportion liability accordingly, that did not foreclose her claims.

OUTCOME: The judgment was reversed.

GEORGE LEWIS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. C 04-1834 PJH
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 25283
December 2, 2004, Decided

OVERVIEW: The seaman alleged that he was injured while working on board a United States Navy vessel in June 2003. The seaman moved to California around February 2004. In May 2004, after the vessel set sail, the seaman filed suit in the Northern District of California, on the grounds that the PVA permitted suit in the residence of the seaman if the vessel was at sea. The Government argued that the seaman had to establish domicile, not mere residence in the district, and that he did not truly reside in the district. The court determined that, under the PVA, the seaman was required only to prove that he established "residence" in the district and not "domicile." The court also determined that the seaman established his residence in the district by his physical presence.

OUTCOME: The court denied the Government's motion to dismiss and denied as moot the Government's motion to transfer for improper venue.

PABLO MEMBRENO, Plaintiff, vs. COSTA CROCIERE, S.p.A., aforeign corp., and CSCS INTERNATIONAL N.V., a foreign corp., Defendants.

CASE NO. 03-61180-CIV-HUCK/TURNOFF
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2004 U.S. Dist. LEXIS 25116
November 23, 2004, Decided
November 23, 2004, Filed

PROCEDURAL POSTURE: Plaintiff filed a complaint, alleging five-counts under the Jones Act and general maritime law against four defendants related to a personal injury that he alleged occurred while he was working on a cruise ship. Defendants moved to dismiss based upon forum non conveniens.

OVERVIEW: The Jones Act and the general maritime law of the United States did not apply and the private and public factors weighed in favor of the case being tried in one of the three countries, Italy, Honduras, or the Netherlands Antilles, with a greater interest in the action and where there were available and adequate fora. There appeared to be no real disagreement that six of the eight choice of law factors weighed in favor of defendants' contention that the Jones Act and U.S. maritime law did not apply. As to the place of the accident, the accident did not occur within the U.S. or U.S. territorial waters. The remaining question was whether defendants' base of operations was in the U.S. or whether defendants otherwise had sufficient contacts with the U.S. to warrant the application of U.S. law. Defendants' limited commercial activities in the U.S. and its business affiliation with two U.S. companies for purposes that were ancillary to plaintiff's employment were not sufficiently substantial connections to justify application of U.S. law. All of the forum non conveniens factors weighed in favor of dismissal and allowing the case to be heard in a more convenient and appropriate forum.

OUTCOME: Defendants' motion to dismiss based upon forum non conveniens was granted, and the case was dismissed without prejudice to plaintiff's ability to re-file the action in an alternative forum or to reinstate his action in the instant court if no alternative fora accepted his case.

JUDITH LIPFORD, Plaintiff, vs. CARNIVAL CORPORATION, a foreign corporation, d/b/a CARNIVAL CRUISE LINES, Defendant.

Case No. 04-21120-CIV-GRAHAM
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2004 U.S. Dist. LEXIS 24530
November 23, 2004, Decided
November 24, 2004, Filed

PROCEDURAL POSTURE: Plaintiff passenger filed a motion to stay her action for personal injuries suffered in the high seas against defendant cruise line pending the resolution of a pending, identical state court case.

OVERVIEW: The passenger alleged that she was injured on an excursion while on a cruise. Pursuant to a forum selection clause, all disputes had to be instituted in the United States District Court for the Southern District of Florida within one year. The passenger filed suit in state court, and simultaneously filed a "cautionary complaint" with the court. The state court held that the forum selection clause was invalid. The passenger sought a stay because of the expiration of the one year limitations period and the possibility that the state court's ruling invalidating the forum selection clause might have been overturned. The court held that because the stay would have remained in place until the completion of the trial and appeals in the state court case, the requested period of the stay was indefinite and therefore unwarranted. The passenger's ability to sue the cruise line within the one year period was not dependent upon the court's granting of a stay, but rather on the passenger's decision to sue in state court. Having made the decision to avail herself of the benefits of the state forum, the passenger was not justified in delaying an identical case in federal court indefinitely.

OUTCOME: The court denied the passenger's motion to stay the case and dismissed the action without prejudice.

WALTER RADUT and DOROTHY RADUT, Plaintiffs, - against -STATE STREET BANK & TRUST CO. as Owner Trustee, HURON LEASING, LLC, U.S. SHIP MANAGEMENT, INC., MAERSK, INC., MAERSK LINE LIMITED d/b/a Maersk Sealand, and the MV SEA-LAND ACHIEVER, her engines, tackle, gear, appurtenances, etc., Defendants.

03 Civ. 7663 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22318
November 3, 2004, Decided
November 4, 2004, Filed

PROCEDURAL POSTURE: Plaintiffs, an independent contractor and his wife, sued defendant corporation on various claims arising out of injuries sustained by the contractor while working on the corporation's vessel. The corporation moved for summary judgment on plaintiffs' claim for unseaworthiness. The corporation also moved to dismiss plaintiffs' claims alleging non-pecuniary damages and the wife's claim for loss of consortium.

OVERVIEW: The corporation argued that because the contractor was not a seaman he was not entitled to pursue an unseaworthiness claim under the Jones Act, 46 U.S.C.S. app. § 688. The court found that the undisputed facts established the contractor's status as a Sieracki seaman where the contractor worked, slept, and ate alongside the crew; he went to sea with the ship; he was exposed to the same hazards as the crew; and, most importantly, he was performing the ship's service, at the owner's request. Therefore, because the contractor was a Sieracki seaman, he was entitled to bring an action for unseaworthiness against the corporation, and the corporation's motion for summary judgment was denied. The Jones Act, 46 U.S.C.S. app. § 688 and the Death on the High Seas Act, 46 U.S.C.S. app. § 761 did not permit recovery for non-pecuniary damages. Therefore, because the contractor and his wife had availed themselves of a cause of action available only to seamen--their unseaworthiness claim under the Jones Act--they could not recover non-pecuniary damages from the corporation, and the corporation's motion to dismiss the claims for punitive damages and loss of consortium was granted.

OUTCOME: The corporation's motion for summary judgment was denied. The corporation's motion to dismiss the non-pecuniary claims was granted.

FLOYD RESNICK, Plaintiff, -against- VANTAGE DELUXE WORLDTRAVEL, INC., Defendant.

03 Civ. 1114 (LAK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22904
November 12, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger was injured in a slip and fall aboard a ship. The passenger alleged that defendant owner owned, operated, maintained and controlled the ship, and that the passenger was injured in consequence of unspecified negligence. The passenger motioned for partial summary judgment of liability and for other relief and the owner's motion for summary judgment dismissing the complaint.

OVERVIEW: The passenger contended that the owner waived its ticket limitations by failing to plead them as affirmative defenses. The court noted that even assuming that a plaintiff's allegation of compliance with contractual conditions could overcome a defendant's failure to plead the defense affirmatively, the passenger never alleged timely institution of the action. The owner's failure to plead that the action was not timely commenced therefore waived any such defense. There was a genuine issue of material fact as to what documents were given to the passenger and as to their contents. It was impossible to determine on motion what if any notice was required, let alone whether legal standards determining the sufficiency of limitation in passenger tickets were satisfied. There was ample evidence to go to the jury on the issue whether the owner had constructive notice of a dangerous condition that was a proximate cause of the accident. The passenger was entitled to partial summary judgment to the extent that he fell as a proximate consequence of getting his shoes wet by walking across the mat and then slipping. There was no competent evidence as to the extent of his injuries.

OUTCOME: The passenger's motion for partial summary judgment was granted to the extent that the passenger was injured in a fall caused in part by a wet mat and the owner was estopped to deny that, at the time of the accident, it was the owner of the vessel; the motion was denied in all other respects.

ERIC BOUTTE, Plaintiff, v. CENAC TOWING, INC., Defendant

CIVIL ACTION NO. G-03-1054
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2004 U.S. Dist. LEXIS 24726
November 15, 2004, Decided

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer pursuant to admiralty jurisdiction under the Jones Act, 46 U.S.C.S. § 688, seeking recovery for injuries sustained while working aboard the employer's vessel. The court previously issued an order denying the employer's motion to dismiss or, in the alternative, to transfer venue. The employer moved for reconsideration of that order. The employee contested the motion.

OVERVIEW: As a condition of employment, the employee executed a choice of forum agreement designating Louisiana as the appropriate forum. The employee sustained injuries while aboard a vessel in Texas, where he filed suit. In denying the employer's motion to transfer venue to Louisiana, the court found that the choice of forum agreement was enforceable, but that the location of the alleged wrong and delay from a transfer favored retention. The court denied the motion for reconsideration. In admiralty, venue was proper in any court with personal jurisdiction over the defendant. However, the court held that choice of forum agreements in employment contracts between American seamen and American companies were unenforceable in Jones Act claims. Further, discretionary transfer under 28 U.S.C.S. § 1404(a) was properly denied. The location of the alleged wrong was of primary importance. The citizens of Texas had a legitimate interest in the safety conditions and seaworthiness of vessels doing business in the state. The employee's choice of forum was entitled to deference. The convenience of the employer's witnesses was not entitled to much weight as the employer could compel their testimony.

OUTCOME: The court denied the employer's motion for reconsideration of its order denying its motion to dismiss and its alternative motion to transfer venue.

WEEKS MARINE, INC. v. MICHAEL MCDEVITT

CIVIL ACTION NO. 01-CV-5609
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2004 U.S. Dist. LEXIS 23708
November 19, 2004, Decided

PROCEDURAL POSTURE: Plaintiff, a dredging and marine construction company that owned and operated a fleet of tugboats and other marine equipment (company), sued defendant employee seeking a declaratory judgment and reimbursement of maintenance and cure. The company moved for partial summary judgment.

