Cruise Ship Law

In the Matter of the Complaint of VULCAN MATERIALS CO.

Civil Action No. 3:04CV909
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION
2005 U.S. Dist. LEXIS 38221
December 21, 2005, Decided
December 21, 2005, Filed

Exoneration granted to ship owner where seaman fell on stairs that seaman failed to prove were greasy and further seaman failed to establish that the pitch of the stairs, the absence of a handrail, or violation of OSHA regulations contributed to the seaman's fall.

GLENN TATE, et al., Plaintiffs-Appellants, v. SHOWBOAT MARINA CASINO PARTNERSHIP, et al., Defendants-Appellees.

No. 05-1681
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
431 F.3d 580; 2005 U.S. App. LEXIS 27168
October 24, 2005, Argued
December 13, 2005, Decided

PROCEDURAL POSTURE: Plaintiffs, members of the operating crew on a floating casino, appealed an order of the United States District Court for the Northern District of Illinois, Eastern Division, granting summary judgment in their action against defendants, the casino and others, brought under the Fair Labor Standards Act (FLSA).

OVERVIEW: On appeal, the court noted that the instant case was materially identical to a case filed the previous year. It involved the same boat, the same job titles, an overlapping time period, and the same plaintiffs' lawyer. Defendants were different as they were successors to defendants in the first case, but the only material difference between the two cases was the identity of plaintiffs. Because they were different people from plaintiffs in the first case, the instant case was not barred by res judicata or collateral estoppel. However, the court held that the instant action was barred by stare decisis because the facts in the two cases were the same and plaintiffs in the first case lost because the jury correctly found that they had no claim because they were part of the boat's operating crew and engaged in maritime-related activities, so they were seamen within the meaning of FLSA § 13(b)(6), 29 U.S.C.S. § 213(b)(6), which exempted seamen from the FLSA's overtime provisions. Plaintiffs gave no good reason for the court to overrule the prior decision, and a case cited by plaintiffs did not support their position as it was a Jones Act case.

OUTCOME: The court affirmed the district court's judgment.

MURRAY A. POWELL, Plaintiff, vs. CARNIVAL CRUISE LINES and DOES 1 through 50, Defendants.

No. CV-F-05-1238 REC DLB, (Docs. 4 & 10)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
2005 U.S. Dist. LEXIS 29982
November 17, 2005, Decided

PROCEDURAL POSTURE: Plaintiff filed an action in state court against defendant cruise line to recover for injuries he suffered during the cruise, and the cruise line removed the action to federal court. Plaintiff filed a motion to remand and the cruise line filed a motion to dismiss based on a forum selection clause in the parties' contract.

OVERVIEW: Plaintiff, an experienced traveler, booked a cruise with the cruise line, whose principal place of business was in Florida. The court first held that it was powerless to order a remand because plaintiff's sole ground for his motion -- the difficulty of traveling to the federal court -- was no a theory provided for in 28 U.S.C.S. § 1447(c). The court then held that the forum selection clause was valid and its enforcement was reasonable because (1) the physical characteristics of the contract and the circumstances surrounding purchase and retention of the ticket indicated that the forum-selection clause was reasonably communicated to plaintiff; (2) plaintiff failed to show that the cruise line had invoked the forum-selection clause fraudulently or to thwart litigation against it; and (3) plaintiff's physical disability did not require the court to refuse to enforce the forum-selection clause. However, rather than dismissing the action under Fed. R. Civ. P. 12(b)(3), the court held that, in the interest of justice, the case should be transferred under 28 U.S.C.S. § 1406 to the location of the federal court specified in the forum selection clause.

OUTCOME: The court denied plaintiff's motion to remand, denied defendant's motion to dismiss, and transferred the action to the Southern District of Florida for further proceedings.

ALMOTAZ ALSHAZLI, Plaintiff, v. AMERICAN SEAFOODS COMPANY, LLC, a Washington corporation and F/T NORTHERN HAWK, her tackle, gear, furniture, apparel and equipment, Defendants.

Case No. C04-1684L
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2005 U.S. Dist. LEXIS 38860
December 12, 2005, Decided

Seaman who slipped and fell on fish processing vessel awarded approximately $70,000 for operated herniated disk in back. This is after deduction 25% for seaman's comparative negligence.

Case No. 3:05-cv-469-J-32TEM
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
2005 U.S. Dist. LEXIS 34207
December 12, 2005, Decided
December 12, 2005, Filed

PROCEDURAL POSTURE: Plaintiff filed an action in state court against defendant corporation, a Florida corporation, alleging that the corporation was negligent and breached obligations that it had to plaintiff when it repaired plaintiff's personal watercraft device. The corporation removed the matter to the court, invoking the court's admiralty jurisdiction. Plaintiff sought to remand the matter to state court.

OVERVIEW: Plaintiff filed an action in state court based upon negligence and breach of contract when plaintiff was injured on his personal watercraft device after it had been repaired by the corporation. Plaintiff had requested a jury trial. The corporation removed the matter to the court, invoking the admiralty jurisdiction of the court. The court held that it had jurisdiction under admiralty law. Plaintiff was injured while operating the watercraft device in water and the tort alleged satisfied the location test for admiralty jurisdiction. Plaintiff's operation of the watercraft device in the water constituted traditional maritime activity, and the activity could have potentially caused a disruption to maritime commerce. The contract claim, based on an obligation to repair the watercraft, was also related to traditional maritime activity. The court acknowledged that the "saving to suitors" clause of 28 U.S.C.S. § 1333, which could have potentially retained plaintiff's jury trial claim in the state court, had been waived by plaintiff because the assertion had not been raised within the 30-day removal period.

OUTCOME: The court denied plaintiff's motion to remand the matter to state court.

IN RE: Houseboat STARSHIP II and CLYDE CRAIG and VICKI CRAIG Individually and d/b/a EAST PORT MARINA, and JIM BARNA LOG SYSTEMS OF TENNESSEE, LLC, a domestic corporation d/b/a EAST PORT MARINA & RESORT.

NO. 2:05-0086
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2005 U.S. Dist. LEXIS 36237
December 12, 2005, Decided
December 12, 2005, Filed

Company that had management and operation responsibilities for rented house boat could file for limitation of liability as an owner.

JEFFREY WAYNE WITHHART, Plaintiff-Counter Defendant-Appellee, versus OTTO CANDIES, L.L.C., ET AL., Defendants, SEA MAR, INC., SEA MAR MANAGEMENT L.L.C., NABOR MARINE, L.L.C., Defendant-Counter Claimants-Appellants

No. 04-31267
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2005 U.S. App. LEXIS 26270
December 2, 2005, Filed

PROCEDURAL POSTURE: Appellant shipowner-employer (owner) sought review of a decision of the United States District Court for the Western District of Louisiana, which dismissed the owner's counterclaims for negligence and indemnity brought against appellee seaman-employee (seaman) pursuant to Fed. R. Civ. P. 12(b)(6). The seaman had filed the original action under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law to recover for his injuries.

OVERVIEW: The matter arose from an accident at sea, and the owner paid a second shipowner for damages to its vessel. The owner sought to recover from the seaman that amount plus an amount for property damage to the owner's vessel allegedly caused by the seaman's negligence. In a case of first impression, the court reversed in an interlocutory appeal under 28 U.S.C.S. § 1292(b), holding that the owner's counterclaims were consistent with general maritime law and should not have been dismissed. The Federal Employers' Liability Act, 45 U.S.C.S. § 51, and consequently the Jones Act, contained no prohibition against a general maritime negligence and indemnity counterclaim by the owner against its seaman-employee for property damage. Allowing the owner to bring a claim against its seaman for property damage arising out of the seaman's negligence did not narrow the remedies available to the seaman under the Jones Act. The fact that seamen worked under difficult conditions was not a reason to shield them from liability from negligence and indemnity actions.

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

DIANA LEE HOUSE, Plaintiff, v. MARINE TRANSPORT LINES, INC. et al, Defendants.

CIVIL ACTION NO. G-05-188
2005 U.S. Dist. LEXIS 30006
October 31, 2005, Decided

PROCEDURAL POSTURE: Plaintiff seaman filed suit pursuant to the Jones Act against defendants, a ship's manager, the United States, and the United States Maritime Administration (MARAD), seeking to recover damages for personal injuries she sustained. Defendants moved for dismissal.

OVERVIEW: Because the seaman did not object to the motion to dismiss with regard to the manager and MARAD, the court granted dismissal as to those defendants. The U.S. contended that the court lacked subject matter jurisdiction over the suit because the seaman had not followed the claims procedures in 46 C.F.R. § 327 and 346 C.F.R. § 327.6. The court agreed. Reading these provisions together, a party could not file suit pursuant to the Suits in Admiralty Act, 46 U.S.C.S. app. § 745, as amended by the Clarification Act, 50 U.S.C.S. app. § 1291, until 60 days after MARAD received an administrative claim unless the party received notice of disallowance prior to that day. Here, the seaman's complaint was filed 59 days after the Division of Marine Insurance received her claim, which was 80 days after the claim had been sent. However, the claim was not addressed to the party specified in the regulations, and thus spent three weeks being passed around until it reached the Division. The court held that it was the seaman's sole burden to make sure that the claim was properly addressed. Because the seaman had not waited 60 days to file her claim, the court lacked jurisdiction to entertain it.

OUTCOME: The court granted defendants' motion to dismiss and dismissed the suit with prejudice.

PATRICK J. CONNORS, Plaintiff, v. IQUIQUE U.S.L.L.C., et al., Defendants.

CASE NO. C05-334JLR
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2005 U.S. Dist. LEXIS 27935
November 8, 2005, Decided
November 9, 2005, Filed

PRIOR HISTORY: Connors v. Iqueque U.S.L.L.C., 2005 U.S. Dist. LEXIS 33580 (W.D. Wash., Aug. 25, 2005)

PROCEDURAL POSTURE: Defendants, a shipowner and a fisheries corporation as employers, filed a motion under Fed. R. Civ. P. 60(b) to modify the court's previous order compelling the payment of maintenance to plaintiff seaman as employee. Plaintiff filed a motion to force defendants to comply with the court's order. Defendants also filed a motion for summary judgment on their intentional concealment defense.

OVERVIEW: Before boarding the ship, plaintiff disclosed to defendants that he had undergone heart bypass surgery four years earlier. Within one month of serving aboard the ship, plaintiff experienced chest pain while lifting a pump. Plaintiff returned to shore and underwent a variety of cardiac treatments for complications from coronary artery disease. As an initial matter, the court found that disputed facts prevented summary judgment on the intentional concealment defense. Because defendants appealed the order directing defendants to make maintenance payments for at least an additional three months, the court also concluded that it lacked jurisdiction to grant the relief that defendants were entitled to under Rule 60(b)(1) based on deposition testimony from plaintiff's physician, which was taken subsequent to the court's order and which demonstrated that plaintiff reached maximum recovery six months after the shipboard injury. The court, however, exercised its inherent power to stay enforcement of its order pending appellate court action. Nevertheless, the court found defendants' unilateral decision to ignore its original order contemptuous, and it imposed sanctions against defendants.

