Cruise Ship Law

JESSICA BAILEY, et al., Plaintiff, v. CARNIVAL CORPORATION, Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
CASE NO. 06-21915-CIV-COOKE/BROWN
Filed December 21, 2007

PROCEDURAL POSTURE: Plaintiff passenger aboard Defendant’s vessel filed suit alleging negligence based upon personal injuries sustained as a result of an accident onboard the ship. Defendant Carnival moved for Summary Judgment regarding the issue of notice.

OVERVIEW: Plaintiff, a passenger aboard Defendant’s cruise ship, was injured when she was struck in her right eye by a golf ball while she was sitting on a bench near the miniature golf course on the sun deck of the ship. The golf ball that struck Ms. Bailey was hit by a young boy, who was playing with the golf equipment in a baseball manner with a group of unsupervised young boys, with one pitching the ball and the other hitting it with a putter. The young boys were using the putters and balls that were laying on the miniature golf course. Carnival Corporation did not have any rules prohibiting the unsupervised boys from using the miniature golf equipment. Carnival argued that the plaintiff could not prove that Carnival had actual or constructive notice of the boys’ misbehavior in the short period before the accident, or during the entire cruise. In analyzing the motion to dismiss, the court cited to the traditional rule that, to prove that Carnival did not use reasonable care, Ms. Bailey would have to show that the cruise ship operator had actual or constructive notice of a dangerous condition. However, a shipowner can also fail to exercise reasonable care when it creates a foreseeable hazardous situation, and in such instances, a plaintiff does not have to show that the shipowner had notice of the hazard. Furthermore, the court held that to require a plaintiff to also establish notice in a case where the defendant’s own activities created a foreseeable and unreasonable risk of harm would be inappropriate. Such a requirement would have the absurd result that negligence actions could only be brought after a dangerous condition or practice created by a defendant claimed a previous victim, whose own recovery would be barred by the absence of notice. A genuine issue of material fact existed as to whether Carnival created a dangerous and hazardous situation with the operation of the miniature golf course sufficient to constitute a breach of its duty of reasonable care.

OUTCOME: Carnival’s Motion for Summary Judgment is denied.

JOSEPH ABRUSKA, Plaintiff - Appellant, v. NORTHLAND VESSEL LEASING CO., LLC; NAKNEK BARGE, LLC; NORTHLAND SERVICES, INC., Defendants - Appellees.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 29039
December 10, 2007, Filed

PROCEDURAL POSTURE: Plaintiff longshoreman challenged the decision entered by the United States District Court for the District of Alaska that granted summary judgment in favor of defendants, the owner of the vessel upon which the longshoreman was working, in the longshoreman's action filed pursuant to the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950.



OVERVIEW: While performing work aboard the vessel, the longshoreman fell overboard and sustained serious injuries. After recovering statutory damages from his employer, he sought damages in negligence from the vessel pursuant to § 5 of the LHWCA, 33 U.S.C.S. § 905(b). The district court granted summary judgment in favor of the vessel. On appeal, the court found that the longshoreman produced evidence sufficient to survive summary judgment on both his negligence per se and common-law negligence claims. The court therefore reversed the district court's summary judgment in favor of defendants and remanded for further proceedings. Because 46 C.F.R. § 92.25-5's three-course safety rail requirement applied to the vessel and because the vessel only had a two-course rail, the longshoreman established a regulatory violation. There was also sufficient evidence of the remaining elements to survive summary judgment. The longshoreman belonged to the class of beneficiaries and suffered an injury of the type the regulation sought to prevent. As to excuse, defendants produced no evidence to support their burden of proving the affirmative defense.



OUTCOME: The appellate court reversed the decision of the district court and remanded for further proceedings.

Barry Berretta, Plaintiff-Appellant, v. Tug Vivian Roehrig, LLC, Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 28678
December 11, 2007, Decided

PROCEDURAL POSTURE: Appellant, a seaman, sued appellee, a tug boat owner, alleging maritime negligence after he was injured during a make up procedure connecting a barge to the owner's tug boat. The United States District Court for the Southern District of New York dismissed the seaman’s complaint. The seaman appealed.



OVERVIEW: The seaman claimed that the district court applied the wrong legal standard to determine negligence, misapprehended certain facts derived from the testimony at trial, and erroneously credited the testimony of a witness for the owner over his own testimony. The appellate court held that the district court's articulated standard to determine negligence conformed to the law, and that the district court's admission of evidence of industry practices, customs, and norms regarding what constituted reasonable prudence and due care during a make up procedure connecting a barge to a tugboat was not an error. The appellate court further held that it was appropriate for the district court to hear testimony from witnesses for the owner regarding their understanding of standard practices on tug boats, since a key factual issue was what, if anything, the individuals working on the tug could have done in the situation in which the seaman was injured, and that, because the evidence elicited from the seaman and the owner's witnesses conflicted on the issue of standard practices, the district court, as the finder of fact, was entitled to credit one the testimony of one witness over another.



OUTCOME: The district court's judgment was affirmed.

TRANSOCEAN OFFSHORE USA INC., Plaintiff-Appellant v. DAVID CATRETTE, Defendant-Appellee

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 27870
December 3, 2007, Filed

PROCEDURAL POSTURE: Appellant employer sought review of a decision from the United States District Court for the Eastern District of Louisiana, which found that a seaman’s release executed by appellee seaman was not valid.



OVERVIEW: The seaman suffered a work-related injury to his shoulder. The seaman’s diagnosis was conveyed only to the employer. The seaman signed a release of all his rights against the employer in exchange for $ 4,000. The seaman filed suit against the employer. The district court found the release invalid. On appeal, the court held that the district court's finding was not clearly erroneous. The evidence showed that the release was invalid because the seaman was not fully informed of his medical condition or future prognosis and was not fully advised of his legal rights when he executed the release where (1) the employer informed the seaman that there was no tear in his shoulder; (2) the seaman was not shown his medical test reports; (3) the seaman was not informed that he could ask another doctor to review the findings; (4) the seaman had no legal representation when he executed the release; (5) the attorney hired by employer to go over the release with the seaman simply read the contract and asked the seaman if he understood it; and (6) the release contained no explanation of maintenance and cure or any other rights that the seaman was ostensibly forfeiting in the release.



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

ROLDIN DINET VERSUS RENE J. CHERAMIE & SONS, INC., A.R. CHERAMIE MARINE MANAGEMENT, INC., and MARTIN GAS MARINE LLC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2007 U.S. Dist. LEXIS 90202
December 5, 2007, Decided

PROCEDURAL POSTURE: Plaintiff, a Jones Act Seaman, filed a motion to sever for expedited trial to determine his right to cure benefits. The seaman had filed suit against defendants, a vessel owner and an employer, seeking to recover damages in connection with the seaman’s slip and fall accident while working as a deckhand.



OVERVIEW: The seaman alleged that his physician was recommending that the seaman undergo lumbar steroid injections and a cervical fusion but that defendants had not paid for any cure benefits. The seaman alleged that he was in dire need of medical treatment and could not wait until the bench trial on his claims, some seven months hence, to obtain the recommended medical treatment. Defendants opposed the motion to sever, asserting that the two trials would be duplicative, and further, defendants had agreed to pay for the injections to see if such treatment would improve the seaman’s condition so that he could avoid the fusion surgery. In granting the motion to sever, the court held that the seaman had a compelling interest in an expedited trial to determine his entitlement to cure benefits because he had not reached maximum medical improvement. Further, the seaman had not requested a jury trial, and thus, defendants' concerns about duplicative trials were unavailing. Finally, defendants' objections to severance were generalized in nature and would apply to any situation in which there was a severance.



OUTCOME: The court granted the seaman’s motion to sever. The trial on the right to cure benefits would take place several months prior to the bench trial on the remainder of the seaman’s claims. The court also granted the seaman leave to have new counsel enroll.

ADMIRAL CRUISE SERVICES, INC., et al., Plaintiffs, vs. M/V ST. TROPEZ, her engines, tackle and appurtenances, in rem, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2007 U.S. Dist. LEXIS 92488
December 6, 2007, Decided

PROCEDURAL POSTURE: Plaintiff filed an action seeking a maritime lien in the amount of $ 1,631,598.35 against defendant vessel. Plaintiff moved for summary judgment on crew members' claims for unpaid tips.



OVERVIEW: The vessel owner had previously filed for bankruptcy. The only pending dispute concerns the crew members' claims for tips collected during the time that the vessel was under the control of the bankruptcy trustee--and before its arrest. Plaintiff contended that the crew members' claims for tips lay in bankruptcy and not in admiralty. The crew members contended that maritime liens for wages were liens independent from the bankruptcy estate. The court concluded that the crew members had a valid lien on the proceeds from the sale of the vessel. The trustee in this case assumed and continued the operation of the vessel until its arrest for the benefit of the bankruptcy estate. In so doing, the trustee stepped into the shoes of the owner of the vessel. The vessel was not in judicial custody at the time that the tips claimed by the crew were collected by the trustee. Even if the vessel was deemed to be in judicial custody at the time in question, the crew members's claims had to be paid from the proceeds of the sale as an expense of justice.



OUTCOME: The court entered summary judgment in favor of the crew members and against plaintiff.

DIONE CAGLE VERSUS HARRAH'S LAKE CHARLES, L.L.C. AND/OR PLAYERS LAKE CHARLES, L.L.C.

COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
07-653 (La.App. 3 Cir. 12/12/07); 2007 La. App. LEXIS 2250
December 12, 2007, Decided

PROCEDURAL POSTURE: Defendant former employer appealed from a judgment of the Fourteenth Judicial District Court, Parish of Calcasieu (Louisiana), which ruled in favor of plaintiff former employee, who had worked as a slot machine technician aboard a casino riverboat, in her action to recover under the Jones Act, 46 U.S.C.S. § 688, for negligence and unseaworthiness. The employee asserted that the amount of damages awarded was inadequate.



OVERVIEW: The trial court found that the lighting around steps upon which the employee fell was inadequate and rendered the riverboat unseaworthy. Affirming, the court held, inter alia, that (1) although the trial court noted some doubt as to the extent of the employee's injuries, it believed that the independent medical examination substantiated the employee's complaints and, therefore, there was no merit to the argument that the evidence contradicted the employee's assertions; (2) the trial court did not err in finding that the stairs were inadequately lit as a security officer who investigated the area immediately after the incident testified that the lighting in the stairwell was non-existent and that it was dim in surrounding areas; (3) there was ample testimony that the employee's fall was caused by inadequate lighting; (4) the trial court did not err in not assessing any comparative fault to the employee based on the allegedly routine nature of her actions because traversing wet stairs in lighting that was deficient to the degree that it rendered the vessel unseaworthy was not routine; and (5) the level of damages assessed, as well as prejudgment interest on past losses, was proper.



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

MIKE JENKINS, Plaintiff, vs. FITZGERALD MARINE, & REPAIR, INC., et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, SOUTHEASTERN DIVISION
2007 U.S. Dist. LEXIS 89310
December 4, 2007, Decided

PROCEDURAL POSTURE: Plaintiff crew member sued defendants, his employer and a vessel owner; the crew member brought claims against the employer under the Jones Act and for maintenance and cure and against both defendants for unseaworthiness. The owner moved to dismiss.



OVERVIEW: The crew member claimed that he was working on the employer's vessel and was injured when he threw a pump onto the owner's distressed vessel. He alleged that the owner's vessel was unseaworthy at the time that he attempted to rescue it. The vessel owner argued that the crew member could bring an unseaworthiness claim only against his employer. The court found that the duty to maintain a seaworthy vessel was owed to anyone who performed services for the vessel with the owner's consent. Although Congress had amended the Longshore and Harbor Workers' Compensation Act (LHWCA) to preclude persons covered under the LHWCA from bringing an unseaworthiness claim against a third-party vessel owner, nothing in that amendment implied that an unseaworthiness claim could not be brought by members of other vessels' crews. The fact that the crew member could bring a variety of claims against his employer did not preclude him from asserting an unseaworthiness claim against the vessel owner.



OUTCOME: The owner's motion to dismiss was denied.

BECKY MATHENY, individually and as Surviving Spouse of RONALD MATHENY, Deceased, Plaintiff, v. THE TENNESSEE VALLEY AUTHORITY, Defendant/Third-Party Plaintiff/ Counter-Defendant. v. THOMAS LAWRENCE and JOHNNA LAWRENCE, Third-Party Defendant/ Counter-Plaintiff and Counter-Plaintiff

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2007 U.S. Dist. LEXIS 90764
December 6, 2007, Decided

PROCEDURAL POSTURE: A bench trial was held on various claims including, but not limited to negligence, negligent supervision and entrustment, arising from a boating accident that occurred on the Cumberland River.


OVERVIEW: The plaintiff, widow of Ronald Matheny, who drowned when a small boat in which he was fishing capsized in the Cumberland River. Third-party defendant and counter-plaintiff Thomas "Steve" Lawrence, Mr. Matheny's cousin, was the owner and pilot of the fishing boat in question. The fishing boat capsized when it was swamped by the wake of a tug boat, The Patricia H., owned by defendant Tennessee Valley Authority ("TVA") and operated by pilot Jeff Ralls, a TVA employee. Mr. Lawrence was successfully rescued by pilot Ralls and his crew. Mr. Matheny, however, drowned before he could be rescued. During the bench trial, the Court analyzed various factors surrounding the underlying accident, including the position and speed of the boats, the size of the wake created by the tugboat and the training received by the Captain of the tugboat and his crew and found that the defendants were liable for the accidents. In apportioning liability among the Defendants, the court found the Captain's negligent operation of the tugboat, specifically, the creation of an excessive wake was 100% responsible for the capsize of the fishing boat and the death of Mr. Matheny. In determining the Tugboat Captain's negligence, the court analyzed the Pennsylvania Rule and the Last Clear Chance Doctrine. Additionally, the court found no negligence in the defendant's attempts at resuscitating Mr. Matheny nor in the promptness with which Mr. Matheny was taken to the hospital. The limitation of liability statute was found not to apply because lack of privity or knowledge was not proven. As to the Negligent Supervision and Entrustment claims, while the court found there was negligent supervision of the tugboat Captain in failing to specifically instruct him to maintain a low speed or a low wake in the presence of small fishing vessels. The defendant did not, however, commit negligent entrustment because such a claim requires a showing that a chattel was entrusted to one incompetent to use it with knowledge of the incompetence, and that its use was the proximate cause of injury or damage to another, and the court did find that the Captain was incompetent. 



OUTCOME: Judgment is entered for the plaintiff in the amount of $ 2,159,153.00 for compensatory damages, and in favor of the counter-plaintiffs in the amount of $ 238,685.10 for compensatory damages.

IN THE MATTER OF THE COMPLAINT OF SEA WOLF MARINE TOWING AND TRANSPORTATION, INC., AS OWNER OF THE TUG SEA WOLF FOR EXONERATION FROM OR LIMITATION OF LIABILITY
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 82565
November 6, 2007, Decided

PROCEDURAL POSTURE Petitioner, an owner of a tug, moved for partial summary judgment pursuant to the Limitation of Vessel Owner's Liability Act (Act), 46 U.S.C.S. app. §§ 181-189. Claimant railroad corporation opposed the motion.

OVERVIEW: Petitioner's tug was assigned to transport an empty stone barge. The tug veered off course, then collided with a bridge owned by claimant, damaging the bridge. Petitioner brought this action pursuant to the Act, which allowed a vessel owner to limit liability for damage or injury, occasioned without the owner's privity or knowledge, to the value of the vessel or the owner's interest in the vessel. Specifically, claimant had to establish unseaworthiness or negligence and petitioner then had to prove lack of knowledge or privity of that unseaworthiness or negligence. The court granted petitioner summary judgment. The court first held that the tug's captain was not incompetent based on his licensing, safety record, and experience. Moreover, there was no genuine issue for trial regarding the tug's mechanical seaworthiness, as the tug was maintained regularly, it was fully manned with an experienced crew, and its radar worked. Finally, to successfully limit its liability, petitioner proved that it lacked knowledge or privity of the captain's negligence, as petitioner provided a competent captain, whose decision not to post a lookout did not fall within petitioner's knowledge or privity.

OUTCOME: The court granted petitioner's motion for partial summary judgment.

TROY DOUSE, Plaintiff-Appellee v. GLOBAL PIPELINES PLUS, et al., Defendants-Appellants
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 25530
November 1, 2007, Filed

PROCEDURAL POSTURE Appellants, an employer, an insurer, a vessel owner, and others, sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which found that appellee seaman was entitled to maintenance and cure through the present, future maintenance and cure, past and future pain and suffering, and past and future economic losses.

OVERVIEW: Appellants contested the future economic losses award, the future medical expenses award, the past and future maintenance awards, and the past and future pain and suffering awards. They also sought a reduction of the lost wages and medical expense awards, as well as the award of prejudgment interest. On appeal, the court held that the district court's decision was not affected by any error of law or clear error of fact. The seaman worked as a bedroom/galley hand on vessels owned and operated by the employer. Having been injured in transport between two vessels, due to the negligence of one of the vessel's owners, the seaman, in accordance with the Jones Act, was entitled to the award that was rendered in his favor in the district court.

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

JAMES BRAD STEVERSON, Plaintiff-Appellant, v. GLOBALSANTAFE CORPORATION, d/b/a GLOBALSANTAFE DRILLING COMPANY, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 26559
November 15, 2007, Filed

PROCEDURAL POSTURE Plaintiff seaman appealed a decision of the United States District Court for the Southern District of Mississippi, which denied the seaman's motion brought under Fed. R. Civ. P. 60(b) to vacate a judgment of dismissal entered in the seaman's action against defendant employer, seeking recovery under the Jones Act and general maritime law for injuries sustained during his employment.