OVERVIEW: The employee injured his back four times while working for the company. He conceded that he had suffered from a pre-existing back condition when he began his employment. The pre-existing condition was not disclosed during a post-offer employment physical examination. The employee asserted that his pre-existing condition involved his cervical spine, in contrast to the lumbar spine condition that afflicted him during his employment with the company. The company argued that the employee's concealment of his back condition constituted willful misconduct, and that he consequently was not entitled to maintenance and cure. The employee explained that he checked off the box indicating that he did not have a head or spine injury, because he understood a head or spine injury to be a traumatic accident of some kind. His problem, in contrast, was a treatable condition that he believed would not interfere with his work. The employee was entitled to have a jury determine whether he filled out the medical history form in good faith.

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

ROBERT HASTY, Plaintiff-Appellant, versus TRANS ATLAS BOATSINC; GREATER LAFOURCHE PORT COMMISSION, Defendants-Appellees.

No. 03-30884
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
389 F.3d 510; 2004 U.S. App. LEXIS 22768
November 2, 2004, Filed

PROCEDURAL POSTURE: Appellant seaman sought judicial review of a decision by the United States District Court For the Eastern District of Louisiana that granted summary judgment in favor of appellees, a port commission and ship owner, on negligence, unseaworthiness, and vicarious liability claims. The seaman's injuries arose when he intervened in a fight between two other seamen.

OVERVIEW: The seaman contended that the captain was negligent by allowing: (1) the other seaman to come onto the vessel and remain aboard despite being aware that he was intoxicated, and (2) the intoxicated seaman to sneak away from the harbor police and the captain and re-board the vessel. A reasonable could conclude that the seaman's injury was a foreseeable consequence of permitting the intoxicated seaman on board because of the risk he posed to his shipmates. A reasonable jury might also find the captain was negligent in allowing the intoxicated seaman to re-board the vessel after being terminated. The harbor police testified that the owner possessed a duty to remove the terminated employee safely from both the vessel and the surrounding port area. The seaman offered no evidence that the intoxicated seaman possessed the characteristics needed to make the ship unseaworthy. The owners were not vicariously liable for the acts of the harbor police. Since the conduct and activities of the harbor police were insufficiently related to traditional maritime activity, admiralty jurisdiction does not exist over the seaman's claims against the harbor police.

OUTCOME: The district court's summary judgment dismissal of the seaman's negligence claim against the owner was reversed, and the case was remanded. The district court's grant of summary judgment as to the seaman's other claims was affirmed.

MELODEE WHITMAN, Plaintiff, Appellant, v. RICK MILES, Defendant, Appellee.

No. 04-1117
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
387 F.3d 68; 2004 U.S. App. LEXIS 22624
October 28, 2004, Decided

PROCEDURAL POSTURE: Appellant seaman challenged a decision from the United States District Court for the District of Maine, which entered judgment in favor of appellee employer in a claim for maintenance and cure.

OVERVIEW: The seaman was taken to the hospital after falling, suffering a burn, and experiencing other symptoms. Following testing, the seaman was diagnosed with relapsing-remitting multiple sclerosis (MS). Thereafter, she sought maintenance and cure payments. After summary judgment was granted in favor of the employer, the seaman sought review. In affirming, the court determined that the employer was only required to pay maintenance and cure until the condition had stabilized and further progress had ended. The court rejected the argument that the condition could have been improved through treatment. Although the symptoms could have been alleviated, there was no cure for MS. Further, there was no need for any physician to use the word "permanent" in the diagnosis. The seaman's asymptomatic status did not mean that her overall condition had improved; therefore, the district court did not err by setting the date of maximum improvement shortly after the diagnosis. In addition, the seaman was unable to recover maintenance and cure for her depression. She was unable to show that it started while in the service of a ship or that it was a symptom of MS. Finally, attorney's fees were not awarded.

OUTCOME: The decision was affirmed.

KENNETH LONG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Action No: 2:04cv82
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFVIRGINIA, NORFOLK DIVISION
339 F. Supp. 2d 729; 2004 U.S. Dist. LEXIS 20881
October 6, 2004, Decided

PROCEDURAL POSTURE: Plaintiff former steward was injured while working in the walk-in freezer of a vessel and filed an action against defendant United States, alleging claims under the Jones Act, 46 U.S.C.S. § 688, and a claim that the vessel operated by the United States was unseaworthy. The United States filed a motion for summary judgment.

OVERVIEW: The steward was injured when he was in a walk-in freezer and a piece of frozen meat fell and landed on the steward's foot. The steward claimed that the United States, as the owner of the vessel, was negligent under the Jones Act, 46 U.S.C.S. § 688, because the meat in the vessel was improperly stored, secured, and inspected. The steward alleged a claim that the vessel was unseaworthy for the same reasons. The court denied the United States' motion for summary judgment. The court held that there was a genuine factual controversy relating to the Jones Act claim so that summary judgment was not appropriate. The parties disputed who was responsible for the negligence that caused the steward's injury, particularly when the steward had been charged with securing items in the freezer. The court noted that the same factual disputes made summary judgment on the claim of unseaworthiness inappropriate. The steward provided evidence that other ships used for long voyages had larger freezers. The court rejected the United States' assertion that the primary duty rule acted as a complete bar to the steward's claims.

OUTCOME: The court denied the United States' motion for summary judgment.

JENNIFER ANN McALLISTER, by and through her parents, SHERRI and PATRICK McALLISTER, Guardians ad Litem, and SHERRI and PATRICK MCALLISTER, Individually v. ROYAL CARIBBEAN CRUISES, LED, and PETER WALL

CIVIL ACTION NO. 02-2393
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2004 U.S. Dist. LEXIS 19166
September 14, 2004, Decided
September 14, 2004, Filed; September 15, 2004, Entered

PROCEDURAL POSTURE: Plaintiffs, a minor child and her parents, filed suit against defendants, a cruise ship company and one of its employees, alleging that the child was sexually molested by the employee. Plaintiffs subsequently filed a motion to compel the depositions of a corporate representative and certain employees. The company filed a cross-motion for a protective order.

OVERVIEW: The company objected to many of the areas upon which plaintiffs sought to question the corporate representative. The company also objected to the production for deposition of the captains of the vessel on which the alleged incident took place. The court held that plaintiffs could question the representative as to: (1) any meetings or publications in which sexual assaults of any sort, perpetrated by a crew member upon a passenger, were discussed; (2) any and all sexual assaults perpetrated by a crew member against a passenger during the past 10 years; and (3) any lawsuit involving sexual assaults of any sort, perpetrated by a crew member upon a passenger. However, the court held that plaintiffs could not question the corporate representative as to information regarding successor liability, claims handling policies, employee grievance policies, and insurance coverage and exclusions because those areas of inquiry did not appear to be relevant to any issue in the case. The court further held that plaintiffs could depose the captains because they might have information concerning the company's history of failing to deal adequately with sexual assaults by crew members.

OUTCOME: The court ordered that plaintiffs could not question the company's corporate representative with respect to four areas of inquiry but could question the representative on all other areas of inquiry, with certain modifications. The court also ordered that plaintiffs could depose the captains of the vessel on which plaintiffs cruised at the time of the alleged incident.

LINDA REYNOLDS-NAUGHTON, Plaintiff, Appellant, v. NORWEGIANCRUISE LINE LIMITED, d/b/a/ NORWEGIAN CRUISE LINE, Defendant, Appellee.

No. 04-1183
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
386 F.3d 1; 2004 U.S. App. LEXIS 19372; 2004 AMC 2370
September 14, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed a negligence claim in admiralty against defendant cruise ship owner in the United States District Court for the District of Massachusetts. The owner filed suit in the Southern District of Florida, and filed a motion to dismiss the Massachusetts case pursuant to a forum selection clause in the parties' contract. The Massachusetts court granted the motion to dismiss; the passenger appealed.

OVERVIEW: After a door closed on her hand, the passenger lost part of a middle finger. Her passenger -ticket contract contained a forum selection clause which she claimed was invalid under the Limitation of Vessel Owner's Liability Act, former 46 U.S.C.S. app. § 183(c). The appellate court noted that U.S. Supreme Court had read the Act as allowing forum selection clauses that limited a passenger's choice of venue, so long as a court of competent jurisdiction remained available to the passenger. Examining the legislative history of the Act, the appellate court held that later amendments to it had not legislatively overruled the Supreme Court's reading of the Act.

OUTCOME: The judgment was affirmed.

PATRICIA A. WILLS, individually and as personalrepresentative of the Estate of RICKY LEE WILLS, deceased, on behalf of RickyLee Wills and those persons similarly situated, Plaintiff-Appellant, v. AMERADAHESS CORP., SPENTONBUSH/RED STAR COMPANIES, INC., SHERIDAN TRANSPORTATION CORP.and HYGRADE OPERATORS INC., Defendants-Appellees.

Docket No. 02-7913
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
379 F.3d 32; 2004 U.S. App. LEXIS 16510; 64 Fed. R. Evid.Serv. (Callaghan) 1153; 2004 AMC 2082
August 7, 2003, Argued
August 11, 2004, Decided

PROCEDURAL POSTURE: Appellant spouse of a deceased seaman sued appellee vessel owners and operators under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime law, alleging that the seaman's death from cancer was caused by exposure to hazardous chemicals while working aboard appellees' vessels. The spouse appealed the order of the United States District Court for the Southern District of New York which granted summary judgment to appellees.

OVERVIEW: Appellees' vessels transported petroleum-based fuels, but appellees asserted that, despite the unreliable conclusions of the spouse's expert, there was no evidence that any fumes on the vessels could or did cause the seaman's cancer. The spouse argued that appellees' failure to comply with their duty to protect the seaman from exposure to toxins shifted the burden to appellees to show that such exposure could not cause the cancer. The spouse also argued that her expert established that such exposure was the likely cause of the seaman's cancer and, in any event, the seaman was entitled to maintenance and cure. The appellate court held, however, that the spouse's failure to establish causation precluded her claims. The rule shifting the causation burden did not apply since it could not be said with confidence that the seaman's cancer resulted from appellees' actions. Further, expert testimony was required to establish causation and, even with the relaxed burden of proof under the Jones Act, the theory of causation of the spouse's expert was admittedly controversial, was contrary to generally accepted theory, and was not grounded in reliable scientific methods.

OUTCOME: The order granting summary judgment to appellees was affirmed.