OUTCOME: The court denied defendants' motion for summary judgment. The court also denied defendants' motion for relief from the court's order pending action in the appellate court. The court, however, stayed enforcement of its order. The court denied plaintiff's motion to compel further payment of maintenance, but it ordered defendants to pay sanctions for willful violation of the court's order

BASIL ROBINSON, Plaintiff, v. GREGORY PRIOR and F/V KARRIE N, Defendants.

Civil No. 05-24-P-C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2005 U.S. Dist. LEXIS 28596
November 16, 2005, Decided

PROCEDURAL POSTURE: Plaintiff seaman filed a motion for summary judgment on his maintenance and cure claim against defendants, a shipowner and a vessel, and on the shipowner's counterclaim for wrongful or malicious seizure of the vessel. The seaman also filed a motion for interlocutory sale of the vessel. The matter was referred to a magistrate.

OVERVIEW: The seaman was injured in 2000. The seaman claimed that even if the three-year statute of limitations was applicable and even if principles of equitable tolling did not save the bulk of his complaint, he was entitled to maintenance and cure commencing three years prior to the date he filed suit, and that his maintenance and cure claim was sufficient to justify his action in rem against the vessel, thereby negating the owner's counterclaim for wrongful or malicious seizure of the vessel. The owner argued that the entire maintenance and cure claim was barred by laches. The court held that the seaman's claim for maintenance and cure since 2002 was not time-barred. Based on the shipowner's showing of prejudice, the application of the laches doctrine was the subject of factual disputes. The shipowner failed to brief the equitable or legal standard that governed his counterclaim for damages for the allegedly wrongful institution of arrest proceedings against his vessel. The court rejected the seaman's argument that sale of the vessel was inevitable. Because of concerns over storage fees, the court suggested that the vessel be released to the owner with an obligation to preserve it.

OUTCOME: The court recommended that the seaman's motion for summary judgment against the shipowner's counterclaim for damages be granted but that it otherwise be denied, and that action be postponed on the seaman's motion for interlocutory sale.

Sean O'Donnell v. Jean McCausland, LLC et al,

Case No. 04-cv-175-PB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
2005 DNH 158; 2005 U.S. Dist. LEXIS 29202
November 17, 2005, Decided

PROCEDURAL POSTURE: Defendant vessel owner filed a motion to dismiss plaintiff crew member's unseaworthiness claim.

OVERVIEW: The crew member was injured when his arm became ensnared in the line of a dock winch that was permanently affixed to the dock. The crew member was using the winch to move a cooler filled with bait from the dock to a fishing boat, not the vessel. In granting the owner's motion to dismiss, the court held that the dock winch did not qualify as an appurtenance of the vessel because it did not travel with the vessel, was neither owned nor controlled by the owner, was not in contact with the owner's vessel when he was injured, and it was not being used to perform a function that was important to the vessel's operation. The court also held that the evidence revealed that the vessel had its own winch and did not regularly use the dock winch in loading or unloading operations.

OUTCOME: The court granted the owner's motion to dismiss.

MAURICE WARNER versus UNITED STATES OF AMERICA

CIVIL ACTION No. 04-2789 SECTION: I/4
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2005 U.S. Dist. LEXIS 36528
November 29, 2005, Decided
December 1, 2005, Filed

Experienced ship captain's testimony as an expert with respect to lifting paint cans on a vessel was not allowed.

BRANDEN DOONAN, individually and as personal representative of THE ESTATE OF JAMES DOONAN, LYNDSEY DOONAN, KRISTINE DOONAN, Plaintiffs, vs. CARNIVAL CORPORATION, a Panamanian Corporation, and GARY COLNER, ship's physician, Defendants.

Case Number: 05-20128-CIV-MARTINEZ-BANDSTRA
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2005 U.S. Dist. LEXIS 31609
November 30, 2005, Decided
November 30, 2005, Filed

PROCEDURAL POSTURE: In a wrongful death case, plaintiffs, a personal representative and two other individuals, sued defendants, a cruise line and a ship's physician. The court denied the cruise line's motion to dismiss the original complaint as moot since plaintiffs filed an amended complaint. The cruise line filed a motion to dismiss three counts in the amended complaint. Plaintiffs moved to amend the complaint by interlineation.

OVERVIEW: The cruise line argued that counts III and IV had to be dismissed because, under the Barbetta decision, it could not be held vicariously liable for the negligence of its ship's medical staff in the treatment and care of passengers. Plaintiffs chiefly relied on the Florida state court decisions in Carlisle and Huntley, which the present court declined to follow, in arguing that they were entitled to relief. Their argument was not sufficiently persuasive to justify deviation from the majority rule in the Barbetta decision. Regarding count IV, addressing vicarious liability and apparent agency, plaintiffs alleged that in addition to being the ship's physician, the doctor was recognized in other capacities aboard the ship. The court was unwilling to conclude that there were no conceivable facts under which plaintiffs would have been entitled to relief. Count V alleged a breach of contract. That claim failed because there was no express provision guaranteeing safe passage. Futhermore, the same arguments regarding count V raised in the current motion to dismiss were also raised in the original motion to dismiss. The amended complaint did not remedy the breach of contract claim.

OUTCOME: The cruise line's motion to dismiss was granted as to counts III and V of the amended complaint. Those claims were dismissed with prejudice. The motion to dismiss was denied in all other respects. Plaintiffs' motion for leave to amend the complaint by interlineation was granted in part.

JAMES MACK and SHEILA MACK, Plaintiffs and Respondents-Appellees, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant and Petitioner-Appellant.

No. 1-04-2168
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
2005 Ill. App. LEXIS 1035
October 20, 2005, Decided
October 20, 2005, Opinion Filed

PROCEDURAL POSTURE: Plaintiffs James and Sheila Mack brought suit against defendant Royal Caribbean Cruise Lines, Ltd., alleging that James cut his foot in the swimming pool area of a cruise ship owned and operated by defendant. Plaintiffs alleged that defendant was liable for negligently maintaining its swimming pool area; that defendant was vicariously liable for the negligent medical treatment James received from defendant's on-board physician; and that defendant was liable to Sheila for loss of consortium. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), defendant appeals the trial court's interlocutory orders reinstating the plaintiffs' vicarious liability count and denying defendant's motion to dismiss.

HELD: Affirmed.

DISCUSSION: Defendant argues that, in reinstating the vicarious liability claim, the trial court ignored a largely established rule of law which precludes vicarious liability counts against carriers for the alleged negligence of shipboard doctors. Plaintiffs respond that the trial court was correct to follow the more reasoned approach of modem cases, which allows vicarious liability claims against carriers. Whether vicarious liability will be imposed generally turns on the ability of the principle to control the acts of his agent and on a variety of other factors, including "whether the work is 'part of the regular business of the employer'; whether the contractor is engaged in a distinct calling; the degree of skill of the contractor; who supplies the locale, tools and instrumentalities; the period of employment and the method of payment." A passenger does not have control over his relationship with a ship's doctor because a cruise passenger at sea and in medical distress does not have any meaningful choice but to seek treatment from the ship's doctor. Additionally, vicarious liability for an on-board physician's negligence should be imposed because cruise lines reap the benefits of carrying a doctor aboard their vessels. Finally, to impose vicarious liability on a cruise line for the negligent treatment of passengers by its on-board physician is not unreasonable because the cruise line is already held vicariously liable for the negligence of the same ship's doctor in the treatment of hundreds of people-the crew-under the maritime duty to provide maintenance and cure.

DAVID W. BOWMAN, Appellee, v. AMERICAN RIVER TRANSPORTATION COMPANY et al., Appellants.

Docket No. 99094
SUPREME COURT OF ILLINOIS
2005 Ill. LEXIS 1604
October 20, 2005, Opinion Filed

PROCEDURAL POSTURE: Plaintiff filed suit against defendants in St. Clair County for injuries suffered while working as a seaman aboard a harbor boat. He claimed negligence under the Jones Act, unseaworthiness, and maintenance and cure. Defendants filed a timely request for a jury trial, which was stricken by the trial court on plaintiff's motion arguing that only plaintiffs in Jones Act cases can demand a jury trial.

HELD: REVERSED.

DISCUSSION: The key sentence of the Jones Act at issue here states: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury" (46 U.S.C. App. § 688(a) (2000)). We believe that anyone well versed in statutory construction, or even English grammar, would find the plain language of that sentence clearly states that the "election" to be made by the seaman pertains to his choice to maintain an action "at law," and not his election of a "right of trial by jury." Under the principle of statutory construction known as the last antecedent doctrine, relative or qualifying words or phrases in a statute serve only to modify words or phrases which are immediately preceding and do not modify those which are more remote.

NOTE: This conclusion, however, does not negate the fact that, under the Jones Act, a plaintiff does control the choice between a bench or jury trial by using his choice of the forum. That is, the plaintiff desiring a bench trial may bring his case in admiralty under 28 U.S.C. § 1333, as there, neither party is entitled to a jury trial. See 30 J. Mar. L. & Com. at 669. On the other hand, the plaintiff desiring a jury trial may bring his case, pursuant to the saving-to-suitors clause, on the law side of federal court or in a state court whose law guarantees the right to a jury trial. See 30 J. Mar. L. & Com. at 669-70. Thus, having the power to control the forum, the Jones Act plaintiff starts out with full control over whether the case will be tried to a jury. It is in this sense that statements to the effect that "the Jones Act gives only the plaintiff the right to choose a jury trial" are true. However, [*21] Johnson and its predecessor in the Second Circuit make it clear that once the Jones Act plaintiff has made his forum choice, if defendants in that forum normally have a right to a jury, then so does the Jones Act defendant.

New trial ordered where maritime ergonomic engineering expert witness was improperly not permitted to testify as to opinions regarding ship's door latches and procedures for inspecting such latches where such expert had not conducted a ship board inspection of the subject area.

COLIN ORPE, Appellant, v. CARNIVAL CORPORATION AND GARY FERRIS, Appellees.

CASE NO. 3D02-3186
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
909 So. 2d 929; 2005 Fla. App. LEXIS 12010; 30 Fla. L. Weekly D 1858
August 3, 2005, Opinion Filed

PROCEDURAL POSTURE: Colin Orpe appeals a final judgment entered in a negligence action. Because the trial court would not allow Orpe to present the testimony of his expert witness at trial, we reverse. FACTS: Dr. Marc Wilson was Orpe's sole liability expert witness. Orpe was injured while he was a passenger on Carnival Corporation's vessel Holiday when his cabin bathroom door swung shut and severed a portion of his finger. The door opened outward and a magnetic device on the adjacent wall was designed to hold the door against the adjacent wall. Orpe's cabin-mate testified that the door had malfunctioned several times before the accident occurred. At trial, Orpe sought to introduce Dr. Wilson's testimony that a door dampener should have been used to slow down the rate at which the door closed; that an outward opening door without a door dampener is a hazard; that written warnings and a handrail in this area on a ship were necessary from an ergonomics, human factors and safety standpoint; that magnets lose their power over time; and that such devices must be regularly inspected and replaced. In the alternative, he suggested that the use of the hook-and-eye-type door latch, the usual type of latch used on cruise ships, was appropriate. In addition, he was to testify about general considerations for safety in equipping a ship's bathroom and door. The court excluded Dr. Wilson's testimony ruling that he was not qualified to testify concerning the appropriate safety measures in a ship's passenger cabin and that expert testimony on this issue was unnecessary. Carnival's expert, however, was permitted to offer his opinion as to a magnet's properties and characteristics, the force necessary to separate the door from the magnetic latch, and use of dampeners on cruise ship doors.

