Cruise Ship Law

NORFOLK SOUTHERN RAILWAY COMPANY, PETITIONER v. TIMOTHY SORRELL
SUPREME COURT OF THE UNITED STATES
2007 U.S. LEXIS 1006
January 10, 2007, Decided

PROCEDURAL POSTURE: Respondent employee sued petitioner railroad in Missouri state court under the Federal Employers' Liability Act (FELA), 45 U.S.C.S. §§ 51-60, to recover for injuries sustained on the job. A jury awarded the employee $ 1.5 million in damages. The Missouri Court of Appeals, Eastern District, affirmed, and the Missouri Supreme Court denied discretionary review. The Supreme Court granted the railroad's petition for a writ of certiorari.

OVERVIEW: The employee was injured in a truck accident while working for the railroad. The railroad claimed that the employee's own negligence caused the accident. The trial court, using Missouri's approved jury instructions for FELA liability, instructed the jury to find the employee contributorily negligent if his negligence directly contributed to cause his injury, while the jury was instructed to find the railroad negligent if its negligence contributed in whole or in part to the injury. The Supreme Court found that the state courts erroneously applied different causation standards to railroad negligence under 45 U.S.C.S. § 51 and employee contributory negligence under 45 U.S.C.S. § 53. At common law, the causation standards for negligence and contributory negligence were the same, and FELA did not expressly depart from that approach. Also, applying different causation standards would have made it difficult to reduce damages in proportion to contributory negligence as required under § 53. Inclusion of the language "in whole or in part" in 45 U.S.C.S. § 51 but not in 45 U.S.C.S. § 53 did not justify a departure from the common-law practice of applying a single standard of causation.

OUTCOME: The judgment of the state court of appeals was vacated, and the matter was remanded for determination of whether a new trial was required.

CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINES, Appellant, vs. VICTOR M. BOOTH, as Personal Representative of the Estate of STEVEN M. BOOTH, Deceased, Appellee.
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2006 Fla. App. LEXIS 20780; 31 Fla. L. Weekly D 3115
December 13, 2006, Opinion Filed

PROCEDURAL POSTURE: Appellee, the estate of a deceased cruise ship passenger, sued appellant cruise line, alleging it was negligent in marketing a scuba diving excursion. The Circuit Court for Miami-Dade County, Florida, denied the cruise line's motion to dismiss, finding that it had waived its right to enforce the forum selection clause contained in the ticket contract. The cruise line appealed.

OVERVIEW: The passenger died while participating in the cruise line's scuba diving excursion. His ticket contract provided that venue for any suit against the cruise line was in the federal district court in Miami, Florida. The estate filed suit in that court, as well as the instant action; the federal court dismissed the suit due to the pending state court action. In the instant case, after the cruise line timely asserted the defense of improper venue by motion under Fla. R. Civ. P. 1.140(b), it served one set of interrogatories and a request for production on the estate. The trial court held that by engaging in this discovery, the cruise line waived the defense of improper venue. The appellate court disagreed. The cruise line's limited participation in the instant case did not amount to a waiver of its right to enforce the forum selection clause. Further, enforcement of the clause was not unreasonable under the circumstances.

OUTCOME: The judgment was reversed and the case was remanded for entry of an order granting the cruise line's motion to dismiss for improper venue.

HARVEY'S CASINO, Appellant, vs. BEVERLY ISENHOUR, Appellee. AMERISTAR CASINOS COUNCIL BLUFFS, INC. and GAB ROBINS, Appellants, vs. AMANDA A. DAVIS, Appellee. AMERISTAR CASINOS COUNCIL BLUFFS, INC. and GAB ROBINS, Appellants, vs. HELEN FALANGA, Appellee.
SUPREME COURT OF IOWA
724 N.W.2d 705; 2006 Iowa Sup. LEXIS 162
December 8, 2006, Filed

PROCEDURAL POSTURE: Appellee claimants challenged a decision from the Iowa Court of Appeals, which reversed a district court's decision that the Iowa Workers' Compensation Commission had jurisdiction to order benefits paid by appellant employers.