PETITION OF RJF INTERNATIONAL CORPORATION FOR EXONERATION FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME

C.A. No. 01-588S
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
332 F. Supp. 2d 458; 2004 U.S. Dist. LEXIS 16146
August 10, 2004, Decided

PROCEDURAL POSTURE: Claimant was a young seaman who was injured on August 11, 2001 while working on petitioner vessel owner's vessel when it was docked in Newport, Rhode Island. Before the court was the vessel owner's motion to terminate maintenance and cure benefits. Intervenor-plaintiff was the United States.

OVERVIEW: The question presented was whether Medicare supplanted maintenance and cure as the payor of first resort when a seaman became Medicare eligible. The vessel owner contended that it no longer was obligated to provide the seaman with "cure" due to his entitlement to Medicare benefits. It attempted to bring Medicare under the umbrella of the general rule that, under the doctrine of maintenance and cure, a shipowner will not be required to pay for medical care that is furnished at no expense to the injured seaman. The dispute focused upon the period of time between the expiration of Medicare's 25 month waiting period (the point at which a seaman became eligible for Medicare), and the seaman's subsequent attainment of maximum medical recovery. This period of time would vary on a case-by-case basis, the court stated. The court concluded that, under the Medicare Secondary Payer (MSP) provisions and regulations promulgated thereunder, Medicare was barred from providing payments to eligible beneficiaries when a primary plan was obligated to cover the same medical expenses--in other words, Medicare had to be the secondary payor in those circumstances.

OUTCOME: The vessel owner's motion to terminate the seaman's maintenance and cure benefits because of his eligibility for Medicare was denied.

GENEVA MCCARTHY, Plaintiff, v. The F/T SEAFREEZE ALASKA, et al., Defendants.

Case No. C03-1189L
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2004 U.S. Dist. LEXIS 20375; 2004 AMC 2107
August 9, 2004, Decided

PROCEDURAL POSTURE: Plaintiff seaman sought partial summary judgment in connection with her claim for maintenance from defendant corporations. The corporations sought to strike a declaration of the seaman's attorney. The seaman requested $2,500 in attorneys fees for filing the motion.

OVERVIEW: On July 5, 2000, the seaman was injured on board a ship. On September 19, 2001, an orthopedic surgeon diagnosed her with a herniated nucleus pulposus with chronic neck, right shoulder, and arm pain. The seaman's treating physician opined that her cervical disk herniation was related to the seaman's injury. Between September 19, 2001, and April 30, 2003, the corporations paid for the costs for the seaman's treatment, but the seaman's requests for maintenance were denied. The corporations asserted that the seaman injured her back in an earlier car crash. A second surgeon concluded that it was not possible to state that her symptoms were attributable to the on-board injury. The court held that there was no fact issue that precluded a declaration of liability for maintenance. The second surgeon's failure to make a statement as to causation did not create a factual dispute. If the corporations truly believed that the seaman's symptoms after September 19, 2001, were not their responsibility, they presumably would have refused to pay cure. The seaman was entitled to attorney's fees because they ignored the seaman's request for maintenance for over a year without explanation.

OUTCOME: The court denied the corporations' motion to strike, granted the seaman's motion for maintenance, and granted in part the seaman's motion for attorney's fees. The court excluded $500 in fees for which there was no evidence in support.

LAWRENCE W. HALL, Appellant, vs. ROYAL CARIBBEAN CRUISES, LTD., Appellee.

CASE NO. 3D03-2132
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2004 Fla. App. LEXIS 10820; 2004 AMC 1913; 29 Fla. L. WeeklyD 1672
July 21, 2004, Opinion Filed

This is an appeal from an order dismissing an amended complaint which alleged that the plaintiff, a paying passenger on the defendant's cruise ship was injured on the high seas when, after having been served alcohol by the vessel's employees to and obviously past the point of intoxication, he staggered from a lounge, and while unable to look after himself fell down two flights of open stairways.

The order under review is erroneous and must be reversed because the complaint clearly stated a cause of action for breach of the defendant's duty to exercise reasonable care for the safety of its passengers, as is established by the general maritime law applicable here.

ROSE SCHLESSINGER et al., Plaintiffs and Appellants, v.HOLLAND AMERICA, N.V., Defendant and Respondent.

B166213
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,DIVISION SEVEN
2004 Cal. App. Unpub. LEXIS 5458
June 9, 2004, Filed

OPINION: Rose Schlessinger, Virginia Adams and Renee Ladenheirn sued Holland America N.V. (HAL) for damages caused by failure to warn and negligence after they became ill during a seven-day Alaskan cruise on a passenger ship operated by HAL. The trial court granted HAL's motion to dismiss the complaint based on a forum selection clause in the cruise ticket contract that required all disputes relating to the cruise to be litigated in courts[*2] located in the State of Washington. Schlessinger n1 appeals on the ground she had insufficient notice of the forum selection clause. We affirm.

NICHOLAS J. MUSACCHIA, JR. VERSUS HILTON NEW ORLEANSCORPORATION, NEW ORLEANS PADDLEWHEELS, INC., QUEEN OF NEW ORLEANS, INC., QUEENOF NEW ORLEANS AT THE HILTON JOINT VENTURE, NEW ORLEANS PADDLEWHEELS (TEXAS),INC., HILTON HOTELS CORPORATION AND HILTON HOTELS PARTNER I, INC.

NO. 2003-CA-1100
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2003-1100 (La.App. 4 Cir, 06/02/04);
2004 La. App. LEXIS 1524
June 2, 2004, Decided

PROCEDURAL POSTURE: Defendants, a casino gaming vessel and an individual, appealed a judgment from the Civil District Court, Orleans Parish (Louisiana), which, in a bench trial under general maritime law, awarded damages to plaintiff patron for personal injuries sustained aboard the vessel.

OVERVIEW: The elevator in the vessel was not operational when the patron visited. The patron, who used a wheelchair, received assistance from the vessel's employees in boarding and leaving the vessel. He was injured when he fell from his chair. The court affirmed the judgment in favor of the patron, concluding that the vessel owner was negligent in instructing its employees to carry wheelchair patrons up and down flights of stairs when safer means could have been used. The vessel owner breached its duty to provide a safe means of ingress and egress. Comparative negligence could not be imputed to the passenger because he allowed the vessel's employees to assist him in boarding or because he did not give them instructions in how to do so. Although it was probable that the individual defendant participated in the effort to carry the patron, his involvement was minimal; hence, the allocation of a small percentage of fault to him was not demonstrably wrong. Based on the medical testimony given, the injuries caused the patron to endure great pain and suffering. Accordingly, the court found that a substantial award of damages did not constitute a clear abuse of the trial court's discretion.

OUTCOME: The court affirmed the judgment in favor of the patron.

CHRISTINA TORREJON, INDIVIDUALLY AND AS PERSONALREPRESENTATIVE OF THE ESTATE OF JOSEPH TORREJON VERSUS MOBIL OIL COMPANY,INDIVIDUALLY AND AS SUCCESSOR TO SOCONY VACUUM OIL COMPANY AND SOCONY MOBIL OILCOMPANY; BABCOCK & WILCOX COMPANY; COMBUSTION ENGINEERING, INC.; THE FLINTKOTECOMPANY; FOSTER WHEELER CORPORATION ; GARLOCK INC.; ET AL.

NO. 2003-CA-1426
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2003-1426 (La.App. 4 Cir, 06/02/04);
2004 La. App. LEXIS 1517
June 2, 2004, Decided

PROCEDURAL POSTURE: Defendant employer appealed a judgment from the Civil District Court, Orleans Parish (Louisiana), which, in a maritime wrongful death case, granted a judgment notwithstanding the verdict (JNOV) in favor of plaintiff, the personal representative of a deceased employee's estate.

OVERVIEW: The employee died of mesothelioma. The parties stipulated that the disease was caused by asbestos exposure. The employer argued that the particular asbestos exposure that caused the mesothelioma could have occurred elsewhere. The jury found that the employer was negligent in exposing the employee to asbestos, but the jury also found a lack of causation. The court, in affirming the trial court's grant of JNOV to the estate, concluded that the jury's finding of lack of causation was completely absent of evidence, inferences, and pertinent law to support it. The court noted that a featherweight standard of causation was applicable in Jones Act cases. Although some manufacturers of asbestos had entered into a settlement agreement with the estate, the trial court did not err in finding that the employer was wholly liable, having failed to establish liability on the part of the settling manufacturers. The trial court acted within its discretion in clarifying its reasons for judgment to delete an improper reference to loss of society damages, which were not available in a Jones Act case; hence, the trial court did not err in denying the employer's motion for new trial.

OUTCOME: The court affirmed the judgment in favor of the estate.

GEORGE MICHAEL ORR VERSUS OTTO CANDIES, INC., ET AL.

04-60
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
04-60 (La.App. 3 Cir, 06/09/04); 2004 La. App. LEXIS 1477
June 9, 2004, Decided

PROCEDURAL POSTURE: Plaintiff merchant marine filed suit for damages after he sustained injury on defendant company's property. The Sixteenth Judicial District Court, Parish of Iberia, Louisiana, found in favor of the company and ruled that any fault for the fall was to be apportioned between the marine and his employer.

OVERVIEW: The merchant marine's ship docked at an unimproved portion of the landowner's property to take on water. When the captain approached the docking area, the landowner gave them permission to dock but advised them of the washouts, or holes in the landscape, and advised them to be careful. The merchant marine was injured when he left his employer's ship to disconnect a water hose and stepped into a "washout" on the landowner's property and sustained serious injuries. The trial court held that the landowner had fulfilled any duty that it had by informing the captain of the ship of the "washout" conditions where they docked. The appellate court affirmed. The appellate court held that given that this was an area where the landowner did not regularly conduct business, the landowner advised the ship's captain to be careful of the washout areas, and it was dark enough at the time that the merchant marine was injured that he could not see his steps, the landowner acted reasonably and fulfilled his duty.

OUTCOME: The judgment of the trial court was affirmed.

KENTRELL DORSEY VERSUS J. RAY MCDERMOTT, INC.

