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.

JON ANTHONY JAUCH, Plaintiff-Appellant, versus NAUTICAL SERVICES, INC., Defendant-Appellee/Cross-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 27879
November 9, 2006, Filed

PROCEDURAL POSTURE: Plaintiff, an American seaman, brought an action under the Jones Act, 46 U.S.C.S. app. § 688, against defendant, an American employer, for personal injuries allegedly occurring while the seaman was working aboard one of the employer's vessels. The employer filed an opposed motion to transfer venue under 28 U.S.C.S. § 1404(a) and an alternate motion to dismiss under Fed. R. Civ. P. 12(b)(3).

OVERVIEW: On his employment application to work as a deckhand on an oceangoing tug, the seaman concealed his preexisting back injury and lengthy history of psychiatric treatment. The district court found he had not been instructed in the proper procedure for helping to lower a johnboat to a lower deck, which caused him to suffer a back injury that eventually required surgery, but that he also had not asked how to perform the task and had not remained attentive while performing it. On appeal, the court held that, because the seaman had fraudulently concealed his preexisting medical conditions, the district court correctly applied the McCorpen rule in denying his claim for maintenance and cure benefits. The district court's apportionment of equal fault was not clearly erroneous. The award of damages for medical expenses under the Jones Act was independent of the seaman's maintenance and cure claim. However, the record was insufficient for the court to review whether the district court had correctly calculated damages or had properly denied prejudgment interest.

OUTCOME: The court affirmed the district court's order denying the seaman's claim for maintenance and cure and apportioning fault equally between the seaman and the employer, vacated the award of past medical expenses and the denial of prejudgment interest, and remanded to allow the district court to consider the claims further and to provide more detailed analysis and reasons for its decisions.

Mark Hayes, Plaintiff-Respondent, v The City of New York, et al., Defendants, Skyline Cruise Line, Inc., Defendant-Appellant.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2006 NY Slip Op 7962; 2006 N.Y. App. Div. LEXIS 13114
November 2, 2006, Decided

PROCEDURAL POSTURE: Plaintiff passenger on a cruise boat sued defendant cruise line company, seeking damages for injuries sustained when the passenger was assaulted. The Supreme Court, Bronx County (New York), denied the cruise line's summary judgment motion. The cruise line appealed.

OVERVIEW: The passenger witnessed an altercation between other passengers during the four-hour cruise. Ten minutes after disembarking after the cruise ended, the passenger was assaulted by one of the individuals involved in the altercation aboard the boat. The appellate court found that neither the "location" nor the "connection with maritime activity" tests were satisfied such as to extend maritime jurisdiction to the injuries. The assault did not occur on navigable water, and was not caused by a vessel on navigable water. An assault on a pier was not the kind of incident that had a potentially disruptive impact on maritime commerce or a substantial relationship to traditional maritime activity. The cruise line's duty of care as a common carrier terminated upon the passenger's safe disembarkation from the vessel. There was no evidence that what transpired during the cruise should have put the cruise line on notice that there was a risk of assault to the passenger. The injuries occurred at a substantial distance and time away from the vessel in an area leased and controlled by a nonparty while the passenger was moving at his own pace and under his own control.

OUTCOME: The judgment was reversed, and the motion was granted.

KIM ISBELL, Plaintiff, vs. CARNIVAL CORPORATION, d/b/a and/or f/k/a CARNIVAL CRUISE LINES, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2006 U.S. Dist. LEXIS 84452
November 20, 2006, Decided

PROCEDURAL POSTURE: Plaintiff passenger filed suit pursuant to the Passenger Vessel Act, 46 U.S.C.S. � 3501 et seq., against defendant cruise line, seeking to recover damages for personal injuries that the passenger suffered during a shore excursion that was operated by a third-party. The claim asserted by the passenger was one of negligence. The cruise line moved for summary judgment.

OVERVIEW: The passenger went on a shore excursion that was recommended by the cruise line. The excursion involved floating down a river in a rain forest, through caves, while on an inner tube. The passenger was bitten by a snake and was administered antivenin at a medical facility. The passenger blamed the snake bite for a heart attack that she suffered one month later. In granting summary judgment to the cruise line, the court first held that the passenger's ticket contained an exculpatory clause relieving the cruise line of liability for incidents that occurred on shore excursions operated by third-parties. However, even if the exculpatory clause was not applicable due to statements made by the cruise line as to the safety of the rain forest excursion, the passenger failed to show that the cruise line breached any duty to warn the passenger about the possibility of snake bites, particularly where the danger of encountering a dangerous animal in the jungle was apparent and obvious. Further, the passenger failed to show that the snake bite caused her heart attack, as the passenger's own doctor found no manifestations that appeared to be the result of the bite or the antivenin.

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

JOSEPH AND MARIA BURKE, Plaintiffs, VERSUS QUICK LIFT, INC., AND STATEN ISLAND BOAT SALES, Defendants. QUICK LIFT, INC., Third-Party Plaintiff, VERSUS CARVER BOAT CORPORATION, LLC, Third-Party Defendant.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2006 U.S. Dist. LEXIS 83394
November 16, 2006, Decided

PROCEDURAL POSTURE: Plaintiffs owners sued defendants, a boat seller and a contractor, alleging injuries from the failure to properly install a piece of equipment on a yacht they purchased. The contractor filed a third-party claim, impleading third-party defendant boat manufacturer. Defendants moved to dismiss the complaint for failure to state a claim. The manufacturer moved to dismiss the third-party complaint and for the imposition of sanctions on the contractor.

OVERVIEW: The seller hired the contractor to install a boat-lift davit on the owner's yacht. While on a voyage, the davit malfunctioned and injured the owners. The court found that admiralty jurisdiction existed over the owners' tort claim because the complaint alleged facts showing that (1) the alleged tort occurred on or over navigable waters, (2) the incident had a potentially disruptive impact on maritime commerce, and (3) the conduct bore a substantial relationship to a traditional maritime activity. Defendants sought dismissal of the complaint on the basis that it was time-barred. The court denied the motion, finding that a three year statute of limitations applied, that the cause of action accrued at the discovery of the underlying injury, and thus, that the complaint was timely because it was filed shortly after the davit allegedly malfunctioned and injured the owners. The court also denied the manufacturer's motion to dismiss the third-party claim because it stated a viable claim upon which the manufacturer could be liable either to the owners or to the contractor. As the third-party complaint stated a viable cause of action, the court denied the manufacturer's motion for sanctions.

OUTCOME: The court denied defendants' motion to dismiss the complaint. In addition, the court denied the manufacturer's motion to dismiss the third-party complaint and its motion for sanctions.

Willard E. Bartel and David C. Peebles, Administrators of the Estate of Charles Rich, Deceased, Plaintiffs, v. A-C Product Liability Trust, et. al, Defendants.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION
2006 U.S. Dist. LEXIS 82404
November 13, 2006, Opinion Filed

PROCEDURAL POSTURE: Plaintiff administrators of the estate of a decedent whose death was caused by exposure to asbestos sued defendant manufacturers, whose products contained asbestos. The administrators filed a demand for a jury and submitted briefs regarding choice of law.

OVERVIEW: In August, 2003, decedent was diagnosed with malignant mesothelioma. He died in July, 2006. His sickness and eventual death were allegedly caused by his exposure to asbestos while he was a merchant seaman from 1945 to 1950 and while he worked as an engineer at a jet fuel refinery in Montana from 1955 to 1975. The land-based claim of injury due to asbestos at the refinery was clearly land-based and thus not subject to federal maritime substantive law. The sea-based claims were appropriately under admiralty jurisdiction and maritime law. The claim of asbestos injury at the refinery was not closely related to admiralty law, nor was it related to traditional maritime activity; therefore, substantive federal maritime law would not apply to the land-based claim. The court concluded that Montana law appropriately applied to the land-based claim because the injury occurred in Montana and Montana was the decedent's domicile for 20 years. The sea-based count was to be tried by the same jury. This would serve judicial economy, particularly since the administrators attributed the underlying injury to multiple product defendants.