OVERVIEW: The claimants worked on casino riverboats, and they filed workers' compensation claims after they suffered work-related injuries. The Commission ruled that it had subject matter jurisdiction to award benefits, and the district court agreed. The court of appeals reversed, and this appeal followed. In affirming the court of appeals, the supreme court determined that the claimants were not covered by Iowa workers' compensation law because they were covered by a compensation statute enacted by Congress, pursuant to Iowa Code § 85.1(6). The claimants were covered by 46 U.S.C.S. § 688a. The claimants fit the definition of "seaman" because they had a substantial connection to the vessel and they contributed to the accomplishment of the vessel's missions, which was gambling. Further, the definition of vessel under 1 U.S.C.S. § 3 only required that a watercraft be used or capable of use as a means of water transportation; it did not have to be used primarily for that purpose. The boats in question were used in river waters about 200 hours per year.

OUTCOME: The decision of the court of appeals was affirmed. The district court's decision was reversed, and the case was remanded for dismissal of the workers' compensation claims.

BARBARA WALSH, Plaintiff, v. NCL (BAHAMAS) LTD. et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2006 U.S. Dist. LEXIS 92996
December 18, 2006, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed suit against defendant cruise line, seeking to recover damages that the passenger sustained in connection with her fall on a wet floor. The cruise line moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6).

OVERVIEW: The passenger slipped on a wet floor in the spa area of the cruise line's ship, allegedly because water had been allowed to accumulate on the floor. The passenger alleged that the cruise line was negligent in failing to keep the spa's floor from becoming wet and slippery. The court held that the passenger's complaint stated a cause of action for negligence. However, the court held that the passenger failed to state a claim when she alleged that the cruise line failed to render proper medical treatment when the passenger was denied the use of a wheelchair for the duration of the voyage. First, if the passenger was alleging that the cruise line failed to treat her medically, such claim failed because, under precedent in the United States Court of Appeals for the Fifth Circuit, the cruise line had no duty to provide the passenger with medical services. Second, if the passenger was alleging that the cruise line was vicariously liable for the ship's doctor's refusal to provide the passenger with a wheelchair, such claim failed because the negligence of a ship's doctor in treating a passenger could not be imputed to a carrier.

OUTCOME: The court denied the cruise line's motion to dismiss as to the claim for negligence. The court granted the cruise line's motion to dismiss as to the claim that the cruise line failed to treat the passenger medically.

NEAL JAMES, Plaintiff - Appellant, v. WARDS COVE PACKING COMPANY, INC., Defendant - Appellee.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2006 U.S. App. LEXIS 29852
December 1, 2006, Filed

PROCEDURAL POSTURE: Appellant employee challenged an order from the United States District Court for the Western District of Washington, which dismissed on summary judgment his claims against appellee corporation under 46 U.S.C.S. app. 688(a) (current version at 46 U.S.C.S. § 30104) of the Jones Act and 33 U.S.C.S. § 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA).

OVERVIEW: The district court held that there was genuine issue of material fact as to whether the employee had a substantial connection to the corporation's fleet of vessels or whether those vessels were in navigation. On appeal, the court held that the district court improperly dismissed the Jones Act claims because the employee presented sufficient evidence to raise a factual issue as to whether his essential duties were the same in Seattle during the winter 2002-2003 season and in Alaska during his employment with the corporation prior to that winter season. In both places, the employee performed maintenance and repair work on the corporation's vessels, and he presented evidence that he spent over half his time aboard those vessels in both Alaska and Seattle. Thus, there was a genuine issue of act as to his seaman status. There also was a factual issue as to whether he worked "at sea" in the service of the corporation's fleet of vessels. The district court properly concluded that § 905(b) barred the employee from asserting a negligence claim against the corporation because it was the owner of the vessel on which the employee was injured.