2003 CA 2264
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2003 2264 (La.App. 1 Cir, 06/25/04);
2004 La. App. LEXIS 1634
June 25, 2004, Judgment Rendered

PROCEDURAL POSTURE: In plaintiff claimant's suit against appellee employer for injuries sustained offshore, the 23rd Judicial District Court, in and for the Parish of Assumption (Louisiana), dismissed his unseaworthiness and Jones Act, 46 U.S.C.S. § 688, negligence claims, but ordered the employer to pay his maintenance and cure until he reached maximum medical cure. The trial court then entered a judgment establishing the amount of cure owed. Both parties appealed.

OVERVIEW: Much of the claimant's complaint was grounded in the allegation that the material barge was mis-rigged. Specifically, the claimant challenged the placement of the eye of the rope, or line, on the material barge rather than on the lay barge. However, the overwhelming evidence supported the conclusion that having the eye of the line on the material barge was not indicative of the line being mis-rigged. Additionally, handling lines was "manual work," and the fact that the claimant's duties as a rigger required physical straining did not equate to a negligent or unseaworthy condition. Furthermore, although the claimant maintained that his injury was caused by there being insufficient personnel on board and because his supervisors failed to recognize his need for assistance in lifting the polypropylene line from the water, the claimant admitted that he did not request assistance from anyone. Thus, the record clearly supported the trial court's conclusion that (1) the employer was not negligent in causing the claimant's injury and (2) the vessel was seaworthy. Therefore, the claimant was not entitled to damages under the Jones Act or the doctrine of unseaworthiness.

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

WENDY PETERSON, Plaintiff v. SCOTIA PRINCE CRUISES LIMITED,Defendant

Docket No. 03-174-P-H
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2004 U.S. Dist. LEXIS 9987
June 2, 2004, Decided

PROCEDURAL POSTURE: Plaintiff former passenger sued defendant ferry operator for assault and battery, negligent and intentional infliction of emotional distress, conversion, common law misrepresentation, and breach of a contract of carriage and absolute vicarious liability. The operator moved for summary judgment on those claims, and on any claim for punitive damages. The case was referred to a magistrate for a report and recommendation.

OVERVIEW: The passenger alleged that she was robbed and assaulted by a crewmember while travelling on the ferry. The allegations were investigated at the time the passenger reported the incident, and no arrest or other action was taken. The passenger's failure to file a response to the operator's statement of material facts or a statement of additional material facts in her own behalf meant that there was no evidence in the summary judgment record to support the necessary factual predicate for all of the counts at issue -- that she was assaulted by an employee of the operator. The passenger had not produced sufficient facts to establish the presence of a trial worthy issue. The operator could not be held liable for punitive damages unless the employee at issue was a managerial agent, the operator authorized or ratified the tortious behavior, the operator had reason to suspect or was aware of the misconduct before it took place, or the operator failed to take appropriate action after learning what had happened. The summary judgment record did not include any evidence that would have allowed a reasonable factfinder to conclude that any of these conditions were met.

OUTCOME: The magistrate recommended that the court grant the motion.

PATRICIA MACKLIN - DUCRE, ON BEHALF OF MONIKA MACKLIN, MINORVERSUS RENTAL SERVICE CORP., ET AL CIVIL ACTION NO: 03-3559 SECTION: "A" (3)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 10284
June 3, 2004, Decided
June 4, 2004, Filed
June 7, 2004, Entered

PROCEDURAL POSTURE: Plaintiff, on behalf of two minors, sued defendants, including the United States, the United States Department of the Navy, and a vessel, alleging that plaintiff's decedent was fatally injured during an accident on the vessel. The United States moved to dismiss the action or for summary judgment due to lack of subject matter jurisdiction.

OVERVIEW: The decedent allegedly was fatally injured while working onboard a vessel being built for the United States Department of the Navy. The complaint asserted that the court had jurisdiction over plaintiff's action pursuant to 28 U.S.C.S. § 1331(1); the Public Vessels Act, 46 U.S.C.S. app. §§ 781-790; the Suits in Admiralty Act, 46 U.S.C.S. app. §§ 741-752; 33 U.S.C.S. § 905(b); and 33 U.S.C.S. § 933(a) of the Longshore & Harbor Worker's Compensation Act. The United States moved to dismiss or for summary judgment on all claims against it, the Department of the Navy, and the vessel because the United States had not waived sovereign immunity from liability for such claims, and consequently, the court lacked subject matter jurisdiction over the federal defendants. The court agreed. The Public Vessels Act and the Suits in Admiralty Act applied only if the court had admiralty jurisdiction over the dispute. A ship under construction, even one that was nearly finished, was not a "vessel" for maritime jurisdiction purposes, and it was undisputed that the vessel the decedent was working on was not yet complete when the fatal accident occurred.

OUTCOME: The court granted the United States' motion.

WENDY PETERSON, Plaintiff v. SCOTIA PRINCE CRUISES LTD.,Defendant

Docket No. 03-174-P-H
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2004 U.S. Dist. LEXIS 10457
June 9, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed a personal injury action against defendant ferry carrier alleging that she was assaulted while she was a passenger on the ferry. Both parties filed motions in limine to exclude all or part of the testimony of an expert witness named by the opposing party.

OVERVIEW: The ferry sought to exclude all of the testimony from the passenger's expert, who was going to offer an opinion about the safety and security requirements for the ferry. The ferry contended that the expert's opinions were not reliable or helpful, in part, because they did not meet the Daubert standard. The court held that the ferry's emphasis on scientific principles and replicable experiments or studies was misplaced when the case involved an alleged assault and robbery. The court found that the passenger's designated expert could potentially assist the jurors with industry standards of safety and security. The passenger sought to exclude medical testimony from the ferry's expert who would testify that the passenger was not raped or assaulted and that her injuries could be explained by her intoxication. The court denied the passenger's motion to exclude the testimony because there was no showing that the opinions would mislead the jury or cause the passenger undue prejudice. The physician provided evidence that he was qualified, and the physician had demonstrated his methodology and the reliability of the opinion. The opinions were not speculative or conjectural.

OUTCOME: The court denied both parties' motions in limine to exclude testimony from the opposing parties' designated expert.

DELMA J. DAIGLE VERSUS L & L MARINE TRANS. CO.

CIVIL ACTION NO. 02-2325 SECTION "L"(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 10958
June 14, 2004, Decided
June 14, 2004, Filed
June 15, 2004, Entered

PROCEDURAL POSTURE: Plaintiff, a former ship employee, sued defendants, a ship owner and its insurer, under, inter alia, the Jones Act, 46 U.S.C.S. app. § 688 et seq., and general maritime law for damages he sustained when a captain's chair collapsed under him. The owner filed a third-party complaint against third-party defendants, the captain's chair pedestal's seller and its manufacturer. A bench trial ensued.

OVERVIEW: The seller claimed that it was not strictly liable for the faulty chair pedestal because it was merely a middle-man seller. The court initially held that the owner was liable to the employee under the Jones Act because it had actual or constructive notice, through its employees, of the unsafe condition of the ship's captain's chair and failed to correct the unsafe condition, and that the owner was not entitled to limit its liability to the amount of the vessel because it failed to prove lack of privity and knowledge of the unsafe condition. The court further held that the employee established his unseaworthiness claim against the owner because the captain's chair collapsed when put to its normal and intended use causing injuries to the employee, but that the owner was entitled to indemnity from the seller and the manufacturer. The court then held that the seller was liable for the majority of the employee's damages because it failed to warn of the dangers involved in adjusting the leveling mounts on the pedestal, and that the manufacturer was comparatively liable for the employee's damages due to its expertise concerning metals and construction.

OUTCOME: The employee was entitled to joint and several recovery for his damages and pre- and post-judgment interest from the owner, its insurer, the seller, and the manufacturer.

MARTHA A. DOWNS CALLASSO, as Personal Representative of theEstate of William Seaman Smith, Plaintiff, vs. MORTON & CO., NICARAGUA LINECO., and ARIANE SHIPPING CORP., LTD., Defendants.

Case No. 03-21136-CIV-MOORE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2004 U.S. Dist. LEXIS 11205
June 15, 2004, Decided
June 15, 2004, Filed

PROCEDURAL POSTURE: Plaintiff, a personal representative of a decedent, sued defendants, a vessel owner, the vessel's technical manager, and a charter corporation, alleging wrongful death under the Jones Act, 46 U.S.C.S. app. § 688 et seq., unseaworthiness based on general maritime law, and for negligence and unseaworthiness under the Death on High Seas Act, 46 U.S.C.S. app. § 761 et seq. The owner and manager moved to dismiss based on forum non conveniens.

OVERVIEW: The owner and manager claimed that the representative was collaterally estopped from challenging a previous state court order dismissing the representative's claims based upon forum non conveniens. The court initially held that the representative was barred by the doctrine of collateral estoppel from challenging the legal and factual findings of the state court order. The court then held that the owner and manager did not have sufficient contacts with the United States (U.S.) because the decedent's fatal accident occurred on the vessel docked in Nicaragua, the vessel was an Antiguan flagged ship, neither the decedent nor the representative were U.S. citizens, the owner was not registered to do business in the forum, the place of contract was Nicaragua, and Nicaragua was an accessible forum. The court further held that the representative failed to show that Nicaragua was an inadequate forum because the owner and manager consented to jurisdiction of the Nicaraguan courts, satisfactory remedies were available to the representative, the private and public interest factors weighed in favor of a Nicaraguan forum, and Nicaraguan law would most likely have to be applied to decide the case.

OUTCOME: The motion to dismiss under the doctrine of forum non conveniens was granted. The motion to dismiss under the doctrines of abstention and res judicata was denied as moot.

DAMON L. RENFROW, Plaintiff, v. SILVER SPRAY SEAFOODS,L.L.C., Defendant.