DISCUSSION: Although Dr. Wilson never visited the accident area on the ship, by the time of Dr. Wilson's pre-trial deposition, he had viewed photographs of the subject door, latch and bathroom. Furthermore, he personally interviewed Orpe and read his deposition transcript and read Hahn's affidavit. He had been advised of Orpe and Hahn's testimony regarding how the accident occurred and that there were no handrails or warnings in the bathroom. In addition, at the time of his deposition, Dr. Wilson had seen photographs of a bathroom door in a cabin of a competing cruise line, Celebrity Cruises. This door contained a "door dampener" such as here. He further viewed Carnival's video tape of the accident area, previously had inspected passenger bathroom doors on this same vessel, the HOLIDAY, and was familiar with the bathroom doors. Dr. Wilson testified that ergonomics is based primarily on prior research and that there are ample studies on different types of door closure devices, latching devices and dampeners. Dr. Wilson testified that he was able to give opinions from an ergonomic and safety point of view here without having personally viewed the subject accident scene based on the photographs, which showed that the door did not have a dampener, showed the door's magnetic latch at the bottom of the door, and showed there was no warning or safety handrail inside the bathroom or on the door. Dr. Wilson's experience and education afforded him knowledge of how magnets work and whether magnets can lose power. The proffered testimony was a proper subject for expert testimony.

Injured cruise line passengers' claims dismissed as time barred for failing to file suit within one year as required by cruise line's limitation provision within the passenger's cruise ticket despite cruise line's failure to specifically inform plaintiff's lawyer of such provision while communicating with the lawyer during the limitations period.

BETTY REESER, et al. v. NCL (BAHAMAS) LTD.

CIVIL ACTION NO. 05-2344
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2005 U.S. Dist. LEXIS 17159
August 17, 2005, Decided
August 17, 2005, Filed

PROCEDURAL POSTURE: Plaintiffs, cruise line passengers, who suffered injuries aboard Defendant's cruise line in June 2003, filed suit against the cruise line in April 2005. Defendant moved to dismiss Plaintiff's claims as time barred pursuant to a one year limitations period set forth in the cruise line's passenger ticket. Plaintiff's argued that they did not receive reasonable notification of Defendant's limitation provision, that such limitation provision was not reasonable or reasonably communicated, and that Defendant failed to provide a copy of the limitation provision or ticket to Plaintiff's attorney despite communicating with the attorney during the limitation period.

HELD: Plaintiffs claims are time barred and Defendant's Motion to Dismiss is granted.

DISCUSSION: Although the time limitation provision could have been more prominent, the standard is one of reasonableness, which means the Court does not ask whether the cruise line took every possible step to put plaintiffs on notice. The location of the term does not render it unenforceable. Similarly, the size of the text in which terms are printed does not necessarily render terms unenforceable, provided that the text is readable. Although the provision could have been expressed in simpler language, the standard is one of reasonable communicativeness and the Court will not engage in "hypothesizing some further step the shipowner could possibly have taken." Finally, even if NCL did not inform the plaintiffs' counsel of the time limitation, the Court notes that NCL did point out the "rights and defenses" contained in the "passenger ticket contract" in at least two notices to plaintiffs' counsel before the time limitation period expired. The following paragraph appeared in a letter dated October 21, 2003, addressed to the plaintiffs' lawyer and signed by NCL's Senior Claims Representative: "This request for information and any conversations or correspondence between us should not be construed as an admission of liability and is without prejudice to the rights and defenses of Norwegian Cruise Line Limited, including the terms and conditions set forth in the passenger ticket contract of passage."

BILL WIGGINS and ALICE WIGGINS, Plaintiffs, v. CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINES, Defendant.

EP-05-CV-0230-FM
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, EL PASO DIVISION
2005 U.S. Dist. LEXIS 18235
August 25, 2005, Decided

PROCEDURAL POSTURE: Defendant, cruise line, filed a Motion to Dismiss or in the Alternative to Transfer Venue, based upon a forum selection clause placed in a passenger cruise ticket requiring passengers to file suit in federal court in Miami, Florida.

HELD: This case should be TRANSFERRED to the United States District Court for the Southern District of Florida, Miami Division and Defendant's "Motion to Dismiss Under FED. R. CIV. P. 12(b)(3) and (6), or, in the Alternative, to Transfer Under 28 U.S.C. 1404(a), and/or 1406(a)" [Rec. No. 2] should be GRANTED IN PART AND DENIED IN PART to the extent that the case is transferred but not dismissed.

DISCUSSION: This Court finds no reason why the Court should not enforce the forum selection clause. Even though Plaintiffs argue they did not have adequate notice of the forum selection clause and it is fundamentally unfair, the position is unsupported by the case law and facts making up this cause of action. In this action based on a cruise to the Bahamas departing from Florida and purchased through a travel agent outside of Texas, Plaintiff has not overcome its heavy burden and shown the clause "unreasonable under the circumstances."

Minor sues hotel chain and owner of wave runner rental operation in Cayman Islands - Admiralty law held to apply precluding application of Connecticut parental immunity law; Hotel chain's motion for summary judgment denied as issues of fact remained as to hotel chain's control over wave runner operation; and Limitation of Liability not available as to hotel chain defendants which were not owners of the subject wave runner.

LINDA SZOLLOSY, on behalf of herself and as parent and next friend of CHARLES DEAN SZOLLOSY, Plaintiff v. HYATT CORPORATION, HYATT BRITANNIA CORPORATION LTD., WATERSPORTS ADMINISTRATION INC., AND RED SAIL CAYMAN LTD., Defendants/Third-Party Plaintiffs v. CHARLES SZOLLOSY, Third-Party Defendant

Civil Action No. 3:99 CV 870 (CFD)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
2005 U.S. Dist. LEXIS 22088
September 26, 2005, Decided

PROCEDURAL POSTURE: Plaintiff Linda Szollosy brought this action as parent and next friend of her minor son Charles "Dean" Szollosy, seeking damages for injuries suffered by Dean Szollosy during a September 1998 vacation in the Cayman Islands. Linda Szollosy's complaint contains five counts, alleging the common law torts of negligence and breach of warranty by defendants Hyatt Corporation and Hyatt Britannia Corporation Ltd., and alleging negligence, breach of warranty, and strict products liability under Conn. Gen. Stat. § 52-572m et seq. against defendants Watersports Administration, Inc("WAI"), and Red Sail Cayman Ltd. The defendants then brought a third-party action against Charles Szollosy for contribution, common law indemnification, and apportionment, alleging that Charles Szollosy was liable for all or part of Dean's injuries due to negligence. Charles Szollosy has now filed a motion for summary judgment on the defendants' third-party complaint, arguing that Connecticut law governs the defendants' action and affords Charles Szollosy parental immunity. Defendants Hyatt, Hyatt Britannia, and WAI have filed a separate motion for summary judgment as to Linda Szollosy's complaint, arguing that they are distinct legal entities that cannot be held responsible for any liability of Red Sail. Finally, Linda Szollosy has filed a motion for summary judgment on the defendants' nineteenth affirmative defense, in which the defendants claim limitation of liability under the federal admiralty statutes at 46 U.S. § 183 et seq.

HOLDINGS AND DISCUSSION:

1. Admiralty law applies and hence, Connecticut's parental immunity laws do not. The Lauritzen test appears to support the application of federal maritime law in this case. The location of the wrongful act, the first factor to be considered, is of course the Cayman Islands. The remaining factors, however, weigh more heavily in favor of the United States. The second factor, the law of the flag of the vessel involved, is not a compelling one; this was a wave runner designed for tourist use, not a vessel registered and doing business in international waters. The third factor, the domicile of the injured party, is the United States. The fourth factor, the national allegiance of the defendant shipowner, does not favor either body of law strongly. While the owner of the wave runner was Red Sail Cayman Ltd., the defendants have sworn that Red Sail is 66% percent Cayman-owned and approximately 34% owned by entities which also own the American-based defendant Hyatt Corporation. Red Sail appears to have allegiances to both the Cayman Islands and the United States, and therefore would not be materially prejudiced by applying the law of either nation. The fifth factor, place of contract, is not applicable here, as the parties did not contract for the use of the wave runner. Finally, the sixth and seventh factors, the relative accessibility of the foreign forum and the law of the forum chosen, weigh in favor of applying federal maritime law. The Szollosys are United States residents who would be greatly inconvenienced by litigating in the Cayman Islands, while the defendants/third-party plaintiffs are all corporations with at least some United States contacts or ownership, lessening the difficulty of pursuing a lawsuit here. Additionally, Linda Szollosy filed the original complaint in this case in federal court for the District of Connecticut; the law of this forum for an admiralty action is federal maritime law. Therefore, after evaluating the Lauritzen factors as a whole, the Court will apply federal maritime law to this action. Parental immunity is treated quite differently across the 50 states. Even looking wholly intrastate, Connecticut takes different approaches to parental immunity depending on the nature of the tort alleged. The Court must agree with the Byrd court that importing state law rules on parental immunity to federal admiralty actions would detract from the uniformity of admiralty law, undermine the simplicity of the admiralty system, and too greatly impair admiralty's rule of contribution among joint tortfeasors. Therefore, in its application of federal admiralty law to this action, the Court will not import Connecticut's rules of decision on parental immunity.
2. The Court finds that genuine disputes of material fact exist, including the precise nature of the various defendants' corporate relationship with and control over Red Sail and its rental operation at Rum Point. Therefore, the Court denies the motion for summary judgment and leaves Linda Szollosy's claims against Hyatt, Hyatt Britannia, and WAI for resolution by the trier of fact.
3. Limitation of Liability may not be invoked by non vessel owners. The Court finds that defendants Hyatt, Hyatt Britannia, and WAI cannot invoke the protections of the Limitation of Liability Act. It is undisputed that the wave runner at issue here was owned solely by defendant Red Sail. The non-Red Sail defendants argued that since Linda Szollosy elsewhere has asserted that they own or control Red Sail, such putative ownership or control allows them to seek relief under the Limitation of Liability Act. Linda Szollosy maintains that her allegations relate only to Hyatt, Hyatt Britannia, and WAI's control over the "policies and 'standards' concerning the operation of the Red Sail concession at Rum Point." She does not seek to hold them liable as owners of the wave runner, nor as the entities responsible for the maintenance or operation of Red Sail's wave runners. The Second Circuit has suggested that limitation of liability is available only to those parties who "had actual title or [were] capable of exercising some measure of dominion or control over the vessel at the time of the accident. As such, the non-Red Sail defendants may not seek relief under the Limitation of Liability Act.

Ashley R. Bunch, Appellant, v. Canton Marine Towing Co., Inc., a Missouri Corporation; Sir Joseph, an inland river towboat, Her Engines, Boilers, etc., Appellees.

No. 04-1292
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
419 F.3d 868; 2005 U.S. App. LEXIS 18017
April 14, 2005, Submitted
August 23, 2005, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Missouri. Bunch v. Canton Marine Towing Co., 2004 U.S. Dist. LEXIS 28412 (E.D. Mo., Jan. 6, 2004)

DISPOSITION: Reversed.