OUTCOME: The sea-based claim was to be tried under the court's admiralty jurisdiction, applying federal maritime law. The land-based claim was to be tried under Montana law. All claims were to be tried before a single jury.

EDDISON C. CAMACHO, a seaman, Plaintiff - Appellant, v. ICICLE SEAFOODS,
INC., an Alaska corporation; NORTHERN VICTOR F/V, a vessel, her engines,
equipment, tackle and appurtenances, In Rem; EVENING STAR INC, Defendants
- Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2006 U.S. App. LEXIS 27687
November 7, 2006, Filed

PROCEDURAL POSTURE: Appellant seaman challenged an order from the United States District Court for the Western District of Washington, which granted a summary judgment of dismissal in favor of appellee corporation in the seaman's suit for recovery under the Jones Act, 46 U.S.C.S. app. � 688(a) and under the admiralty common law doctrines of unseaworthiness and maintenance and cure.

OVERVIEW: The seaman alleged that his injury resulted from a conspiracy by other employees, including a supervisor. On appeal, the court held that the seaman produced no evidence to support his conspiracy theory beyond his own conjecture. Absent any evidentiary support, the seaman's allegations were insufficient to defeat summary judgment on his Jones Act claim. The district court properly awarded summary judgment in favor of the corporation on the unseaworthiness claim because the seaman did not present sufficient evidence of savage and vicious acts by other crew members to support his claim. However, recovery for maintenance and cure was not predicated on the fault or negligence of a shipowner. The seaman produced evidence from which a reasonable jury could conclude that he sustained an injury to his knee and that the injury occurred during his shift as a fire watch aboard a vessel. The district court erred by granting summary judgment for the corporation simply because the seaman's motion in opposition did not specifically address the corporation's argument regarding the maintenance and cure issue.

OUTCOME: The court affirmed the district court's dismissal of the Jones Act and unseaworthiness claims. The court reversed the order to the extent that it dismissed the seaman's claim for maintenance and cure and remanded that claim to the district court for trial.

INLAND DREDGING, In the Matter of the Complaint of Inland Dredging Company,
LLC, Owner and Operator of the M/V Ms Paula, for Exoneration from Limitation or
Liability, Plaintiff-Appellee v. RICARDO SANCHEZ, Claimant-Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 26899
October 27, 2006, Filed

PROCEDURAL POSTURE: Appellee dredging company filed a limitation of liability action pursuant to the Limitation of Liability Act (Limitation Act), 46 U.S.C.S. app. § 185, in the United States District Court for the Northern District of Mississippi and obtained an injunction. Appellant allegedly injured seaman appealed the injunction, which prevented him from proceeding with his Jones Act case against the dredging company in another federal district court.

OVERVIEW: The seaman contended that as a single claimant who had filed a stipulation that protected the shipowner's rights to limitation of liability, he should be allowed to proceed with his claims in his chosen forum. The dredging company argued that since the seaman pursued remedies in a federal court sitting in admiralty, rather than a common law state court, he was restricted to litigating all issues before the current federal district court. The appellate court did not find anything in the Limitation Act's text, legislative history, or United States Supreme Court's opinions that led it to conclude that only where the Limitation Act and the saving to suitors clause conflict was it appropriate for the limitation court to dissolve its injunction and allow the claimant to proceed in a different forum. To allow the district court to continue to restrain the seaman from pursuing his case in another federal district court would turn the Limitations Act into an offensive instrument to cut off his traditional right to choose his forum.

OUTCOME: The injunction was vacated.

DERRICK J. PARFAIT, SR., Plaintiff, v. CENAC TOWING, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2006 U.S. Dist. LEXIS 77046
October 19, 2006, Decided

PROCEDURAL POSTURE: Plaintiff, an American seaman, brought an action under the Jones Act, 46 U.S.C.S. app. § 688, against defendant, an American employer, for personal injuries allegedly occurring while the seaman was working aboard one of the employer's vessels. The employer filed an opposed motion to transfer venue under 28 U.S.C.S. § 1404(a) and an alternate motion to dismiss under Fed. R. Civ. P. 12(b)(3).

OVERVIEW: The seaman was required to sign a choice of forum agreement as a condition of employment, which prohibited the seaman from filing a personal injury suit against the employer in a court outside of Louisiana. The court denied the motions. La. Rev. Stat. Ann. § 23:921(A)(2), making choice of forum clauses in employment contracts unenforceable, showed a strong public policy against enforcing such clauses. The employer offered no persuasive argument to dismiss the case under Fed. R. Civ. P. 12(b)(3) based on the clause or to abandon the court's earlier decision holding the choice of forum agreements between American seamen and American companies were unenforceable in Jones Act claims. Though the scales were fairly even, the court found that the factors for transferring venue weighed slightly in favor of retention of the case under 28 U.S.C.S. § 1404(a) even though the seaman did not reside in the district. The case had a connection to the forum in that the employer regularly conducted business within the district, the wrong allegedly occurred in the district, and the seaman chose the forum. The employer failed to provide sufficient evidence to show inconvenience to key witnesses.

OUTCOME: The court denied the employer's motion to transfer venue and alternate motion to dismiss.

CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINES, Petitioner, vs. BARBARA
MIDDLETON and JAMES MIDDLETON, her husband, Respondents.
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2006 Fla. App. LEXIS 16421; 31 Fla. L. Weekly D 2480
October 4, 2006, Opinion Filed

PROCEDURAL POSTURE: Respondent passenger sued petitioner cruise line in a Florida court for personal injuries in a negligence action. The judge dismissed the action without prejudice. The passenger then filed suit in the United States District Court for the Southern District of Florida. The federal judge dismissed the action. The Florida court then reinstated the action. The cruise line filed an appeal which was interpreted as a petition for a writ of prohibition.

OVERVIEW: Based on a forum selection clause in the passenger's ticket, which provided for the resolution of any dispute to be litigated in the United States District Court for the Southern District of Florida in Miami, the lower court dismissed the action. After the passenger filed suit in the federal court, the federal court dismissed the federal action on grounds that the passenger failed to file suit in federal court within the applicable ticket-contract provision of one year for personal injury actions. The passenger, upon reinstatement of the action in the lower court, argued that the venue provision in the passenger ticket was unenforceable. The reviewing court found that the federal court's findings regarding forum selection and limitations grounds were binding upon the lower court under the principles of collateral estoppel. Further, res judicata barred the trial court from re-litigating the waiver question of the right to trial by jury under Fla. Const. art. I, § 22. Moreover, the dismissal based on statute of limitations grounds constituted an adjudication on the merits for purposes of res judicata. Therefore, the lower court was without authority to reinstate the cause of action.

OUTCOME: The petition for a writ of prohibition was granted.

PROCEDURAL POSTURE: Plaintiff seaman filed an action against defendant, alleging negligence under the Jones Act, 46 U.S.C.S. app. § 688, and unseaworthiness under the general maritime law. Defendant moved for summary judgment.

OVERVIEW: The seaman was a citizen of the Republic of Honduras. Both the seaman's employer and the owner of the vessel were subsidiaries of defendant. Defendant contended that § 688(b) denied a foreign seaman the right to sue in a federal or state court of the United States. The seaman argued that § 688(b) did not deprive him of access to courts in the United States to present claims for his injury under the laws of Honduras and Mexico. The court concluded it had jurisdiction to consider the seaman's claims for relief under the laws of Honduras, Mexico, or international lex maritime. The plain language of § 688(b)(1) denied the seaman a remedy under the Jones Act and the maritime laws of the United States; however, the statute did not refer to the jurisdiction of a federal court over a seaman's claims under foreign laws. Accordingly, defendant did not establish that it was entitled to judgment as a matter of law because the foreign law claims were barred under § 688.

OUTCOME: The motion for summary judgment was denied.

KIMBERLY BORGES -v- SEABULK INTERNATIONAL, INC. f/k/a HVIDE MARINE INC.,
INTEROCEAN MANAGEMENT CORPORATION, and THE SS HMI DIAMONDS SHOALS,
In Rem
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
2006 U.S. Dist. LEXIS 74928
October 17, 2006, Decided

PROCEDURAL POSTURE: Plaintiff chief mate filed an action against defendants, the owner and the operator of a product tanker, asserting claims for negligence under the Jones Act, 46 U.S.C.S. app. § 688, unseaworthiness of the vessel, maintenance and cure, and punitive damages. Defendants filed a motion for summary judgment as to the negligence and unseaworthiness claims.