OVERVIEW: A magistrate judge entered a judgment of dismissal after attorneys for the parties announced a settlement, but no record of the settlement was taken by the court. The employer filed a motion to compel settlement when it was notified that the seaman would not sign the release, after which the seaman filed the present Rule 60 motion. On review, the court vacated the judgment, finding that the district court abused its discretion in denying the seaman's motion and request for evidentiary hearing. Affidavits of the seaman supported the seaman's assertion that he believed that he had 30 days to accept or decline the offer of settlement. The seaman's Rule 60 motion was made within a reasonable amount of time, and the court concluded that the interests of justice outweighed the virtue of finality of the judgment. There was no evidence in the record from the seaman indicating that he had an informed understanding of his rights pursuant to the settlement agreement. The district court should have conducted an evidentiary hearing on the Rule 60(b) motion to resolve conflicting stories or to otherwise assess the legal advice provided to the seaman by his counsel.

OUTCOME: The court vacated the district court's denial of the seaman's motion and remanded for an evidentiary hearing.

DAVID T. FISCHER, individually, ALFRED J. FISHER, versus Plaintiff-Appellant, Intervenor-Plaintiff-Appellant, S/Y NERAIDA, her engines, tackle, rigging, dinghies, equipment, appurtenances, furniture, etc., in rem, NERAIDA CO., L.P., a Michigan Limited Partnership, PETER SIAVRAKAS, in personam Defendants-Intervenor- Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 26698
November 19, 2007, Decided

PROCEDURAL POSTURE Appellant dock owner sought review of a judgment from the United States District Court for the Southern District of Florida, which, after a bench trial, entered a judgment holding that appellee yacht owners were entitled to exoneration under 46 U.S.C.S. § 30505 in connection with damage sustained by the dock when the yacht broke free from its mid-lake anchorage during a hurricane.

OVERVIEW: To prepare for the hurricane, the yacht owners furled the yacht's sails and dropped a self-setting second anchor. On appeal, the court held that (1) the district court, in accordance with the Louisiana Rule, correctly shifted the burden of proof to the yacht owners, stating that the yacht owners were relieved from liability only if they could show that the damage could not have been prevented by the exercise of reasonable care, but once the yacht owners showed that their preparations were reasonable, the presumption that the yacht, as a moving vessel, was at fault was overcome; (2) the burden-shifting requirement of the Louisiana Rule did not convert the liability standard in allision cases from ordinary negligence to something more demanding than reasonable care under the circumstances; (3) the yacht owners were not required to show that nothing they could have done would have prevented the vessel from breaking free of its anchorage, as such an act of God defense was applied to an argument of superseding causation, which was not at issue in this case; and (4) the testimonial evidence showed that the yacht owners took reasonable care to secure the yacht against hurricane winds.

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

In the Matter of the Complaint of COZY COVE MARINA, INC., as Owner of a 35' CAROLINA CLASSIC MOTOR VESSEL, HULL ID NO. CAR3509A506, FOR Exoneration from or Limitation of Liability.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, EASTERN DIVISION
2007 U.S. Dist. LEXIS 81948
November 5, 2007, Decided

PROCEDURAL POSTURE Plaintiff, a marina, filed a maritime-law action to limit its liability to the value of a sunken vessel which killed two decedents. Defendants, decedents' estates, filed claims against the marina. The marina filed an indemnity/contribution claim against third-party defendant, the vessel manufacturer. The manufacturer moved for partial summary judgment against both estates, to limit their recovery to pecuniary losses, and filed a motion in limine.

OVERVIEW: The manufacturer claimed that recovery by the estates was limited to pecuniary losses because they had not pleaded any state-law claims, and general federal maritime law limited recovery to pecuniary losses. The court initially held that the manufacturer's motion was only ripe as to second estate because the provisions of federal maritime law limiting recovery to pecuniary losses did not apply to the first estate's claim. The court then held that the second estate was limited to recovery of only pecuniary losses because the second estate expressly premised its claim on 46 U.S.C.S. § 30104(a), as the decedent was a seaman employed by the marina as a crew member aboard the vessel when it sank, and the second estate filed nothing in opposition to the manufacturer's motion for partial summary judgment. The court further held that the U.S. Coast Guard accident report of the incident involving the vessel would be excluded as evidence because 46 U.S.C.S. § 6308(a) precluded the use of U.S. Coast Guard accident reports in private civil litigation.

OUTCOME: The manufacturer's motion for partial summary judgment concerning the second estate was granted. The manufacturer's motion in limine to exclude the U.S. Coast Guard accident report was granted.

PDS GAMING CORPORATION, Plaintiff-Counter-Defendant-Appellant, CDD ENTERPRISES, INC., et al., Intervenors-Plaintiffs, versus M/V OCEAN JEWELL OF ST. PETERSBURG, Official Number 7625823, her boats, engines, tackle, apparel, furnishings, equipment and appurtenances, in rem, et al., Defendants, M/V CASINO ROYALE, Official Number 7350442, her boats, engines, tackle, apparel, furnishings, equipment and appurtenances in rem, 21 MIAMI OCEANS INTERNATIONAL LTD., et al., Defendants-Counter-Claimants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 24407
October 15, 2007, Decided

PROCEDURAL POSTURE: Plaintiff gaming corporation filed an interlocutory appeal from a decision of the United States District Court for the Middle District of Florida which summarily denied its motion under Fed. R. Civ. P. 59(a) for a new trial and its motion under Fed. R. Civ. P. 59(e) to alter or amend the district court's order vacating the arrest of a gambling ship.

OVERVIEW: The underlying case arose out of various agreements related to the purchase of over $ 7,000,000 in gaming equipment. After several demands for payment, the gaming corporation had filed an in rem action for conversion, replevin, and on a common count for goods had and received against the gambling ship for the tortious transfer of the gaming devices sold to another ship. Subsequently, the ship was arrested. The appellate court first concluded it had jurisdiction under the collateral order doctrine. The appellate court also concluded that the appeal was not moot. The appellate court then concluded that the district court abused its discretion by summarily denying the motion under Fed. R. Civ. P. 59(a) without considering it on the merits. Further, while the district court articulated the correct standard to determine whether an arresting party was entitled to a warrant of arrest, it improperly turned the Supp. R. Certain Adm. & Mar. Cl. E(4)(f) hearing into a mini-trial and posed a much higher burden on the gaming corporation than was authorized, applied an incorrect legal standard to the maritime law of conversion, and failed to consider the claim for replevin.

OUTCOME: The appellate court vacated the decision of the district court and remanded the matter for further proceedings.

JENGGI KALUOM, Individually, and on behalf of those similarly situated, Plaintiff-Appellant, versus STOLT OFFSHORE INC; ET AL, Defendants, STOLT OFFSHORE INC., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 23813; 12 Wage & Hour Cas. 2d (BNA) 1665
October 10, 2007, Filed

PROCEDURAL POSTURE: Plaintiff seaman appealed the grant of summary judgment to defendant alleged ship owner, by the United States District Court for the Southern District of Texas, Galveston Division, on claims to a penalty wage under 46 U.S.C.S. §§ 10313, 10504, finding the voyage requirements of 46 U.S.C.S. §§ 10301, 10501, applied to the foreign vessel and that the vessel was not embarked on one of the voyage types of §§ 10301, 10501.

OVERVIEW: 46 U.S.C.S. § 10301(a) clearly dictated that 46 U.S.C.S. § 10313 applied only to vessels that met the foreign or intercoastal voyage requirement. Section 10313's penalty wage provision was thus limited by 46 U.S.C.S. § 10301's voyage requirement, whether the vessel was American or foreign. Because the ship was on neither a foreign nor an intercoastal voyage, § 10313's penalty wage provision did not apply. Because 46 U.S.C.S. § 10501 dictated that 46 U.S.C.S. § 10504 applied only to those vessels not covered by 46 U.S.C.S. ch. 103 that had embarked on a voyage between a port in one State and a port in another State, except an adjoining State, and because the ship was not on such a voyage, 46 U.S.C.S. § 10504's penalty did not apply. 46 U.S.C.S. §§ 10313, 10504, had to be read in conjunction with 46 U.S.C.S. §§ 10301, 10501. The assertion that including the phrase "in a harbor of the United States" in 46 U.S.C.S. §§ 10313(i), 10504(e), indicated the lack of a voyage requirement for foreign vessels was rejected. The voyage requirements in 46 U.S.C.S. §§ 10301, 10501, applied to seamen on both American and foreign vessels who sought penalty wages under 46 U.S.C.S. §§ 10313, 10504.

OUTCOME: The district court's grant of summary judgment was affirmed.

ROBERT ABT, Plaintiff-Appellant, v. DICKSON COMPANY OF TEXAS, and GREENSPORT SHIP CHANNEL PARTNERS, L.P., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 24314
October 17, 2007, Filed

PROCEDURAL POSTURE: Plaintiff, a crane operator, appealed a decision of the United States District Court for the Southern District of Texas, which granted a motion to dismiss for lack of subject matter jurisdiction filed by defendant, a dock owner. The operator had filed an action pursuant to admiralty jurisdiction under Fed. R. Civ. P. 9(h) and asserted claims of negligence, gross negligence, premises liability, and other torts.

OVERVIEW: The operator was injured while walking a crane down the dock. The district court concluded that the operator failed to demonstrate that his actions at the time of the accident were substantially related to maritime activity under 28 U.S.C.S. § 1333(1). On review, the court upheld the dismissal of the case. Using the maritime situs test under 46 U.S.C.S. app. § 740, the court agreed that the locality test was satisfied because the operator was injured once he hit the water and the injuries were exacerbated by the fact that he remained in the channel for a period of time before being rescued. However, the court agreed that the incident was not substantially related to maritime activity. It was uncontested that the operator was walking the crane on the dock and that there were no vessels on or near the dock at the time of the incident. Thus, the land-based movements giving rise to the incident did not fit within the traditional definitions of maritime activity. The injuries were only fortuitously and incidentally connected to navigable waters and bore no relationship to maritime activity in order to satisfy the requirements of federal admiralty jurisdiction.

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

ROY MUDRICK; CAROL MUDRICK, Plaintiffs-Appellants v. CROSS EQUIPMENT LTD, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 23345
October 4, 2007, Filed

PROCEDURAL POSTURE: Plaintiffs appealed an order of the United States District Court for the Southern District of Texas, Galveston, which granted summary judgment in favor of defendant, a manufacturer of a winch, and determined that plaintiffs' decedent was a seaman under the Jones Act, 46 U.S.C.S. § 30104, at the time of his death. Thus, the district court found that plaintiffs were barred from recovering non-pecuniary damages from the manufacturer.

OVERVIEW: The decedent, while working as an oil spill technician, was struck in the head by a steel anchor cable that came off of the winch that he was using to wind the cable and raise the anchor. Plaintiffs challenged the determination that the decedent had a connection substantial in terms of both duration and nature. On appeal, the court affirmed the grant of summary judgment. Plaintiffs failed to present any evidence to contradict the manufacturer's proof that the decedent spent 32 percent of his time performing marine work aboard his employer's vessels in navigation. That evidence in conjunction with the decedent's job description, the skills he was expected to perform in the course of his employment, and the actual task that he was performing when he was killed led to only one conclusion, that the decedent was a Jones Act seaman under § 30104.

OUTCOME: The court affirmed the grant of summary judgment.

WILHELMSEN PREMIER MARINE FUELS AS, Plaintiff, -against- UBS PROVEDORES PTY LTD. a/k/a USS-UBS INTERNATIONAL and RAECORP INTERNATIONAL PTY LTD., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 74477
October 1, 2007, Filed

PROCEDURAL POSTURE: Defendants, a provider of military entities including the provision of marine fuel to military vessels and its successor, moved to vacate the ex parte orders directing issuance of a Process of Maritime Attachment and Garnishment against defendants and served by plaintiff bunker supplier under Supp. R. Certain Adm. & Mar. Cl. B & E(4)(f), or, alternatively, to certify an interlocutory appeal, pursuant to 28 U.S.C.S. § 1292(b).

OVERVIEW: The provider entered into a marine fuel oil requirements contract with the United States to provide bunker fuel to vessels. The provider then agreed with plaintiff wherein plaintiff would provide vessels nominated by the provider with bunkers. Plaintiff performed under the contract by ordering another to bunker the nominated vessel, but claimed that it was never paid. Plaintiff attached electronic fund transfers (EFT) to and from defendants while they passed through New York banks. Defendants claimed that the EFTs were not subject to attachment under Rule B. The court rejected the argument that the EFTs were not subject to maritime attachment. Further, the attachment was not premature because plaintiff had yet to commence an action to litigate the underlying claims. More importantly, the court held that even if it characterized plaintiff as a broker or intermediary that would not preclude it from finding maritime jurisdiction. The court explained that a contract for furnishing fuel to a vessel qualified as a maritime contract such that admiralty jurisdiction was proper, regardless of whether the fuel was provided by plaintiff directly or by a third party at plaintiff's order.

OUTCOME: The court denied defendants' motion in its entirety.

LARRY SKOWRONEK, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
07a0417p.06; 2007 U.S. App. LEXIS 23926; 2007 FED App. 0417P (6th Cir.)
October 12, 2007, Decided

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer in which he challenged the maintenance rate for ill crew members alleging that a collective bargaining agreement (CBA) discriminated against ill crew members in comparison to injured crew members with regard to the payment of maintenance. The United States District Court for the Eastern District of Michigan granted summary judgment in favor of the employee. The employer appealed.

OVERVIEW: The employee worked as a wheelsman aboard the employer's ship. While at sea, the employee suffered a heart attack. Under the terms of the CBA, he was paid $ 56.00 per week for maintenance. Under the CBA, an injured crew member received $ 300 per week for maintenance. The employee sought $ 300 per week in maintenance. The appellate court found that maintenance rates, like any other benefit that was the ultimate result from give and take collective bargaining between parties, should be binding on them. Therefore, the $ 8.00 per day rate fixed by the CBA was enforceable. The employee did not allege that the agreement was not legitimately negotiated, that the CBA was unfair as a whole, or that he was not adequately represented by the union. When a benefits package included an express reference to a precise rate of maintenance, the adequacy of this rate, considered in isolation, was not a subject for judicial speculation when the rate was part of a total package of wages and benefits that resulted from the process of collective bargaining.

OUTCOME: The judgment was reversed and the case was remanded for further proceedings consistent with the opinion.

RICHARD ZENTNER VERSUS SEACOR MARINE, INC.
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2006 2049 (La.App. 1 Cir. 10/24/07); 2007 La. App. LEXIS 1928
October 24, 2007, Judgment Rendered

PROCEDURAL POSTURE: Plaintiff vessel captain sued defendant vessel owner under the Jones Act and general maritime law, alleging that the vessel owner was negligent in failing to properly supervise a deckhand and in failing to remove him from the vessel after his insubordination. The 16th Judicial District Court Parish of St. Mary (Louisiana) granted the vessel owner summary judgment, dismissing the captain's claims. The captain appealed the judgment.

OVERVIEW: Considering the evidence submitted in support of and in opposition to the vessel owner's motion for summary judgment on the Jones Act claim, nothing indicated that the verbal confrontations between the captain and deckhand placed the captain in reasonable apprehension of physical harm so as to satisfy the zone of danger test enunciated by the United States Supreme Court. As for the general maritime law claim, the captain offered no evidence that the vessel was not a reasonably safe vessel upon which to work, that the deckhand was a violent person, or that the vessel owner knew or should have known that the deckhand might have posed a danger to other crew members when it hired him. Absent any such evidence, the appellate court agreed with the trial court, that, as a matter of law, the captain did not have a claim against the vessel owner based in negligence under the Jones Act or for unseaworthiness of its vessel for any psychological injuries allegedly sustained by him as a result of his verbal confrontations with the deckhand.

OUTCOME: The summary judgment was affirmed.

In re: SUNCRUZ CASINOS, LLC, JAB AMERICA, INC., Debtors.
UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, FORT LAUDERDALE DIVISION
2007 Bankr. LEXIS 3629
October 26, 2007, Decided

PROCEDURAL POSTURE: The debtor filed for relief under Chapter 11 of the United States Bankruptcy Code. A former employee filed a motion for rehearing on the court's earlier order denying the judgment creditor's motion to allow a late-filed claim and to allow relief from stay. The debtor and the primary secured creditor objected to the motion.

OVERVIEW: In July 2005, the former employee had initiated a maritime personal injury action against the debtor alleging he sustained an injury aboard ship in July 2002. The employee filed a motion in the bankruptcy court proceeding in March 2006, which sought permission to assert a late-filed claim against the debtor. The court had established September 15, 2004 as the deadline for filing claims. The employee suffered a subsequent injury in 2005, while working for a different owner. The court noted that on the date of the 2002 elevator incident the employee had a cause of action, and thus a bankruptcy claim, against the debtor. The court found that there were valid reasons for the employee's delay in filing a claim, particularly when he had become pain free for a period of time and had been told that he had reached maximum medical improvement. Any prejudice to the debtor and the primary creditor was outweighed by the employee's right to pursue a claim. The employee's delay in filing a claim was not unreasonable. The court found that relief from the stay was appropriate so that the employee could liquidate his claim in a district court.

OUTCOME: The court granted the employee's motion to allow a late filed claim. The court granted the employee's motion for relief from stay and the employee was authorized to liquidate his claim in a district court. Upon completion of the liquidation, the parties were directed to return to the court for allowance or disallowance of the claim.

OVIE REEVES, JR. VERSUS F. MILLER & SONS, INC.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
07-201 (La.App. 3 Cir. 10/03/07); 2007 La. App. LEXIS 1838
October 3, 2007, Decided

PROCEDURAL POSTURE: Plaintiff employee sued defendant employer, claiming status as a Jones Act seaman under 46 U.S.C.S. § 688(a) and seeking damages allegedly sustained as a result of an accident. In the Fourteenth Judicial District Court, Parish of Calcasieu, Louisiana, a jury found that the employee was not a Jones Act seaman. The employee appealed.

OVERVIEW: The employee worked as a pile driver/operator who performed various construction duties. The employee alleged that he injured himself while engaged in the course and scope of his employment when he slipped on the deck of a pile driving barge located at a port. The appellate court determined that the jury was not manifestly erroneous or clearly wrong in finding that the employee did not prove by a preponderance of evidence that he was a seaman under the Jones Act. The jury did not err in finding that the employee was a land-based employee, not a seaman, because (1) the employer presented evidence that 16% of his work was performed on "water" and a barge was on site 28% of the hours he worked, (2) all the vessels on which he worked were dockside, (3) he did not sleep or eat on the vessels, (4) he did not keep watch on the vessels overnight, and (5) his pile driving duties did not take him to sea. Also, the jury did not err in finding there had been no "reassignment" prior to the employee's injury, because while his location may have changed at different jobs, his essential duties never did.