OPINION: Ashley Bunch was injured aboard the M/V Sir Joseph, a tugboat owned by Bunch's employer, Canton Marine Towing Company, Inc. Bunch sued Canton and the Sir Joseph under section 33 of the Merchant Marine Act of 1920, 46 U.S.C. app. § 688, commonly known as the Jones Act. The district court granted summary judgment to the defendants, concluding Bunch was not a "seaman" covered by the Jones Act, because Bunch "simply did not have a substantial connection to a vessel in navigation." We reverse. Bunch worked as a barge cleaner at Canton's Missouri facility, a cleaning barge moored to the bed of the Missouri River. Almost every day, Bunch was ferried in the morning to the cleaning barge from Canton's Illinois facilities, then back for lunch and again to return home in the evening, usually aboard the Sir Joseph. On most days Bunch spent twenty minutes aboard the Sir Joseph. Cleaning third-party barges consumed Bunch's normal workday aboard the cleaning barge. Bunch cleaned barges on all but approximately ten of the 242 days he worked during his first year with Canton. On those approximately ten days, Bunch worked as a deckhand for a few hours on the Sir Joseph. Viewing the evidence most favorably to Bunch, for summary judgment purposes, the district court assumed Bunch spent, at most, ten percent of his work time as a deckhand. We hold the cleaning barge was a vessel and, thus, a vessel in navigation under the Jones Act. In Templeton, after noting the Rand had inoperable engines and would need to be towed if she were to be moved, we concluded such facts were insufficient to strip the Rand of vessel status. Templeton, 378 F.3d at 850-52. The Rand also was connected to spud poles by bolts, "which could easily be removed, permitting the Rand to be towed because she floated on her own, which [was] sufficient to bestow 'vessel' status on her." Id. at 852. The undisputed facts of this case do not show the cleaning barge was permanently moored or anchored to the river bed, and the barge had been moved from its mooring to travel across the river during the time Bunch worked for Canton. Although the cleaning barge was secured in position, strong currents would shift the barge, belying the permanency of its mooring. Nor does the evidence show the barge had been taken out of service or rendered practically incapable of maritime transportation.

JESUS VELASQUEZ, Plaintiff-Appellant, versus C.S.C.S. International, N.V., a foreign corporation, COSTA CROCIERE, S.P.A., a foreign corporation, et al., Defendants-Appellees.

No. 05-11170 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2005 U.S. App. LEXIS 19448
September 6, 2005, Decided
September 6, 2005, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Southern District of Florida. D. C. Docket No. 03-61183-CV-MGC.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Appellant Jesus Velasquez appeals the district court's order dismissing his suit based on Jones Act and general maritime claims for forum non conveniens.

OVERVIEW: Velasquez, a Honduran citizen and resident, was employed by Cruise Ships Catering & Service International N.V. ("C.S.C.S."). He worked on a ship named the Costa Victoria, which embarked from Genoa, Italy. Velasquez alleges that he was injured aboard the ship while lifting boxes of wine. During the time of his alleged injury, the Costa Victoria was in international waters calling on ports in the Mediterranean Sea. After receiving shoreside diagnostic testing in Genoa, Italy, Velasquez left the Costa Victoria on medical leave and went back to Honduras where he was treated and underwent three back operations. He also had subsequent surgery in Miami. The district court properly dismissed this action for forum non conveniens. The law of the United States should not apply in this case as the alleged wrongful act occurred in the Mediterranean Sea, the vessel on which Velasquez worked was foreign, Velasquez is a resident and citizen of Honduras, the shipowner, Costa, is an Italian corporation and foreign fora are accessible to Velasquez.

ROLF L. LINDSTROM, Plaintiff, WILLARD E. BARTEL and DAVID C. PEEBLES, administrators of the estate of ROLF L. LINDSTROM, deceased, Plaintiffs-Appellants, v. A-C PRODUCT LIABILITY TRUST, et al., Defendants, A.W. CHESTERTON, COFFIN TURBO PUMP, INC., INGERSOLL-RAND COMPANY, WALWORTH COMPANY, THE ANCHOR PACKING COMPANY, COLTEC INDUSTRIES, GARLOCK SEALING TECHNOLOGIES, LLC, GOULDS PUMPS, INC., HENRY VOGT MACHINE CO., and JOHN CRANE, INC., Defendants-Appellees.

No. 04-3751
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
424 F.3d 488; 2005 U.S. App. LEXIS 21010; 2005 FED App. 0400P (6th Cir.)

PROCEDURAL POSTURE: Rolf L. Lindstrom, a merchant seaman, brought suit against numerous defendants seeking compensation for his mesothelioma, a disease he claims was caused by exposure to asbestos released from products manufactured by defendants-appellees.The district court granted summary judgment in favor of defendants-appellees Ingersoll Rand Company, Coffin Turbo Pump, Inc., Garlock Sealing Technologies, LLC, Henry Vogt Machine Company, and Goulds Pumps, Inc., but denied John Crane, Inc.'s summary judgment motion. Following a bench trial, the district court entered a verdict in favor of John Crane, Inc. Willard E. Bartel and David C. Peebles, administrators of Lindstrom's estate, now appeal.

DISPOSITION: Affirmed.

OVERVIEW: The requirement is that the plaintiff make a showing with respect to each defendant that the defendant's product was a substantial factor in plaintiff's injury, As a matter of law the evidence presented by the Plaintiff did not provide a basis for a causation finding as to any particular defendant. A holding to the contrary would permit imposition of liability on the manufacturer of any product with which a worker had the briefest of encounters on a single occasion.

DENNIS S. GRENNAN, Appellant, v. CROWLEY MARINE SERVICES, INC., Respondent.

No. 55134-5-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2005 Wash. App. LEXIS 1788
July 25, 2005, Filed

NOTICE: [*1] PUBLISHED IN PART

PRIOR HISTORY: Superior Court County: King. Superior Court Cause No: 03-2-28136-1 SEA. Date filed in Superior Court: October 8, 2004. Superior Court Judge Signing: Hon. Nicole MacInnes.

PROCEDURAL POSTURE: Appellant employee challenged a decision from the Superior Court in King County (Washington), which granted summary judgment in favor of respondent employer in an action brought under the Jones Act and general maritime law to recover for injuries suffered on a ship.

OVERVIEW: The employee was injured on a ship that was docked in Russia. He later filed an action against the employer under the Jones Act, 46 U.S.C.S. § 688, and general maritime law. The employer filed a motion for summary judgment, contending that the Longshore and Harbor Worker's Compensation Act (LHWCA) governed instead. After the motion was granted, the employee sought review. On appeal, the court determined that the situs of the injuries fell within the coverage of 33 U.S.C.S. § 903(a). There was no genuine issue of material fact whether the employee had the status of "seaman" at the time of his injury. He did not have "seaman" status because he lacked a connection to a vessel in navigation that was substantial both in terms of duration and nature. Rather, he was an "employee" for purposes of and subject to exclusive coverage under 33 U.S.C.S. § 905(a). Thus, dismissal of his claims was proper. Next, the court reversed the sanctions awarded under Wash. Super. Ct. Civ. R. 37 for the failure to produce a document because the three-part inquiry was not conducted. The court did not consider whether the violation was willful, if there was prejudice, or if a lesser sanction was appropriate.

OUTCOME: The court affirmed the decision to grant summary judgment in favor of the employer and the order denying the employee's motion to strike the employer's affirmative defense. The court vacated the sanctions order and remanded that issue for further consideration.

MARK CASAVANT & another n1 vs. NORWEGIAN CRUISE LINE, LTD. n1 Tara Casavant.

No. 04-P-47
APPEALS COURT OF MASSACHUSETTS
63 Mass. App. Ct. 785; 829 N.E.2d 1171; 2005 Mass. App.LEXIS 632
September 9, 2004, Argued
June 30, 2005, Decided

PRIOR HISTORY: [**1] Worcester. Civil action commenced in the Superior Court Department on October 3, 2002. The case was heard by James P. Donohue, J., on motions for summary judgment.

DISPOSITION: Judgment reversed. Order denying motion for reconsideration vacated.

PROCEDURAL POSTURE: Plaintiff customers filed a claim against defendant cruise line seeking to recover payment for a cruise they attempted to reschedule. The cruise line moved to dismiss the complaint based on a forum selection clause, which required that litigation be filed in Florida. The Worcester Superior Court Department (Massachusetts) entered judgment dismissing the complaint and denying the customers' motion for reconsideration. The customers appealed.

OVERVIEW: The customers purchased tickets for a cruise that was scheduled to depart from Boston harbor on September 16, 2001. The customers were fearful of going on the cruise, and sought to reschedule. The cruise line denied the customers' requests. The cruise line did not provide the customers with information concerning the forum selection clause until close to one year after the original booking, two months after full payment was made, and approximately 13 days before sail date. The appellate court concluded that because the manner and means of the delivery of the terms of the contract for passage did not fairly allow the customers the option of rejecting the contract with impunity, and because, in the limited time frame allotted, the customers did not accept the ticket as a binding contract, under controlling Federal maritime law and Massachusetts contractual law, the Florida-dictated forum selection clause was not enforceable. The appellate court also found fundamental error in the manner in which the trial court handles the cruise line's motion to dismiss which included extra material concerning the forum selection clause and thus, should have been treated as summary judgment motion.

OUTCOME: The judgment of the trial court was reversed.

ROBERT MCINNIS VERSUS PARKER DRILLING COMPANY AND STONE ENERGY CORPORATION

NO. 2004-CA-1887
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
04-1887 (La.App. 4 Cir. 06/01/05);
2005 La. App. LEXIS 1565
June 1, 2005, Decided

[*1] THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

PRIOR HISTORY: APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2001-13692, DIVISION "G-11". Honorable Robin M. Giarrusso, Judge.

DISPOSITION: AFFIRMED.

PROCEDURAL POSTURE: Appellant drilling company employee was injured aboard platform rig-3 while in the course and scope of his employment. He alleged that he was employed by appellee employer as a seaman at the time of his employment injury, thereby entitling him to recover under the Jones Act, 46 U.S.C.S. app. § 688. The Civil District Court, Orleans Parish, Division "G-11" (Louisiana) found that the employee failed to prove seaman's status, and he appealed.

OVERVIEW: The issue was whether the employee's transfer to rig-3, which was not a vessel, was temporary or permanent. If the transfer was permanent, then the employee forfeited whatever seaman's status he previously had enjoyed prior to the transfer. The employee claimed that because he had worked on both platform rigs and jack-up rigs for the employer, his transfer to rig-3 had to be considered temporary. The appellate court disagreed and held that the fact that the employee might have been a seaman in the past and might have had the prospect of becoming one again in the future did not mean that his assignment to rig-3 was temporary instead of permanent as those terms were understood in the jurisprudence. It was to the new duties that the appellate court had to look in determining the employee's seaman's status. The court found that all of his duties in his new work assignment to rig-3 were non-vessel-related. Coupling that undisputed fact with the trial court's finding that the employee's reassignment to rig-3 was permanent compelled the conclusion that the employee was not a seaman at the time of his injury regardless of whether he might have qualified as such immediately prior thereto.