Civil No. 03-6039-TC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2004 U.S. Dist. LEXIS 11947
June 17, 2004, Decided
June 17, 2004, Filed

OVERVIEW: Defendant, in a motion for summary judgment, asserted the affirmative defense of limitation of liability pursuant to the Limitation of Liability Act. The court found that the defense was timely raised, but ruled that the defense would be considered, if necessary, after the jury had considered the merits of plaintiff's claims and determined damages. Order of October 15, 2003 (# 22). The jury having reached a verdict for plaintiff, and having awarded damages in excess of the value of the vessel on which he served and its cargo at the time of his injury, n1 it is now the court's obligation to consider whether the limitation of liability defense should be applied.

JOHN MULLETT v. SABINE TRANSPORTATION CO., Owner and/or Operator of SS SAG RIVER

CIVIL NO. 02-12014-RGS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2004 U.S. Dist. LEXIS 11262
June 21, 2004, Decided

PROCEDURAL POSTURE: Plaintiff merchant seaman sued defendant employer, the operator of a cargo vessel, for Jones Act negligence, unseaworthiness, and maintenance and cure. The employer moved for summary judgment asserting that the seaman could not prove that a defect or condition of the ship played a part in his accident, that his claim for maintenance and cure was satisfied, and that the foundation of the Jones Act claim rested solely on conjecture.

OVERVIEW: The seaman was injured when, just as he was trying to put the eye of a mooring line over a bollard, the Bulgarian crew members let go of the line, causing it to jerk the seaman's arm that was, at that moment, through the eye. The seaman's account, which began with the line being held fast by the Bulgarians and ended with the line suddenly in free play, was sufficient to warrant a jury, if it credited his testimony, in finding negligence on the part of the Bulgarian crew members. If the jury also found that letting go the line caused the seaman's injury, the employer was liable. The employer argued that by claiming that the accident was caused by human error, the seaman admitted that no physical condition caused his injury, and thus, no basis existed for a claim for unseaworthiness. While the evidence depended largely on the seaman's opinion of the seamanship of the Bulgarians, if the seaman persuaded the jury that the employer had employed an inexperienced crew who could not understand the operating language of the ship, it could also have found that the employer was responsible for a defect in the ship wholly apart from the momentary negligence that resulted in his injury.

OUTCOME: The court denied the employer's motion for summary judgment on the Jones Act negligence claim and the claim for unseaworthiness; the claim for maintenance and cure was deemed waived.

NOOR BEGUM KARIM, Etc.; ET AL., Plaintiffs, FAZAL KARIM,Plaintiff-Appellee, versus FINCH SHIPPING COMPANY LTD.; ET AL., Defendants, andTHE LAW OFFICE OF PAUL C. MINICLIER, Appellant. In Re: In the Matter of FINCHSHIPPING COMPANY LTD., Owner and Operator of the M/V Loussio for Exonerationfrom or Limitation of Liability; NOOR BEGUM KARIM, Etc.; ET AL., Claimants,FAZAL KARIM, Claimant-Appellee, versus THE LAW OFFICE OF PAUL C. MINICLIER,Appellant.

No. 03-30069
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2004 U.S. App. LEXIS 11815
June 16, 2004, Filed

PROCEDURAL POSTURE: Appellant, the attorney who represented appellee seaman pursuant to a contingency fee agreement, sought review of an order of the United States District Court for the Eastern District of Louisiana, asserting that the court erred when it modified the terms of the contingent fee agreement to be more beneficial to the seaman, who was absent from the jurisdiction. The ultimate issue was whether the district court abused its discretion.

OVERVIEW: The seaman, a Bangladeshi national, was injured at sea and taken to New Orleans to recuperate. The attorney advanced many of the seaman's expenses, for which he had been reimbursed. When the vessel owner eventually paid the judgment in favor of the seaman, he had long since been deported. Rather than pay the judgment to the attorney, as the attorney demanded, the owner paid the judgment into the court, which exercised its protective role for the seaman, as a ward of the court. It modified the fee agreement from the contract terms, whereby the attorney would have received 40 percent of the gross judgment, which would have left the seaman with no recovery. The attorney appealed, arguing the district court lacked jurisdiction and lacked the legal authority to alter the fee agreement. The court of appeals affirmed. The district court, sitting in admiralty, had the equitable power to reform the contingent fee agreement, particularly to the benefit of an absent seaman, and was not limited to paying out the funds. The fact that the court applied Louisiana and Bangladeshi law in the case did not alter the admiralty jurisdiction. There was no abuse of discretion by the district court.

OUTCOME: The judgment of the district court was affirmed.

Amerada Hess Corporation, et al., Third-PartyPlaintiffs-Appellants, v. G. Marine Diesel Corp., Third-PartyDefendant-Respondent, FCE Industries Ltd. (Inc.), Third-Party Defendant.

2598
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2004 N.Y. App. Div. LEXIS 6500
May 4, 2004, Decided
May 4, 2004, Entered

PROCEDURAL POSTURE: Defendants, a barge owner and its operator, appealed a judgment of the Supreme Court, New York County (New York), which after a jury trial, awarded plaintiff administratrix over $7 million in damages in her suit, filed individually and as administratrix of a decedent's estate, to recover damages for a fatal injury decedent incurred while working as a rigger on defendants' barge.

OVERVIEW: The administratrix filed a suit against defendants, seeking to recover for the fatal injury decedent incurred while working as a rigger on defendant's barge. Defendants filed a third-party action against decedent's employer. After claims based on the Jones Act and N.Y. Lab. Law § 240 were dismissed because the decedent did not qualify as a seaman and federal maritime law preempted state law, the jury awarded damages after finding the barge unseaworthy and defendants negligent. On appeal, the court reversed and remanded for a new trial, first finding that the trial court erred when it submitted the issue of seaworthiness to the jury. The court found that because decedent was covered under the Longshore and Harbor Workers' Compensation Act and received federal workers' compensation benefits from his employer, the administratrix was limited to a claim of negligence against defendants; therefore the issue of seaworthiness should not have been presented to the jury. The court then found that the trial court erred in its instructions on negligence because it improperly placed primary responsibility for safety on the vessel owner and its agents, rather than on decedent's employer.

OUTCOME: The court reversed and vacated the judgment to the extent that it awarded the administrator damages and remanded the matter for a new trial.

WILLARD E. BARTEL and DAVID C. PEEBLES, ADMINISTRATORS ofthe ESTATE of ROLF L. LINDSTROM, Plaintiffs, v. JOHN CRANE, INC., Defendant.

CASE NO. 1:98 CV 13222
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
2004 U.S. Dist. LEXIS 8132
May 3, 2004, Filed

PROCEDURAL POSTURE: Plaintiffs, administrators of the estate of a deceased merchant seaman, sued defendant corporation and asserted claims for negligence under the Jones Act, 46 U.S.C.S. app. § 688 et seq., the general admiralty and maritime law, and traditional product liability law. After the seaman's death, the complaint was amended to include wrongful death and survival claims. The parties consented to the case being tried before the court.

OVERVIEW: The seaman claimed that his exposure to the corporation's asbestos-containing products was a substantial factor in causing his peritoneal mesothelioma. After the seaman's death, the administrators were substituted as plaintiffs in the suit against the corporation. The court found that the administrators had not met their burden of proving that the corporation's gaskets or packing was a substantial factor or a proximate cause in the seaman's peritoneal mesothelioma because the seaman was exposed to lots of other asbestos-containing material on board ship during his 30-year career, the corporation's gaskets and packing contained only chrysotile asbestos, and it was generally accepted that it took a far greater exposure to chrysotile fibers than to amphibole fibers to cause mesothelioma, and the chrysotile asbestos in the corporation's packing and gaskets was at least partially encapsulated. Moreover, there was no evidence that the corporation did not take reasonable care in designing or manufacturing its products, and the corporation had no duty to warn, because there was no information available suggesting there was any condition that required a warning.

OUTCOME: The court entered a verdict in favor of the corporation.

ROGER PERALTA VERSUS AMERICAN CONTINENTAL LINE, LLC, et al

CIVIL ACTION NO. 03-2497 SECTION "N" (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 8103
May 6, 2004, Decided
May 6, 2004, Filed; May 7, 2004, Entered

PROCEDURAL POSTURE: Plaintiff seaman brought suit against defendant tugboat owner and alleged barge owner, seeking recovery for personal injury, alleging claims of negligence under the Jones Act and unseaworthiness under general maritime law. The tugboat owner moved for summary judgment, pursuant to Fed. R. Civ. P. 56.

OVERVIEW: The seaman fell on a barge attached to the tugboat and was injured. The seaman brought a negligence action against the tugboat owner, and in its motion for summary judgment, the tugboat owner claimed that the seaman was solely responsible for his fall and resulting injuries. However, the court found that the tugboat owner failed to defeat the negligence claim by only making conclusory statements regarding its purported lack of a duty. While the tugboat owner alleged that it did not have a duty to warn of open and obvious conditions, the tugboat owner failed to prove its absence of a duty. Thus, there was a genuine material fact as to whether the tugboat owner exercised reasonable care under the circumstances surrounding the seaman's injury. Next, the seaman challenged the seaworthiness of the barge, and the tugboat owner sought summary judgment on the ground that it did not own or possess an interest in the barge. Regardless, the tugboat owner failed to offer any evidence, by way of affidavit, contract with the alleged barge owner or any other material, to support its assertion. Therefore, the tugboat owner was not granted summary judgment as to liability of unseaworthiness.

OUTCOME: The tugboat owner's motion for summary judgment was granted insofar as it sought dismissal of any claim for unseaworthiness of the tugboat. The motion was denied in all other respects.

JERRY STOGNER VERSUS CENTRAL BOAT RENTALS, INC. ET AL

CIVIL ACTION NO: 03-2119 SECTION: "J"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 8503
May 11, 2004, Decided
May 11, 2004, Filed, Entered

PROCEDURAL POSTURE: Plaintiff seaman filed an action against defendants, an employer and the owner of a mud barge, under the Jones Act, 46 U.S.C.S. § 761. The seaman later added defendant third-party non-employer to the action and added a cause of action against the non-employer for punitive damages under general maritime law. The court granted the non-employer's motion to dismiss the punitive damages claim, and the seaman filed a motion for reconsideration.