OUTCOME: The appellate court affirmed the judgment and assessed all costs of the appeal to the employee.

RONALD TASSINARI, an individual, SHEILA SILVA, individually, and as next best friend of ASHLEY SILVA, a minor, Plaintiffs, vs. KEY WEST WATER TOURS, L.C., a Florida corporation, Defendant. KEY WEST WATER TOURS, L.C., a Florida corporation, Third-Party Plaintiff, vs. JEFFREY WILKERSON, Third-Party Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2007 U.S. Dist. LEXIS 46490
June 27, 2007, Decided

PROCEDURAL POSTURE: Plaintiff injured parties sued Defendant personal watercraft rental agency for damages allegedly sustained as a result of an accident during one of Defendant's guided wave runner tours. Defendants moved for summary judgment on several issues: 1) they are entitled to exoneration from liability because there is no evidence of negligence; 2) they are entitled to limit their liability to the value of the vessel; 3) Florida statutory law does not apply; and 4) plaintiff's claims are barred by contractual waiver. Plaintiffs move for summary judgment under the Pennsylvania Rule.

OVERVIEW: The court found that Florida statutory law does apply where it does not conflict with Federal Maritime Law. Furthermore, the Pennsylvania rule ,which is Admiralty's equivalent of negligence per se, does apply where defendants violated Florida statutes designed to promote recreational boating safety. Defendants were not entitled to limitation of liability under the limitation act because according to the Pennsylvania Rule, defendant's violation of Florida statutes is presumed to have caused the collision, and the court found that defendant knew or should have known of the violation of these statutes. The release and waiver provisions in the rental contracts, while sufficient to release defendants from ordinary negligence, were invalid as against public policy when applied to liability arising from violation of these statutes.

OUTCOME: The Court granted Plaintiff's Motion for Summary Judgment as to Defendant's liability because of the Pennsylvania Rule. Defendant's Motion for Summary Judgment was denied.

JOHN CRANE, INC. v. WANDA T. JONES, ADMINISTRATRIX OF THE ESTATE OF GARLAND F. JONES, JR.
SUPREME COURT OF VIRGINIA
2007 Va. LEXIS 113
September 14, 2007, Decided

PROCEDURAL POSTURE: In an action arising from a decedent's exposure to asbestos, the Circuit Court of the City of Newport News (Virginia) granted a verdict in favor of the decedent's estate, and entered a reduced damage award against the decedent's employer to conform to the amount sought in the motion for judgment. The employer thus appealed.

OVERVIEW: The employer challenged the trial court's refusal to set aside the jury verdict as excessive, evidentiary rulings regarding the testimony of another employee and two of its expert witnesses, and it asserted that the trial court should have applied Virginia law, rather than general maritime law. The instant court disagreed. First, maritime law applied, as: (1) the decedent's inhalation of asbestos fibers while engaged in the repair and construction of vessels on navigable waters could have disrupted maritime commerce; and (2) during the time the decedent was exposed to asbestos-containing products, the employer marketed gaskets and packing material directly for the marine industry and advertised its products for marine engine and general ship use. Second, the trial court did not abuse its discretion in limiting the testimony by the employer's experts, as it failed to adequately comply with Va. Sup. Ct. R. 4:1(b)(4)(A)(i). Finally, based on the instruction on damages and the evidence presented at trial, the verdict was not excessive or so out of proportion to the injuries suffered to suggest that it was not the product of a fair and impartial decision.

OUTCOME: The judgment was affirmed.

Donald Lee Hiltbruner, Respondent, v. Crowley Marine Services, Inc., Appellant.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2007 Wash. App. LEXIS 2602
September 10, 2007, Filed

PROCEDURAL POSTURE: Appellant, claimant, sued respondent, barge owner, for negligence under the Jones Act and claimed the barge was unseaworthy. The parties stipulated to damages of $300,000 and tried the issue of liability. At the close of the claimant's case, the owner moved for directed verdict (a judgment as a matter of law). The Washington trial court entered its findings of fact, conclusions of law, and judgment against the owner. The owner appealed.

OVERVIEW: The claimant was working on a barge. The barge had a metal plate called a spill rail, which prevented oil on the deck from spilling into the water. Triangular metal angle irons at regular intervals along the water side of the spill rail served to reinforce it along the length of the rail. The owner painted trip hazards with white paint, and the owner had never painted angle irons along the spill rail white. When the claimant hopped toward the barge deck, his momentum carried him into a shadowed area. As his foot landed in that area, it struck an angle iron, injuring his knee. The appellate court ruled that the trial court correctly determined the duty owed by the owner to the claimant, and did not error in implicitly denying the motion for judgment as a matter of law. The owner had a duty to provide the claimant with a safe place to work, the angle irons posed a reasonably foreseeable danger, and the finder of fact could find that it was unreasonable to leave the angle irons painted the same color as the deck. Also, the trial court did not err in concluding that the owner's failure to paint the angle irons white made the barge unseaworthy.

OUTCOME: The judgment was affirmed.

Frank T. Caraska, Appellant, v. The Department of Transportation, Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2007 Wash. App. LEXIS 2567
September 4, 2007, Filed

PROCEDURAL POSTURE: Appellant seaman filed a personal injury complaint against respondent Washington Department of Transportation Division of Washington State Ferries (WSF). A Washington trial court ruled that the seaman did not prove negligence under the Jones Act or unseaworthiness and dismissed the seaman's lawsuit. The seaman appealed the dismissal.

OVERVIEW: The seaman was working aboard a passenger ferry when he was attacked and seriously injured by an intoxicated passenger. The instant court concluded that the trial court erred in narrowly construing the WSF's duty to protect its crew members from an intoxicated passenger and ignoring evidence supporting the seaman's Jones Act negligence and unseaworthiness claims. The WSF owed the seaman a duty to provide a safe place to work and had adopted a safety management system (SMS) policy addressing intoxicated and disorderly passengers to ensure the safety and wellbeing of passengers and crew. The trial court ignored language in the WSF's SMS policy requiring ferry employees to contact the police and the ferry captain if an intoxicated passenger was disorderly, disruptive, or confrontational. In its findings of fact and conclusions of law, the trial court repeatedly focused only on whether the intoxicated passenger was acting in a threatening or aggressive manner. The trial court also erred in disregarding evidence at trial about whether the passenger was disorderly, disruptive, or confrontational.

OUTCOME: The trial court's decision to dismiss the seaman's Jones Act and unseaworthiness claims was reversed, and the case was remanded for further proceedings.

JAN KOPACZ; CATHY KOPACZ v. DELAWARE RIVER AND BAY AUTHORITY; CRAIG SWETT, JAN KOPACZ v. DELAWARE RIVER AND BAY AUTHORITY, Jan D. Kopacz and Cathy Kopacz, Appellants.
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2007 U.S. App. LEXIS 21854
September 12, 2007, Opinion Filed

PROCEDURAL POSTURE: Appellant worker appealed from the order of the United States District Court for the District of Delaware which granted partial summary judgment in favor of appellee river and bay authority on the worker's claims seeking damages for an injury that he alleged occurred when he was struck by a car while working aboard an authority ferry.

OVERVIEW: The worker argued that the district court erred, inter alia, in granting the authority's motion for judgment as a matter of law as to compensatory damages, and denying attorney's fees and costs and prejudgment interest. The record showed that the authority did not believe that the car accident that formed the basis for the worker's claim occurred. There were no witnesses to the alleged accident besides the worker. The jury in fact found that the worker had not been struck and injured by the car. Thus, no reasonable jury could have found that the authority unreasonably withheld maintenance and cure and the jury's verdict was supported by the evidence. In light of the appellate court's finding that the authority did not act unreasonably in denying maintenance and cure, it affirmed the denial of attorneys' fees and costs. Finally, the record showed the worker was paid sick and annual leave for all but just over a month of the period when he was found to be due maintenance and cure. Following trial, he was awarded maintenance, sick and annual leave, and medical expenses. On this record, awarding the worker prejudgment interest would have been punitive rather than compensatory.

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

TERRY LEJEUNE, Plaintiff-Appellee v. TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC, Defendant-Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 22205
September 17, 2007, Filed

PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the United States District Court for the Western District of Louisiana, which entered a judgment of $ 1,800,000 in damages and maintenance and cure in favor of appellee seaman in his suit, brought pursuant to the Jones Act and general maritime law, to recover damages for an injury he suffered while working as a crew member on the employer's drilling vessel.

OVERVIEW: A valve fell on the seaman's foot, crushing his metatarsal bone and peroneal nerve, causing soft tissue injuries, and causing the seaman to suffer Complex Regional Pain Syndrome. On appeal, the court held that (1) the district court erred in admitting into evidence its own extrajudicial observations about the seaman's significant pain, but the error was harmless because the district court's decision was based on evidence that was properly admitted; (2) the general damages award of $ 750,000 was excessive under the maximum recovery rule because it was more than 133% of the highest recovery received in Louisiana for a similar injury; (3) the award of $ 744,108 for lost future wages had to be reversed because there was insufficient evidence to support the district court's conclusion that the seaman would eventually be able to return only to part-time work, as such conclusion was based only on the seaman's testimony that he could not sit or stand for very long; and (4) the district court did not err in requiring the employer to pay maintenance and cure for an uncertain period of time because it was not known when the seaman would reach maximum medical improvement.

OUTCOME: The court ordered a remittitur of the general damages award to $ 400,000. The court reversed the award for future lost wages and remanded the matter for recalculation. The court reversed the future damages award as it pertained to costs for doctor visits and remanded the matter for recalculation. Finally, the court affirmed the future cure obligation.

IN THE MATTER OF THE COMPLAINT OF MORAN TOWING CORPORATION, AS OWNER OF THE TUG JOHN TURECAMO, FOR EXONERATION OR LIMITATION OF LIABILITY; JOMAR SHIPPING & TRADING, INC. & KRISTEN NAVIGATION, INC., Appellants.
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2007 U.S. App. LEXIS 18686
August 7, 2007, Filed

PROCEDURAL POSTURE: Appellee tugboat owner sued appellants, a shipowner and the ship's manager, in the United States District Court for the Eastern District of Pennsylvania under the former Limitation of Shipowners Liability Act, 46 U.S.C.S. § 183 et seq. (repealed 2006). The district court exonerated the tugboat owner from liability in connection with a collision. Appellants sought review.

OVERVIEW: Appellants claimed that the tugboat owner was liable for damages arising from a collision between a ship and a tugboat. The collision occurred while a docking pilot was attempting to slow the ship to execute docking maneuvers; the tugboat took emergency corrective action and collided with the ship's propellers. The court of appeals found that the record supported the district court's finding that the docking pilot was an independent contractor who was subject to the control of the ship's master and not the tugboat owner at the time of the collision. Also, the district court's finding that the piloting of the tugboat was not negligent was not clearly erroneous; sheer on the part of the ship indicated that the operation of the ship and not the tugboat was negligent. An expert testified that the docking pilot improperly pre-positioned the tugboat and should have ordered the tug to clear away once he realized that the ship was traveling too fast.

OUTCOME: The district court's judgment was affirmed.

JASON SMITH, Plaintiff, VERSUS SEACOR MARINE LLC; SEACOR OFFSHORE LLC, Defendants-Third Party Plaintiffs-Appellants, VERSUS AMEC-GREYSTAR LLC, Third Party Defendant-Appellee,
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 18332
August 1, 2007, Filed

PROCEDURAL POSTURE: Appellant offshore marine support company sought judicial review of the United States District Court for the Eastern District of Louisiana's dismissal of its third party complaint seeking contractual indemnity for sums it may owe to a worker injured in an oilfield accident which occurred on the Outer Continental Shelf off the coast of Louisiana. The worker had received benefits under Longshore and Harbor Worker's Compensation Act.

OVERVIEW: Alleging vessel negligence under 33 U.S.C.S. § 905(b), the worker filed the present admiralty action against the marine company, he did not sue the oil company or his employer. The marine company agreed that the worker's employer's contract with the oil company to furnish labor services to work aboard the oil company's platform on the Outer Continental Shelf was a non-maritime contract governed by Louisiana law. Nevertheless, it argued that it was entitled to enforce the indemnity provision in the oil company/employer contract because the employee's suit against it under § 905(b) triggered the application of 33 U.S.C.S. § 905(c) and Louisiana law did not apply. The worker's action against the marine company under 33 U.S.C.S. § 905(b) did not trigger the application of 33 U.S.C.S. § 905(c) since the indemnity agreement at issue was not between the employer and the marine company, it was between the employer and the oil company. Since Louisiana law, including the Louisiana Oilfield Indemnity Act, applied to the oil company/employer contract, the district court correctly dismissed the marine company's third party demand.

OUTCOME: The judgment of the district court was affirmed.

IN THE MATTER OF THE COMPLAINT OF: ILLINOIS MARINE TOWING, INCORPORATED A CORPORATION, FOR EXONERATION FROM, OR LIMITATION OF LIABILITY
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2007 U.S. App. LEXIS 19746
August 20, 2007, Decided

PROCEDURAL POSTURE: Appellant, a marine towing company, sought review of a decision from the United States District Court for the Central District of Illinois, which granted a motion to modify a stay and allowed appellees, injured parties who had filed claims against the towing company (claimants), to pursue their actions in state court.

OVERVIEW: This case involved personal injuries and a death that resulted from a drunken boating collision. The towing company owned a barge that was involved in the collision. After the injured parties filed lawsuits in state court, the towing company filed a petition in federal court to limit liability pursuant to the Limitation of Shipowners' Liability Act, 46 U.S.C.S. § 30505, resulting in a stay of the state court proceedings. The claimants filed a motion to modify the stay, attaching stipulations which conceded the district court's exclusive jurisdiction over all limitation of liability issues and waived any claim of res judicata. The district court found that these stipulations adequately protected the towing company's interests and therefore granted the claimants' motion, thereby permitting the state claims to proceed. On review, the court concluded that the claimants' stipulations adequately protected the towing company's right to seek limitation of liability and have all limitation issues decided in federal court. As such, the district court did not abuse its discretion in lifting the stay of the claimants' state court actions.

OUTCOME: The court affirmed the district court's order granting the claimants' motion to modify the stay.

James Mulhern, et al., plaintiffs, v Manhasset Bay Yacht Club, defendant third-party plaintiff-respondent; Costello Marine Contracting Corp., third-party defendant-appellant. (Index No. 6236/98)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2007 NY Slip Op 6420; 2007 N.Y. App. Div. LEXIS 9057
August 14, 2007, Decided

PROCEDURAL POSTURE: In an action by plaintiff employee, inter alia, to recover damages for personal injuries under New York Labor Law, third-party defendant employer sought review of a judgment entered by the Supreme Court, Queens County (New York), which was in favor of third-party plaintiff yacht club on its implied indemnification claim based on a theory that the employer had breached the warranty of workmanlike performance implied in maritime service contracts.

OVERVIEW: The employee was injured when he was struck by a load of timber being hoisted by a barge-mounted crane while he was clearing debris from a beach. The employer, at the time of the accident, had been hired by the yacht club to perform work on a waterfront renovation project, including construction of new piers. Besides the Labor Law claim against the yacht club, the employee brought an action against the employer based, among other things, upon a violation of the Jones Act, the actions were joined for trial. The trial court found as a matter of law that a maritime services contract existed with an implied warranty of workmanlike performance. On appeal, the court reversed, finding that the contract between the employer and the yacht club was improperly classified as one for maritime services. No showing was made that the waterfront improvement contract bore any relation to maritime commerce or to a ship, navigation on navigable waters, or transportation by sea. Therefore, the contract did not contain an implied warranty of workmanlike performance that could serve as the basis for implied contractual indemnification under maritime law.

OUTCOME: The court reversed the trial court's judgment, vacated the prior order on which the judgment was based, and dismissed the third-party complaint.

MICHAEL MILLER, Plaintiff, vs. SMITH MARITIME, LTD.; TOW BOAT SERVICES & MANAGEMENT, INC.; and HAWAIIAN INTERISLAND TOWING, INC., Defendants.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
2007 U.S. Dist. LEXIS 57549
August 6, 2007, Filed

PROCEDURAL POSTURE: A magistrate judge recommended that the court grant, in part, plaintiff seaman's pretrial motion to compel defendant towing companies to adjust the payment of maintenance to the seaman.

OVERVIEW: The towing companies had a duty to provide the seaman, who was injured aboard a vessel, payment of maintenance and cure, but did not begin payments until 11 months after the accident and, thus, caused him to incur debt. The court held that the magistrate correctly applied the summary judgment standard with the additional flexibility that exercising admiralty jurisdiction allowed and treated the seaman's motion to compel an adjustment in payment of maintenance as a motion for partial summary judgment within the context of admiralty law. The court affirmed the recommendation to grant the motion in part. The court held that the magistrate correctly applied the flexibility afforded by exercising admiralty jurisdiction, recommended that the seaman's maintenance cost for food and housing in California be adjusted from $ 21 to the reasonable rate of $ 31 based on actual receipts, and found that the seaman's housing, for which he did not pay rent, fell within the definition of shelter. The court adopted the recommendation to deny the motion in part because a significant disparity existed between the expert evidence as to the Honolulu, Hawaii, daily maintenance and required a trial.

OUTCOME: The court adopted the finding and recommendation to grant the motion in part as to the California maintenance and deny it as to the Hawaii maintenance.

ATLANTIC SOUNDING CO., INC., WEEKS MARINE, INC., Plaintiffs-Counter-Defendants-Appellants, versus EDGAR L. TOWNSEND, Defendant-Counter-Claimant-Appellee, THOMAS KIMBROUGH, Defendant.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 20078
August 23, 2007, Decided

PROCEDURAL POSTURE: In this interlocutory appeal, Plaintiffs-Appellants Atlantic Sounding Co., Inc., appeal the district court's denial of Plaintiffs' motion to strike Defendant-Appellee Edgar L. Townsend's request for punitive damages.