OUTCOME: The judgment of the trial court was affirmed

STERLING CASINO LINES, L.P., Appellant, v. LESLIE ROSALEEPLOWMAN-RENDER, Appellee.

Case No. 5D04-2830
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
902 So. 2d 938; 2005 Fla. App. LEXIS 8265; 30 Fla. L. WeeklyD 1404
June 3, 2005, Opinion Filed

SUBSEQUENT HISTORY: Released for Publication June 22, 2005.

PRIOR HISTORY: [*1] Appeal from the Circuit Court for Brevard County, Lawrence V. Johnson III, Judge.

DISPOSITION: REVERSED and REMANDED for a new trial.

PROCEDURAL POSTURE: Appellant cruise line appealed a judgment in favor of appellee individual by the Circuit Court for Brevard County (Florida) in the individual's personal injury action; the cruise line claimed that the trial court erred in admitting improper character evidence, evidence of prior bad acts, and other irrelevant evidence.

OVERVIEW: The individual claimed that she injured her shoulder when a waitress carrying a tray of coffee bumped into her. The cruise line's emergency medical technician treated the individual with a first aid spray. The individual returned home, and her burns healed in a few days. However, two or three days later, she had a stiff neck and a sore shoulder. She went to see her primary care physician, whose medical records indicated the injury occurred when the individual struck her shoulder on a door a month later. Over the cruise line's objection, the individual was able to introduce information relating to the medical technician's alcohol-induced coma, suicide attempt, stays in a mental facility, and the reason for his termination from employment with the cruise line. The court held that the questions asked of the technician might have been appropriate in a discovery context. However, they were irrelevant to the issues at trial and served simply to portray the technician in an unfavorable light. Because the questions impugned the technician's character and might have destroyed his effectiveness as a witness, the cruise line was entitled to a new trial.

OUTCOME: The judgment was reversed, and the cause was remanded for a new trial.

BETTY FROST, Plaintiff, vs. TECO BARGE LINES, Defendant.

No. 04-CV-00752-DRH
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFILLINOIS
2005 U.S. Dist. LEXIS 11795
June 1, 2005, Decided
June 1, 2005, Filed

PROCEDURAL POSTURE: Plaintiff seaman filed an admiralty complaint against defendant barge company under the Jones Act, 46 U.S.C.S. § 688 et seq., and general admiralty and maritime law to recover for personal injuries sustained in the course and scope of her employment as a crew member aboard one of the company's vessels. The seaman filed a motion for cure, punitive damages, and/or attorney fees.

OVERVIEW: The seaman alleged that she sustained back injuries while working on one of the company's vessels. The seaman's doctor recommended treatment in the form of medication, nerve blocks, and possible physical therapy. The company stated that it was not required to pay for this treatment because the injury was not related to the injuries the seaman sustained on the vessel and because the treatment was purely palliative, not curative. The court disagreed. First, the seaman's doctor sent a letter clarifying that the treatment was related to the injury sustained aboard the vessel. Second, the medical treatment was aimed at resolving pain at the injury site, thereby relaxing tissue and allowing healing of the tissue. Thus, the seaman was entitled to cure. However, the court held that the seaman was not entitled to an award of attorney fees because the company's failure to pay was not willful as there had been confusion over whether the injury for which cure was sought was one that was sustained aboard the vessel. Nor was the seaman entitled to punitive damages, which the court held were not available even for an employer's willful failure to pay maintenance and cure.

OUTCOME: The court granted the seaman's motion for cure to the extent that the company was ordered to comply with its cure obligations with regard to the seaman's medical treatment. The remainder of the motion was denied.

JOHN F. HURLEY, Plaintiff, v. M/V MAJESTIC STAR, herengines, boilers, furniture, tackle and apparel; and MAJESTIC STAR CASINO, Defendants.

NO. 2:04-CV-277 PS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFINDIANA, HAMMOND DIVISION
2005 U.S. Dist. LEXIS 13480
July 6, 2005, Decided

PROCEDURAL POSTURE: Plaintiff, a riverboat casino employee, sued defendant casino seeking overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee also attempted to invoke the court's admiralty jurisdiction; he brought an action in rem against the physical vessel on which he worked pursuant to the Maritime Lien Act (MLA), 46 U.S.C.S. 31342(a)(2). The vessel and the casino moved to dismiss.

OVERVIEW: The employee had not stated a claim for relief with respect to the vessel because the complaint alleged that the employee was not "employed as a seaman" and that he performed services of a non-maritime nature aboard a vessel that was virtually permanently moored. By attempting to take advantage of the protections of the FLSA, the employee had, in effect, pled himself out of court on his maritime lien claim. Moreover, there was no right to overtime under general maritime law principles, and the employee admitted that he was properly paid his regular wages in full. Further, the employee could not bring an FLSA claim directly against the vessel because the vessel was not an employer. The employee also could not maintain a maritime lien against the casino because the employee had pled that he was not a seaman. However, the employee could maintain an FLSA claim against the casino as he alleged that he worked in excess of 40 hours per week, that he was not compensated at a rate of one and one half times his regular rate, that he was not employed as seamen, and that he performed non-maritime duties.

OUTCOME: The in rem case against the vessel was dismissed for failure to state claim, but the casino's motion to dismiss was denied.

JOHN F. HURLEY, Plaintiff, v. M/V MAJESTIC STAR, herengines, boilers, furniture, tackle and apparel; and MAJESTIC STAR CASINO, Defendants.

NO. 2:04-CV-277 PS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFINDIANA, HAMMOND DIVISION
2005 U.S. Dist. LEXIS 13480
July 6, 2005, Decided

PROCEDURAL POSTURE: Plaintiff, a riverboat casino employee, sued defendant casino seeking overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee also attempted to invoke the court's admiralty jurisdiction; he brought an action in rem against the physical vessel on which he worked pursuant to the Maritime Lien Act (MLA), 46 U.S.C.S. 31342(a)(2). The vessel and the casino moved to dismiss.

OVERVIEW: The employee had not stated a claim for relief with respect to the vessel because the complaint alleged that the employee was not "employed as a seaman" and that he performed services of a non-maritime nature aboard a vessel that was virtually permanently moored. By attempting to take advantage of the protections of the FLSA, the employee had, in effect, pled himself out of court on his maritime lien claim. Moreover, there was no right to overtime under general maritime law principles, and the employee admitted that he was properly paid his regular wages in full. Further, the employee could not bring an FLSA claim directly against the vessel because the vessel was not an employer. The employee also could not maintain a maritime lien against the casino because the employee had pled that he was not a seaman. However, the employee could maintain an FLSA claim against the casino as he alleged that he worked in excess of 40 hours per week, that he was not compensated at a rate of one and one half times his regular rate, that he was not employed as seamen, and that he performed non-maritime duties.

OUTCOME: The in rem case against the vessel was dismissed for failure to state claim, but the casino's motion to dismiss was denied.

DEBORAH HELLMAN, Plaintiff, v. ROYAL CARRIBEAN INTERNATIONAL Defendant.

Case No. 04 C 4041
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
2005 U.S. Dist. LEXIS 14177
July 8, 2005, Decided
July 8, 2005, Filed

PROCEDURAL POSTURE: Plaintiff passenger, an Illinois resident, sued defendant cruise ship company for negligence, alleging she sustained serious injury to her arm as the result of a massage she received while a passenger aboard one of the company's ships. The company moved to dismiss the complaint for improper venue and lack of personal jurisdiction, or, in the alternative, to transfer the case to a court where venue was proper.

OVERVIEW: The passenger's ticket contract provided that the forum for any litigation would be Miami, Florida. She argued that the forum selection clause was unenforceable because she lacked adequate notice of the clause and because it was fundamentally unfair. The court disagreed. The contract stated in bold letters that the document was "Important" and admonished the passenger to "Read All Clauses"; the forum selection clause itself appeared in all capital letters. That the passenger chose not to read the contract was immaterial. She was presented with adequate notice of the forum selection clause and the opportunity to reject it within 30 days without incurring a substantial financial penalty. She failed to show that fundamental unfairness would result from prosecuting the claim in Florida rather than in Illinois, as there was at least some likelihood that discoverable material and/or witnesses related to the company's alleged negligence would at its corporate offices in Miami. The court determined that justice was better served by transfer under 28 U.S.C.S. 1406(a) rather than dismissal, since the contract limited the time period in which an action could be brought.

OUTCOME: The company's motion to dismiss was denied, and its motion to transfer was granted. The case was transferred to the U.S. District Court for the Southern District of Florida.

SUE LEVICK, Plaintiff, v. STEINER TRANSOCEAN LIMITED, Defendant.

CASE NO. 04-21910-CIV-LENARD/KLEIN
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA, MIAMI DIVISION
2005 U.S. Dist. LEXIS 14770
July 13, 2005, Decided
July 13, 2005, Filed

PRIOR HISTORY: Levick v. Steiner Transocean Ltd., 228 F.R.D. 671, 2005 U.S. Dist. LEXIS 11350 (S.D. Fla., 2005)

PROCEDURAL POSTURE: Plaintiff claimant brought a negligence action against defendant, a provider of spa services, after the claimant was injured when stepping down from a massage table while a passenger on a cruise line. The provider filed a motion to dismiss, which the court construed as a motion for summary judgment.

OVERVIEW: The provider contended that the claimant's action was barred by the shortened one-year limitation period under the cruise ticket contract, as allowed by 46 U.S.C.S. app. § 183b(a). The court granted summary judgment in favor of the provider because there were no material facts in dispute relevant to the one-year limitation period. The court found that the provider could benefit from the shortened filing time because the one year period was lawful under § 183b(a) and the ticket contract clearly notified the claimant and other passengers of the types of liability exclusions and the types of entities who could benefit. The contract included independent contractors and detailed the type of contractors covered, including spa and masseuse services. Thus, the provider was clearly the type of independent contractor or concessionaire covered by the contract. Equitable tolling was not applicable because the claimant chose to pursue her action solely in the state court system without preserving her claim by filing in federal court. The claimant was aware of the shortened time period before its expiration, and no inequitable event prevented her from timely filing in federal court.

OUTCOME: The court granted the provider's motion to dismiss, construed as a motion for summary judgment, and closed the case. The court denied as moot all pending motions.

EDDIEPATTERSON,Plaintiff-Counter-Defendent-Appellee, Versus ALLSEAS USA,INC., ET ALDefendants, ALLSEAS MARINE CONTRACTORS SA, Defendants-Counter Claimant-Appellant

$ 04-40949
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2005 U.S. App. LEXIS 10692
June 8, 2005, Filed

NOTICE: [*1] RULES OF THE FIFTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Texas, Lufkin Division. No. 9:02-CV-175.

DISPOSITION: REVERSED; RENDERED.

PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Texas, Lufkin Division, which ruled in favor of appellee employee in his suit to recover damages for personal injuries pursuant to the Jones Act, 46 U.S.C.S. § 688.