OVERVIEW: The chief mate was the second in command on defendants' vessel. While conducting an inspection of a ballast tank, the chief mate fell into a lightening hole, breaking several ribs. The chief mate alleged that defendants were negligent in failing to provide intrinsically safe drop lights inside the ballast tank, that such drop lights were provided to defendants' sister vessels, that the chief mate probably would not have fallen in a lightening hole if the drop lights had been available, that no other drop lights could be used aboard product tankers, and that she had made complaints to the captain on multiple occasions regarding the lack of lights. With respect to the negligence claim, the court held that there were genuine issues of material fact as to whether defendants' duty to provide a reasonably safe workplace required installation of lights inside the tank and whether the lack of lighting played a part in causing the chief mate's injuries. Defendants were not entitled to summary judgment on the unseaworthiness claim because a reasonable jury could find that the vessel was rendered unseaworthy by the lack of lights in the tank.

OUTCOME: The court denied defendants' motion for summary judgment.

IN RE: THE COMPLAINT OF ROYAL CARIBBEAN CRUISES LTD., as owner of the
unnamed 2003 Yamaha Wave Runner XL700, 80HP Vessel, Serial Number
YAMA27941203, for Exoneration from or Limitation of Liability.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2006 U.S. Dist. LEXIS 77643
October 23, 2006, Decided

PROCEDURAL POSTURE: Petitioner cruise line filed an exoneration action under the Limitation of Liability Act, 46 U.S.C.S. app.§§ 181-188, after claimants, minors who were cruise passengers, sought damages for personal injuries incurred when the jet ski they had rented from the cruise line crashed into an island during a guided tour of an ocean bay in the Bahamas. Claimants filed a motion for summary judgment, which the cruise line opposed.

OVERVIEW: Claimants alleged that the cruise line was negligent because if failed to follow the operating manual procedures for the jet ski in question and failed to train claimants on the jet ski's off-throttle steering loss and lack of brakes. Under the Act's burden-shifting analysis, the court found that the cruise line was not negligent. Inter alia, before permitting claimants to rent the jet ski, the cruise line required them to view an operational video, watch a trained tour guide's demonstration of riding the same model jet ski, and participate in a test run to make sure they understood that the jet ski could glide up to 300 feet when stopping. Claimants had signed a waiver and release form that specifically stated that the jet ski lacked brakes and had a 300-foot stopping radius. Additionally, a warning about the lack of brakes was affixed to the jet ski itself. Under the circumstances, the cruise line exercised reasonable care. Claimants also failed to show that the jet ski was unseaworthy if properly operated. A defense expert's testimony that jet skis using off-throttle steering loss systems were defective was not intended as a legal or scientific conclusion.

OUTCOME: The court denied claimants' motion for summary judgment.

IN RE: THE COMPLAINT OF ROYAL CARIBBEAN CRUISES LTD., as owner of the
unnamed 2003 Yamaha Wave Runner XL700, 80HP Vessel, Serial Number
YAMA2794I203, for Exoneration from or Limitation of Liability.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2006 U.S. Dist. LEXIS 77646
October 23, 2006, Decided

PROCEDURAL POSTURE: Petitioner, a cruise line corporation, sued claimants, a passenger and his son, to adjudicate a claim for exoneration. Claimants had suffered personal injuries when the jet ski they were using during an ocean tour collided with an island. Claimants filed claims against the corporation, which contended that it was not liable for claimants' injuries because claimants had signed a release agreement. The corporation moved for summary judgment.

OVERVIEW: The release stated that claimants agreed to fully discharge the corporation from any and all liability for any injuries they sustained when using the jet ski. The court held that (1) the release was valid as against the passenger's claims because the release was clear and unambiguous, and the fact that the tour leader may have led the tour in a way that violated the safety rules outlined in the release did not void the release; (2) the release was not valid as against the son's claims because he was a minor at the time of the accident, and the passenger's signing of the release did not equate to a release of the son's claims; (3) the doctrine of unseaworthiness was limited to seaman and did not extend to a ship's passengers, and thus, the son's claims of unseaworthiness had to be dismissed; (4) the remaining claims in the suit, which were the son's claims, sounded in negligence; and (5) the son could not support his negligence claims by alleging that the corporation violated Florida statutory law because this suit was a maritime personal injury action that was governed by substantive general maritime law.

OUTCOME: The court denied in part and granted in part the motion for summary judgment. The motion was granted as to the passenger's claims and denied as to the son's claims. A negligence standard was to govern the case, and therefore, the son could not bring a claim under the doctrines of unseaworthiness or ultrahazardous/strict liability. The son was also prohibited from referencing Florida statutory law to serve as a basis for the negligence claims.

Tankship International, LLC, Plaintiff, v. El Paso Merchant Energy-Petroleum Co. and El Paso Corp., Defendants

Civil No. 3:04cv753 (JBA)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
2006 U.S. Dist. LEXIS 24509
April 28, 2006, Decided

PROCEDURAL POSTURE: In a case arising from an alleged breach of a maritime brokerage contract, defendant charter companies moved to dismiss the complaint of plaintiff broker pursuant to Fed. R. Civ. P. 12 for lack of subject matter jurisdiction under 28 U.S.C.S. § 1333.

OVERVIEW: The complaint alleged that the broker offered to secure the placement of seven vessels into vessel pools and also stated that it would be willing to offer its services as an operational liaison between all the parties to facilitate communication and distribution of information relating to the operation of the vessels during the period the vessels operated in the pool. In granting the motion to dismiss, the court found that the broker's written proposal concerning the vessel pool did not address the issue of operational liaison services but merely suggested a brokerage commission to the broker. The complaint and supplementary evidence could not be fairly read to assert or support the existence of any agreement between the broker and the charter companies for ongoing provision of operational liaison services beyond facilitating communication and distribution of information relating to the operation of the vessels while they operated in the pool. In substance, the case was one for breach of contract in which the broker claimed a brokerage fee. Such a case did not "affect maritime commerce," and, therefore, was not subject to admiralty jurisdiction under § 1333.

OUTCOME: The court granted the motion to dismiss.

In re Nicholas Schreiber, Petitioner-Respondent, v K-Sea Transportation Corp., et al., Respondents-Appellants.

5410N, Index 104992/04, 107571/04
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2006 NY Slip Op 3033; 2006 N.Y. App. Div. LEXIS 4732
April 25, 2006, Entered

PROCEDURAL POSTURE: Plaintiff seaman sued defendant employers in the Supreme Court, New York County (New York). The seaman alleged a claim that one employer violated the Jones Act, 46 U.S.C.S. § 688. The seaman alleged claims against both employers for unseaworthiness and for maintenance and cure. The employers filed a motion to compel arbitration. The seaman filed a motion to stay arbitration. The trial court permanently stayed arbitration. The employers appealed.

OVERVIEW: When the seaman was injured in an accident, a claims manager for the employers extended an offer to pay the seaman his average two-thirds net weekly wage as an advance against settlement if the seaman agreed to participate in the employers' claims arbitration program and pursue legal claims against the employers in arbitration rather than in court. The seaman signed an agreement which provided for the arbitration of his claims. The employers contended that the seaman was thus required to arbitrate his claims pursuant to the agreement. On appeal, the court found that the arbitration agreement was not a release under N.Y. Gen. Oblig. Law § 15-108. Additionally, the seaman failed to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue. Finally, a question remained as to whether the seaman was sufficiently apprised of the consequences of his agreement to arbitrate so that his decision to waive the right to jury trial could have been deemed an informed one. Thus, a trial was necessary to decide if the contract entered into between the parties was equitable and was to be enforced under N.Y. C.P.L.R. 410 and 7503(a).

OUTCOME: The order was reversed to the extent of vacating the permanent stay and preliminarily enjoining arbitration of the dispute. The matter was remanded to the trial court for a hearing as to whether the subject arbitration agreement was enforceable.