OVERVIEW: The district court consolidated two actions: one based on a seaman's alleged shoulder injury and the other based on the seaman's employer's suit for declaratory relief on the question of their obligations in this matter. The district court concluded that it was bound by the 11th Circuit's prior panel decision in Hines v. J.A. LaPorte, Inc., 820 F.2d 1187 (11th Cir. 1987), which permits a seaman to recover punitive damages when an employer arbitrarily and willfully refuses to pay maintenance and cure. Plaintiffs contend that Hines was abrogated by Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990), in which the Supreme Court concluded that recovery for non-pecuniary loss in the wrongful death of a seaman was not available under general maritime law. The 11th Circuit held that this argument could only be based on the reasoning of the Miles opinion, not on the Miles decision itself.

OUTCOME: The Court concluded that their prior decision in Hines remains binding law in this Circuit.

MICHAEL COPPOLA v. LOGISTEC CONNECTICUT, INC., ET AL.
SUPREME COURT OF CONNECTICUT
283 Conn. 1; 2007 Conn. LEXIS 265
July 3, 2007, Officially Released

PROCEDURAL POSTURE: Plaintiff claimant appealed from the decision of the compensation review board (Connecticut), which affirmed the decision of appellee, the workers' compensation commissioner for the third district, that dismissed plaintiff's claim for benefits under the Workers' Compensation Act (the state act), Conn. Gen. Stat. § 31-275 et seq., which arose from an injury while working for defendant employer.

OVERVIEW: Plaintiff was in the business of unloading ships in a harbor and was injured while descending a ship's hold after a step broke beneath him. Plaintiff filed a claim under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq., and was awarded compensation. Plaintiff subsequently filed his claim under the state act, which the commissioner dismissed for lack of jurisdiction. On appeal, plaintiff claimed that the board improperly concluded that the commissioner lacked jurisdiction over his claim because the injury occurred on the navigable waters of the United States and, therefore, the federal government had exclusive jurisdiction over the claim under U.S. Const. art. III, § 2 and the longshore act. The court agreed with plaintiff and held that the state has concurrent jurisdiction with the federal government over claims involving injuries incurred on navigable waters when the employer and the employee are locally based, the employment contract is performed within the state and partly on land, the injury took place on the state's territorial waters and the employer was required under the state act to secure compensation for any land based injuries.

OUTCOME: The court concluded that plaintiff's claim was governed by federal case law and fell squarely within the twilight zone doctrine as adopted by the United States Supreme Court in those cases. As such, the court held that the board improperly determined that the claim was not within the jurisdiction of the commissioner. The court reversed the judgment and remanded the case to the board with direction to sustain plaintiff's appeal.

ARTHUR J PRESTENBACH, Plaintiff-Appellant v. GLOBAL INTERNATIONAL MARINE INC, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16649
July 12, 2007, Filed

PROCEDURAL POSTURE: Plaintiff claimant appealed a decision of the United States District Court for the Eastern District of Louisiana, which granted summary judgment to defendant, a marine transportation company, in the claimant's action seeking compensation for injuries under the Jones Act for negligence and vessel owner negligence and for employee benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq.

OVERVIEW: The claimant was hired as a contractor to raise a sunken barge for the company as a "one-shot" job. The claimant alleged that the company's failure to provide him with a fully English-speaking crew was negligence and caused his injury pursuant to 33 U.S.C.S. § 905(b). On review, the court upheld the grant of summary judgment because the claimant was clearly not a Jones Act seaman at the time of his injury and he was not an employee entitled to compensation benefits under the LHWCA. The court agreed that the claimant was an independent contractor and not an employee under the LHWCA in that he billed the company for his work using an invoice and classified himself as a consultant, crane operator, and welder. Further, the barge-raising project was not part of the regular work of the company. The company was also not liable for vessel negligence under § 905(b) because of an allegedly inadequate crew. The company did not breach any of its duties owed to the claimant as an independent contractor in that there were no unseaworthy or negligent conditions on the barge, the tug, the pump, or the sunken barge that contributed to or caused the claimant's injury.

OUTCOME: The court affirmed the district court's grant of summary judgment.

OTAL INVESTMENTS LIMITED, as Owner of the M/V Kariba, for Exoneration from or Limitation of Liability, Plaintiff-Third-Party-Plaintiff-Appellant, UNITED SERVICES AUTOMOBILE ASSOCIATION, ASI AUTO SHIPMENT GmbH, TED L. RAUSCH CO., CHARLES BROOMFIELD, MORGAN MOON, PATRICIA YORK, AUGUSTA ASSICURAZIONI S.p.A., CHN ITALIA S.p.A., CNH TRADE N.V., NEW HOLLAND NORTH, INC., FEDEX TRADE NETWORKS TRANSPORT AND BROKERAGE, INC., O & K ORENSTEIN & KOPPEL A.G., CASE CORPORATION AND TOWER GROUP INTERNATIONAL, ZURICH INSURANCE CO., ALPINA INSURANCE CO., GERLING INSURANCE CO., as subrogee and/or assignee of Schempp-Hirth Flugzeug-Vertriebs-GmbH, DAVID GREEN HILL, LIEBHERR-WERK NENZIG GmbH, LIEBHERR-MISCHTEKNIK, LCT LIEBHERR CONCRETE TECHNOLOGIE, LIEBHERR AMERICA, INC., E.H. HARMS GmbH & CO., BMW OF NORTH AMERICA LLC, Claimants-Appellants, -v.- M/V CLARY, MINERAL SHIPPING CO. PRIVATE LTD., MST MINERALIEN SCHIFFAHRT SPEDITION UND TRANSPORT, CLARY SHIPPING PTE LTD., WALLENIUS WILHEMSEN LINES AS, WILH. WILHEMSEN ASA, ACTINOR CAR CARRIER I AS CAPITAL BANK PUBLIC LIMITED COMPANY, Third-Party-Defendants-Appellees, M/V TRICOLOR, Consolidated Defendant, N.V. FORTIS CORPORATE INSURANCE, Claimants.
Docket Nos. 06-0591-cv(L), 06-0675-cv(con), 06-0789-cv(con), 06-0790-cv(con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 16021
July 6, 2007, Decided

PROCEDURAL POSTURE: In the early morning hours of December 14, 2002, off the coast of Dunkerque, France, plaintiff's container ship collided with a Norwegian carrier (third-party defendant one) after avoiding a collision with a Singaporean carrier (third-party defendant two). Plaintiff sued for exoneration from liability. The U.S. District Court for the Southern District of New York found plaintiff's ship solely liable for the collision. Plaintiff appealed.

OVERVIEW: The relevant navigational duties were contained in the Convention on the Int'l Reg. for Preventing Collisions at Sea (COLREGS), Oct. 20, 1972, 28 U.S.T. 3459, T.I.A.S. No. 8587, codified at 33 U.S.C.S. § 1602 et seq. The district court correctly held that violations of the COLREGS by plaintiff's ship were a cause of the collision. The district court erred, however, in determining that the COLREGS violations by the third-party defendants did not cause the collision. The appellate court concluded that all three vessels committed violations of the COLREGS that caused the collision. The appellate court found, inter alia, that if third-party defendant one had not chosen to overtake in an unsafe place and in an unsafe manner, the collision would not have occurred; plaintiff's ship would have passed across the third-party defendant one's bow. Thus, the decision by third-party defendant one to overtake and the manner of overtaking was a factual cause of the collision. As for third-party defendant two, if it had not understaffed its bridge and failed promptly to take avoiding action, the collision would not have occurred.

OUTCOME: The appellate court reversed the district court's judgment and remanded for further proceedings. On remand, the district court would have to consider the relative culpability of each vessel and the relative extent to which the culpability of each caused the collision.

JOHN E PARK, Plaintiff-Appellant, versus STOCKSTILL BOAT RENTALS INC, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16927
July 16, 2007, Filed

PROCEDURAL POSTURE: Plaintiff seaman appealed the United States District Court For the Western District of Louisiana's grant of summary judgment in favor of defendant employer on the seaman's action under 46 U.S.C.S. § 30104(a) of the Jones Act and general maritime law to recover for injuries suffered while working aboard the employer's vessel. The seaman argued violations of 46 U.S.C.S. §§ 3313(a), 8101(d), 8104(b), and that the vessel was unseaworthy.

OVERVIEW: There was no evidence the employer "required" the seaman to work more than 12 hours in violation of 46 U.S.C.S. § 8104(b). The seaman chose to make a delivery, alone and in the dark, then kept watch overnight after running into a sand bar. Nothing indicated the employer even requested the delivery be made at night or that it knew of the night run or the sand bar incident. There was no evidence the employer knew of a violation of the Certificate of Inspection's manning requirements for purposes of 46 U.S.C.S. § 8101(d), (e). The Certificate was not violated, two days before the seaman's fall, by transiting on the Intercoastal Waterway and a river, because the vessel was operating a "route of less severity" under 46 C.F.R. § 176.110(b) than specified in the Certificate. The seaman testified to only two reasons for his fall: fatigue due to the overnight watch, and faded, old deck paint on the deck. Thus, any violation of the 30-minute run limit in the Certificate had not caused the fall. As to the vessel being unseaworthy, there was no evidence the vessel was not reasonably suited its intended purpose, or that the deck paint was unsafe or not reasonably suited for the deck's purpose.

OUTCOME: The grant of summary judgment was affirmed.

DONNA CURCURU 1 vs. ROSE'S OIL SERVICE, INC. (and three companion cases 2 ).
APPEALS COURT OF MASSACHUSETTS
69 Mass. App. Ct. 510; 868 N.E.2d 1266; 2007 Mass. App. LEXIS 759
July 3, 2007, Decided

PROCEDURAL POSTURE: Plaintiff surviving spouses appealed judgments after rescript by the Suffolk Superior Court Department (Massachusetts) that applied the federal postjudgment interest rate of 2.07% instead of the Massachusetts postjudgment interest rate of 8.14% to judgments obtained under the Death on the High Seas Act (DOHSA), 46 U.S.C.S. § 761 et seq.

OVERVIEW: After a fishing vessel sunk during bad weather on the high seas, the surviving spouses of the lost crew members sued defendant company for wrongful death pursuant to the DOHSA "savings" clause in 46 U.S.C.S. § 767. They claimed that the company negligently performed repairs on the vessel, which conduct was said to be a substantial cause of the accident. Ultimately, after extensive litigation, appeal, and a remand, judgments after rescript were entered in favor of the surviving spouses. The appellate court found that the surviving spouses' DOHSA claims were maritime claims. Because the Supreme Judicial Court articulated a need for consistency with federal law in maritime cases where interest awards were at issue, postjudgment interest on the surviving spouses' DOHSA judgments was properly calculated pursuant to federal law under 28 U.S.C.S. § 1961.

OUTCOME: The judgments after rescript were affirmed.

NOBLE DRILLING (US) INC., NOBLE DRILLING (PAUL ROMANO) INC., SHELL OFFSHORE, INC., AND SHELL DEEPWATER DEVELOPMENT, INC., Appellants v. KELLY FOUNTAIN, Appellee
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2007 Tex. App. LEXIS 5455
July 12, 2007, Opinion Issued

PROCEDURAL POSTURE: Appellants challenged a judgment of the 151st District Court. Harris County, Texas, rendered after a jury verdict, awarding appellee $1,345,900 in appellee's suit against appellants for negligence under the Jones Act and general maritime law.

OVERVIEW: Appellants contended that there was no evidence or factually insufficient evidence of Jones Act negligence giving rise to one appellant's alleged liability in connection with injuries suffered by appellee while performing a routine task and of general maritime negligence as to the second appellant's conduct in regard to injuries sustained by appellee. As to the Jones Act claim, there was legally sufficient evidence to support the jury's finding of negligence against the first appellant. Even though appellee agreed that, as a roustabout, his general duties included lifting, and appellants presented conflicting evidence on the controlling issues of the weight and configuration of the load and the reasonableness and scope of a supervisor's instruction to lift it, appellee presented some evidence to support the jury's finding under the Jones Act that appellant failed to provide him a reasonably safe place to work. As to general maritime negligence, the evidence at most would have permitted a finding that the second appellant was aware of a policy violation, not that it breached any duty that it owed to appellee or that any breach of a duty caused appellee's injuries.

OUTCOME: The instant court affirmed the judgment rendered against the first appellant, reversed the judgment rendered against the second appellant, and rendered judgment that appellee take nothing on its claim against the second appellant. The instant court remanded the case to the trial court for the entry of a new judgment.

DILBERT IVAN CALIX-CHACON, Plaintiff-Appellee, v. GLOBAL INTERNATIONAL MARINE, INC., Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 17239
July 19, 2007, Filed

PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which denied the employer's motion to dismiss appellee seaman's maintenance and cure suit. On public policy grounds, the district court refused to enforce a forum selection clause designating Honduras as the place for the settlement of any disputes between the parties.

OVERVIEW: The seaman, a Honduras native, became ill while working on the employer's vessel. The seaman underwent heart transplant surgery and sought maintenance and cure. The district court held that the forum selection clause was unenforceable under general maritime law and under the Shipowners' Liability Convention of 1936. The seaman was then awarded maintenance and cure after a trial. On appeal, the court held that the Convention, which merely codified general maritime law in the U.S., did not prohibit a federal district court from refusing to entertain maintenance and cure claims brought by foreign seamen in a United States court, particularly where the seaman's contract contained a clause designating a different forum. Instead, the district court needed to consider factors such as whether the selection clause was the product of fraud or overreaching; whether the seaman would for all practical purposes be deprived of his day in court because of the grave inconvenience or unfairness of the selected forum; whether fundamental unfairness of the chosen law would deprive the seaman of a remedy; and whether enforcement of the clause would contravene a strong public policy of the forum state.

OUTCOME: The court reversed the district court's judgment and remanded the case for the district court to consider whether the forum selection clause was enforceable under the factors outlined. In making its determination, the district court was to consider, among other things, the available medical care in Honduras and whether a remedy was available to the seaman under Honduran law.

For Capt. Ed Enos, it was among the most horrifying reports he could ever receive: A colleague had been killed during a ship transfer.

Enos, vice president of the Hawaii Pilots Association, received just such news on Jan. 29, 2006. Hawaii pilot Capt. David "Kawika" Lyman died after falling between a cruise ship and a pilot boat.

The Hawaii pilots weren't the only association that suffered a fatality on the job last year. Between January 2006 and February 2007, four pilots were killed across the United States in falls from pilot ladders. A fifth person — a pilot boat operator — died when his vessel overturned at the conclusion of a transfer.

The rash of deadly incidents has stunned the proud fraternity of bar pilots and has prompted soul-searching among pilot associations. Many groups have undertaken campaigns to upgrade safety equipment carried by pilots and their launch boats.

Pilot associations are increasing their use of life vests, lights, beacons and man-overboard-retrieval systems on their boats. Understandably, the Hawaii pilots were one of the first groups to act.

"This is quite a shocker for everybody," Enos said of the five U.S. deaths. "We hadn't had very many accidents nationally for a long time. It gets everybody thinking about and talking about what we are doing. One of the things we did immediately internally is to make sure that everyone is wearing a life jacket — the inflatable collars, with a night light."

From 1993 through 2005, only about four people lost their lives in pilot-transfer accidents in the United States, according to Coast Guard data. Since the beginning of 2006, the saddening U.S. tally includes these incidents:

• On Jan. 9, 2006, Columbia River Bar Pilot Kevin Murray fell into the Pacific Ocean as he was disembarking from a log carrier using a pilot's ladder in 18- to 20-foot seas. Murray, 50, drowned.

• Lyman's accident happened at Kauai. He fell into the water and was struck by the pilot boat. Lyman, the Hawaii association's former president, was 62.

• Boston Harbor Pilot Robert G. Cordes fell off a ladder near the top of his climb onto a bulk carrier Oct. 24, 2006, at Chelsea, Mass. Cordes, 60, landed on a barge alongside the ship and was killed.

• George Robert Frazier, 55, who operated a pilot boat for the Galveston-Texas City Pilots, drowned Jan. 20, 2007, when his boat capsized following the disembarkation of a pilot from an offshore support ship. The pilot was rescued.

• On Feb. 4, 2007, Chesapeake & Interstate Pilots Association President Lynn Deibert, 53, fell from a ladder into the Atlantic Ocean while climbing aboard a coal carrier off Cape Henlopen, Del. Deibert's body was never found.

Capt. Mike Watson, president of the American Pilots' Association, said pilots have also been killed recently in Japan, Uruguay, Egypt, India, France and Scandinavia. The accidents underscore the need for global solutions to improving shipboard ladder systems and safety procedures, as well as the habits of pilot crews themselves, he said.

"This is one of the worst years I've seen," said Watson, who is also president of the International Maritime Pilots' Association. "It has been a very trying time to witness your colleagues being injured and killed ... we are certainly upgrading our safety equipment."

Many pilot associations, including the San Francisco Bar Pilots, are reviewing lifesaving policies, purchasing new devices and adding more practice drills. California's Board of Pilot Commissioners has reactivated its safety committee as a result of the heightened awareness.
Capt. Peter McIsaac, president of the San Francisco pilots, said his association decided to improve its man-overboard beacon system. The group spent about $30,000 to buy ORCA receivers for two boats and about 20 new transmitters. They are also modifying their float coats to make it easier to connect a man-overboard rescue line.

"We take the coats to a sail maker, and they install a harness with two D-rings," McIsaac said. "That way you can just clip right in" to the line.
The San Francisco pilots have studied the recent fatalities and are incorporating similar scenarios into rescue drills. A common thread in the pilot deaths is the inability to rescue the man out of the water quickly.

"We have increased our man-overboard drills, and we're doing volunteer man-overboard drills where we get a volunteer to jump in the water. We're going to start doing nighttime man-overboard drills here for the first time ever — to see how our lights actually work and what distance they can be seen," McIsaac said.