OUTCOME: The court affirmed the order of the district court to the extent that it dismissed the LHWCA claim. The court reversed the order to the extent that it dismissed the Jones Act claims and remanded the matter to the district court for trial.

IN RE GLOBAL SANTA FE CORPORATION, Relator
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2006 Tex. App. LEXIS 10753
December 19, 2006, Opinion Filed

PROCEDURAL POSTURE: Relator corporation challenged an order entered by respondent multidistrict litigation (MDL) pretrial court judge, in which real party seaman's claims under the Jones Act, 46 U.S.C.S. § 688 were remanded to a district court. The corporation sought mandamus relief.

OVERVIEW: The seaman filed his Act claim in a district court, alleging that the corporation failed to provide a safe vessel, which resulted in the exposure to silicia. The case was transferred to the MDL pretrial court pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 90.010(b) (Supp. 2006). The seaman sought and received a remand to the district court on the grounds of federal preemption. The corporation filed a petition for writ of mandamus, which was denied. Because applying the provisions of Tex. Civ. Prac. & Rem. Code Ann. ch. 90 to the pre-2003 Jones Act claimant thwarted federal remedies, it was preempted. The court rejected the corporation's claim Tex. Civ. Prac. & Rem. Code Ann. § 90.010(b) (Supp. 2006) was procedural and subject to being construed apart from the remaining provisions of the chapter. Section 90.010(b) was not merely procedural, as it was an integral part of the larger MDL design. By applying only § 90.010(b), the seaman was precluded from pursuing his rights under the Act. Therefore, whether procedural or substantive, Tex. Civ. Prac. & Rem. Code Ann. ch. 90 was preempted by federal law, such that the corporation was not entitled to mandamus relief.

OUTCOME: The court denied the petition.

BRUCE HYMAN, Plaintiff - Appellant, v. TRANSOCEAN OFFSHORE U.S.A., INC.; SEDCO FOREX CORPORATION, Defendants - Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 29802
December 5, 2006, Filed

PROCEDURAL POSTURE: Appellant employee sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which granted summary judgment to appellee employer in the employee's suit alleging claims under the Jones Act and general maritime law in connection with an injury that the employee sustained on board a mobile offshore drilling unit, as well as in connection with the employee's discharge.

OVERVIEW: The employee was injured on a staircase of the drilling unit before the construction of that unit was completed. The employee was temporarily transferred to an on-shore facility. A few years later, while on board the drilling unit, the employee removed a skid resistant plate from the staircase so as to replicate conditions at the time of his injury for purposes of taking a photograph. The employee was terminated. The court held that (1) the employee was not a seaman for purposes of the Jones Act at the time of his injury because the drilling unit was still under construction and thus was not yet a vessel in navigation; (2) the employee was a seaman for purposes of the Jones Act at the time of his discharge because the drilling unit had been completed by that time and the employee had been assigned to work on the drilling unit's crew; and (3) the employee's retaliatory discharge claim failed because the evidence showed that the employee was discharged because he had a conflict with a supervisor and because the employee disassembled the staircase without asking permission to do so, rather than because the employee had filed a personal injury suit.

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

LANNY M. HUSEMAN, Plaintiff-Appellant, v. ICICLE SEAFOODS, INC., a Washington corporation; F/V DISCOVERY STAR, Official No. 500072, her engines, tackle, furniture, apparel and equipment, In Rem, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2006 U.S. App. LEXIS 31816
December 27, 2006, Filed

PROCEDURAL POSTURE: Plaintiff seaman sued defendants, a company and a vessel, alleging a claim under the Jones Act, former 46 U.S.C.S. app. § 688 (recodified at 46 U.S.C.S. § 30104), an unseaworthiness claim, and a claim for maintenance and cure. The United States District Court for the Western District of Washington granted summary judgment in favor of defendants. The seaman appealed.