OVERVIEW: The seaman was injured while working offshore between a rig and a mud barge. The seaman sought relief in an action against defendants. The action included a punitive damages claim against the non-employer, who had "company men" aboard the barge participating in the operation conducted at the time of the seaman's injury. After the seaman failed to respond to the non-employer's motion to dismiss the punitive damages claim, the court granted the motion as unopposed. The next day, the seaman sought a reconsideration of the decision. The court held that punitive or nonpecuniary damages could be recovered in a general maritime law negligence action against non-employers. The court also implicitly held that the seaman's punitive damages claim against the non-employer was viable where his claims against the non-employer were governed solely by the general maritime law and did not arise from any federal maritime statutes.

OUTCOME: The court granted the seaman's motion for reconsideration and reinstated the seaman's claim for punitive damages.

PAUL WUESTEWALD, Plaintiff(s), v. FOSS MARITIME COMPANY,SHORE TERMINALS LLC, Defendant(s).

Case No. C02-03002 BZ
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 9521
May 11, 2004, Decided
May 11, 2004, Filed, Entered in Civil Docket

PROCEDURAL POSTURE: Plaintiff tankerman sued defendants, his employer and the owner of a dock, seeking damages under general maritime law and the Jones Act, 46 U.S.C.S. § 688, for injuries the tankerman sustained after he fell from a ladder while attempting to access a barge owned and operated by his employer, from the dock owner's dock.

OVERVIEW: The tide on the evening of the tankerman's injury was extremely low. Consistent with his customary practice of accessing the dock, the tankerman braced the bottom of an aluminum ladder inside the side of the coaming facing the dock and leaned the ladder against the dock. The court held that there was no suitable place against which to brace the ladder or to tie off the ladder at either end. When he placed his right foot on the rung the ladder slipped from the bottom, causing him to fall approximately nine to 12 feet to the deck of the barge. The employer was aware of the customary use of ladders to access the docks, but never investigated conditions affecting dock accessibility or verified the feasibility of following its own ladder safety guidelines. The court declined to fault the tankerman for failing to employ many of the employer's suggested alternatives, the majority of which were not included in the employer's safety manual. The employer was negligent by failing to provide the tankerman with a safe means of access to and from the dock. The dock owner, however, did not have a duty to assist the tankerman or provide a safe means for accessing its dock from the barge.

OUTCOME: Having concluded that the employer was negligent and failed to provide a seaworthy vessel, the court awarded the tankerman damages. The tankerman's claim against the dock was dismissed.

BANUEL ROSALES VERSUS BOUCHARD COASTWISE MANAGEMENT CORP.

CIVIL ACTION No. 03-2978 SECTION "K"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 9172
May 18, 2004, Decided
May 19, 2004, Filed; May 20, 2004, Entered

PROCEDURAL POSTURE: Plaintiff seaman filed a motion to strike the jury in connection with the seaman's suit against defendant ship owner under the Jones Act, 46 U.S.C.S. app. § 688, and General Maritime Law.

OVERVIEW: The seaman was injured when he slipped and fell while working aboard the owner's vessel. The owner requested a trial by jury. The court held that the seaman's simple statement in its initial complaint that he asserted jurisdiction based on the Jones Act and the general maritime law was adequate to designate his claim as one in admiralty. Because the seaman exercised his prerogative in electing to proceed in admiralty initially, Fed. R. Civ. P. 39(a) did not apply. Since the seaman did not invoke the court's diversity jurisdiction, and instead based his claim upon admiralty jurisdiction from the outset of the litigation, the owner had no right to a trial by jury.

OUTCOME: The court granted the seaman's motion to strike the jury.

DERIC COAKLEY VERSUS SEARIVER MARITIME, INC.

CIVIL ACTION NO. 02-3509 SECTION "F"
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 9980
May 25, 2004, Decided
May 25, 2004, Filed; May 26, 2004, Entered

PROCEDURAL POSTURE: Plaintiff employee brought an action against defendant employer and asserted claims for Jones Act negligence and breach of the warranty of seaworthiness. The court had previously denied the employer's motion for summary judgment on the unseaworthiness claim. The matter was before the court again after the parties submitted their trial briefs.

OVERVIEW: The employee worked for the employer on a tug. At the time of the accident, the tug had several barges under tow. The employee went to fix the sounder on the front of an unmanned barged, which was owned by another company and pulled by agreement with the employer, and the employee injured himself. He brought this action, alleging negligence and unseaworthiness. The court had denied the employer's summary judgment motion with respect to the unseaworthiness claim, but the court rescinded that order and granted the employer partial judgment as a matter of law on the issue. There was no question that the employee was a seaman with regard to the tug. However, the barge being towed by the tug was unmanned. The employee was required to establish that he was a seaman on the vessel on which he sustained the injury. The employee's work on the barge while in service of the tug did not meet that standard. The employee was not a seaman as to all barges that could be towed by the employer under its towing agreement with the company, because the group of vessels was not a finite group. The agreement was not considered a demise charter, and thus the employer did not own the barge in question.

OUTCOME: The court recalled and rescinded its previous order and entered partial summary judgment as a matter of law on the issue of unseaworthiness in favor of the employer. That claim was thus dismissed.

VINOD KUMAR DAHIYA, Plaintiff-Appellee, versus TALMIDGEINTERNATIONAL, LTD., NEPTUNE SHIPMANAGEMENT SERVICES (PTE) LTD., AMERICAN EAGLETANKERS, INC., LTD., AMERICAN EAGLE TANKERS AGENCIES, INC., BRITANNIA STEAM SHIP INSURANCE ASSOCIATION, LTD., Defendants-Appellants.

No. 02-31068
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2004 U.S. App. LEXIS 9680
May 18, 2004, Filed

PROCEDURAL POSTURE: Appellants, an employer, a shipowner, co-owners of the fleet, and the ship's insurer, sought review of a decision of the United States District Court for the Eastern District of Louisiana, New Orleans, which remanded the claim filed by appellee employee to the state court where it was originally filed and denied appellants' motions to stay the proceedings and compel arbitration.

OVERVIEW: The employee, a native of India, filed a maritime personal injury action in a Louisiana state court against appellants. Appellants did not file a notice of removal within the 30-day time limit allowed under 28 U.S.C.S. § 1446, but argued that removal was still proper under 9 U.S.C.S. § 205, which allowed for removal at any time before trial. Appellants stated that the matter was governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Sept. 1, 1970, 21 U.S.T. 2517, T.I.A.S. 6997, art. I et seq., (Convention). The district court rejected the argument, remanded the matter, and denied appellants' motions to stay pending arbitration. Affirming, the court held that the remand, whether or not it was appropriate, deprived the court of appellate jurisdiction, pursuant to 28 U.S.C.S. § 1447, and the court could not consider whether or not the stay and arbitration proceedings invoked under the Convention were applicable to the case. The limited exceptions that would have allowed review of the remand order did not apply because the orders did not have a preclusive effect and the matter could proceed in state court.

OUTCOME: The court dismissed the appeal.

STAVROS ANDROUTSAKOS, as Guardian Ad Litem for EliasAndroutsakos, an incapacitated person, Plaintiff, vs. M/V PSARA, her engines,tackle, apparel and equipment, CHEVRON USA, INC., a Pennsylvania Corporation,PSARA SHIPPING CORPORATION, a Liberian Corporation, Defendants.

Case No. 02-1173-KI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2004 U.S. Dist. LEXIS 8214
April 29, 2004, Decided

PROCEDURAL POSTURE: Defendant, a Liberian shipping company, filed a motion for application of Greek law and for dismissal of plaintiff's tort action. Plaintiff moved for application of U.S. law.

OVERVIEW: Plaintiff, a Greek citizen, sustained injuries after he was struck in the head by a mooring line on the deck of a ship owned by the company. The ship was docked at a U.S. port. The ship sailed under the flag of Greece and the company's board of directors was made up of Greek citizens. Plaintiff, through his guardian, brought a tort action against the company and defendant domestic corporation. In granting plaintiff's motion to apply U.S. law, the court held that the presence of the domestic corporation in the action as an alleged joint tortfeasor had to be considered in applying the appropriate factors to the choice of law analysis. The court held that the location of the injury pointed toward the application of U.S. law and was an important consideration. However, the court also held that the law of the flag and the domicile of plaintiff indisputably pointed to the application of Greek law. The court concluded that, due to the presence of the domestic corporation, to which there was no real argument that U.S. law applied, applying two different maritime laws would have been unworkable.

OUTCOME: The court denied the company's motion for application of Greek law and for dismissal. The court granted the guardian's motion for application of U.S. law.

DAFYDD HOFFMAN, ET AL., Plaintiffs, ANDREW MARIANO,Plaintiff - Appellant, v. HALCOT SHIPPING CORP., ET AL., Defendants, HALCOTSHIPPING CORP.; ZODIAC MARITIME AGENCIES, LTD., Defendants-Appellees.

No. 03-30301
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
93 Fed. Appx. 658; 2004 U.S. App. LEXIS 6241
April 1, 2004, Filed

PROCEDURAL POSTURE: Appellant boat operator sued appellee shipping company to recover for injuries sustained in an accident involving the shipping company's oceangoing tanker. The United States District Court for the Eastern District of Louisiana found the shipping company at fault, but reduced the award in half due to the employer's fault and denied recovery of medical expenses that were paid under the employer's health plan. The boat operator sought review.

OVERVIEW: At the time of the incident only one other boat operator and one deck hand were working for the employer's water taxi service. The boat operator was injured when he attempted to untie a vessel by himself in response to an emergency call. On appeal, the court reversed the 50 percent reduction of the award based on the employer's fault. A vessel owner did not owe a duty to maintain a standby crew for all of its available vessels. However, the court upheld the district court's refusal to permit the boat operator to recover medical expenses already paid by his employer's insurer. Although the collateral source rule prohibited reduction of a tort recovery by the amount of such benefits, there was an exception where an insurer had the right to subrogate against the tortfeasor who injured the plaintiff. This exception applied even if the subrogated party did not appear to assert its subrogation rights. The shipping company introduced evidence of the subrogation right by introducing the plan summary. Thus, the subrogation exception to the collateral source rule was properly applied to prevent the boat operator from recovering medical expenses paid by his employer's insurer.