"What the drills have shown is that we need to do more of them," he said. "I think it's something we should be doing almost monthly."
BriarTek Inc. of Alexandria, Va., is the supplier of the ORCA Man Overboard Alarm System, which includes personal beacons, receiver alarm units and direction finders. Only recently did BriarTek, which has sold 80,000 units to the U.S. Navy, begin marketing the system to civilian customers.

In addition to the San Francisco pilots, BriarTek has sold systems to New York's Sandy Hook Pilots. The spate of fatalities is generating a surge of interest in ORCA among pilot associations, said Joe Landa, BriarTek's director of product development.

"It has clearly had an impact. They're all reviewing their safety procedures and equipment," Landa said. "People have been evaluating our systems for a long time, but this has created a sense of urgency and now they want to get the system."

At Bridgeport, Conn., the deadly pilot accidents raised the stakes in a dispute over launch-boat safety. The Block Island Pilots, who are the joint rotation administrator for Long Island Sound, switched to a more expensive launch service. Their former provider had two 40-foot boats that were not equipped with adequate man-overboard retrieval systems and didn't have proper handrails, adequate decks or more than one means of egress from the boat, said Capt. Ken Warner, the Block Island Pilots' ranking official.

The changeover predates the 2006 fatalities, but the debate involving the original launch service is ongoing.

"We have certainly used these incidents to demonstrate why this is important," Warner said. "We refuse to use these boats. We just want the safest operation we can have."

Instead, pilots at Bridgeport are using the pricier service that sends out 65-foot, twin-screw boats equipped with a Jacob's cradle retrieval system.

A stringent focus on safety gadgets can be uncomfortable for tradition-bound pilots, whose profession is thousands of years old. Their wood-and-rope pilot ladders haven't changed much in over a century. Some pilots are even reluctant to wear a life vest or float coat.

Floatation devices weren't mandatory for Hawaii pilots until after the death of Lyman, who was not wearing one.

"Pilots are all independent contractors — a loose-knit group of independent contractors," Enos said. "Clearly, the life-jacket issue in recent years had become more of a concern in the group. With Dave's accident, we finally made it a hard-and-fast concrete rule that everybody has to have a life jacket on, period. There was a particular pilot who kind of stiff-armed that for a long time, but even he agrees that we all should wear life jackets now."

The Hawaii pilots have added extra floodlighting on their launch boats and a loudspeaker system to help them communicate instructions to the ship's deck hands. Enos said additional improvements probably will be ordered after the Coast Guard concludes its investigations of the fatal accidents and issues reports with new safety recommendations.

Kurt J. Heinz, chief of the Lifesaving and Fire Safety Standards Division at Coast Guard headquarters, confirmed that the Coast Guard may include industry-wide safety warnings in those incident reports. He declined to specify them before the investigations are completed.

One "logical" warning "might be wearing more effective life jackets," Heinz told Professional Mariner in March. "That's the kind of thing that might come out of it."

Although the Coast Guard doesn't directly regulate pilotage, the agency can influence the safety of pilot transfers because it approves the equipment, inspects U.S.-flagged vessels and has some authority over foreign-flagged vessels as the port-state law enforcer. Heinz said the Coast Guard is working with the International Maritime Organization to boost the amount of attention paid to pilot-transfer safety.

"I've heard a lot of anecdotal situations where a lot of pilot-transfer arrangements are not in good shape," Heinz said. "In the future, we'll be giving that some more attention."

Specifically, the Coast Guard is trying to develop a means of inspecting pilot ladders that goes beyond a simple visual inspection. That could result in a mandatory periodic load test, Heinz said. Such a test would be helpful because wood and rope wear out easily in a sea environment, he said.

"It could be materials that deteriorate or just poor maintenance or you get steps broken," Heinz said. "The nature of a pilot ladder is, when you're using it regularly, it gets banged between the pilot boat and the ship."

Another factor that may force pilot associations to address safety hazards aggressively is the threat of costly legal liability. In Oregon, Murray's widow has filed a federal lawsuit against the owners of the pilot boat and the ship involved in the ill-fated disembarkation. The suit alleges unseaworthiness, negligence and workplace safety deficiencies.
It's true that the pilot's job is getting more dangerous, Watson said. The average length of the climb up and down the ladder has become longer — with more and more ships requiring a climb that approaches the IMO's maximum pilot-ladder height of around 29.5 feet.

"The size of the ships has changed today," Watson said. "We have cruise ships and car-carrier ships that are very high-sided and bulk ships that are huge. When they're empty and sitting out of the water, it's a very high climb to get on that deck."

One thing that U.S. pilots likely never will accept is any kind of lifeline system that harnesses the pilot to the ship. Such safety lines have been proposed and rejected. A pilot simply must have freedom to move in a split-second, without interference, most pilots feel.

"We take precautions, but sometimes the precaution becomes a hazard," Francis Burn, vice president of the Chesapeake & Interstate Pilots, said of the harness idea.

Mountain climbers and utility repairmen may benefit from a lifeline system, but they are tethered to a fixed object. Marine pilots transfer between two objects — the ship and the boat — that are moving independently.

The movements of a ship in heavy seas is "the equivalent of an elevator going up and down four floors in a couple of seconds," said Capt. Rick Hurd, vice president of the San Francisco Bar Pilots. "Imagine yourself tethered to something that's in that dynamic of a situation. I wouldn't want it."

Years ago, mariners had high hopes for one technological answer to the pilot-transfer challenge: the mechanical pilot hoist. The device, operated by the ship's deck hands, uses a pulley system to raise or lower the pilot in a bucket.

Ships' crews simply aren't trained well enough to operate such a device safely, Watson said. He speaks from experience. He once fell out of a hoist bucket when the deck hands on a coal carrier messed up the rigging by tying one of the tag lines to a stanchion. The bucket tipped.

"Pretty soon I was playing Mr. Gymnast, and I'm hanging on by my hands, upside down, in the middle of the air, and I dropped into the water," Watson said. "We've had too many of these accidents."

While pilot associations are taking some safety precautions into their own hands, they say even more must be done on the ships.

The IMO's Design and Equipment Subcommittee and Safety of Navigation Subcommittee are considering a series of adjustments to global safety practices. The International Maritime Pilots' Association has asked for the reforms to standardize dimensions of the ladders and manropes, among other things.

After the IMO's Maritime Safety Committee considers the subcommittees' recommendations on the changes, new standards could go into effect within the next few years.

Even under existing rules, many ships are below minimal safety standards, according to the APA and IMPA. Often pilot ladders are homemade, rungs are crooked, deck lighting is poor and, sometimes, no ship's officer bothers to be present for the embarkation.

"Pilots still encounter many, many substandard pilot ladders and accommodation ladders," Watson said. "And the (ship) crews are not as quality as they used to be."

Maybe it's time for individual pilots to speak out more often when they discover hazards on ships, Watson suggested.

"The pilots don't routinely report every slight violation of the rigging standards. That could be their own problem," Watson said. "Pilots will go aboard and use this substandard equipment many times because they are dedicated and they say, ‘What the heck.'"

Heinz, the Coast Guard safety expert, said, "If a pilot finds a ladder that is unfit for use, then it's up to the pilot to wave it off and say, ‘I'm not going to use that ladder.'"

Scott Alprin, Appellant, v. City of Tacoma et al., Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION TWO
2007 Wash. App. LEXIS 1417
June 5, 2007, Filed

PROCEDURAL POSTURE: Appellant, claimant, sued respondent, City of Tacoma and Tacoma Public Utilities (the City), alleging negligence as a matter of law for failing to warn of an overhead power line hazard. The City moved for summary judgment. The Washington trial court granted summary judgment in favor of the City, and the claimant appealed.

OVERVIEW: While sailing, the claimant's sailboat mast hit power transmission cables suspended above the bay. The resulting jolt of electricity severely injured the claimant, threw him into the water, and caused major damage to his sailboat. The appellate court ruled that by including the power lines in the National Oceanic and Atmospheric Association (NOAA) charts, the City fulfilled its duty to warn as a matter of law. The NOAA chart for the bay clearly noted the location of the power lines and their clearance of 30 feet above the confluence of the bay and lagoon. The appellate court was bound by the admiralty rule that any boater, even a recreational one, was charged with knowledge of all warnings and hazards contained in the NOAA charts. The claimant did not bother to consult or to take notice of the NOAA chart, which clearly showed the location and clearance of the power lines, and he did not heed the red danger buoys, claiming instead to have mistakenly believed that they marked a no-wake zone, also contrary to the NOAA charts.

OUTCOME: The judgment was affirmed.

IN RE: MILLENIUM SEACARRIERS INC., Debtor. CREW OF THE DEBTORS' VESSELS, MARITIME TRANSPORT WORKERS' UNION OF RUSSIA, et al. Plaintiffs-Appellants-Cross-Appellees, -against- ALLFIRST BANK, f/k/a/ FIRST NATIONAL BANK OF MARYLAND, WAYLAND INVESTMENT FUNDS, LLC, et al. Defendants-Appellees-Cross-Appellants.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 13072
June 5, 2007, Decided

PROCEDURAL POSTURE: Plaintiffs, a group of seamen on foreign-flag vessels and their union (wage claimants), appealed from the affirmance by the U.S. District Court for the Southern District of New York of the bankruptcy court's grant of summary judgment in favor of defendant lenders. The lenders cross-appealed from the district court's decision to allow the wage claimants to supplement the bankruptcy court record with newly-created evidence of their wage demands.

OVERVIEW: The wage claimants did not seek ordinary wages. Their claim was for double wages under 46 U.S.C.S. � 10313(g). The record was devoid of evidence that even a single wage claimant met the statutory requirements for double wages. Each of the affidavits submitted by the wage claimants in the district court omitted an essential element of 46 U.S.C.S. � 10313(f). The affidavits failed to show either that the voyage in question ended in a U.S. port or that a wage claimant who was discharged in a U.S. port did not receive his wages within four days after his discharge or twenty-four hours after the discharge of the cargo. Therefore, the appellate court affirmed the district court's ruling on the ground that the wage claimants failed to make a showing sufficient to establish the existence of an element essential to their claim and on which they would bear the burden of proof at trial.

OUTCOME: The decision of the district court was affirmed.

IAN JARRETT, Claimant - Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, Respondent - Respondent.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 15071
June 21, 2007, Filed

PROCEDURAL POSTURE: Petitioner sought review of a decision of the Department of Labor's Benefits Review Board (BRB) that affirmed the administrative law judge's (ALJ) determination that petitioner was not eligible for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. � 902.

OVERVIEW: The appellate court noted that the sole question presented on review was whether, for purposes of compensation for an injury, petitioner should have been considered a land-based employee covered by the LHWCA, 33 U.S.C.S. � 902(3), or a seaman covered by the Jones Act, 46 U.S.C.S. � 30104(a). The court noted a two part test articulated by the United States Supreme Court to determine whether a worker was excluded from the LHWCA coverage as a master or member of a crew of any vessel. First, an employee's duties had to contribute to the function of the vessel or to the accomplishment of the mission. Second, the employee had to have a connection to a vessel in navigation that was substantial in terms of both its duration and its nature. Because petitioner did not dispute that his work contributed to the function of a vessel, the court moved to the second part of the test. Given the absence of substantial evidence showing that petitioner's job fundamentally changed in the months directly prior to his accident, the court had to conclude that he continued to be covered by the LHWCA.

OUTCOME: The court granted the petition and remanded for an award of benefits.

In Re: In the Matter of: AMERICAN RIVER TRANSPORTATION COMPANY, v. US MARITIME SERVICES, INC; ET AL, Defendants;
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 14464
June 19, 2007, Filed

PROCEDURAL POSTURE: Claimants, the parents of a deceased longshoreman employed by petitioner employer, filed an interlocutory appeal under 28 U.S.C.S. � 1292(a)(3) from a judgment issued by the United States District Court for the Eastern District of Louisiana, dismissing their wrongful death claim seeking damages for loss of society and granting summary judgment to the employer in its limitation of liability proceedings under former 46 U.S.C.S. app. � 181 et seq.

OVERVIEW: The 24-year-old decedent died when he jumped from a barge on which he was employed into territorial waters in an attempt to save a coworker who had fallen from the barge. The decedent had been incarcerated for the five years immediately preceding his death and had not provided any financial support to his parents, either before or after his incarceration. At issue was whether non-dependent parents could recover for loss of society in maritime wrongful death actions in which a deceased longshoreman or harbor worker died in territorial waters. The district court held that they could not. On appeal, the court agreed. The court applied the U.S. Supreme Court's Miles rule, which held that survivors of seamen who died in territorial waters or on the high seas could recover pecuniary damages but not nonpecuniary damages, such as for loss of society. The court drew no distinction between the Miles decedent, who was a seaman, and the instant decedent, who was a longshoreman. Restricting the recovery of nonpecuniary damages to dependents of a decedent served the policy goal of limiting the class of relatives and friends who could otherwise assert claims for the loss of love and affection.

OUTCOME: The court affirmed the judgment of the district court. The court dismissed the parents' appeal of their survival claim because the issue was not presented to or decided by the district court.

ALAN BEEGAL AND BONNIE BEEGAL, KENNETH SATALOFF AND SHEILA SATALOFF, LAWRENCE BENTON AND CAROL BENTON, MICHAEL BLOCK AND ABBE BLOCK, ROBERT WAXLER, ESQUIRE AND STELLA ROSNER, , v. PARK WEST GALLERY, PARK WEST AT SEA, Defendants-Appellants, and CARNIVAL CRUISE LINES, Defendant.
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2007 N.J. Super. LEXIS 189
June 22, 2007, Decided

PROCEDURAL POSTURE: Defendants, two affiliated corporations conducting art auctions on cruise ships, appealed the order of the Superior Court of New Jersey, Law Division, Burlington County, which certified the putative class of plaintiff bidders. Plaintiffs had brought a fraud suit against defendants, claiming that defendants inflated the prices of the art through fraudulent bidding practices.

OVERVIEW: Plaintiffs were all State of New Jersey residents representing the putative class, which they asserted included potentially thousands of United States residents who, between 1996 and the present, attended defendants' art auctions on cruise ships. Plaintiffs argued that members of the class were injured by defendants' fraudulent scheme either because they paid too much for the art, or because they were unable to purchase art as a result of defendants' fraudulent practices. The court found merit in defendants' argument that individual factual issues predominated over common issues since the members of the class who did not purchase art may have suffered no loss and, as to them, the fact of damages did not predominate. Further, as to those members who did purchase art, an accurate damages calculation would require an analysis of each individual claim. Most significantly, the court determined that maritime law applied, which made maritime choice of law principles as to the application of substantive law applicable. As such, each putative class member's home state law had to be applied, which presented insurmountable difficulties in the management of the class action.

OUTCOME: The court reversed the order certifying the class as an abuse of the trial court's discretion upon concluding that the difficulties likely to be encountered in the management of the case as a class action due to the required application of the governing law of each plaintiffs' state of residence precluded certification. The case was remanded to the trial court for further proceedings consistent with the court's opinion.

JEFF GRUVER, Plaintiff-Appellant, v. LESMAN FISHERIES INC.; BOB LESMAN; F/V SUNSET CHARGE, Official Number 534685, in rem, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 13020
June 6, 2007, Filed

PROCEDURAL POSTURE: Plaintiff seaman sued defendants, a former employer and a vessel, alleging negligence in connection with an assault and unpaid wages. The unpaid wages claim was dismissed. The United States District Court for the Western District of Washington granted defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The seaman appealed.

OVERVIEW: The seaman quit working for the employer and began to work for another fishing vessel. The seaman claimed the employer owed him unpaid wages and confronted the employer at the dock. The employer mailed the seaman his final check and the seaman left him a threatening message on his voicemail about getting paid. When he received the check, the seaman again called the employer and disputed the amount paid and threatened the employer and his property if not paid in full. While the seaman was in his bunk on his current work vessel, the employer and another individual attacked him which resulted in the seaman suffering broken ribs and a punctured lung. The district court held that the seaman failed to establish admiralty jurisdiction. The appellate court found that the physical beating of the seaman, which left him unable to perform his fishing duties, had a detrimental effect on maritime commerce. The employer's failure to pay the seaman for services rendered had a sufficient connection to traditional maritime activity. The relevant activity giving rise to the assault in this case was a failure to pay wages for maritime services performed aboard a commercial vessel.

OUTCOME: The district court's dismissal of the case for lack of subject matter jurisdiction was reversed and the case was remanded for further proceedings.

INACIO EUFEMIO LOBO, Plaintiff-Appellant, versus CELEBRITY CRUISES, INC., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 13141; 20 Fla. L. Weekly Fed. C 704
June 7, 2007, Decided

PROCEDURAL POSTURE: Plaintiff cruise ship worker appealed a judgment from the United States District Court for the Southern District of Florida, dismissing with prejudice his complaint for unpaid wages and penalty wages brought under the Seaman's Wage Act, 46 U.S.C.S. � 10313.

OVERVIEW: The worker was a stateroom attendant who complained that he was required by his employer to share gratuities with his assistants by paying them $1.20 per passenger per day from his own earnings. The worker alleged that the cruise line was able to impose the requirement through duress and as a result of the unequal bargaining position of the parties and that the requirement constituted a failure to pay wages in violation of the collective bargaining agreement governing his employment. The district court dismissed the claim, finding that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. II(1) June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, and its implementing legislation, 9 U.S.C.S. �� 202-208, superseded the Seaman's Wage Act and compelled arbitration of the claim. On appeal, the court agreed. Deciding an issue of first impression, the court held that the Convention required enforcement of the collective bargaining agreement's arbitration provision. Congress did not intend the Convention to be superseded by the Seaman's Wage Act with respect to wage disputes raised by foreign cruise ship workers.

OUTCOME: The court affirmed.

JAMELIA BARNETT, individually and as personal representative of the Estate of LILA ASHLEY BARNETT, deceased, Plaintiff, v. CARNIVAL CORPORATION, RAHAL MONTHER and DEBRA FERRIS-REYNOLDS, Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2007 U.S. Dist. LEXIS 37481
May 23, 2007, Decided

PROCEDURAL POSTURE: Defendant Rahal Monther moves to dismiss on the grounds that the court lacks personal jurisdiction over him.