NATHANIEL GOLDSMITH, Appellant v. SWAN REEFER A.S. and DEL MONTE FRESH PRODUCE N.A., INC.

No. 05-2023
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2006 U.S. App. LEXIS 8577
April 6, 2006, Filed

PROCEDURAL POSTURE: Plaintiff longshoreman appealed from an order of the United States District Court for the District of New Jersey granting summary judgment in favor of defendant ship owner with respect to the longshoreman's negligence claim under the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., and also granting summary judgment in favor of defendant terminal operator with respect to a general maritime negligence claim.

OVERVIEW: The longshoreman was injured when a crane that was unloading cargo from a ship caused a container to hit the longshoreman and knock him overboard. The longshoreman, who was employed by the stevedore company that was hired to do the unloading, sued both the ship owner and the terminal operator. As to the ship owner, the longshoreman contended that it breached its duty to intervene under 33 U.S.C.S. § 905(b) because it knew or should have known that the stevedore's practice of unloading with two cranes was dangerous. The court affirmed the district court's holding that the ship owner did not have a general duty under § 905(b) to supervise the stevedore operations. Nor did the ship owner's contract with the stevedore impose a duty to safeguard the longshoremen in the performance of their duties. As to the terminal operator, the court also found that there was no breach of any duty of care. The accident in this case appeared to have been caused by listing that resulted from improper timing of the cranes, something within the stevedore's control, not the terminal operator's. There was simply no evidence that the terminal operator failed to exercise reasonable care.

OUTCOME: The court affirmed the order granting summary judgment in favor of both the ship owner and the terminal operator.

GHEROGHE TUCA VERSUS OCEAN FREIGHTERS, LTD., ET AL.

CIVIL ACTION NO. 05-5019 SECTION "L" (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 16174
April 4, 2006, Decided

PROCEDURAL POSTURE: Plaintiff seaman sued defendants, his employer and the owner of the vessel on which he was working when he allegedly sustained severe and permanent injuries, for negligence and unseaworthiness. Defendants removed the case pursuant to general maritime law and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C.S. § 201 et seq. Plaintiff moved to remand.

OVERVIEW: In support of his motion, plaintiff argued that his claim fell under the Jones Act and therefore was not removable without another basis for jurisdiction. Plaintiff argued that defendants' use of the arbitration clause in an employment agreement was an impermissible attempt to invoke the court's jurisdiction using a federal defense. Plaintiff argued that his employment agreement only incorporated the terms and conditions governing employment and that the arbitration clause in question provided for arbitration between other parties, rather than to a seafarer whose employment contract incorporated provisions of the agreement. Although the arbitration "related to" plaintiff's claim and met other requirements of the Convention, the court agreed with plaintiff that the arbitration clause did not fall under the Convention and that defendant failed to satisfy the four-part Lim test. The arbitration clause was not incorporated into plaintiff's employment contract, and, accordingly, there was no agreement in writing to arbitrate the dispute. Thus, there was no basis of federal jurisdiction other than the Jones Act.

OUTCOME: The court granted plaintiff's motion to remand.

GLENDA CHURCHWELL, Plaintiff-Appellant, v. BLUEGRASS MARINE, INC., MARQUETTE TRANSPORTATION CO., INC., and MOTOR VESSEL MARIE HENDRICK, Defendants-Appellees.

No. 05-5185
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
06a0142p.06;
444 F.3d 898; 2006 U.S. App. LEXIS 10026; 2006 FED App. 0142P (6th Cir.)
April 21, 2006, Decided

PROCEDURAL POSTURE: Plaintiff, a ship cook, appealed the order of the United States District Court for the Western District of Kentucky that granted summary judgment in favor of Defendant vessel owners, and dismissed the cook's claims of 1) unseaworthiness in violation of general maritime law, and 2) negligence in violation of the Jones Act.

OVERVIEW: The cook's personal injury claims arose out of an accident that occurred aboard the owners' vessel. The cook sustained back injuries from a fall while cleaning up the kitchen after serving breakfast to the crew. The appellate court held that the district court erred in granting the owners' motion for summary judgment on Plaintiff's unseaworthiness and Jones Act claims. The cook presented sufficient evidence such that she could prevail on both claims at trial. Moreover, contrary to the owners' assertions, the cook's own negligence did not provide an adequate basis on which to grant summary judgment. Maritime law espoused a system of comparative negligence, in which a plaintiff's own negligence did not bar recovery. The only exception to this rule was the primary duty doctrine, under which the employee responsible for maintaining safe conditions could not sue his employer for his own failure to maintain safe conditions. As the primary duty doctrine had no application, the cook's alleged negligence was not grounds for summary judgment.

OUTCOME: The court reversed the district court's grant of summary judgment in favor of the vessel owners on the ship cook's unseaworthiness and Jones Act claims and remanded for trial.

ANGELA L. BOOTEN and CRAIG L. WILLEFORD, Plaintiffs-Appellants, v. ARGOSY GAMING COMPANY, d/b/a ALTON BELLE CASINO, Defendant-Appellee.

NO. 5-04-0423
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
2006 Ill. App. LEXIS 331
April 18, 2006, Opinion Filed

PROCEDURAL POSTURE: Plaintiff employees filed separate cases against defendant employer, each alleging personal injury claims under the Jones Act, 46 U.S.C.S. § 688 (2000). In both cases, summary judgments were entered by the Circuit Court of Madison County (Illinois) in favor of the employer on the issue of the employees' seaman status under the Jones Act. The employees' separate appeals were consolidated.

OVERVIEW: The employees were injured in separate accidents while performing their respective jobs on the employer's riverboat casino. They filed separate cases under the Jones Act, 46 U.S.C.S. § 688 (2000). The employer was granted summary judgment in both cases on its claim that the employees were not seaman to allow their Jones Act claims. The employees' appeals were consolidated. The employees claimed that a genuine issue of material fact existed on whether the riverboat casino was a "vessel in navigation" under the Jones Act, § 688(a). The employer argued that its indefinitely moored casino could not be a vessel in navigation. The court found that the term "vessel in navigation" referred to any watercraft practically capable of maritime transportation, regardless of its primary purpose or its state of transit at a particular moment. The riverboat casino's ability to cruise was a practical possibility. It actually navigated the river approximately five times per year when it was released from its mooring to remove accumulated drift materials. Moreover, the riverboat could be ready to cruise in five to seven minutes if an emergency situation arose.

OUTCOME: The court reversed the summary judgments in both cases and remanded for further proceedings.

IN RE CARNIVAL CORPORATION, Relator

NO. 01-05-01154-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2006 Tex. App. LEXIS 2751
April 6, 2006, Opinion Issued

PROCEDURAL POSTURE: Relator, a cruise ship company, sought mandamus relief from a "death penalty" sanction imposed by respondent, the judge of the 56th District Court of Galveston County (Texas), in an action brought by real party in interest passenger for negligence, breach of contract, breach of warranty, deceptive trade practices, and fraud.

OVERVIEW: The passenger alleged that the ship company failed to provide medical care to her mother during a cruise and misrepresented the care that would be available. The ship company provided the addresses of medical personnel who were aboard the cruise ship. The passenger unsuccessfully attempted service on a doctor and a nurse who were foreign nationals and independent contractors. The trial court granted a motion for substituted service pursuant to the Hague Convention, Letters Rogatory, or private process service. The passenger never attempted such service but instead noticed the doctor and nurse for deposition through the ship company, which filed a motion to quash. The record did not reflect a ruling on the passenger's motion to compel. The court held that the imposition of a death penalty sanction under Tex. R. Civ. P. 215.3 was not just, within the meaning of Tex. R. Civ. P. 215.2(b). The ship company had no duty under Tex. R. Civ. P. 199.3 to make the doctor and nurse available for deposition because they were not employees. The evidence did not establish that the ship company provided false addresses in violation of the disclosure requirements of Tex. R. Civ. P. 193.1, 193.5.

OUTCOME: The court conditionally granted the petition for writ of mandamus and directed the trial court to vacate the challenged order.

BRUCE FALCONER, Plaintiff, v. PENN MARITIME, INC., Defendant.