OUTCOME: The court affirmed that part of the district court's judgment denying the boat operator recovery of medical expenses paid by his employer's insurer. The court reversed the district court's judgment insofar as it reduced the boat operator's recovery based on his employer's fault. The court vacated this part of the judgment and remanded the case for entry of judgment reflecting this change.

JOHN HOWARD, et al., Plaintiffs-Appellees, v. SOUTHERNILLINOIS RIVERBOAT CASINO CRUISES, INC., doing business as PLAYERS ISLANDCASINO, Defendant, Third-Party Plaintiff-Appellant, v. TRIANGLE ENTERPRISES,INC., doing business as TRIANGLE INSULATION AND SHEET METAL COMPANY, Third-PartyDefendant-Appellant.

Nos. 02-3818 & 02-3819
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
364 F.3d 854; 2004 U.S. App. LEXIS 6919

PROCEDURAL POSTURE: Defendant casino owner and third party defendant insulation company appealed an order from the United States District Court for the Southern District of Illinois, which denied their motions for summary judgment on plaintiff workers' negligence action under the Jones Act, 46 U.S.C.S. app. § 688 (a), and which certified for interlocutory review the question of whether the Act applied to workers on a permanently moored riverboat casino.

OVERVIEW: Workers on a permanently moored riverboat casino were exposed to chemicals in the course of their employment and sued the owner under the Act. The owner filed a third party claim against the company, and both defendants filed motions for summary judgment, which were denied. On interlocutory review, the court held although the riverboat was capable of cruising on the river, was licensed as a passenger vessel with the U.S. Coast Guard, and left its moorings once a year for Coast Guard mandated propulsion tests, the riverboat did not in fact transport passengers, was connected to land-based utilities, and maintained its status as vessel merely to comply with state gambling regulations. Therefore, using a pragmatic approach, the court held that the riverboat was not a vessel in navigation and, consequently, the workers were not seamen under the Act and could not bring claims under the Act.

OUTCOME: The court reversed the order and remanded the case with instructions to enter judgment in favor of defendant and third party defendant.

DOUGLAS SPECTOR, ANA SPECTOR, JULIA HOLLENBECK, DAVID KILLOUGH, and RODGER PETERS, Appellants v. NORWEGIAN CRUISE LINE LTD. D/B/ANORWEGIAN CRUISE LINE, Appellee

NO. 01-02-00017-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2004 Tex. App. LEXIS 2941
March 30, 2004, Opinion Issued

PROCEDURAL POSTURE: Appellant consumers sought review of an order from the 270th District Court, Harris County (Texas), which denied class certification in the consumers' lawsuit against appellee cruise line for contract breach, fraud or fraudulent inducement, unjust enrichment, negligent misrepresentation, deceptive trade practices, and disability discrimination.

OVERVIEW: The consumers alleged that the cruise line falsely represented that its vessels or related port excursions were accessible to mobility-impaired passengers and that those passengers would have assistance on and off the ship. The court, in affirming the denial of certification, concluded that the consumers had failed to preserve a spoliation argument for review. The trial court did not abuse its discretion or act improperly by ruling without reviewing sealed volumes of documents that it had been told related to the issue of numerosity, which was not seriously contested. The denial of class certification was proper because the consumers did not show that common issues predominated, as required by former Tex. R. Civ. P. 42(b)(4) (renumbered as Tex. R. Civ. P. 42(b)(3)). As to the claim of deceptive practices, the trial court reasonably could have determined that individual reliance inquiries under Tex. Bus. & Com. Code Ann. § 17.50(a)(1)(A), (B) (2002) would predominate over common ones. Determination of oral contract terms also required individual inquiries, as did unjust enrichment allegations. Tex. Hum. Res. Code Ann. ch. 121 applied only to vessels that sailed in Texas waters.

OUTCOME: The court affirmed the trial court's order denying class certification.

EUGENE BURNS, Appellant, v. RADISSON SEVEN SEAS CRUISES,INC., SERVICES ET TRANSPORTS TAHITI, COPROPRIETE DU NAVIRE PAUL GAUGUIN, THECRUISE STATION, and DIMENSIONS IN TRAVEL, INC., Appellees.

CASE NO. 4D03-1333
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
867 So. 2d 1191; 2004 Fla. App. LEXIS 2710; 29 Fla. L.Weekly D 544
March 3, 2004, Opinion Filed

PROCEDURAL POSTURE: Plaintiff passenger appealed an order by the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), that dismissed his complaint against defendant cruise line for improper venue; the passenger claimed that the venue was inconvenient and unreasonable.

OVERVIEW: The passenger contracted to act as radio host for seven days on a Tahitian cruise ship. He was subsequently injured in a slip and fall while on board. The cruise ticket contained a forum selection clause providing that United States citizens had to bring suit, for any incidents arising on board a cruise ship that did not touch a United States port, in Paris, France. The appellate court held that the ship both departed and returned from a foreign locale, never making contact with any ports or waters of the United States. Therefore, it was reasonable that the cruise line selected France as a neutral location in order to dispel confusion as to where passengers from a variety of countries could bring a lawsuit. The forum selection clause was valid. The passenger failed to meet his burden of proving that the venue was improper.

OUTCOME: The order was affirmed.

OSAY DUPLESSIS versus DAYBROOK FISHERIES, INC.

CIVIL ACTION No. 03-1901 SECTION: I/1
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 3259
March 2, 2004, Decided
March 3, 2004, Filed; March 4, 2004, Entered

PROCEDURAL POSTURE: Plaintiff bailer who unloaded fishing vessels sued defendant employer which operated a fishing business and processing plant, alleging that the employer was liable under the Jones Act and general maritime law for the bailer's injuries from a fall on one of the employer's vessels. The employer moved for summary judgment on the ground that the bailer was not a seaman entitled to protection under maritime law.

OVERVIEW: The bailer contended that maritime law applied to render the employer liable for the bailer's injuries suffered in a fall from a ladder while aboard the employer's vessel. The employer argued that the bailer was not a seaman for maritime purposes since he was a land-based employee who was only aboard vessels when they were docked. The court held that the bailer, whose duties involved only unloading fish from vessels using land-based equipment when the vessels were docked, was not a seaman for purposes of maritime law. The bailer was not involved in fishing operations and did not go to sea, and thus the bailer did not contribute to the primary fishing function of the vessels and had no substantial connection to the vessels in terms of duration and nature.

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

GWEN WARD VERSUS BOYD GAMING CORPORATION IN PERSONAM and TheM/V TREASURE CHEST, her engine, Tackle, etc. IN REM

CIVIL ACTION NO. 04-0060 SECTION "K" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 3509
March 4, 2004, Decided
March 4, 2004, Filed; March 5, 2004, Entered

PROCEDURAL POSTURE: Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) plaintiff's personal injury action in which plaintiff asserted that she seriously injured her right leg on the job, attributing defendant's negligence and the vessel's unseaworthiness as the cause of the accident. Plaintiff brought her action under the Jones Act, 46 U.S.C.S. § 688, and General Maritime Law, pursuant to Fed. R. Civ. P. 9(h).

OVERVIEW: The boat upon which plaintiff worked was a paddlewheel-driven riverboat casino. The court noted that the Jones Act provided that "any seaman " who sustained personal injury in the course of his employment could maintain an action for damages at law, with the right to trial by jury. Plaintiff alleged that at the time of her injury, the boat was a vessel in navigation and as such, she was a member of the crew, entitling her to seaman status under the Jones Act, and general maritime law. The court disagreed. It held that the federal courts had consistently held that indefinitely or permanently moored riverboat casinos were not Jones Act vessels. Therefore, Jones Act seaman status did not apply to plaintiff. Plaintiff next asserted that if she was not a seaman, then she still had a general maritime law cause of action because the casino was floating in navigable waters at the time of her injury and thus was within the admiralty jurisdiction. The court found that plaintiff had failed to establish a sufficient maritime nexus due to a lack of potential impact on maritime commerce. Her claims were not within the court's admiralty jurisdiction and, therefore, had to be dismissed.

OUTCOME: The court granted defendant's motion and dismissed plaintiff's claims with prejudice.

KATHLEEN HUNTLEY, Plaintiff, v. CARNIVAL CORPORATION, aforeign corporation, d/b/a CARNIVAL CRUISE LINES, and DR. GREGORY M. McNAMARA,M.D., Defendants.

CASE NO. 03-21925-CIV-KING
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA, MIAMI DIVISION
307 F. Supp. 2d 1372; 2004 U.S. Dist. LEXIS 4195; 17 Fla. L.Weekly Fed. D 415
March 12, 2004, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed an action against defendants, a cruise ship corporation and a cruise ship doctor, to recover damages after she suffered injuries during a fall on a cruise ship. Her complaint contained five negligence-based counts. Pursuant to Fed. R. Civ. P. 12(b)(6), the corporation moved to dismiss the counts of the complaint that alleged medical negligence and vicarious liability for the doctor's alleged medical malpractice.

OVERVIEW: The passenger claimed that she slipped while in the ship's casino bar and that the doctor, who was employed by the corporation, committed medical malpractice while treating her. The corporation moved to dismiss the passenger's two medical malpractice based claims, asserting that under the majority legal rule articulated by the United States Court of Appeals for the Fifth Circuit, it could not be held vicariously liable for the alleged negligence of the ship's doctor. The court denied the motion after concluding that the passenger might be able to establish a set of facts entitling her to relief. The court had already recognized the possibility of a cruise line's vicarious liability for a ship doctor's actions based upon apparent agency grounds. The Third District Court of Appeal of Florida had rejected the majority rule and had embraced the minority view, which held that a shipowner might be held vicariously liable where a ship's physician was in the regular employment of a ship, as a salaried member of the crew, subject to the ship's discipline and the master's orders, and presumably also under the direction and supervision of the company's chief surgeon.

OUTCOME: The court denied the corporation's motion to dismiss. It ordered the corporation to file an answer to the passenger's complaint within 20 days of the court's order.