OVERVIEW: The defendant Rahal Monther, the ship doctor, seeks dismissal on the ground that the Court lacks personal jurisdiction because the alleged medical malpractice did not occur within the territorial waters of Florida. To determine whether this Court has personal jurisdiction over the defendant ship doctor, the Court must undertake a two-part analysis. The Eleventh Circuit explained First, [the Court] must determine whether the Florida long-arm statute provides a basis for personal jurisdiction. If so, then [the Court] must determine whether sufficient minimum contacts exist between the defendant[] and [Florida] so as to satisfy "traditional notions of fair play and substantial justice" under the Due Process Clause of the Fourteenth Amendment. Both prongs must be satisfied for personal jurisdiction to exist. The plaintiff argues that this Court has personal jurisdiction over the ship doctor on the following grounds: 1) Florida's long arm statute regarding insuring any person, property, or risk located within Florida at the time of contracting; 2) Florida's long arm statute regarding a defendant who is carrying on a business or business venture in Florida or is engaged in substantial and not isolated activity within Florida, whether such activity is wholly interstate, intrastate, or otherwise, ... whether or not the claim arises from that activity; and 3) the forum selection clauses contained in the contract between Carnival Corporation and Dr. Monther as well as the passenger ticket. Because the alleged medical malpractice of the ship doctor occurred outside the territorial boundaries of Florida; the forum selection clause does not apply to the plaintiff's claims; and the alleged acts do not fall within one of the enumerated bases to confer personal jurisdiction under Florida's long arm statute, this Court lacks personal jurisdiction over Dr. Monther.

OUTCOME: The defendant's Motion to Dismiss is granted. The defendant, Rahal Monther, is dismissed.

SHEILA A. DALEY, et al., Plaintiffs, v. MARITIME HYDRAULICS US, INC., MH PYRAMID, INC., and ENSCO OFFSHORE COMPANY, Defendants,
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2007 U.S. Dist. LEXIS 33326
May 4, 2007, Filed

PROCEDURAL POSTURE: Plaintiffs brought this action against Defendants for the wrongful death of Larry C. Daley. Defendants filed a Corrected Motion for Partial Summary Judgment Against Plaintiffs' Claims alleging that Daley was not a Jones Act seaman. Plaintiffs filed a Response regarding seaman status, and defendants filed a Reply.

OVERVIEW: Daley was employed by MHP as a service technician and was killed while working aboard a semi-submersible oil rig. MHP's Motion for Partial Summary Judgment Against Plaintiffs' Claims for Non-Pecuniary Damages is not yet ripe, but Plaintiffs concede that the accident occurred on a vessel located approximately forty-five nautical miles from the Louisiana coastline. Because Daley's death occurred on the high seas, if he is a seaman, the appropriate cause of action is found in the Jones Act. If he is not a seaman, then the remedy for any wrongs associated with his death is found in the Death on the High Seas Act (DOHSA). Daley's seaman status is a question of fact that will be decided during the trial. However, the damages that Plaintiffs may recover is limited regardless of the outcome of the seaman status issue. If the jury assigns fault to Defendants and determines that Daley was not a Jones Act seaman, then his beneficiaries are entitled only to pecuniary damages because the Death on the High Seas Act limits recovery to pecuniary loss. However, if the jury determines that Daley was a Jones Act seaman and assigns fault to Defendants, Daley's beneficiaries may recover only pecuniary damages, and his estate may recover for any conscious pain and suffering Daley experienced because the Jones Act limits recovery to pecuniary loss, but allows a survival action for the seaman's "personal loss and suffering where the injuries are not immediately fatal."

OUTCOME: Defendants Motion for Summary Judgment Against Plaintiffs' Claims that alleges Daley was not a seaman is denied, and defendant's Motion for Partial Summary Judgment Against Plaintiffs' Claims for Non-Pecuniary Damages is granted.

Markel American Insurance Company, Appellant, v. Dagmar's Marina, L.L.C., Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2007 Wash. App. LEXIS 1169
May 21, 2007, Filed

PROCEDURAL POSTURE: Appellant insurance company sued appellee marina after the hull of a vessel that the insurance company was the hull insurer for was damaged in a windstorm. The insurance company alleged two causes of action under general maritime law: negligence and breach of implied warranty of workmanlike performance. The trial court granted the marina's motion for summary judgment. The insurance company appealed.

OVERVIEW: The principal issue was whether a limitation of liability provision in a lease agreement clearly and unequivocally disclaimed a marina's liability for damage caused by its own negligence. The second issue was whether the marina provided storage services to the boat owner, thus giving rise to an implied warranty of workmanlike performance. The appellate court reversed and remanded the trial court's grant of summary judgment to the marina on the insurance company's claims of negligence and breach of implied warranty of workmanlike performance because the lease's limitation of liability provision did not clearly and unequivocally disclaim the marina's liability for damage caused by its own negligence. Since exculpatory clauses were construed against the drafter if more than one construction of a term was reasonable, using the term "safekeeping" did not make the limitation of liability provision a clear and unequivocal disclaimer of the marina's liability for its own negligence, particularly when read in light of the clause in its entirety. Moreover, there was no warranty of workmanlike performance because the marina did not contract to perform storage services.

OUTCOME: The judgment of the trial court was reversed and the case was remanded for further proceedings.

JOHN FONTENOT, Plaintiff-Appellant, versus McCALL'S BOAT RENTALS, INC.; SEACOR MARINE, LLC, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 11293
May 14, 2007, Filed

PROCEDURAL POSTURE: Plaintiff brought an action against defendants, seeking recovery under � 5(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA). After a bench trial, a magistrate judge entered judgment in favor of defendants. Plaintiff appealed from the United States District Court for the Eastern District of Louisiana.

OVERVIEW: Plaintiff was employed as a roustabout. Plaintiff was assigned to perform rigging work aboard a vessel, owned by defendants, in connection with the backloading of cargo and equipment from a platform to the vessel. Plaintiff argued that defendants retained active control of the entire vessel, including the deck, throughout the backloading operation. The instant court concluded that, even accepting plaintiff's arguments that the captain retained ultimate control over all areas of the vessel under a blanket time charter and industry custom, neither the time charter nor custom established that the captain had active control over the deck during the backloading operation. Nor did a Job Safety Analysis establish active control. Further, even assuming a deckhand's knowledge that a trash bag was blocking a walkway could be imputed to the captain and defendants, plaintiff did not point to evidence that would have supported finding a duty to intervene. The obstructed walkway was wholly created by personnel of plaintiff's employer, was within the roustabouts' work area and open and obvious to them, and could have been remedied by the personnel if they believed it to be unreasonably dangerous.

OUTCOME: The judgment was affirmed.

ROY THIBODEAUX, Plaintiff, v. VAMOS OIL & GAS CO, ET AL., Defendants, v. DPR INTERNATIONAL LLC, Defendant - Third Party Plaintiff-Appellee, v. MAXUM SERVICES INC, Defendant - Third Party Defendant-Appellant. GABINO SILVA, Plaintiff, v. DPR INTERNATIONAL LLC, ET AL., Defendants, v. DPR INTERNATIONAL LLC, d.b.a. Axxis Drilling, Defendant - Third Party Plaintiff-Appellee, v. MAXUM SERVICES INC, Third Party Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 11614
May 17, 2007, Filed

PROCEDURAL POSTURE: In a consolidated appeal of claims brought by employees A and B, appellant contract labor provider sought judicial review of the decisions by the United States District Court for the Western and Eastern Districts of Louisiana granting summary judgment and finding that the labor provider owed appellee drilling company an obligation of indemnity and defense.

OVERVIEW: Pursuant to a master service agreement (MSA), the labor provider assigned employees A and B to work for the drilling company. The employees alleged that they sustained injuries during their work as roustabouts on a drilling vessel and brought Jones Act claims against the drilling company. While the cases had been consolidated, they were in different procedural postures. Employee A had settled his claims against the drilling company, and the labor provider agreed that the settlement was reasonable. Employee B's claims had not settled and were still being litigated. Therefore, the appellate court lacked jurisdiction over employee B's claims because he had yet to establish that the drilling company was liable. Regarding employee A's claims, the MSA was clear that the labor provider would defend and indemnify the drilling company against all claims brought by the labor provider's employees in connection with the MSA. The labor provider argued that the contract was invalid because error vitiated its consent and that the indemnity clause was unenforceable under the Louisiana Oilfield Indemnity Act. Both arguments failed.

OUTCOME: The appeal arising from employee B's claim was dismissed for lack of jurisdiction. The district court's summary judgment related to employee A's claim was affirmed.

ANNA BARSCZ (WIDOW OF CHARLES BARSCZ), Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS AND ELECTRIC BOAT CORPORATION, Respondents.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 11598
May 18, 2007, Decided

PROCEDURAL POSTURE: Petitioner, an employee's wife, appealed a decision of the Benefits Review Board allowing respondent employer to credit the entire amount of a settlement, which covered the employee's state law claims for disability benefits and the wife's state law claims for death benefits, against the wife's award of death benefits under the Longshore and Harbor Workers' Compensation Act (Longshoreman's Act), 33 U.S.C.S. � 901 et seq.

OVERVIEW: The employee and his wife entered into a settlement agreement with the employer resolving all past, present, and future state law claims relating to injuries the employee suffered during his employment. The employee was also awarded compensation for his asbestosis under the Longshoreman's Act. Following the employee's death, the wife was awarded death benefits under the Longshoreman's Act, and the Benefits Review Board allowed the employer, pursuant to 33 U.S.C.S. � 903(e), to take a credit for the full amount of state benefits paid under the settlement. Interpreting the unambiguous language of � 903(e), the court held that � 903(e) limited the credit that could be taken to amounts paid for the same injury, death, or disability currently being claimed under the Longshoreman's Act. Accordingly, only the settlement funds directed toward death benefit claims could be credited. The court concluded that under � 7(c) of the Administrative Procedure Act, the employer bore the burden of proof in establishing which portion of the settlement amount was paid to settle the wife's death claims because the employer was the proponent of an order allowing a credit.

OUTCOME: The court reversed the Board's decision and remanded the case to the Board to conduct fact-finding regarding the allocation of the state settlement between death benefits and disability benefits.

IN THE MATTER OF THE COMPLAINT OF CENAC TOWING COMPANY, INC., vs. SOUTHPORT, L.L.C..
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 11705
May 18, 2007, Filed

PROCEDURAL POSTURE: Appellant, a barge owner, sought review of a judgment from the United States District Court for the Southern District of Alabama, which, pursuant to Fed. R. Civ. P. 52, ruled in favor of appellees, a restaurant and its lessor, in the barge owner's limitation of liability suit to adjudicate all damages allegedly caused by two of the owner's barges.

OVERVIEW: The captain of the barges lashed them side-by-side in a canal for the purpose of riding out a hurricane. The barges were tied to some trees on the shore, but the trees were uprooted during the storm. Appellees alleged that two of the barges ran into the restaurant, causing structural damage. A captain of another ship testified that the two barges were the only large objects he saw floating by during the storm and that he saw two barges blocking the lights in front of the restaurant. The barge owner alleged that another barge, which belonged to someone else, caused the damage. The district court disagreed, crediting the testimony of the captain of the other ship. On appeal, the court held that the district court's findings were not clearly erroneous, given the testimony of the captain of the other ship and similar testimony from another witness aboard that ship. The court also found that the district court did not clearly err in finding that the Act of God defense asserted by the barge owner was inapplicable, as the 84-mile per hour wind speeds during the storm were not of such a force that no reasonable preparations would have prevented the barges from breaking loose.

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

In re: THE EXXON VALDEZ, SEA HAWK SEAFOODS, INC., Plaintiff-Appellant, v. EXXON CORPORATION and EXXON SHIPPING COMPANY, Defendants-Appellees, and UNITED STATES OF AMERICA, Intervenor-Appellee.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 8621
April 16, 2007, Filed

PROCEDURAL POSTURE:Plaintiff corporation filed suit against defendant companies, seeking to recover under Alaska state law for business losses resulting from an oil spill. The parties settled all issues except for that of a prejudgment interest rate. The U.S. District Court for the District of Alaska determined prejudgment interest rates under federal law, and plaintiff appealed.

OVERVIEW: The case had been removed to the court by virtue of 28 U.S.C.S. § 1441(b). The district court used the Treasury rate prescribed by 28 U.S.C.S. § 1961(a). Consequently, the district court determined the prejudgment interest rates to be 4.11% and 3.54% for losses occurring in 1992 and 1993, respectively. On appeal, the court held that Erie principles applied when federal courts exercised jurisdiction over state law claims pursuant to 28 U.S.C.S. § 1441(c). Under that doctrine, a court was to apply state law to substantive issues. Prejudgment interest was a substantive, rather than procedural, issue. Thus, absent federal preemption, state law applied to the issue of prejudgment interest. In reversing, the court held that the Alaska prejudgment interest rate set forth in Alaska Stat. § 09.30.070 applied because no act of Congress prohibited recovery for purely economic loss and Alaska had a strong interest in regulating oil pollution and in providing remedies for damages caused by oil spills. Consequently, as an aspect of the Alaska claims for economic harm, plaintiff's claims for prejudgment interest were not preempted by federal law.

OUTCOME: The court reversed the district court's judgment and remanded the case with instructions to calculate prejudgment interest under Alaska law using a rate of 10.5 percent.

LYDIA CLEMENTS and RAYMOND CLEMENTS VERSUS QUARK, LTD., QUARK FISHING LTD. AJC INTERNATIONAL, INC., AJC INTERNATIONAL (EXPORT), INC., AJC INTERNATIONAL (WEST), INC., AJC INTERNATIONAL TRADING CORPORATION, AJC INTERNATIONAL, LTD., (VIRGIN ISLANDS), AJC ATLANTIC, AJC FOODS, NORBULK SHIPPING (UK) LTD.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2007 U.S. Dist. LEXIS 26387
April 10, 2007, Filed

PROCEDURAL POSTURE:In a personal injury case brought under § 905(b) of the Longshore and Harbor Workers' Compensation Act, plaintiff worker sued defendants, the owner/operators (owners) of a vessel and a voyage charterer. The worker claimed that he was disabled due to his injury. The owners moved for summary judgment, arguing that the worker was unable to prove that they owed a legal duty to protect him from the injury he allegedly suffered.

OVERVIEW: The worker countered that they failed to turn over a reasonably safe vessel to the stevedore. To bolster that argument, the worker relied on testimony from his expert, who testified that the deckboards of the vessel were in substandard condition under circumstances in which insufficient time was given for proper maintenance and no safe alternative was provided to protect the stevedore from the defects. The worker argued that the obvious lack of maintenance and/or the insufficient maintenance by the owners and crew of the vessel raised factual issues as to its responsibility under their control. Further, the expert opined that the grated decks of the vessel were not properly placed, supported, maintained, or designed to support workers and that the owners of the vessel did not comply with the mandatory duty to inspect and find defects and to warn of these defects. The worker's expert added that there was no safety management system in place to identify and safeguard against risks such as cracked and defective floorboards, as required by the International Safety Management Code. Those serious fact issues precluded the granting of summary judgment in favor of the owners.

OUTCOME: The motion for summary judgment was denied.

DAVID DOBSON et al., as Parents and Guardians of ETHAN DOBSON, an Infant, Respondents-Appellants, v LINDA J. GIOIA et al., Appellants-Respondents, and FRANCIS A. MARTIN et al., Respondents-Appellants.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
2007 NY Slip Op 3042; 2007 N.Y. App. Div. LEXIS 4440
April 12, 2007, Entered

PROCEDURAL POSTURE:The parties cross-appealed an order by the Saratoga County Supreme Court (New York) that, inter alia, partially granted the cross-motion of defendant owners, a husband and his wife, for summary judgment in plaintiff parents' action for personal injuries and spoliation of evidence.

OVERVIEW: After the owners' boat flipped to the left and capsized while being operated by a relative, the husband took it to defendant repairman for repairs. While the owners were attempting to sell the boat, it remained in the custody of the repairman, who claimed that the husband granted him permission to operate it for recreational purposes. During one such excursion, the boat again flipped over, injuring the parents' child. The owners' insurer was allegedly told by the parents' attorney to preserve the boat in its current condition and that no repairs, alterations or modifications be made to it. However, the engine and other component parts had already been removed from the boat for purposes of the damage estimate. The appellate court found that the imposition of sanctions against the owners for the alleged spoliation of evidence under CPLR 3126 by its insurer was properly denied. However, triable issues regarding whether the husband was a de facto owner under Navigation Law § 48, and whether the repairman had been properly informed of the alleged misalignment problems. Therefore, the trial court erred in granting summary judgment to the owners.

OUTCOME: The order was modified by reversing the partial grant of the owners' cross-motion for summary judgment, the cross-motion was denied to that extent, and, as so modified, the order was affirmed.

LARRY GWIN, Plaintiff-Appellee, v. AMERICAN RIVER TRANSPORTATION COMPANY, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2007 U.S. App. LEXIS 8215
April 10, 2007, Decided

PROCEDURAL POSTURE:Plaintiff, a fired tow-boat operator, filed a suit against defendant former employer alleging that it violated 46 U.S.C.S. § 2114(a)(1)(B) by terminating him for refusing to perform unsafe duties. The employer appealed after the United States District Court for the Southern District of Illinois denied its motions for judgment as a matter of law, for an award of costs under Fed. R. Civ. P. 54(d), and to compel payment of its experts' expenses.

OVERVIEW: The operator alleged that he was fired because he had refused to join, on safety grounds, a purportedly voluntary program that required all-river vessels to push six long tows on the Mississippi River. A jury returned a verdict for the operator but rejected the claims asserted by five co-workers. The employer argued: 1) that the operator's 46 U.S.C.S. § 2114(a)(1)(B) claim failed as a matter of law because he admitted that the employer had not explicitly ordered him to push the six long tows; 2) that as the prevailing party, it was entitled to a cost award under Fed. R. Civ. P. 54(d); and 3) that the parties had previously agreed to pay each others' expert fees. The court found error with regard to a portion of the district court's cost rulings, but otherwise found no error. The evidence showed that employer implicitly ordered the operator to push the six long tows by regularly asking him to do so, despite his prior refusals, and by providing poor performance evaluations based on his failure to push the tows. Fed. R. Civ. P. 54(d) was superseded by 46 U.S.C.S. § 2114(b). The employer was properly denied costs with regard to the § 2114(a)(1)(B) claims, but not as to other claims.