OVERVIEW: The employee, who was the highest ranking employee on the ship other than the captain, went with a co-employee to inspect a pool of standing water. The employee's boots became wet during the process. Following the inspection, the employee descended a stairway and slipped, though he was prevented from falling because the co-employee blocked the employee's fall. The employee's boots were wet at the time of the fall, and a portion of the handrail on one side of the stairs was missing. The district court entered judgment for the employee on the grounds that the co-employee, who was a barge supervisor tasked with safety, had breached a duty to warn the employee of the dangers of descending the stairway with wet boots and that the employer was vicariously liable for the co-employee's breach of duty. In reversing the judgment, the court pointed out that under the Jones Act, a shipowner need not warn seamen of dangers that were "open and obvious." The court held that the employee, who was the co-employee's supervisor and the main safety official on the ship, should have known of the dangers associated with descending a stairway in wet boots, and thus, the co-employee had no duty to warn.

OUTCOME: The court reversed the district court's judgment and rendered judgment in favor of the employer.

PAUL SOBIESKI and GAIL SOBIESKI, Plaintiffs-Appellants, v. ISPAT ISLAND, INC., INDIANA HARBOR STEAMSHIP CO., LLC, CENTRAL MARINE LOGISTICS,INC., and M/V JOSEPH L. BLOCK, Defendants-Appellees.

No. 04-3001
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2005 U.S. App. LEXIS 12901
January 5, 2005, Argued
June 29, 2005, Decided

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:01-CV-617-PRC. Paul R. Cherry, Magistrate Judge.

PROCEDURAL POSTURE: Appellants, crewman and his wife, filed suits against appellees, corporations, employer, and vessel, and alleged various negligence claims under maritime law. The United States District Court for the Northern District of Indiana, Hammond Division dismissed the claims that remained after a grant of summary judgment. The crewman challenged the grant of summary judgment on the claims under the Jones Act, 46 U.S.C.S. app. § 688.

OVERVIEW: The crewman's neck was injured when his crewmate forcefully cracked his neck unexpectedly. The crewman then fell down his basement stairs when he experienced a lock up pinch in his neck. As a result, the crewman broke his neck in three places and required multiple surgeries and rehabilitation. The crewman and his wife contended that the employer was vicariously liable under the Jones Act, 46 U.S.C.S. app. § 688 for what they described as the crewmate's pseudoctic ways. The crewman and his wife also argued that the employer was directly negligent and liable for the crewman's injury because it was aware, or should have been aware, through its officers, of the crewmate's neck-tractioning activities and did nothing to prevent them. The court found that the crewmate's altruistic tractioning of necks clearly fell within that category of acts commonly held to be outside the scope of employment, those undertaken by an employee for a private purpose and having no causal relationship with his employment. Thus, no reasonable jury could have found that the crewmate's act of cracking the crewman's neck fell within the scope of employment, and the crewman's respondeat superior argument failed.

OUTCOME: Summary judgment on the crewman and the wife's Jones Act claims was appropriate. Therefore, the judgment of the district court was affirmed.

FOLKSAMERICA REINSURANCE COMPANY, as successor in interestto Christiania General Insurance Company of New York, Plaintiff-Appellant, v.CLEAN WATER OF NEW YORK, INC., Defendant-Appellee.

Docket No. 03-9124
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2005 U.S. App. LEXIS 13041
November 9, 2004, Argued
June 30, 2005, Decided

PRIOR HISTORY: [*1] Appeal from a memorandum and order entered on August 14, 2003, in the United States District Court for the Eastern District of New York (Block, J.), dismissing the complaint for lack of subject matter jurisdiction in the absence of admiralty jurisdiction. Folksamerica Reinsurance Co. v. Clean Water of N.Y., Inc., 281 F. Supp. 2d 530, 2003 U.S. Dist. LEXIS 13991 (E.D.N.Y., 2003)

PROCEDURAL POSTURE: A worker was injured cleaning an oil tank of a barge moored in New York Harbor. Plaintiff insurer filed suit for a declaration that it had no obligation to defend or indemnify defendant ship tank cleaning business, which had subcontracted the work to the worker's employer. The United States District Court for the Eastern District of New York dismissed the case for lack of maritime jurisdiction under 28 U.S.C.S. § 1333(1). The insurer appealed.

OVERVIEW: The shiprepairers legal liability section and the modified comprehensive general liability (CGL) section together operated seamlessly to provide coverage that was primarily marine in nature. The sections shared a premium and were subject to the same deductible and limitations. The policy was custom-built to fill the gaps that traditional marine insurance policies--hull, collision, and protection and indemnity insurance--left in maritime-industry coverage. The SLL section protected against property damage to vessels undergoing repair, and the CGL section added completed operations, products, pollution, contractual liability, and premises and operations coverage. The provisions rounded out coverage for maritime transport operations and gave ship repair and maintenance coverage. Because one section provided full marine insurance, and the other was specifically modified to cover maritime risks, the policy was marine in nature without the necessity of determining whether the premises and operations coverage was marine or not. The policy's primary objective was marine insurance. It was error to conclude that there was no admiralty jurisdiction under 28 U.S.C.S. § 1333(1).

OUTCOME: The district court's dismissal was vacated and the case was remanded.

DOUGLAS SPECTOR, ET AL., PETITIONERS v. NORWEGIAN CRUISELINE LTD.

No. 03-1388
SUPREME COURT OF THE UNITED STATES
125 S. Ct. 2169; 162 L. Ed. 2d 97; 2005 U.S. LEXIS 4655; 73U.S.L.W. 4429; 16 Am. Disabilities Cas. (BNA) 1345; 18 Fla. L.Weekly Fed. S354;11 Accom. Disabilities Dec. (CCH) 11-256
February 28, 2005, Argued
June 6, 2005, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. Spector v. Norwegian Cruise Line, Ltd., 356 F.3d 641, 2004 U.S. App. LEXIS 340 (5th Cir. Tex., 2004)

DISPOSITION: Reversed and remanded.

PROCEDURAL POSTURE: Plaintiff disabled passengers filed a class action against defendant foreign cruise line under Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12181 et seq. Though holding Title III generally applicable, the district court dismissed some claims but left others in place. The United States Court of Appeals for the Fifth Circuit held that the ADA was inapplicable to foreign vessels. The passengers sought review.

OVERVIEW: The passengers claimed the line's ships were covered by Title III's prohibition on discrimination in "public accommodations," 42 U.S.C.S. § 12182(a), and "specified public transportation services," 42 U.S.C.S. § 12184(a). Inter alia, the Supreme Court held that although the statutory definitions of "public accommodation" and "specified public transportation" did not expressly mention cruise ships, the cruise ships in question clearly fell within both definitions under conventional principles of interpretation. The "clear statement rule" demanded a clear congressional statement, not for all applications of a statute to foreign-flag vessels, but only those applications that would interfere with the foreign vessel's internal affairs. This did not mean the clear statement rule was irrelevant to the ADA, however. If Title III by its terms imposed duties that interfered with a foreign-flag ship's internal affairs, the lack of a clear congressional statement could mean that those specific statutory applications were precluded. The Circuit Court's broadly sweeping clear statement rule interpretation was inconsistent with the Supreme Court's case law and sound statutory interpretation.

OUTCOME: The Supreme Court reversed the decision of the Circuit Court and remanded for further proceedings.

[*1] S.M. Pires and VIRGINIA PIRES, his wife, Plaintiff,v. Frota Oceanica Brasileira, S.A., BOARD OF TRUSTEES OF GALVESTON WHARVES d/b/aPORT of GALVESTON & CITY OF GALVESTON d/b/a PORT OF GALVESTON, Defendants. S.M.PIRES and SAUL RUDES, Plaintiffs, KENNETH HELLER, Defendant KENNETH HELLER,Third-party Defendant, SUSAN HARMON, Third-party Defendant. S.M. PIRES and SAULRUDES, Plaintiffs, v. KENNETH HELLER, Defendant

23829/76
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2005 NY Slip Op 50315U; 6 Misc. 3d 1036A; 2005 N.Y. Misc.LEXIS 434
January 14, 2005, Decided

According to the verified complaint in Pires and Rudes v Heller, plaintiff S.M. Pires retained defendant Kenneth Heller to represent him in[**5] the an action commenced in 1976 against Frota Oceanica Brasileira, S.A. et al, for personal injuries Mr. Pires sustained while employed as[*3] a seaman on Frota's ship. That action for maintenance and cure resulted in a judgment in Mr. Pires' favor in a sum exceeding $4,000,000 plus interest. The complaint further avers that Mr. Heller retained plaintiff Saul Rudes as appellate counsel to handle appeals resulting from the judgment and agreed that Mr. Rudes' fee would be 10% of Heller's net fee in Mr. Pires' personal injury action. After several appeals, the total judgment with interest awarded to Mr. Pires was $8,329,720.65. Defendant Frota issued a check in that amount made payable to "Starkheiser Pires and Kenneth Heller and Saul Rudes, his attorneys."

According to the supporting affidavit of Mr. Pires', Mr. Heller represented him in the personal injury action S.M. Pires v Frota Oceanica Brasileira, Index No. 23829/76. Mr. Pires states that (1) Mr. Heller showed him the June 24, 1997 Appellate Division decision which held that Mr. Pires was entitled to a $4,000,000 damage award, (2) after further appeals, defendant Frota was ordered to pay that amount with interest which amount totaled $8,239,720.65 and that Mr. Heller never informed him of this accrued additional interest and Mr. Heller kept that amount for himself, (3) at the time that Mr. Pires went to the bank with Mr. Heller to receive the $4,000,000 amount, Mr. Heller asked Mr. Pires to sign blank sheets of paper and Mr. Pires has no knowledge of the contents of those documents now, (4) after learning of the higher award, Mr. Pires confronted Mr. Heller who stated he took the other 50% as his fee, (5) Mr. Pires protested to Mr. Heller as he was never told of the higher award and never agreed to the 50% fee, (6) Mr. Pires never signed a retainer[**8] agreement, (7) Mr. Pires filed a complaint with the Disciplinary Committee of the Appellate Division, First Department, Mr. Heller promised that he would pay the money back because the Court would award an additional $4,000,000 as attorneys' fees against defendant Frota's insurance company, (8) Mr. Pires withdrew the complaint under duress as Mr. Heller said he would not get the money back if Mr. Heller was disbarred as Mr. Pires had no[*4] other attorney at the time, (9) Mr. Heller came to Brazil and Mr. Pires signed an affidavit which he did not read and gave a deposition recorded on videotape, a copy of which Mr. Pires does not have and which is invalid according to Brazilian law, (10) Mr. Heller has told Mr. Pires that he has no money to repay him and Mr. Heller has previously told him that he keeps money in bank accounts in Switzerland, Leichtenstein and Germany, and (11) Mr. Heller has threatened to leave the state and live in Brazil as Brazil has no extradition policy with the United States specifically for the purpose of defeating the collection of any judgment Mr. Pires would obtain against him.

Mr. Pires has taken contradictory positions regarding his former attorney Kenneth Heller and the[**9] submissions on these motions reflect those differing positions. However, the explanations given, that he signed blank sheets of paper for Mr. Heller and that Mr. Heller told him that he would not see the money owed to him unless he withdrew his complaints, are plausible.