Civil No. 05-42-B-W
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
421 F. Supp. 2d 190; 2006 U.S. Dist. LEXIS 10073
March 10, 2006, Decided

PROCEDURAL POSTURE: Plaintiff employee, a seaman, filed a motion pursuant to Fed. R. Civ. P. 59 for a new trial on liability and a new trial on damages in his Jones Act and unseaworthiness action against defendant employer, alleging that the court erred in certain evidentiary and other rulings and that the jury was too parsimonious in awarding $ 100,000 in pain and suffering damages out of a total award of $ 3.3 million.

OVERVIEW: The employee fell into an open hatch, sustaining injuries that rendered him paralyzed below his mid-chest. The jury returned a verdict for the employee, assessing a total damage award of over $ 5 million, reduced by 35 percent due to the employee's own negligence, for a final verdict of $ 3.3 million, including $ 100,000 for past and future pain and suffering. In denying the employee's motion for a new trial as to damages, the court held that viewed in isolation the pain and suffering award stood at the edge of reasonableness. The court, however, held that his argument that the jury was unduly miserly was undercut by his concession that, in other respects, it was overly generous. The court also held that the verdict did not include certain amounts the employer had advanced to the employee prior to trial, including a new, wheelchair-accessible, mortgage-free home, a wheelchair-accessible van, and home-exercise equipment, which mitigated some pain and suffering that would have otherwise occurred. In denying the employee's motion for a new trial as to liability, the court held that none of the evidentiary errors allegedly committed by the court presented grounds for a new trial.

OUTCOME: The court denied the employee's motion.

DIAMOND OFFSHORE MANAGEMENT COMPANY, Appellant v. LAMAR HORTON, Appellee

NO. 01-04-00438-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2006 Tex. App. LEXIS 1621
March 2, 2006, Opinion Issued

PROCEDURAL POSTURE: A jury awarded damages to appellee employee in a personal injury suit for negligence, unseaworthiness, and maintenance and cure under the Jones Act, 46 U.S.C.S. § 688. The 190th District Court, Harris County, Texas, denied appellant employer's motion for new trial, and the employer sought review.

OVERVIEW: The employee, a deck coordinator on an offshore drilling vessel, was injured when a pipe struck his arm. He initially complained of an arm injury, but a few months after the accident, he consulted a doctor, who testified that the accident also caused a herniated disc. In affirming the verdict, the court found that under the "featherweight" burden of proof of the Jones Act and the Federal Employers' Liability Act (FELA), the evidence was factually sufficient as to the causal connection between the accident and the back injury. The jury heard evidence that the employee was pinned by a pipe that weighed approximately 200 pounds, that the employee had passed a physical examination of his back before starting work, and that an MRI after the accident showed that his injury appeared to have been caused by some type of trauma. The court also found that the evidence was sufficient to support the jury's attribution of 10 percent of negligence to the employee, with the remaining 90 percent to the employer, even though the employee was experienced and the employer stressed that employees should avoid getting in positions where they could get trapped between two objects.

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

BRIAN FERGUSON, Plaintiff, v. OGLEBAY NORTON MARINE SERVICES COMPANY, LLC, Defendant.

Case No. 04-72743
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2006 U.S. Dist. LEXIS 14881
March 31, 2006, Decided

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer pursuant to the Jones Act, 46 U.S.C.S. app. § 688, to recover damages for injuries he suffered while working on the employer's vessel. Both sides moved for partial summary judgment on the issue of contributory negligence.

OVERVIEW: The employee worked as a deckhand. He was injured while using a heaving line to attach the bow mooring cable to the dock. The employee had the eye of the mooring cable just within reach and grabbed it with his left hand. As he reached for the eye he slipped backwards due to debris on the dock. His right arm, still holding the heaving line, jerked forward and he heard a loud pop in his shoulder. The employee also claimed that he dropped the heaving line but because it was attached to the eye of the cable, it spun and wrapped around his glove and his arm was pulled by the heaving line. The court found that the employee could not be held contributorily negligent for not letting go of the line when it started to pull him because he was given a specific order to not let go of the line. Although the employer established an inference through deposition testimony that there was a way to handle the heaving line so one was not in the bight of the line, the employer had not provided any evidence that it was an available alternative to the employee.

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

IN THE MATTER OF THE COMPLAINT OF INGRAM BARGE COMPANY, Plaintiff

CIVIL ACTION NO. 2:05-cv-00379
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, CHARLESTON DIVISION
419 F. Supp. 2d 885; 2006 U.S. Dist. LEXIS 10550
March 13, 2006, Decided

PROCEDURAL POSTURE: Plaintiff vessel owners filed a complaint seeking exoneration or limitation of liability pursuant to the Limitation of Liability Act, 46 U.S.C.S. §§ 181-196, in a state action arising from the drowning death of two teenage boys. Pending before the court were the joint motion of claimants, the administrators of the boys' estates, to dissolve an injunction and stay the limitation of liability proceedings.

OVERVIEW: The Limitation of Liability Act provided vessel owners a qualified right to limit their liability. The saving to suitors clause, on the other hand, preserved claimants' right to pursue common law remedies in the forum of their choice as long as such legal actions do not contravene a limitation on plaintiff's right to limit its liability. The claimants, through their amended stipulations, succeeded in resolving the tension between those seemingly incongruent statutory provisions by adequately protecting the vessel owners' right to limit their liability. The amended stipulations prioritized the claims and provided that in "in no event" would the claimant's recover more than $ 37,000 until after the final adjudication of the limitation of liability action. Thus, the vessel owners were not exposed to competing judgments that could have exhausted the limitation fund. In addition, by staying the action, the court had continuing jurisdiction to correct unforeseen deficiencies in the amended stipulations should they prove to provide inadequate protection.

OUTCOME: The court granted the motion, dissolved the injunction, and stayed the proceedings.

PHILLIP COMEAUX, II, ET AL., Plaintiffs, VERSUS COIL TUBING SERVICES, LLC, ET AL., Defendants, ELEVATING BOATS, LLC, Defendant-Counter Plaintiff-Appellee-Cross-Appellant, VERSUS ENERGY PARTNERS, LTD, Defendant-Counter Defendant-Appellant-Cross-Appellee.

05-30192
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 7273
March 22, 2006, Filed

PROCEDURAL POSTURE: Plaintiff employee sued cross-appellant limited liability company (LLC) and cross appellee company for injuries he sustained. The employee dismissed the company and settled his claims against the LLC for $ 150,000, to be paid by the LLC or the company. The United States District Court for the Eastern District of Louisiana ruled that the company had to indemnify the LLC for 50 percent of its settlement costs. Both parties appealed.

OVERVIEW: The employee was injured when a flash fire occurred on the LLC's jack-up vessel, which was involved with work on the company's well pursuant to a Blanket Time Charter agreement between the LLC and the company. The district court found the employee's injuries attributable to the LLC in the following manner: 50 percent by the absence of a working fire extinguisher and 50 percent by the collision with the drums. Thus, the company had to indemnify the LLC for 50 percent of its settlement costs. The appellate court found that because the LLC sought indemnity from the company, that claim was governed by paragraph (B) of the agreement, under which the company had to indemnify the LLC for all "Claims" that arose from injury to any of the company's or any of its subcontractors' personnel, representatives, agents, or invitees, and the employee's claim fell under that provision because he was an employee of a subcontractor of the company. Moreover, under the express exclusion from its duty to indemnify, the company had no duty to indemnify the LLC for breach of the warranty of seaworthiness since "claims" was defined to exclude claims for breach of warranties made by the LLC in the charter.

OUTCOME: The judgment of the district court was affirmed.

DOUGLAS AND NANCY TURNER, PLAINTIFFS, VS. MIDLAND ENTERPRISES, INC. and THE OHIO RIVER CO., INC., DEFENDANTS

CIVIL ACTION NO. 03-208-DLB
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
2006 U.S. Dist. LEXIS 8434
March 3, 2006, Decided

PROCEDURAL POSTURE: Plaintiff, an injured worker and his wife, filed an action against defendant coal suppliers after the worker was injured while working on defendants' coal barges. The worker asserted negligence and unseaworthiness claims under the Jones Act and general maritime law. The wife asserted loss of marital consortium claims. The parties filed cross-motions seeking summary judgment as to a seaworthiness claim.