OUTCOME: The court affirmed the district court's judgment, but partially reversed its orders denying the employer's requests for costs. It remanded the case back and directed the district court to determine which of the employer's costs were solely allocable to claims that the operator and his co-workers had dismissed before the case was submitted to the jury and to determine whether the employer's expert's fees were reasonable.

PARAMJIT FARWAH, Appellants v. PROSPEROUS MARITIME CORP. AND OCS SERVICES (INDIA) LTD.- DIVISION: NORTRANS MARITIME SERVICES, Appellees
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2007 Tex. App. LEXIS 2743
April 5, 2007, Opinion Delivered

PROCEDURAL POSTURE:Appellants, relatives of a crew member who suffered fatal injuries in a motor vehicle collision that occurred while crew members were returning to a vessel, filed interlocutory appeals from orders in which the 136th District Court, Jefferson County, Texas, granted the special appearances of appellees, a vessel owner, a vessel manager, an assisting manager, and a crewing manager, and dismissed appellees from the negligence action.

OVERVIEW: While docked at a Texas port, crew members hired a driver to take them into a town to purchase personal items and supplies. Upon returning to the vessel, the vehicle in which the crew members were traveling was hit by another vehicle. Appellants alleged that appellees, foreign companies that had their principal places of business outside the United States, breached their duty to provide the deceased crew member a safe workplace and safe transportation. On appeal, the court held that appellees' special appearances were properly granted under Tex. R. Civ. P. 120a because appellants' claims did not arise from appellees' purposeful contacts with Texas and appellees did not have continuous and systematic contacts with Texas of such quality that they could be subject to personal jurisdiction. The court held that the vessel's calls to ports in Texas were insufficient to establish general jurisdiction because appellees did not have the right to control the vessel's ports of call. The assisting manager's purchase of supplies and use of repair services in Texas did not satisfy the requirements for personal jurisdiction because the contacts did not relate to the cause of action.

OUTCOME: The court affirmed the trial court's orders.

RICHARD W. MICHALSKI ET AL. v. ROBERT HINZ
APPELLATE COURT OF CONNECTICUT
100 Conn. App. 389; 2007 Conn. App. LEXIS 136
April 10, 2007, Officially Released

PROCEDURAL POSTURE:The Superior Court in the Judicial District of Danbury (Connecticut) found defendant boater negligent and denied his motion for a judgment of dismissal. A motion to assess costs filed by plaintiffs, a fisherman and a passenger, was denied. The boater's motion for review was granted and an articulation was ordered. After the trial court entered a supplemental decision, all parties appealed. The appeals were consolidated.

OVERVIEW: The boater argued that a negligence finding was improperly based on his failure to pass from port to port. The appellate court held that the failure to pass from port to port was not pleaded, either with a reference to Conn. Gen. Stat. § 15-131(1) or a factual allegation. The boater was not notified that § 15-131(1) was at issue. Plaintiffs could not recover for negligence from the failure to pass port to port. The fisherman did not claim a variance between the pleadings and the evidence. Plaintiffs did not claim a § 15-131(1) violation, or inform the trial court or the boater that they were pursuing such an allegation. The finding that the boater did not sound his horn was not clearly erroneous. The failure violated Connecticut boating regulations and was a basis for a negligence finding. The horn violation was not based on the federal inland navigation rules. The doctrine of error in extremis did not apply as defendant was negligent. Had he sounded his horn, the collision might have been avoided. Expert testimony was not required. When the motion for a judgment of dismissal was filed, expert testimony had been admitted. Finally, the failure to award plaintiffs costs was in error.

OUTCOME: The judgment was reversed only as to the denial of plaintiffs' motion for costs. The case was remanded to the trial court for further proceedings regarding the award of costs. Otherwise, the judgment was affirmed.

JAMES TYE POOLE VERSUS ELEVATING BOATS, L.L.C.
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2007 La. App. LEXIS 730
April 4, 2007, Filed

PROCEDURAL POSTURE:Appellant broker challenged the judgment of the 25th Judicial District Court for the Parish of Plaquemines, Louisiana, granting the summary judgment motion filed by appellee boat owner and ordering the broker to indemnify and defend the boat owner and third party plaintiff boat company.

OVERVIEW: The action arose out of a personal injury sustained by the claimant while he was aboard the boat. The claimant sustained injuries when he fell from an unsecured wood platform located in the vessel's lavatory. At the time, the claimant was employed by the employer. The employer had used the broker to procure the boat for an offshore construction job. The claimant filed suit against the owner and the boat company. The owner filed a third-party demand against the broker. The appellate court ruled that the district court did not err in determining that the previously executed brokerage agreement was not applicable to the instant dispute, as the terms of the brokerage agreement were nullified by the terms of the charter. The charter agreement solely identified the broker as the charterer and there was an absence of language identifying any other party as having the obligation of indemnifying the owner. Also, there was a genuine issue of material fact as to whether the owner and boat company were entitled to defense and indemnification for the claimant's claim of unseaworthiness.

OUTCOME: The judgment was reversed and remanded.

TINERMALO TAU, Plaintiff-Appellant v. F/V SAINT JUDE, JOSEPH MALLEY, JANE DOE MALLEY, AND THEIR MARITAL COMMUNITY, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 8981
April 16, 2007, Filed

PROCEDURAL POSTURE:Plaintiff challenged a judgment from the United States District Court for the Western District of Washington, which granted defendants' motion for summary judgment on plaintiff's claims for negligence under general maritime law. The district court found that plaintiff failed to show that a shooting, which caused his injuries, was foreseeable or that defendants failed to exercise reasonable care under the circumstances.

OVERVIEW: Plaintiff conceded that he was not entitled to recover on his claims for under the Jones Act, 46 U.S.C.S. app. § 688 (current version at 46 U.S.C.S. §§ 30104, 30105), before the district court concluded that he was not entitled to recover under general maritime law. On appeal, the court held that the district court had original jurisdiction because the complaint alleged a Jones Act violation. The court was not required to determine whether the case was governed by maritime law or state law because the result was the same under maritime or state law. Plaintiff advanced negligence, strict vicarious, and strict liability theories for an employee's assault. There was no maritime theory of strict liability or negligence per se under which defendants could be liable for plaintiff's injuries. Assuming defendants owed plaintiff a duty of reasonable care, there was no evidence that defendants knew of the assailant's dangerous tendencies or that it was foreseeable he would harm someone. Plaintiff's negligent supervision or hiring theory failed under state law, as there was no evidence that defendants knew or should have known of the assailant's dangerous propensity.

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

J. DANIEL GODARD, JR., et al., Plaintiffs, v. ALABAMA PILOT, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION
2007 U.S. Dist. LEXIS 27009
April 10, 2007, Decided

PROCEDURAL POSTURE:Plaintiff launch operators filed a collective action under the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S.C.S. § 201 et seq., seeking to recover overtime compensation from defendant employer. The parties filed cross-motions for summary judgment, with the employer arguing that the operators were seamen and therefore were exempt from the overtime provisions of the FLSA under 29 U.S.C.S. § 213(b)(6).

OVERVIEW: The employer operated a piloting service. The operators' job entailed shuttling pilots to and from vessels that were leaving port. This duty comprised a maximum of 29.5% of the operators' work time. The operators performed other duties, such as monitoring the radio and performing handyman work around the station. The employer alleged that the operators were seaman and thus were exempt from the overtime requirements of the FLSA. The court held that (1) whether the operators were "seamen" was determined by rules promulgated under the FSLA, not by the Jones Act definition of "seamen"; (2) the 20% rule, which stated that an employee who spent more than 20% of his time performing tasks that were not rendered primarily as an aid in the operation of a vessel as a means of transportation were not exempt from the FSLA's overtime requirements, applied; (3) the operators' shuttling and radio watch duties constituted seamen's work under the FSLA, but the handyman duties that did not entail the maintenance of the launch vessels did not; and (4) the evidence was conflicting as to how much time the operators spent on non-seaman endeavours, which prevented the court from granting summary judgment.

OUTCOME: The court denied the cross-motions for summary judgment.

Sandra A. Cook, Appellant, vs. Crazy Boat of Key West, Inc., and William Shepard, Appellees.
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2007 Fla. App. LEXIS 3303; 32 Fla. L. Weekly D 644
March 7, 2007, Opinion Filed

PROCEDURAL POSTURE: Appellant, a passenger who was injured in a boat ride, sued appellee corporation, seeking damages for injuries allegedly suffered during the boat ride. The Circuit Court for Monroe County (Florida) granted summary judgment in favor of the corporation. The passenger appealed.

OVERVIEW: The passenger admitted to signing a release, but claimed that this release was void pursuant to 46 U.S.C.S. app. § 183c(a), and because the release was ambiguous and did not contain the word "negligence." The appellate court found that the trial court properly rejected both of these contentions. The vessel was a "thrill ride" vessel that was available for customers who willingly desired to go for a ride. The corporation was not in the business of "transporting passengers" but rather it was in the business of providing a recreational activity. In addition, the corporation did not travel between ports of the United States but rather left from and returned to the same port. Accordingly, 46 U.S.C.S. app. § 183c(a) did not apply. The appellate court also rejected the passenger's contention that the statutory language "between ports of the United States" could have been interpreted to apply to trips out from one port and back to that same port as it contradicted the plain language of the statute. The release was not ambiguous because it failed to use the term "negligence." The release encompassed the alleged negligence which was the basis of the passenger's claim.

OUTCOME: The judgment was affirmed.

DAVID SCOTT McMILLAN, Plaintiff, v. WEEKS MARINE, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
2007 U.S. Dist. LEXIS 20833
March 22, 2007, Decided

PROCEDURAL POSTURE: Plaintiff, a worker in the dredging industry, brought an action against defendant employer under the Jones Act, alleging that he sustained damages as a result of the employer's negligence. After a jury verdict in the worker's favor, the employer filed several motions, including a motion for judgment as a matter of law and a motion to vacate the award of past and future lost earnings and for a new trial on damages.

OVERVIEW: The worker alleged that, through its negligence and unseaworthy vessels, his employer subjected him to unsafe working conditions from which he sustained injuries. According to the worker, he had been working on an overly muddy scow and was not given a chance to wash the mud off his boots before transferring to another boat. As a result, he slipped and fell off the boat, sustaining facial and shoulder injuries. A jury returned a verdict finding that the employer was partially negligent, and awarded the worker $ 378,533. The court found that the worker's evidence was sufficient to support the jury's verdict finding the employer partially negligent. However, it also found that the worker's expert improperly based his projections of lost earnings on his assumption that the worker would work for the rest of his work-life on a full-time basis at an artificially determined wage. The court concluded that the expert reports lacked a proper foundation because the expert failed to consider the worker's complete work history and the seasonal nature of the worker's dredging industry positions prior to the injury. As a result, the court ordered a new trial on damages.

OUTCOME: The court denied the employer's motion for judgment as a matter of law, but granted the motion to vacate the award and for a new trial on damages.

SINOCHEM INTERNATIONAL CO. LTD., PETITIONER v. MALAYSIA INTERNATIONAL SHIPPING CORPORATION
SUPREME COURT OF THE UNITED STATES
127 S. Ct. 1184
March 5, 2007, Decided

PROCEDURAL POSTURE: Respondent foreign company sued petitioner foreign importer, alleging that a foreign preservation petition negligently misrepresented a vessel's fitness. The United States Court of Appeals for the Third Circuit held that the district court could not dismiss the case under the forum non conveniens doctrine until it determined that it had both subject matter and personal jurisdiction. Certiorari was granted to resolve a split among the circuits.

OVERVIEW: A district court was allowed to dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warranted. A forum non conveniens determination was a threshold, non-merits issue because resolving such a motion did not entail any assumption by the court of substantive law-declaring power. The lower court's concern that it could not condition dismissal on respondent's waiver of any statute of limitations defense or objection to a foreign forum's jurisdiction was not an issue in the case as proceedings to resolve the instant dispute were already underway. If a court could readily determine that it lacked jurisdiction over a cause or a defendant, the proper course was to dismiss on that ground. However, immediate dismissal was warranted in the instant case as discovery concerning personal jurisdiction would have burdened petitioner with needless expense and delay.

OUTCOME: The judgment was reversed. The case was remanded for further proceedings.

Benny W. Dickey v. Midstream Fuel Services, Inc.
COURT OF CIVIL APPEALS OF ALABAMA
2007 Ala. Civ. App. LEXIS 160
March 9, 2007, Released

PROCEDURAL POSTURE: An employee sued an employer seeking, pursuant to the Jones Act and general maritime law, to recover for the injuries to his lungs caused by his exposure to noxious fumes while working for the employer. The Mobile Circuit Court (Alabama) entered summary judgment for the employer. The employee's Ala. R. Civ. P. 59(e) motion was denied. The employee appealed. The Alabama Supreme Court transferred the appeal to the appellate court.

OVERVIEW: The employer argued that the suit was barred by the statute of limitations. The appellate court held that the employee conceded that he could not recover for injuries he had sustained more than three years before he filed his suit. The employer's claim that even if the employee had a claim of negligent aggravation, the employer did not know that its conduct caused or contributed to his injury was rejected as an employer could be liable even if it was not aware that its conduct was contributing to the employee's injury. Moreover, the employer knew that its conduct was causing or contributing to the employee's condition. The employer's claim that even if the employee had a claim for negligent assignment, the employee had not personally told the employer that he suffered from chronic obstructive pulmonary disorder (COPD) was rejected. The employer was aware of the employee's COPD before it assigned him to a ship, ordered him to paint the engine room, and reassigned him to another ship. Finally, the courts had rejected the modified continuing tort doctrine as a basis for recovery under the Jones Act and general maritime law. The summary judgment as to those claims was affirmed.

OUTCOME: The summary judgment was reversed as to the negligent aggravation and negligent assignment claims. In all other respects, the summary judgment was affirmed. The matter was remanded to the trial court.

SONITO SHIPPING COMPANY LTD., Plaintiff, -against- SUN UNITED MARITIME LTD., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 19531
March 19, 2007, Filed

PROCEDURAL POSTURE: Plaintiff owner, asserting a claim for relief within the admiralty and maritime jurisdiction under Fed. R. Civ. P. 9(h), commenced an action in order to invoke the remedy of maritime attachment and garnishment afforded by Supp. R. Certain Adm. & Mar. Cl. B. The court issued an ex parte order for process of maritime attachment. Defendant charterer moved under Supp. R. Certain Adm. & Mar. Cl. E(4)(f) for an order vacating the attachment.

OVERVIEW: The charterer argued that under English law the claim the owner asserted for indemnity in respect of a cargo claim that the owner had not yet paid was premature by reason of the Inter-Club New York Produce Exchange Agreement (ICA), and consequently could not form the basis for an attachment under Supp. R. Certain Adm. & Mar. Cl. B. The owner's complaint made it clear that its claim was solely one for indemnity with respect to the owner's liability to the cargo interests on a claim that those interests had asserted against the owner. That claim would have been decided by arbitration in London. The arbitration was just getting started. The owner had not made any payment to the cargo interests in respect of their claim. An English court of appeal stated that the "condition precedent" for apportionment and indemnification under the ICA was that the cargo claims had been paid. Thus, the court concluded that the owner had not carried its burden of showing that at the time of the attachment it had a valid maritime claim against the charterer. Finally, even if the court had discretion to uphold the attachment when the claim was unripe, there were no compelling circumstances to do so.

OUTCOME: The motion for an order vacating the attachment was granted. The writ of attachment was vacated and the complaint was dismissed. The vacatur and dismissal were without prejudice to the owner filing a complaint and seeking an attachment at a later date, if subsequent developments made it clear that under English law a claim for indemnity had accrued.

STANLEY KELVIN EUBANKS, Plaintiff - Appellee, versus NOBLE OFFSHORE CORPORATION; ET AL., Defendants, NOBLE DRILLING (U.S.) INC., Defendant - Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 5815
March 13, 2007, Filed

PROCEDURAL POSTURE: In a negligence action brought under the Jones Act, appellant drilling company sought judicial review of the decision by the United States District Court for the Eastern District of Louisiana, New Orleans Division, to grant summary judgment in favor of appellant seaman for injuries he sustained while working on a mobile offshore drilling platform.

OVERVIEW: The drilling company argued that the district court abused its discretion by granting, on the eve of trial, the seaman's motion to designate the litigation as an admiralty or maritime claim and to strike the jury demand. Although there was a very strong argument that the district court erred in its ruling, there was no reversible error in the present case. Although it opposed the motion, the drilling company did not request a continuance to cure any possible error. Furthermore, the drilling company had no right to demand a jury trial. Accordingly, a new trial under different procedural timetables and before the same judge would hardly change the outcome. Furthermore, there was no clear error in the district court's factual findings. The district court never reached the issue of whether the mobile offshore drilling platform was unseaworthy. As to the remaining three findings, the appellate court was not left with a definite and firm conviction that a mistake had been committed.

OUTCOME: The judgment of the district court was affirmed.

DAVE ROBINSON, Plaintiff, v. ALTER BARGE LINE, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
2007 U.S. Dist. LEXIS 18191
March 15, 2007, Filed

PROCEDURAL POSTURE: Plaintiff former employee sued defendant former employer in Illinois state court for retaliatory discharge under Illinois common law and for violation of 740 Ill. Comp. Stat. 174/20 of the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/1-174/35. The employer removed the case to federal court and moved for summary judgment.