The affirmation of plaintiff Saul Rudes n2 avers that Mr. Rudes has been co-counsel with Kenneth Heller in the Pires v Frota Oceanica Brasileira personal injury action since 1996, having been retained by Mr. Heller to handle several post-judgment appeals. Mr. Rudes states that (a) his status as an attorney of record was confirmed in a Supreme Court order dated July 29, 1999, (b) his fee agreement with Mr. Heller in this action as well as other actions for which he was retained is that he would receive 10% of Mr. Heller's net fee, and, thus, he has a 10% interest in the attorneys' fee against the judgment of $8,329,720.65, (c) Mr. Heller committed a fraud against Mr. Pires and Mr. Rudes when Mr. Heller took half of the full judgment amount, (d) Mr. Heller duped Mr. Rudes into waiving an attorneys' fee lien by falsely stating to Mr. Rudes, and to the Court, that the $8,329,720 was to be paid directly to the client, Mr. Pires [**10]and that attorneys' fees were to be awarded separately, (e) Mr. Heller moved to have defendant Frota issue a new check without Mr. Rudes name on it and as a result Frota issued a new check which was issued payable solely to Heller as attorney.

DISPOSITION: Plaintiffs' motion for an order of attachment granted; cross-motion to dismiss denied.

HAROLD YOUNCE VERSUS PACIFIC GULF MARINE, INC. AND ABCINSURANCE COMPANY

No. 04-CA-839
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
04-839 (La.App. 5 Cir. 01/25/05);
893 So. 2d 909; 2005 La. App. LEXIS 57
January 25, 2005, Decided

PROCEDURAL POSTURE: Appellant claimant challenged the judgment of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Division I, Louisiana, granting summary judgment in favor of appellee employer denying the claimant maintenance and cure benefits for his injury suffered aboard a ship.

OVERVIEW: The claimant was involved in an accident aboard a ship in December 1995 while employed by the employer. The evidence presented showed that the claimant was injured aboard another ship in April 1995. The employer argued that the claimant intentionally concealed his injury and treatment for the prior accident in April 1995, thereby forfeiting his right to maintenance and cure. The appellate court ruled that whether the claimant intentionally misrepresented his medical condition or fraudulently concealed material information regarding his medical condition when he presented to get his clinic card was a disputed question of fact. Since the claimant admitted to having a prior neck injury and that the prior injury occurred on a ship, there was a material issue of fact as to whether the claimant fraudulently concealed his medical condition and should be deprived of maintenance and cure. Also, it was not clear from the evidence submitted whether the prior injury and medical treatment even if disclosed would have prevented the claimant from receiving a clinic card.

OUTCOME: The judgment was reversed and the matter was remanded.

ARMONDO MARTINEZ VERSUS MARLOW TRADING, S.A. AND FOREIGNCREW EMPLOYMENT SERVICES, INC.

No. 2004-CA-0538
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2004-0538 (La.App. 4 Cir. 02/02/05);
894 So. 2d 1222; 2005 La. App. LEXIS 283; 2005 AMC 778
February 2, 2005, Decided

PROCEDURAL POSTURE: Appellant injured Honduran seaman brought a suit for maintenance and cure against appellees, a Greek vessel owner and its Louisiana agent. Both filed, inter alia, a motion to dismiss pursuant La. Code Civ. Proc. Ann. art. 123(B), stating that Orleans Parish was not an appropriate forum and that Panama or Honduras were more appropriate. The Civil District Court, Orleans Parish, Division "G-11" (Louisiana) granted the motion. The seaman appealed.

OVERVIEW: Panama and Honduras were both adequate and available forums for the proceedings to be conducted and therefore, they fulfilled the requirements for transfer to a more convenient forum. Panama was available because it was the chosen forum of both parties based upon the contractual agreement, and the vessel was also registered in Panama. Honduras was available because the seaman was domiciled there and it was where key witnesses, including his doctors, were located. Based upon the affidavits of a Panamanian attorney, the seaman's claims would be recognized in Panama and he would receive an adequate remedy. The seaman was domiciled and had received the remainder of his medical treatment in Honduras; therefore Honduras was also the location of his treating physicians who would be required to testify at trial. In the interest of fostering greater access to sources of proof and minimizing the costs of obtaining witnesses the trial should be held in either Panama or Honduras; especially because the witnesses were not located in Orleans Parish nor was the vessel registered in that parish. Therefore the appellate court held that both countries provided adequate forums for the trial.

OUTCOME: The judgment of the trial court was affirmed.

STEPHEN C. SMITH VERSUS TIDEWATER INC.

NO. 2004-CA-0195
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
04-0195 (La.App. 4 Cir. 3/02/05);
2005 La. App. LEXIS 905
March 2, 2005, Judgment Released

PROCEDURAL POSTURE: Defendant employer, a marine company, appealed a decision of the Civil District Court, Orleans Parish (Louisiana), which awarded damages to plaintiff employee in finding that the defendant violated the duty to rescue plaintiff after he fell overboard. Plaintiff was also awarded damages for wrongful termination.

OVERVIEW: Plaintiff was working for defendant when he allegedly fell overboard off the coast of Puerto Rico. Plaintiff swam for nearly 20 hours to shore. The court held that defendant complied with 46 C.F.R. § 26.03-2(b). However, once the Coast Guard began searching for plaintiff, defendant brought its tow into port claiming that it created a burden in the search efforts. The court held that even if that were so, defendant's action of spending over three hours in port while its seaman was lost at sea was not diligent. Further, while 46 C.F.R. § 4.06 required chemical testing on those directly involved, the testing could have been done later. But for the vessel returning the barge to port so that it could remain on schedule, plaintiff may have been rescued and his post-traumatic stress disorder lessened. However, the trial court erred in not assessing plaintiff a percentage of contributory negligence. Therefore, because defendant was not negligent in plaintiff's actual fall, it assigned plaintiff 70 percent fault. Finally, the court held that the retaliatory discharge award was proper because there was evidence that plaintiff was fired in because he was considering filing a claim.

OUTCOME: The court amended the judgment to cast plaintiff 70 percent comparatively at fault. The award for retaliatory discharge was amended to reflect the intention to include an award for lost wages and loss of future income.

SIVIRINO CARREON, BULIG-BULIG KITA KAMAGANAK ASSOCIATION,RENATO ASISTORGA, PEDRO B. SORIMA, ARNEL N. GALANG, ELSA MONTIAGODO, ERASTOMAGHACUT, ISABEL MAGNO, LORITA ACOSTA, ACEBEDO VIOLETA, SABULAO FAIYAZ, JULIETABENASO, ESCOLASTICA BALDO, JOSE BAGUHIN VERSUS CAL-TEX PHILIPPINES, INC.,CAL-TEX PETROLEUM, CORP., CAL-TEX ASIA, LTD., CAL-TEX OIL CORP., CALIFORNIATEXAS OIL CORP., CAL- TEX PHILIPPINES PETROLEUM COMPANY, INC., CAL--TEX TRADINGAND TRANSPORT CORP., STEAMSHIP MUTUAL, ET AL.

NO. 2004-CA-0809
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2004-0809 (La.App. 4 Cir. 03/23/05);
2005 La. App. LEXIS 1010
March 23, 2005, Decided

PROCEDURAL POSTURE: After two vessels collided off of the coast of the Philippines, appellee petitioners brought a suit in the Civil District Court, Orleans Parish, Division "G-11" (Louisiana). The court initially conditionally dismissed the suit based on forum non conveniens pursuant to La. Code Civ. Proc. Ann. art. 123, but the court subsequently reinstated the suit because no foreign forum would provide an adequate remedy. Appellant ship owner appealed.

OVERVIEW: The issue was whether the district court erred in reinstating the claim. The ship owner argued, inter alia, that the petitioners sabotaged their own motion to intervene in the Manila court by failing to provide support for the motion and failing to advise the Manila court of the previous dismissal in Catabalogan. The appellate court found that the record reflected that the petitioners accurately filed their motion in accordance with the appropriate law and that there was no harm in the petitioner's efforts to seek another forum to litigate. The record did not reveal any wrongdoing or ill filings on the part of the petitioners that warranted the label of "sabotage" or deceit. Twice the district court ordered the conditional dismissal of the case. The petitioners complied with the order of the district court by filing their claims in Manila and Catabalogan. Each judgment provided for the reinstatement of the case in the Civil District Court for the Parish of Orleans should the Philippine courts choose not to accept jurisdiction. The district court had not abused its discretion by reinstating the claims, especially when it clearly rendered its judgments with that possibility in mind.

OUTCOME: The judgment of the trial court reinstating the claims of the petitioners was affirmed.

BETTY FISK, Plaintiff-Respondent, v. ROYAL CARIBBEANCRUISES, LTD., a Liberian corporation, Defendant-Appellant.

Docket No. 30041, 2005 Opinion No. 39
SUPREME COURT OF IDAHO
108 P.3d 990; 2005 Ida. LEXIS 44
March 4, 2005, Filed

PROCEDURAL POSTURE: The District Court of the Fourth Judicial District, Ada County, Idaho, denied appellant cruise line's Idaho R. Civ. P. 12(b) motion to dismiss an action brought against it by respondent passenger for having been filed in an improper forum. The cruise line appealed.

OVERVIEW: Under principles of federal maritime law, the cruise line sought enforcement of a forum selection clause in the cruise ticket contract signed by the passenger. The appellate court noted that the suit arose from a tort occurring on the high seas and involved the interpretation of a maritime contract. As such, both the tort and the contract were subject to federal maritime law. Although the passenger argued that Idaho law applied, any public policy exceptions were not controlling in an international commercial agreement outside of American waters. The maritime contract at issue was international in nature as it involved a cruise to Mexico. There was no authority permitting the appellate court to apply Idaho law in place of federal maritime law. The forum selection clause in the non-negotiated cruise ticket contract established Florida as the sole appropriate forum for litigation. The passenger did not raise fairness issues such as inconvenience, fraud, or overreaching. Therefore, the forum selection clause in the cruise ticket contract had to be enforced. The passenger was not the prevailing party on appeal; therefore, no award of attorney fees was warranted.

OUTCOME: The judgment was reversed and remanded.

IRIS FRANGO and JOSEPH FRANGO, Appellants, v. ROYALCARIBBEAN CRUISES, LTD., Appellee.

CASE NO. 3D03-3261
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
891 So. 2d 1208; 2005 Fla. App. LEXIS 954; 2005 AMC 804; 30Fla. L. Weekly D 320
February 2, 2005, Opinion Filed

DISPOSITION: Affirmed in part; reversed in part and remanded.

PROCEDURAL POSTURE: Appellants, a wife and a husband, brought suit against defendant cruise company to recover for injuries sustained by the wife on one of the company's ships and for loss of consortium. Appellants sought review of the judgment of the Circuit Court for Miami-Dade County (Florida), which granted the company's motion for summary judgment on both of the claims.

OVERVIEW: While appellants were passengers on one of the company's ships, the automatic sliding doors that led into the ship's lounge closed on the wife's face and caused her injuries. The incident occurred as the wife entered the lounge and turned her head around to find her husband, who was walking behind her. In appellants' suit against the company, the trial court granted summary judgment against appellants on both the wife's negligence claim and the husband's claim for loss of consortium. On appeal, the court found that the trial court erred in granting summary judgment against the wife on her negligence claim because the court could not agree that by briefly stopping to look back at her husband, the wife was entirely responsible for the accident. However, the court determined that the trial court properly granted summary judgment against the husband on his loss of consortium claim because maritime law did not recognize a claim for loss of consortium to non-seamen.