OVERVIEW: The seaman injured his shoulder while he was working as a seafood processor for the company aboard the vessel. The company filed a workers' compensation report with regard to the injury. Nearly three years later the seaman filed the current action. The district court found that the Jones Act and unseaworthiness claims were time barred and the maintenance and cure claim was barred by laches. The appellate court found that equitable tolling was not warranted because the seaman did not exercise due diligence in pursuing his federal claims. The seaman could not take advantage of equitable estoppel because he could not, and in fact did not, reasonably rely on a disputed paragraph in his terms of employment or on the company's conduct when he delayed in filing his complaint. The court declined to apply the "wards of the court" doctrine. The district court made no specific findings of prejudice with regard to the claim of laches and instead improperly articulated a rationale for why the delay was unreasonable.

OUTCOME: The judgment was affirmed with respect to the Jones Act and unseaworthiness claims, but was reversed and remanded with regard to the maintenance and cure claim.

MARIANNE PAUL AND ROBERT PAUL, Plaintiffs, v. HOLLAND AMERICA LINE, INC., et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2006 U.S. Dist. LEXIS 81527
November 6, 2006, Decided

PROCEDURAL POSTURE: Plaintiffs, a husband and wife, sued defendant cruise line, alleging negligence, negligent infliction of emotional distress, and loss of consortium, after the wife required heart surgery following a cruise. They alleged that her condition was caused by an echovirus that she contracted on-board. The cruise line sought partial summary judgment under Fed. R. Civ. P. 56.

OVERVIEW: The cruise line requested an order that recovery be limited to 46,666 Special Drawing Rights (SDR) pursuant to the Athens Convention, and that the husband's loss of consortium claim be dismissed. The federal district court granted the motion, finding that the physical characteristics of plaintiffs' ticket were such that the terms and conditions were sufficiently conspicuous to plaintiffs. Further, the provision at issue identified the relevant limitation of 46,666 SDRs, meaning that plaintiffs needed only visit the International Monetary Fund website to view the current value of an SDR in American dollars. Moreover, the language that was provided was sufficient to have put them on notice of the liability limitation. Furthermore, there was nothing confusing about the contract's reference to the Athens Convention as well as to the laws of the U.S. Although neither the Convention nor the 1976 Protocol had been ratified by the U.S., so they carried no force of law, the limitation provision had force because it was properly incorporated into the contract. Finally, loss of consortium claims were not cognizable in cases that were governed by maritime law.

OUTCOME: The district court granted the cruise line's motion for partial summary judgment.

MATTHEW WENDELBOE VERSUS SEARIVER MARITIME, INC.
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2006 La. App. LEXIS 2472
November 3, 2006, Judgment Rendered

PROCEDURAL POSTURE: Appellee employee sued appellant employer for negligence and sought damages under the Jones Act, 46 U.S.C.S. App. � 688(a), and general maritime law. The employer sought an offset for disability benefits the employee had received. The 19th Judicial District Court of East Baton Rouge Parish, Louisiana, held that the disability plan was a fringe benefit, and the employer was not entitled to a reduction. The employer appealed.

OVERVIEW: On review, the employer contended the trial court erred in granting the employee's motion for summary judgment, thus shielding his disability benefits from offset by the employer against any tort litigation recovery he might have received. The appellate court agreed, finding first that the employer was both the alleged tortfeasor and the would-be "independent" source that funded the disability plan. As these conceptual identities were merged in the same entity, there was no true collateral source here. The inquiry hinged on the nature of the plan at issue, and the intent of the employer through the plan to avoid a double payment for both benefits and tort recovery was what controlled. The language of 45 U.S.C.S. � 55 clearly aimed to provide a means by which employees could receive employer assistance and compensation for their injuries and employers had an incentive to provide such benefits while protecting themselves against double payment obligations. In the instant case, the employer's plan clearly expressed its intent to do so, in accordance with the statute.

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