OVERVIEW: The worker's employer used coal to generate electricity. Among other duties, the worker acted as a deckhand on his employer's tugboat, transporting coal-laden barges to and from the employer's unloading facility. The worker alleged that he was injured in two incidents. The summary judgment motions pertained to plaintiffs' claims arising from the second incident. The worker claimed that wet coal on a barge's working deck caused him to slip and fall and that the barge was unseaworthy. Defendants contended that pursuant to the United States Court of Appeals for the Fifth Circuit's decision in Smith, the worker could not bring an unseaworthiness claim against them because he was not employed them. They also argued that the conditions on the barge did not cause the worker to fall. The court noted that it was not bound by the Smith decision. It declined to depart from the well-established rule that a warranty of seaworthiness extended to maritime workers who obtained "seaman" status under the Jones Act, 46 U.S.C.S. app. § 688. Material factual disputes existed as to whether the worker qualified as a "seaman" under the Jones Act and as to whether the barge was, in fact, unseaworthy.

OUTCOME: The court denied the parties' cross-motions for summary judgment and noted that a status conference had been scheduled to discuss the case.

CHRISTOPHER MACDONALD, Plaintiff-Appellant, v. KAHIKOLU LTD., dba Frogman Charters, Defendant-Appellee.

No. 04-15979
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
442 F.3d 1199; 2006 U.S. App. LEXIS 7901
March 31, 2006, Filed

PROCEDURAL POSTURE: Plaintiff employee challenged the decision entered by the United States District Court for the District of Hawaii that found in favor of defendant employer in the employee's action that alleged a violation of the Jones Act, 46 U.S.C.S. App. § 688, by failing to provide him with a safe, proper, and suitable work environment. He also sought damages on the ground that the vessel was not seaworthy.

OVERVIEW: The employer conducted whale watching, scuba, and snorkel tour boat cruises, and the employee worked as a deck hand on the employer's boat. The employee was periodically required to do free dives to retrieve mooring lines that had sunk to the sea floor. During such a free dive, the employee sustained an injury to his left ear when he attempted to equalize the hyperbaric pressure on descent. The injury and subsequent treatment left the employee with permanently severe to profound hearing loss and related maladies. Following a bench trial, the employee sought reversal on the ground that the trial court erred in concluding that the employer's failure to comply with the United States Coast Guard regulations did not establish negligence per se liability under the Jones Act. The appellate court ordered the judgment to be vacated and remanded for the limited purpose of having the district court make a finding as to whether the employer's failure to provide an operations manual to the person-in-charge of the vessel, as required the Coast Guard's scuba diving regulations, played any part in producing the injury, no matter how slight, to the employee.

OUTCOME: The court vacated the district court's order and remanded.

RICK E. MILLER, Respondent-Cross-Appellant, v. PACIFIC TRAWLERS, INC., an Oregon corporation, Appellant-Cross Respondent, and F/V CAPE FOULWEATHER, a vessel, Defendant.

COURT OF APPEALS OF OREGON
204 Ore. App. 585; 131 P.3d 821; 2006 Ore. App. LEXIS 324
March 15, 2006, Filed

PROCEDURAL POSTURE: Defendant former employer appealed a decision of the Circuit Court, Multnomah County (Oregon), which found in favor of plaintiff employee in his action under the federal Jones Act, 46 U.S.C.S. app. § 688(a), alleging negligence regarding an accident in which the employee suffered serious permanent injury to his legs. The employee cross-appealed the trial court's reduction of the jury's award.

OVERVIEW: The employee was captain of the employer's fishing vessel. The employee was injured when a forklift driver caused a steel door to fall on the employee's legs, causing the employee to undergo several surgeries and face possible future amputation. The trial court denied the employer's motion for a change of venue, and the state Supreme Court denied a writ of mandamus on the issue. The court held that mandamus was the proper remedy and declined to consider the issue on appeal. The court also held that the employee's expert's opinion regarding the employee's future annual salary was supported by the record. Nothing prevented the employer from presenting proof of factors that the jury could have considered in reducing an award of lost future income. Moreover, the employer requested, and the trial court gave, an instruction that advised the jury to award the employee only net future income, and the employee was not required to produce expert testimony of the present value of his lost future income. Also, pursuant to 29 U.S.C.S. § 653(b)(4), the trial court did not err when it reduced the employee's award by four percent, the amount that the jury found the employee was negligent.

OUTCOME: The court affirmed on appeal and on cross-appeal.

CARNIVAL CORPORATION, d/b/a CARNIVAL CRUISE LINES, Petitioner, vs. NELSON ISCOA, Respondent.
CASE NO. 3D05-2125
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
922 So. 2d 359; 2006 Fla. App. LEXIS 2737; 31 Fla. L. Weekly D 650
March 1, 2006, Opinion Filed

PROCEDURAL POSTURE: Petitioner cruise line petitioned for a writ of certiorari to the Circuit Court for Miami-Dade County (Florida) that granted respondent passenger's motion to amend his complaint to add a claim for punitive damages.

OVERVIEW: The passenger sued the cruise line to recover for injuries he allegedly sustained when he fell down an open staircase while on board one of the cruise line's ships. After the passenger learned that other passengers aboard the same vessel had been involved in similar falls, he sought to amend his complaint to state a claim for punitive damages. The cruise line opposed the motion, claiming that as a matter of maritime law, the passenger could not maintain a punitive damages claim and that the evidence did not support such a claim. Nevertheless, the trial court permitted the passenger to amend. The appellate court held that pursuant to Fla. Stat. § 768.72, it lacked certiorari jurisdiction to review the trial court's decision to permit the amendment. Although the court had serious doubts that the "very rare" exception recognized b the Eleventh Circuit was implicated, it was nonetheless bound to deny the cruise line's petition for a writ of certiorari based on the analysis set out in the state supreme court's judicial precedents.

OUTCOME: The petition was denied.

Alan Strong, etc.; et Al. Plaintiffs, Alan Strong, Individually and in His Capacity as Administrator on Behalf of Lindsey Strong Estate, on Behalf of Chelsey Strong Estate, Plaintiff-Appellee, VERSUS B.P. Exploration & Production, Inc., Defendant-Appellant.

No. 05-30153
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
440 F.3d 665; 2006 U.S. App. LEXIS 3542
February 15, 2006, Filed

PROCEDURAL POSTURE: Appellant corporation sought review of an order from the United States District Court for the Western District of Louisiana, which denied the corporation's motion for summary judgment in a suit by appellees, an oil well worker, his wife, and his minor children, to recover damages associated with an injury that the worker sustained when plugging an oil well owned by the corporation's predecessor in interest.

OVERVIEW: The worker and his crew were transported to the predecessor's oil platform in a utility boat. A lifeboat was jacked up next to the platform to provide additional work space, but it was cluttered with equipment. In trying to load some toolboxes under cluttered conditions, the worker alleged that he sustained a back injury. The corporation alleged that the three-year statute of limitations in 46 U.S.C.S. app. § 763a precluded the claim. The worker alleged that state law, as incorporated by the Outer Continental Shelf Lands Act, governed the claim, and thus, the claim was timely because Louisiana's one-year statute of limitations was tolled while the worker received benefits under the Longshore and Harbor Workers' Compensation Act. The court held that the three-year statute of limitations in 46 U.S.C.S. app. § 763a was applicable because federal maritime law applied of its own force in this case. The court reasoned that the lifeboat, although jacked up and not under sail, was a vessel on navigable waters and that failing to provide a safe workplace aboard a vessel was a maritime tort. Because federal maritime law applied of its own force, the state tolling provision did not apply.

OUTCOME: The court reversed the district court's order and remanded the matter so that the district court could enter summary judgment for the corporation.