OUTCOME: The court reversed the judgment granting summary judgment for the company on the wife's claim for injuries but affirmed the judgment granting summary judgment for the company on the husband's claim for loss of consortium. The court remanded the cause to the trial court.

MARLON VALDIVIA, Appellant, v. PRESTIGE CRUISES, N.V. andCSCS INTERNATIONAL, N.V., Appellees.

No. 4D04-1942
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2005 Fla. App. LEXIS 4653; 30 Fla. L. Weekly D 905
April 6, 2005, Decided

OPINION: Per Curiam.

We affirm the trial court's dismissal of this seaman's personal injury suit on forum non conveniens grounds. In dismissing this case, the trial court properly applied the analysis required by Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and rule 1.061(a) of the Florida Rules of Civil Procedure. The Kinney factors provide the proper analysis for maritime cases filed in state court. See Tananta v. Cruise Ships Catering & Svcs. Int'l, 2004 Fla. App. LEXIS 19661, 2004 WL 2955023, 30 Fla. L. Weekly D18 (Fla. 3d DCA Dec. 22, 2004) (clarifying that[*2] where dismissal of a Jones Act action filed in state court is sought on the grounds of forum non conveniens, Kinney standards apply, rather than a federal choice of law venue analysis).

Further, the time limitation in rule 1.061(g) does not affect the trial court's ability to raise the forum non conveniens issue sua sponte at any time. See Verysell-Holding LLC v. Tsukanov, 866 So. 2d 114 (Fla. 3rd DCA), rev. denied, 874 So. 2d 1194 (2004) (holding that the sixty-day time limit imposed by rule of civil procedure governing service of a party's motion to dismiss based on forum non conveniens does not apply to a trial court's inherent power to raise the issue of forum non conveniens sua sponte.).

Affirmed.

Audre Capaldo v. Camelot Cruises, Inc. et al.

CV030179618S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OFWATERBURY, AT WATERBURY
2005 Conn. Super. LEXIS 551
February 18, 2005, Decided
February 18, 2005, Filed

PROCEDURAL POSTURE: Plaintiff injured party filed a negligence action against defendants, a cruise line and performing theatre company (company), for injuries she sustained during one of the company's on- ship performances. The cruise line moved for summary judgment on the ground that it had no duty to the injured party, no issues of material fact existed, and thus, it was entitled to judgment as a matter of law. This proceeding followed.

OVERVIEW: The injured party alleged that the cruise line was negligent in allowing the company to have personal contact with the ship's passengers, allowing the performance to take place in their proximity, failing to provide a warning that performers would have contact with passengers, not properly supervising the performers, and not providing reasonable assistance to her once she was injured. The court first held that it appeared that the company was an independent contractor. Second, the cruise line retained some degree of control over the equipment used in the performances, such as the cordless microphones used for the actors. It also had the sole responsibility to promote and advertise the performance and had the right to control the content and format of all written and printed materials that came in contact with passengers. These contract provisions, coupled with the fact that the performances took place on the ship, raised material fact issues regarding the cruise lines's retention of control over the premises where the performances took place. Further, given the interaction between the company and the audience, it was foreseeable that an actor would step on a passenger's foot.

OUTCOME: The motion was denied.

DONALD J. LEBLANC v. M/V NAUMACHIA (O.N. 672110), herengines, tackle and appurtenances, inrem

CA No. 04-009 ML
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODEISLAND
2005 U.S. Dist. LEXIS 5152; 2005 AMC 506
January 4, 2005, Decided

PROCEDURAL POSTURE: In an in rem action, pro se plaintiff former captain asserted maritime liens against a vessel. After the vessel was arrested, claimant bank intervened asserting that it held a preferred ship mortgage against vessel superior to any lien asserted by the captain.

OVERVIEW: It was undisputed that the bank's mortgage was a preferred mortgage under the Commercial Instruments and Maritime Liens Act, 46 U.S.C.S. § 31301 et seq. The bank disputed the very existence of the liens asserted by the captain and argued instead that the captain was a joint venturer who was legally incapable of asserting a maritime lien against the vessel. The court engaged in a five-part analysis and determined that a joint venture existed. The captain and his former fiancee intended to purchase the vessel together, but could not because of the captain's poor credit. The captain controlled nearly all of the operational activities of the vessel. While his former fiancee was legal owner of the vessel, the captain nonetheless managed the operations of the vessel and, as such, had a proprietary interest in the vessel and its success. The final two factors considered the share of the venture's profits and losses. The captain and his former fiancee agreed to equally share all profits. The fact that they never discussed who would bear the enterprise's losses did not necessarily foreclose a determination that the captain was a joint venturer.

OUTCOME: The bank had a preferred ship mortgage against the vessel, but the captain had no valid maritime liens. The vessel was ordered sold, and the resulting proceeds would first be allocated to any expenses that had accumulated while the vessel was detained in custodia legis. The remainder would then be paid into the registry of court for disbursement on any claims made.

JAMES WHITE, Plaintiff, v. WATERMAN STEAMSHIP CORP.,Defendant.

CIVIL ACTION NO. G-03-1026
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, GALVESTON DIVISION
2005 U.S. Dist. LEXIS 7246
January 7, 2005, Decided

PROCEDURAL POSTURE: Following an injury while working aboard a vessel, plaintiff seaman sued defendant, the vessel's owner, alleging causes of action under the Jones Act, 46 U.S.C.S. § 588, unseaworthiness, maintenance and cure, and penalty wages under 46 U.S.C.S. § 10313. Defendant filed a motion for partial summary judgment only as to the claim for penalty wages.

OVERVIEW: There was no evidence that defendant intentionally withheld plaintiff's wages for his work on the first day he was on the vessel or arbitrarily or willfully refused to pay him those wages. A simple accounting error in the calculation of a seaman's wages did not qualify as arbitrary or willful so as to invoke the draconian penalties under 46 U.S.C.S. § 10313. Moreover, plaintiff was not entitled to penalty wages for any lost past and future wages, unpaid maintenance and cure benefits, and lost union benefit plan contributions. Lost union benefit plan contributions and unpaid maintenance and cure benefits were outside the scope of the wage penalty statute. Lost union benefit contributions were paid to the seaman's union and not directly to the seaman. Lost wages were those that a seaman could have earned but did not because of his incapacity, thus, they did not accrue until after he was discharged.

OUTCOME: The court granted defendant's motion for partial summary judgment for penalty wages.

LUCKY STEVENS VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION No: 00-3326 SECTION "T" (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 537
January 11, 2005, Decided
January 13, 2005, Filed; January 13, 2005, Entered

PROCEDURAL POSTURE: Plaintiff seaman was injured while working aboard a vessel owned by defendant employer. The seaman filed an action pursuant to the Jones Act, 26 U.S.C.S. app. § 688, and general maritime law seeking compensation for his injuries. The court conducted a bench trial, in admiralty, and entered its findings and judgment.

OVERVIEW: While working on a fishing boat, the seaman was struck in the back by a hydraulically operated galvanized steel block. His last treating physician reported that he suffered a 15 to 20 percent permanent partial total body medical impairment, which would limit his ability to work. The seaman's economic expert concluded that he would lose between $203,435 and $267,254 in wages, as a result of his physical impairments. The court found that the employee who operated the block was negligent, as was the rest of the crew for failing to warn the seaman of the impending danger created by the block operator. The employer could be held liable and was negligent through the actions of its boat crew; their incompetence also rendered the boat unseaworthy. The court found no contributory fault on the seaman's part. The seaman was entitled to recover unpaid maintenance and cure benefits and was also entitled to recover damages for pain and suffering and for past and future lost wages. He was not entitled to attorney's fees because he failed to show that the employer's denial of maintenance and cure benefits was egregious.

OUTCOME: The court entered a judgment for the seaman and ordered the employer to pay him $629,656.64, together with interest from the date of the judgment. It held that the seaman was not entitled to attorney's fees. The court declined to award prejudgment interest.

IN THE MATTER OF CRESCENT SHIP SERVICE, INC., as owner andowner pro-hac-vice, of the M/V MR. FREDDIE, her engines, tackle, appurtenances,etc. in a cause of EXONERATION FROM OR LIMITATION OF LIABILITY

CIVIL ACTION NO. 03-2107, c/w 03-2163, C/w 04-0340, c/w04-0397 SECTION "C" (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 1294
January 26, 2005, Decided
January 27, 2005, Filed; January 28, 2005, Entered

PROCEDURAL POSTURE: In an action that arose out of an accident involving a crew boat and a barge, the matter was before the court to determine whether claimant longshoremen suffered injury and damages as a result of the collision.

OVERVIEW: The 22 longshoremen alleged they were on board a crew boat when, at approximately 8:00 p.m., the vessel struck a slow-moving barge. The crew boat was ferrying the longshoremen back to shore from a mid-river work site. The owner of the crew boat and the owner of the barge stipulated that they were jointly and severally liable for causing the accident that was the basis of the suit. The court first found that the collision was strong enough to cause injury to passengers on the crew boat. The court reasoned that virtually all of the longshoremen testified that the collision provided a strong jolt to the crew boat, and the impact itself was exacerbated by the sharp acceleration and turn of the crew boat immediately prior to contact, a result of the captain's attempt to maneuver the boat out of harm's way. Next, the court stated that it would consider each longshoremen's allegations of injury without regard to their failure to report injury or their reasons for not doing so. Finally, the court addressed each of the longshoremen individually. In doing so, most of the longshoremen were awarded medical specials and general damages.

OUTCOME: The court awarded medical specials and general damages to most of the longshoremen. Two of the longshoremen were awarded nothing.

Summary Judgment In Favor Of Owner On Unseaworthiness Granted Where Cook Fell When Seas Had 5 Foot Waves. Summary Judgment Denied On Jones Act And Maintenance And Cure Claims

GLEN TATE, et al., Plaintiffs, v. SHOWBOAT MARINA CASINOPARTERNSHIP, et al., Defendants.

No. 02 C 3432
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
357 F. Supp. 2d 1075; 2005 U.S. Dist. LEXIS 6245

PROCEDURAL POSTURE: Plaintiff employees filed suit against defendant vessel owners, seeking overtime pay and damages for delay in payment pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The owners filed a motion for summary judgment.

OVERVIEW: The employees, who worked as crew members on a gambling boat, claimed that they were entitled to overtime pay under the FLSA. The owners contended that the employees were exempt from the overtime provisions of the FLSA under 29 U.S.C.S. § 213(b)(6) because they were employed as "seamen" on a vessel. The court held that the owners were entitled to summary judgment on the employees' claims because: (1) the employees were considered seaman for purposes of the Jones Act, 46 U.S.C.S. app. § 688, and, thus, a presumption arose that they were seaman under the FLSA as well; and (2) there was no genuine issue of material fact such that the employees could rebut the presumption that they were seaman. The court found that the activities relied upon by the employees in support of their assertion that they spent over 20 percent of their time on non-maritime services--acting as security guards, greeting guests while they stood watch on the rampway, changing and cleaning ceiling tiles, performing general housekeeping duties, moving slot machines and furniture, and answering telephones--were in fact maritime services because they were related to the safety of the boat as a ship and not a casino.

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