SERGE VOILLAT and SIMONE VOILLAT, individually and assuccessors-in-interest to LIONEL VOILLAT, Plaintiffs, v. RED AND WHITE FLEET,FISHERMAN'S WHARF BAY CRUISE CORPORATION d/b/a RED AND WHITE FLEET, GOLDEN GATESCENIC STEAMSHIP CORPORATION, LON RICHARDS, LOU'S BLUE SNAX, INC., JOHNNY BRETTand KEITH O'REILLY, both individually and d/b/a "OBLIVION," "OBLIVIONSF," and/or"OBLIVIONSF.COM," SPECIALIZED SECURITY ENTERPRISES, WILLIAM O. MONAGHAN, andDOES 1-50, inclusive, Defendants.

No. C 03-3016 MHP
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 4359
March 18, 2004, Decided

PROCEDURAL POSTURE: Defendants, a cruise ship passenger, cruise ship owners, corporations, and individuals, moved to dismiss plaintiff parents' survival and dram shop liability claims for failure to state a claim, or, in the alternative, to strike portions of the parents' prayer for relief in a wrongful death and survival action.

OVERVIEW: After their son was killed when he was thrown overboard from a cruise ship by another passenger, the parents brought a wrongful death and survival action against defendants. Defendants moved to dismiss the survival and dram shop liability claims for failure to state a claim, or, in the alternative, to strike portions of the parents' prayer for relief. The court found that the parents properly stated a claim for relief under a general maritime survival action. The court further found, however, that California's anti-dram shop provision, Cal. Bus. & Prof. Code § 25602(b), precluded the parents' dram shop claim. Under California law, the parents failed to state a claim for relief under their claim for improper service of alcohol. Finally, the court found that while the parents were entitled to punitive damages and damages for pre-death pain and suffering, they were not entitled to damages for both loss of support and lost future earning capacity, though they could seek one or the other. As wrongful death beneficiaries, they were entitled to damages for loss of support.

OUTCOME: The court denied defendants' motion to dismiss the parents' survival action. The court granted defendants' motion to dismiss the parents' claim for improper service of alcohol. The court denied defendants' motion to strike the parents' request for damages for pre-death pain and suffering, damages for lost future earning capacity, and punitive damages.

ENRIQUE WILLIAMS, Plaintiff, vs. CRUISE SHIPS CATERING ANDSERVICE INTERNATIONAL, N.V.; PRESTIGE CRUISES N.V.; and COSTA CROCIERE, SPA,Defendants.

Case No. 03-60158-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA
2004 U.S. Dist. LEXIS 7586; 17 Fla. L. Weekly Fed. D 595
March 31, 2004, Decided
March 31, 2004, Filed

PROCEDURAL POSTURE: Plaintiff, a Costa Rican citizen and injured employee, sued defendants, including a vessel's owner, for injuries suffered working aboard an Italian-flagged vessel. He alleged claims under the Jones Act, and claims for unseaworthiness, failure to cure, and failure to treat. Pending was defendants' motions for reconsideration.

OVERVIEW: The motion for reconsideration pertained to the court's order denying defendants' motion to dismiss on forum non conveniens grounds. The court earlier denied the dismissal motion primarily due to its conclusion that defendants' base of operations was in the United States. It examined the motion for reconsideration under both Fed. R. Civ. P. 59(e), 60(b). Based on defendants' arguments, the court examined the motion under these Fed. R. Civ. P. 59(e), 60(b) standards: (1) mistake, inadvertence, surprise, or excusable neglect, or the need to correct clear error, and (2) new evidence. Regarding the first standard, none of defendants' three grounds warranted reconsideration. As for newly discovered evidence, a review of the entire record simply strengthened the court's conclusion that defendants' base of operations was in the United States. Even upon consideration of new filings, reconsideration was not warranted. The case involved a controlling question of law, i.e., whether the United States could be considered the base of operations for a shipowner that was owned by a company that primarily conducted its business in the United States. The case was appropriate for certification.

OUTCOME: Defendants' motions for reconsideration were denied.

Fanos, on behalf of himself and those similarlysituated,vs-Maersk Line, Ltd., Maersk Sealand, A. P. MollerGroup, Maersk, Inc., Wilmington Trust, Expander Transport Corporation, ExpediterTransport Corporation, Expresser Transport Corporation, Exporter TransportCorporation, and Extender Transport Corporation, Defendants-Appellees.

No. 03-40418
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
363 F.3d 358; 2004 U.S. App. LEXIS 4558; 9 Wage & Hour Cas.2d (BNA) 810
March 10, 2004, Filed

PROCEDURAL POSTURE: Plaintiff seaman appealed an order of the United States District Court for the Southern District of Texas, which granted summary judgment to defendants, a shipper, an owner, and contractors, in connection with the employee's action seeking wages and penalty wages pursuant to 46 U.S.C.S. § 10313.

OVERVIEW: The shipper and the contractors entered into a collective bargaining agreement with a union, which provided employees with paid vacation and required employers to contribute to union benefit plans. The contractors and the union later signed a memorandum of understanding which eliminated employers' duplicate benefit contributions for days when two officers were aboard a ship to perform one job. The shippers and the contractors were not required to pay vacation benefits directly to employees. Rather, they were required to make contributions to the union vacation plan, which distributed the funds. The seaman argued that withholdings pursuant to the memorandum of understanding were improper. The court held that assuming that the vacation benefits were wages, defendants did not violate § 10313 because the seaman did not allege that they did not make proper contributions to the plan and because defendants were not responsible for the withholding of the benefits. Further, the seaman showed no evidence that the union was not authorized to negotiate the terms of its members' employment. Thus, the memorandum of understanding provided sufficient cause for withholding the vacation benefits.

OUTCOME: The court affirmed the judgment.

OPINION: Appellants and defendants Nicholas Bachko Company and First American Bulk Carrier Corporation appeal the judgment on jury verdict in favor of plaintiff and respondent Richard Andrews in Andrews's action for personal injuries that occurred while he was serving as a crew member aboard a merchant ship. Appellants contend the trial court erred in instructing that a regulation promulgated under the Occupational Safety and Health Act could be used to establish their duty of care to a merchant seaman. They also contend the jury committed[*2] misconduct by including the contingency fee Andrews would owe his attorney in the damage award.

The jury specifically found not only that the Chesapeake Bay was unseaworthy, but also that its unseaworthiness was a "substantial" factor in Andrews's injuries. Thus, the erroneous instruction regarding the OSHA crane regulation was superfluous as to Andrews's theory of entitlement to damages from the Chesapeake Bay's owner, i.e., First American Bulk Carrier, and operator, i.e., Bachko, on the grounds of unseaworthiness. Even without resort to the erroneous instruction, the jury was given ample instructions to determine whether the ship was unseaworthy for lack of ladders, etc., on the crane, and, if so, to determine whether that particular basis of unseaworthiness caused/contributed to Andrews's injury. (See Da Silva v. Pacific King, Inc. (1987) 195 Cal. App. 3d 1, 6, 240 Cal. Rptr. 395.)[*25]

On this record we cannot say that the erroneous instruction misled the jury to believe Andrews was entitled to recover damages simply if it found that Bachko violated the OSHA crane regulation. Consequently, it is not reasonably probable the jury would have reached a different result absent the instruction. (Lundquist v. Reusser, supra, 7 Cal.4th at p. 1213; Kaljian v. Menezes, supra, 36 Cal.App.4th at pp. 589-590.)

The court did not abuse its discretion in denying the motion for new trial on grounds of juror misconduct. First, the jurors' declarations conflict as to whether the jury had "extensive" discussions regarding attorney fees. A trial court's determination on a motion for new trial that is submitted on affidavits containing conflicting facts is a determination of those facts in favor of the prevailing party. (Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1350-1351, 232 Cal. Rptr. 588.) We therefore accept the trial court's implied finding that the discussion regarding Andrews's attorney's potential fee was brief and did not dominate the deliberations.

DISPOSITION: The judgment is reversed and remanded with directions to reduce the amount of the jury's award of damages by the percentage by which the jury found Andrews contributorily negligent. Parties to bear their own costs. In all other respects the judgment is affirmed.

DAVE P. FOLSE, JR. VERSUS GULF TRAN, INC.

2003 CA 0758
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2003 0758 (La. App. 1 Cir, 2/23/04); 2004 La. App. LEXIS 333
February 23, 2004, Rendered

PROCEDURAL POSTURE: Plaintiff claimant filed this action against respondent employer in the Seventeenth Judicial District Court, Parish of Lafourche (Louisiana), pursuant to the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law. Judgment was rendered in favor of the claimant, and the employer appealed.

OVERVIEW: The claimant advised the employer, that he was injured while working on a vessel. The employer began paying him maintenance and cure. After further investigation, the employer discontinued those benefits. The claimant sued seeking recovery under the Jones Act and general maritime law. The trial court rendered judgment for the claimant. The employer appealed asserting the trial court erred in failing to conclude that the claimant forfeited his claim for maintenance and cure by failing to disclose to his employer that he suffered from Type II Diabetes. The appellate court disagreed. The claimant agreed to have any medical examinations desired by the employer and gave the employer access to his medical records. The employer did not require that he submit to examination by a physician before or after he began working for the employer and did not examine his medical records. The record supported the factual conclusion that he did not intentionally misrepresent or conceal his diabetes. There was no manifest error on behalf of the trial court's determination that the claimant did not forfeit his right to maintenance and cure.

OUTCOME: The judgment was affirmed.

DARCE CARLISLE, Appellant, vs. CARNIVAL CORPORATION, et al.,Appellees.

CASE NO. 3D01-1518
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2004 Fla. App. LEXIS 895; 29 Fla. L. Weekly D 328
February 4, 2004, Opinion Filed

We certify that we have passed on a question of great public importance:

WHETHER A CRUISE LINE IS VICARIOUSLY LIABLE FOR THE MEDICAL MALPRACTICE OF THE SHIPBOARD DOCTOR, COMMITTED ON A SHIP'S PASSENGER?

The motion for rehearing is denied.