JANE DOE (A.H.), Plaintiff-Appellant, versus CARNIVAL CORP., Defendant-Appellee.
No. 05-13906 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
167 Fed. Appx. 126; 2006 U.S. App. LEXIS 3627
February 14, 2006, Decided

PROCEDURAL POSTURE: Plaintiff brought an action against defendant corporation, alleging that she was sexually assaulted by the corporation's employee when she took a cruise as a seventeen year-old. The United States District Court for the Southern District of Florida granted the corporation's motion for summary judgment. Plaintiff appealed. On appeal, the only issue was whether or not plaintiff's complaint was time-barred.

OVERVIEW: The corporation presented evidence that it sent each ticket holder a contract upon purchase that contained a limitations period for the filing of suits based on personal injuries sustained aboard the ship. The limitations period on plaintiff's ticket was for one year from the time she sustained the injury. Plaintiff filed the action more than one year from the date of her injury; and, more significantly, more than one year from the date of her eighteenth birthday, when she reached the age of majority. The instant court found that 46 U.S.C.S. app. § 183b(c) did not abrogate the contractually shortened statute of limitations, but rather simply tolled its operation until the appointment of the guardian. Section 183b(c) merely tolled the operation of the shortened statute of limitations during the time that the party was a minor. Thus, § 183b(c) tolled the operation of the contractually shortened statute of limitations until plaintiff reached the age of majority. Because plaintiff waited more than a year from that date, the district court correctly held that the action was barred by the statute of limitations.

OUTCOME: The decision of the district court was affirmed.

JOEY ROULSTON, PLAINTIFF versus YAZOO RIVER TOWING, INC., DEFENDANT

CIVIL ACTION NO. 5:04cv199-DCB-JCS
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, WESTERN DIVISION
418 F. Supp. 2d 851; 2006 U.S. Dist. LEXIS 12593
February 28, 2006, Decided

PROCEDURAL POSTURE: Plaintiff seaman brought claims under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime law against defendant employer claiming that the employer's negligence and failure to maintain a seaworthy vessel caused the seaman's injuries. The seaman also sought maintenance and cure. The cause was transferred to the court, and the employer filed a motion for summary judgment under Fed. R. Civ. P. 56 as to all claims.

OVERVIEW: While boarding a barge to prepare for towing, the seaman stepped backwards onto a manhole cover, which flipped causing the seaman to fall into the opening. The court granted summary judgment as to the unseaworthiness claim but denied it as to the maintenance and cure claim. The court found that an evidentiary hearing was needed before deciding the Jones Act negligence claim. To overcome summary judgment, the seaman had to offer proof that the improperly secured manhole cover was either created by the employer or that it existed at the time when the employer should have been able to discover the condition through a reasonable inspection of the barge to ensure a safe workplace. To sustain the unseaworthiness claim, the seaman failed to establish some special relation between the employer and the barge where the employer did not own the barge. As to the maintenance and cure claim, there were disputed issues of material fact as to whether the seaman obtained maximum medical recovery, whether he was paid a proper maintenance rate, and whether his maintenance pay was prematurely terminated. The court did find that future wages were unavailable under a maintenance and cure claim.

OUTCOME: The court granted the employer's motion for summary judgment as to the seaman's general maritime unseaworthiness claim but denied the motion as to the seaman's maintenance and cure claim. The court dismissed the seaman's general maritime unseaworthiness claim with prejudice and ordered an evidentiary hearing as to the seaman's Jones Act negligence claim.

MIODRAG PLESHA, et al., Plaintiffs v. M/V INSPIRATION, et al., Defendants

Civil No. 04-1764(SEC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
419 F. Supp. 2d 67; 2006 U.S. Dist. LEXIS 8244
February 23, 2006, Opinion Filed

PROCEDURAL POSTURE: Defendant former employer, a cruise ship owner, filed a motion for summary judgment in plaintiff former employee's action, which alleged failure to make the required payments for maintenance and cure benefits, and unearned wages, negligence under the Jones Act, 46 U.S.C.S. § 688 et seq., and unseaworthiness of certain of the employer's vessels.

OVERVIEW: The employee was a waiter aboard three different ships. He claimed that he suffered pain in both knees, as well as on his right shoulder and elbow, because he was required to repeatedly and continuously carry an extremely heavy 20-course tray, while repeatedly having to squat, bend, and crouch while carrying the tray through the narrow passageways of the ships. The court held that the employer paid the employee the amount for maintenance and cure that it was required to pay under an agreement which the employee signed. The court also held that the employer's payment of unearned wages until the end of the employee's last voyage complied with the terms and conditions of the agreement. The court held that the employer was not liable for negligence under the Jones Act because there was no evidence that the employer knew or should have known of the alleged unsafe working condition. The court also held that, as to the unseaworthiness claim, the employee failed to present any evidence that the passageways, ceilings, and doorways of the ships were not reasonably fit for the intended use.

OUTCOME: The court granted the employer's motion for summary judgment, dismissing the employee's claims with prejudice.

P.G. CHARTER BOATS, INC., Plaintiff-Cross-Defendant-Appellant, versus JOHN S. SOLES, Defendant-Cross-Claimant-Appellee, QUALITY INSPECTION SERVICES, Defendant-Appellee.

No. 05-15395 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
437 F.3d 1140; 2006 U.S. App. LEXIS 2228; 19 Fla. L. Weekly Fed. C 227
January 30, 2006, Filed

PROCEDURAL POSTURE: Plaintiff vessel owner appealed a decision of the United States District Court for the Southern District of Alabama, which dismissed as untimely its limitation of liability action filed pursuant to the Limitation of Liability Act, 46 U.S.C.S. app. §§ 181-196.

OVERVIEW: An employee of an inspection company was injured while working on a vessel. The employee filed a tort action against several named defendants, including his employer and the president and sole shareholder of the vessel's corporate owner. At that time, because the employee did not know the actual name of the company that owned the vessel, he also named as defendants three fictitious corporations. During discovery, the employee learned the name of the corporate owner and amended the complaint to expressly name the corporation as a defendant. Seven months after the filing of the initial complaint, the vessel owner filed the instant action. In affirming the district court's dismissal of the action under 46 U.S.C.S. app. § 185 because it was not filed within six months of the vessel owner's receipt of written notice of the employee's claim, the court held that the original complaint adequately gave notice to the vessel owner that the employee was making a claim against the vessel owner because the original complaint clearly asserted claims against the vessel's owner and was served on the sole shareholder and president of the vessel owner.

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

ROBIN FLETCHER VERSUS TRANSOCEAN OFFSHORE USA INC. TRANSOCEAN DRILLING (U.S.A.), INC. AND TRANSOCEAN DEEPWATER, INC.

CIVIL ACTION NUMBER 05-2992 SECTION "L"(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 198
January 4, 2006, Filed

PROCEDURAL POSTURE: Plaintiff employee sued defendant employers, seeking to recover for injuries he allegedly sustained while he was working aboard the employers' ship. The magistrate judge denied the employers' Fed. R. Civ. P. 37(d) motion to compel the employee to appear at a deposition and ruled that written discovery should precede deposition discovery. Pursuant to Fed. R. Civ. P. 72(a), the employers appealed to the district court.

OVERVIEW: The employers argued that under Fed. R. Civ. P. 37(d), the employee's failure to appear at his deposition was not excusable because he failed to file a motion for a protective order before the time for the deposition. The district court held that the magistrate's ruling was not, as the employers alleged, an excuse for the employee, as it did more than just pardon his failure; it set forth a comprehensive sequence of discovery. The employers claimed that there was sufficient doubt about the employee's credibility to allow them to depose him before responding to his request, under Fed. R. Civ. P. 26(b)(3), for statements he made to the employers' agents. If those statements were disclosed to him before the deposition, they argued, he could tailor his deposition testimony to conform to them. The district court held that the magistrate performed the necessary review to determine whether the employers had established good cause to depart from the ordinary discovery sequence. After performing this review, the magistrate determined there was not good cause. As this decision was supported by the law and the facts, there was no basis to reverse it under Fed. R. Civ. P. 72(a).

OUTCOME: The magistrate's order was affirmed.

Dennis G. GULASKY, Sr., PLAINTIFF v. INGRAM BARGE COMPANY, DEFENDANT

5:02-CV-173-R
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, PADUCAH DIVISION
2006 U.S. Dist. LEXIS 1188
January 10, 2006, Decided

PROCEDURAL POSTURE: Defendant employer filed a motion for summary judgment in connection with plaintiff employee's claim for negligence under the Jones Act, 46 U.S.C.S. App. 688, and for unseaworthiness under general maritime law.

OVERVIEW: Plaintiff fell from a ladder while climbing out of a barge floating on a river. Defendant operated several vessels that were used in cleaning, repair, and fleeting work. Defendant argued that plaintiff was not a "seaman" at the time of the accident because he lacked a connection to a vessel or identifiable fleet and his duties did not expose him to the perils of sea. The court held that the question as to whether plaintiff qualified as a seaman under the Jones Act was a jury issue. Defendant owned approximately 70 percent of the vessels on which plaintiff worked, and he spent approximately 80 percent of his time working on vessels owned by defendant. These facts could have led the finder of fact to hold that plaintiff had a connection to defendant's vessels. An employee was not required to go out to sea in order to have been exposed to the perils of sea. Rather, one of the factors to take consideration when determining whether or not an employee was exposed to the perils of sea included the seagoing nature of his/her duties.

OUTCOME: The court denied defendant's motion for summary judgment.

CORNELIUS HILL; TRUDIE HASTINGS HILL, H/W, Appellants v. REEDEREI F. LAEISZ G.M.B.H., ROSTOCK; SCHIFFARHTSGESELLSCHAFT MS PRIWALL MBH & CO. KG

No. 04-4335
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
435 F.3d 404; 2006 U.S. App. LEXIS 2317; 23 I.E.R. Cas. (BNA) 1842
January 31, 2006, Filed

PROCEDURAL POSTURE: Plaintiff longshoreman appealed from a judgment of the United States District Court for the Eastern District of Pennsylvania, which found in favor of defendants, the ship's owner and the ship's operator (ship), on the longshoreman's negligence claim under the Longshore and Harbor Workers Compensation Act (LHWCA). The longshoreman asked the instant court to vacate the judgment of the district court and remand for a new trial.

OVERVIEW: The longshoreman was injured while unloading cargo in the hold of the ship. He and another longshoreman were loosening the steel "lashing rods" which hold the cargo containers in place. While the other longshoreman was attempting to loosen a rod, it sprung off its housing and flew through the air, hitting plaintiff longshoreman in the head, smashing his hard hat, knocking him unconscious and almost killing him. On appeal, the longshoreman contended that the jury instructions were an inaccurate statement of the turnover duty. The instant court found that the instruction in this case omitted a substantive element of the ship's duty, and based on the evidence presented at trial it could not conclude that it was highly probable that the omission did not affect the outcome. The longshoreman also argued that there was not sufficient evidence presented to support a finding of superseding cause, and that superseding cause was conceptually in tension with the remedial scheme set forth in the LHWCA. The instant court found that because there was no evidentiary basis for a superseding cause finding, the district court erred in giving a superseding cause instruction.

OUTCOME: The district court's order was vacated and the case was remanded for a new trial.

ANTHONY PAPARO, Plaintiff, Appellant, v. M/V ETERNITY; DENHOLM SHIP MANAGEMENT, LTD., Defendants, Appellees.

No. 05-1767
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
433 F.3d 169; 2006 U.S. App. LEXIS 152
January 5, 2006, Decided

PROCEDURAL POSTURE: Plaintiff longshoreman appealed an order of the United States District Court for the District of Massachusetts, which granted summary judgment to defendant ship owner on a claim for negligence under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 905(b).

OVERVIEW: The longshoreman claimed that that the accident occurred when someone on board a ship prematurely used the ship's winch to haul a line back in, thus jerking the line out of the longshoreman's grip, causing him to fall. The ship owner contended that a co-worker was accumulating slack on the pilings, and that the ship's winch was not capable of running fast enough to first take up that slack and then yank the line from the longshoreman's grip hard enough to knock him down. The district court concluded that it was impossible for the accident to have occurred as the longshoreman theorized. The court held that the district court too readily adopted the ship owner's theory of the case without properly drawing reasonable inferences from the evidence presented in favor of the longshoreman. There were triable issues of material fact about the cause of the accident. An opinion by the ship owner's expert rested on disputed facts: the operating speed of the winch and the number of feet of slack that were out on the line between the ship and the longshoreman. It was not the case that the only possible cause for the accident was that accumulated slack fell from the pilings into the water.

OUTCOME: The court reversed the district court's grant of summary judgment to the ship owner and remanded to the district court.

ADDIE HOLMES, Plaintiff-Appellant, versus ATLANTIC SOUNDING COMPANY INC; WEEKS MARINE INC; ABC INSURANCE CO; XYZ INSURANCE CO, Defendants-Appellees; ADDIE HOLMES, Plaintiff-Appellant, versus ATLANTIC SOUNDING COMPANY INC; ABC INSURANCE CO INC, Defendants-Appellees.

No. 04-30732, Cons. No. 04-30750
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
437 F.3d 441; 2006 U.S. App. LEXIS 1175; 2005 AMC 2612
January 19, 2006, Filed

PROCEDURAL POSTURE: Plaintiff injured employee appealed decisions of the United States District Court for the Western District of Louisiana, which (1) denied her motion to remand her Jones Act, 46 U.S.C.S. app. § 688, and general maritime law personal injury suit against defendants, her nominal employer and the company for which she was actually performing services at the time of the injury, and (2) dismissed the suit.

OVERVIEW: The employee sued defendants in state court seeking damages for injuries that she allegedly sustained on her first day of work as a cook aboard the BT-213. The BT-213 was a floating dormitory, a barge on the deck of which a two-story, 50-bed quarters package was mounted. The BT-213 was incapable of self-propulsion and was towed by tugs from place to place to house and feed employees during dredging projects at various locations. It was not intended to transport personnel, equipment, passengers, or cargo, and no evidence in the record reflected that it had ever done so. It did have a raked bow on each end and two end tanks where the rakes were for flotation. The district court held that the BT-213 was not a vessel for purposes of the Jones Act, 46 U.S.C.S. app. § 688. In reversing the district court's decisions, the court held that a recent U.S. Supreme Court decision had broadened the definition of vessel. The court held that the BT-213 was a vessel for Jones Act purposes because it was practically capable of maritime transportation.

OUTCOME: The court reversed and remanded the district court's decisions.

JOHN R. HOULE, Plaintiff, v. JUBILEE FISHERIES, INC., et al., Defendants.

CASE NO. C04-2346JLR
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2006 U.S. Dist. LEXIS 1408
January 5, 2006, Decided

PROCEDURAL POSTURE: Plaintiff deckhand sued defendants, the owners and operators of a vessel, asserting claims under the Jones Act and the maritime doctrine of unseaworthiness. The owners moved for summary judgment and an order striking testimony from two of the deckhand's expert witnesses. In addition, both deckhand and the owners filed motions in limine.

OVERVIEW: The deckhand developed Carpal Tunnel Syndrome (CTS) while working on the owners' vessel. He alleged that the owners' negligence and the vessel's unseaworthiness were responsible, at least in part, for his CTS. His claims relied upon expert witnesses to prove causation and damages. The owners sought to strike the deckhand's experts and for summary judgment. The deckhand moved in limine to strike the owners' experts and to exclude certain evidence. Neither party complied with Fed. R. Civ. P. 26 and the court's scheduling order when disclosing expert witnesses. No late-disclosed experts would be permitted to testify. While it appeared that two of the deckhand's experts might not be qualified to offer opinions about the cause of the deckhand's CTS, the record did not establish that the experts' training and experience and methodology for determining causation were inadequate. The court reserved its decision on the admissibility of those experts' opinions under Fed. R. Evid. 702, pending an evidentiary hearing. The parties resolved most of the other evidentiary issues.

OUTCOME: The court reserved ruling on the owners' summary judgment motion, pending an evidentiary hearing on the admissibility of testimony from the deckhand's experts. The court granted in part and denied in part the parties' motions in limine, declining to preclude evidence of the owners' maintenance and cure payments to the deckhand and reserving ruling on the admissibility of evidence of the deckhand's past drug and alcohol use.