OVERVIEW: The employee, who worked as a deckhand aboard river towboats, claimed that he was terminated for reporting to a manager that coworkers were using illegal drugs. The court found that the employee's claim under the Illinois Whistleblower Act was preempted by 46 U.S.C.S. § 2114, which provided a cause of action for seamen who were discharged for reporting safety law violations to federal authorities; conflicts existed between the rights and remedies provided under the two statutes, and application of the Illinois statute would have destroyed the uniformity of the rules applicable to commerce on inland waterways. The employee lacked a viable claim under § 2114 because he did not refuse to perform any duties and had not made a report to federal authorities until after his discharge. The employee's common law retaliatory discharge claim was not preempted under § 2114 but was preempted by general maritime law; the only recognized exception to the at-will employment doctrine under general maritime law was when a seaman was terminated for filing a personal injury suit against an employer, while Illinois common law provided for a much wider range of viable retaliatory discharge actions.

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

JESSIE BELL VERSUS AMERICAN INTERNATIONAL GROUP, ET AL.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2007 La. App. LEXIS 151
February 7, 2007, Opinion Rendered

PROCEDURAL POSTURE: Plaintiff injured party challenged a decision from the Fifteenth Judicial District Court (Louisiana), which sustained an exception of prescription filed by defendant owner and dismissed a personal injury claim.

OVERVIEW: The injured party was transported by a vessel to a fixed platform. During transfer to the platform, the injured party fell due to the jerking of a personnel basket. Thereafter, he filed a personal injury action against the owner and others. An exception of prescription was sustained, and this appeal followed. In affirming, the appellate court determined that the trial court did not err by designating the judgment as a final judgment under La. Code Civ. Proc. Ann. art. 1915. The judgment dismissed the claims against the owner, but had no effect on the claims against the other parties. Next, the appellate court rejected the argument that the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.S. § 1331, applied. The alleged negligence in this case occurred on navigable waters because the injured party never made it off the vessel and onto the fixed platform. Under general maritime law, the owner owed a duty of reasonable care toward those aboard the vessel, which included the provision of a safe manner of ingress and egress. Therefore, the claim was prescribed under the Uniform Statute of Limitations for Maritime Torts, 46 U.S.C.S. § 763(a).

OUTCOME: The decision was affirmed.

JENGGI KALUOM, Individually, and on behalf of those similarly situated, Plaintiff, v. STOLT OFFSHORE, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2007 U.S. Dist. LEXIS 9029
February 7, 2007, Decided

PROCEDURAL POSTURE: Plaintiff seaman, on behalf of himself and those similarly situated, filed an action under the Fair Labor Standards Act of 1938 (FLSA) to recover unpaid wages and overtime, plus damages, from defendant, an American corporation. The seaman filed a motion for notice to potential plaintiffs for collective action under 29 U.S.C.S. § 219(b) of the FLSA and a motion for immediate discovery. The corporation filed a motion for summary judgment.

OVERVIEW: The seaman, a Malaysian national who worked as a rigger and a pipe-facing machine operator on a foreign-flag vessel operating on the Outer Continental Shelf in the Gulf of Mexico, alleged that he was employed by the corporation, which was the pro hac vice owner of the vessel. The seaman sought to certify a class of employees under the FLSA based on the corporation's failure to pay U.S. minimum wages or overtime pay. Because the seaman qualified under the Lusardi approach to representative actions under 29 U.S.C.S. § 213(b) of the FLSA, the court permitted him to send notice of the instant litigation to all current and former maritime workers who worked for the corporation since January 1, 2002. The barge on which the seaman had served was arguably an American vessel because the corporation controlled its operation. The court held that § 213(b) applied to American-flag vessels, regardless of their transient locations. Res judicata did not apply because a prior penalty wage suit between the parties did not raise FLSA claims. The three-year statute of limitations in 29 U.S.C.S. § 255(a) applied because the seaman pleaded a willful violation of the FLSA.

OUTCOME: The court denied the corporation's motion for summary judgment. The seaman's motion for notice was approved but modified to cover only riggers and pipe-facing machine operators. The seaman's motion for immediate discovery was approved but limited to the same class of seamen. The court ordered the corporation to provide the names and pay rates of similarly-situated seamen within 30 days.

AMERICAN ROLL-ON ROLL-OFF CARRIER, LLC; AMERICAN AUTO LOGISTICS, INCORPORATED; WALLENIUS WILHELMSEN LINES AMERICAS, LLC, Plaintiffs-Appellants, v. P&O PORTS BALTIMORE, INCORPORATED, Defendant-Appellee, and I.T.O. CORPORATION OF BALTIMORE, a wholly owned subsidiary of P&O PORTS NORTH AMERICA INC., Defendant.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2007 U.S. App. LEXIS 4154
February 26, 2007, Decided

PROCEDURAL POSTURE: Plaintiffs, a carrier and related entities, filed an indemnification claim against defendant stevedore, seeking to recover amounts the carrier paid to owners of vehicles that were damaged when a tow tractor broke free of its lashings. The United States District Court for the District of Maryland granted summary judgment in favor of the stevedore, concluding that the claim was barred by a one-year statute of limitations. The carrier appealed.

OVERVIEW: An aircraft tow tractor, which had been loaded on the carrier's ship, broke free of its lashings and caused diesel fuel to contaminate other cargo. The carrier settled the cargo owners' claims and sought indemnification from the stevedore. The bill of lading issued by the carrier to a shipper contained a Himalaya Clause, which extended to the stevedore defenses that the Carriage of Goods By Sea Act provided to the carrier with respect to claims for cargo damage, and required cargo owners to bring claims for cargo damage within one year. The stevedoring contract between the carrier and the stevedore provided that the stevedore was entitled to all defenses available to the carrier under the bill of lading. Although the indemnification action was filed within the three-year limitation period established by the stevedoring agreement and Md. Code Ann., Cts. & Jud. Proc. § 5-101, the stevedore argued that the indemnification claim was untimely under the one-year limitation period set forth in the bill of lading. The court held that the indemnification claim was timely because the bill of lading's one-year limitations period applied to cargo-damage claims and not to indemnity claims.

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

BOTTIGLIERI DI NA VIGAZIONE SPA, Plaintiff, -against- TRADELINE LLC, Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 8278
February 6, 2007, Decided

PROCEDURAL POSTURE: Defendant ship charterer entered into a charter party with plaintiff disponent owner, chartering a ship to carry a shipment of corn. Plaintiff then entered into a charter party with the vessel's actual owner, to obtain use of the vessel. Plaintiff filed a suit against the charterer after the owner threatened to commence arbitration against it. The charterer moved to vacate an order of maritime attachment entered by the court.

OVERVIEW: The charter party contracts required disputes to be arbitrated in London under English law. The owner commenced arbitration against plaintiff after paying a substantial amount in damages to the recipient of the corn shipment. Plaintiff then filed its suit against the charterer. It successfully obtained an almost $ 3 million maritime attachment order. The charterer moved to vacate the attachment order. It argued that plaintiff was asserting an indemnity claim against it, that the claim was unripe because the owner's arbitration had not yet been resolved and that, therefore, plaintiff did not have a valid prima facie admiralty claim against it, which was required for issuance of an attachment under Supp. R. Certain Adm. & Mar. Cl. B, E. Plaintiff countered that it was asserting a breach of contract claim and that the claim had accrued when the parties' charter party contract was breached. The court found, based on the allegations in the complaint, that plaintiff was asserting an indemnity claim against the charterer. That claim was not yet ripe under English law because plaintiff had not yet been ordered to reimburse the owner for the damages that it had paid.

OUTCOME: The court granted the charterer's motion to vacate the order of maritime attachment.

TIMOTHY DOYLE, GREG HAGAMAN, BRIAN LAGUE, ANTHONY W. RICHARDS, and ERIC EDWARDS, Plaintiffs, v. HUNTRESS, INC., AND RELENTLESS, INC., Defendants.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
2007 U.S. Dist. LEXIS 12126
February 20, 2007, Decided

PROCEDURAL POSTURE: Plaintiffs, crewmen on two commercial fishing vessels, sued defendants, corporate owners of the commercial fishing vessels, and alleged that, during the years 1993 through 2000, the ships' owners failed to provide them with written wage agreements prior to their fishing voyages, as required by 46 U.S.C.S. § 10601. They further claimed statutory damages pursuant to 46 U.S.C.S. § 11107.

OVERVIEW: In the maritime context, a laches analysis utilized as a benchmark the limitations period contained in the most analogous statute. That limitations period was not per se dispositive, but rather courts relied upon it to establish burdens of proof and presumptions of timeliness and untimeliness. The pertinent statute in the instant case was R.I. Gen. Laws § 28-14-20, which applied a three-year period for wage claims made to the Rhode Island Director of Labor and Training. Accordingly, a presumption of laches attached to the crewmen's claims for trips made prior to August 31, 1998, and a presumption of timeliness attached to claims for trips after that date. Therefore, the court found that claims for statutory damages under 46 U.S.C.S. § 11107 on the grounds that the owners failed to provide them with written wage agreements prior to their fishing voyages, as required by 46 U.S.C.S. § 10601, dating from before August 31, 1998, were barred by laches in the cases of four crewmen and that the remaining crewmen were entitled to the total difference between what they earned and what a full share would have been for the trips.

OUTCOME: The court entered judgment against the owners and for three crewmen in the amounts of $ 2,381.74, plus 6 percent per annum interest calculated from the date suit was filed, $ 1,274.28, plus 6 percent per annum interest calculated from August 31, 2001, to the date of the order, $ 1,353.38, plus 6 percent per annum interest calculated from March 7, 2002 to the date of the order.

WEEKS MARINE, INC., Appellant/Cross-Appellee v. Jose J. SALINAS, Appellee/Cross-Appellant
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
2007 Tex. App. LEXIS 866
February 7, 2007, Delivered

PROCEDURAL POSTURE: Cross-appeals were taken from a judgment of the 381st Judicial District Court, Starr County (Texas), which awarded damages to appellee employee under the Jones Act for injuries sustained as a seaman acting in the course and scope of his employment. The trial court reduced the amount of compensatory damages awarded for the employee's unseaworthiness claim.

OVERVIEW: The employee was assigned to a dredge. While the dredge was at a repair facility, the employee injured his back carrying two batteries from a truck to the dredge. The jury found that the employee was a seaman, that the employer's negligence was a legal cause of the injury, that 70 percent of the negligence was attributable to the employer, and that the dredge was unseaworthy. The court held that the employee was a seaman while the dredge was undergoing repairs because his basic assignment did not change; he contributed to the function of the dredge by repairing it. The award for future economic loss was within the range of evidence presented at trial. There was sufficient evidence of unseaworthiness, including the employee's testimony that there was no dolly that he could use in performing the task. There was no duplication in the amounts awarded for tort damages and cure. Evidence of severe pain and inability to engage in everyday activities established mental anguish. Because no contributory negligence question was submitted as to the unseaworthiness claim, the employer waived the issue under Tex. R. Civ. P. 279; hence, the trial court erred in reducing the award by 30 percent.

OUTCOME: The court reversed the trial court's reduction of the amount of compensatory damages awarded for the unseaworthiness claim, rendered judgment that the employee was entitled to recover the amount of compensatory damages awarded by the jury, and affirmed the remainder of the trial court's judgment.

KEVIN SCHEURING, Plaintiff-Appellant, v. TRAYLOR BROTHERS, INC., Defendant-Appellee. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 3237
February 14, 2007, Filed

PROCEDURAL POSTURE: Plaintiff employee sought review of a summary judgment from the United States District Court for the Central District of California granted in favor of defendant employer in plaintiff's action seeking to recover for his personal injuries as a "seaman" under the Jones Act, 46 U.S.C.S. app. § 688, or, in the alternative, for negligence under the Longshore and Harbor Workers' Compensation Act (LHWCA).

OVERVIEW: Plaintiff, who worked as a crane operator on a derrick barge owned by defendant, slipped and injured his back while attempting to lift a ramp that was used to board the barge. The district court determine that plaintiff was not a "seaman" because the nature of his employment was not substantially connected to the vessel and, therefore, he could not sue under the Jones Act. The court, however, found that the movements of the vessel, albeit relatively minor, and the sea-based duties of plaintiff during those movements, although ancillary to his core duty as a crane operator, raised genuine issues of material fact as to plaintiff's "seaman" status. As to the LHWCA claim, the district court determined that the alleged negligence in the positioning of the ramp did not implicate the duty owed by defendant as a vessel owner and, therefore, plaintiff could not sue under 33 U.S.C.S. § 905(b). The court, however, found that plaintiff raised genuine issues of material fact with respect to the characterization of the ramp and whether defendant discharged its turnover duty by providing a ramp-float-skiff means of access to the barge.

OUTCOME: The court reversed the district court's grant of summary judgment as to both claims. The court remanded the action for further proceedings.

CARNIVAL CORPORATION, Petitioner, vs. DARCE CARLISLE, Respondent.
SUPREME COURT OF FLORIDA
2007 Fla. LEXIS 287; 32 Fla. L. Weekly S 81
February 15, 2007, Decided

PROCEDURAL POSTURE: The Third District Court of Appeal (Florida) entered a decision in a case involving whether defendant ship owner could be vicariously liable for the medical malpractice of a ship board physician committed on a ship's passenger that reversed the trial court's summary judgment grant for the ship owner and found such negligence could be imputed to the ship owner. It then certified that question as one of great public importance.

OVERVIEW: A family went on a cruise. The 14-year-old daughter fell ill. The ship physician saw the daughter several times and repeatedly advised the family that she was suffering the flu, and did not have appendicitis. The family decided to discontinue their cruise and returned home, where the daughter was diagnosed as having a ruptured appendix. Her appendix was removed, but the daughter was rendered sterile from the rupture and subsequent infection. The parents of the daughter sued the ship board physician and ship owner alleging that the ship board physician committed medical malpractice, and that the ship owner was vicariously liable for such negligence. The trial court found that the ship owner was entitled to summary judgment on the vicarious liability question. On appeal, the district court of appeal found that the ship board physician was an agent of the ship owner whose negligence should be imputed to the ship owner. After the vicarious liability question was certified as one of great importance, the state supreme court found that the federal maritime law almost uniformly held that a ship owner is not vicariously liable for the negligence of a ship board physician.

OUTCOME: On the certified question of great public importance, the state supreme court quashed the decision of the district court of appeal and held that the ship owner was not vicariously liable under the theory of respondeat superior for the medical negligence of the ship board physician.

MARIA GENOVEVA ANAYA, MARIO ANAYA, EDUARDO ANAYA, JESSICA ANAYA, AYDHEE ANAYA, Plaintiffs-Appellants, versus TRAYLOR BROTHERS, INC., Defendant-Appellee. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 535
January 10, 2007, Filed

PROCEDURAL POSTURE: Plaintiffs, the surviving family members of a worker killed in an accident on a barge while constructing a bridge in ocean waters, appealed a summary judgment issued by the United States District Court for the Southern District of Texas in favor of defendant employer in plaintiffs' suit seeking exemplary damages under the Longshoremen and Harbor Workers' Compensation Act (LHWCA).

OVERVIEW: After the accident, plaintiffs submitted an application to the Texas Workers' Compensation Commission for survivor benefits and subsequently received a series of benefit checks from the employer's insurer. After plaintiffs' attorney sent a notice of representation to the insurer, the insurer informed plaintiffs that the benefits were paid pursuant to the LHWCA, not the Texas Workers' Compensation Act (TWCA). Plaintiffs filed a request to receive TWCA benefits, then sued the employer for exemplary damages based on the employer's alleged gross negligence. The insurer filed a dispute with the Commission, which found that plaintiffs did not qualify for TWCA benefits. The district found for the employer. On appeal, the court agreed. Under the status test, the decedent was engaged in maritime employment because he was injured while on actual navigable waters. Thus, plaintiffs were entitled only to benefits under the LHWCA, which, unlike the TWCA, did not permit exemplary damage awards. Additionally, Tex. Lab. Code Ann. § 406.091(a)(2) prohibited benefits to workers covered by analogous federal laws. No election of benefits was sanctioned by U.S. Supreme Court precedent.

OUTCOME: The court affirmed.

JAKE PALERMO VERSUS THE PORT OF NEW ORLEANS, ET AL. CONSOLIDATED WITH: ABRAHAM VEAL AND SHEILA ROCHELLE VEAL VERSUS THE PORT OF NEW ORLEANS, ET AL. COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2007 La. App. LEXIS 50
January 19, 2007, Decided

PROCEDURAL POSTURE: The consolidated cases were instituted by appellees, the adult children of two individuals whose deaths were allegedly caused by occupational exposure to asbestos from their work on the wharves on the Mississippi River in New Orleans. The Civil District Court, Orleans Parish, Division "C-6" (Louisiana) found appellants, ship repair companies and the dock board, were liable and awarded damages. The companies and board appealed.

OVERVIEW: Inter alia, the board claimed that it did not owe the workers a duty to provide them with a safe work environment and that it had no legal duty to protect them from the hazards posed by asbestos exposure in their employment. As the board pointed out, both federal and state law unequivocally imposed that duty on the stevedore's employer. Although the children presented evidence that exposure to asbestos cargo, as well as to the airborne fibers and debris generated by that cargo, was dangerous, there was no evidence to show that the mere presence of that cargo made the wharves themselves defective. In addition, even assuming a defective condition existed, they presented no evidence that the board knew or should have known of such a condition. Whether the board knew generally that asbestos was being shipped through the port was irrelevant because absent a defect in its premises, the pertinent fact was that the board had no custody or control of the asbestos-containing cargo or of the loading, unloading, or ship repair operations. The trial court committed legal error by finding that the board breached a duty to protect the workers under the circumstances presented in the instant case.

OUTCOME: The judgment of the trial court was reversed.

CHRISTOPHER HILL v. DANIEL KNAPP COURT OF APPEALS OF MARYLAND
2007 Md. LEXIS 11
January 16, 2007, Filed

PROCEDURAL POSTURE: Appellant, a dock worker, was granted certiorari to challenge the judgment of the Circuit Court for Baltimore City (Maryland), which granted summary judgment in favor of appellee, a forklift operator. The dock worker had brought a negligence suit against the forklift operator.

OVERVIEW: While performing his work, the dock worker was struck by a load of plywood dropped on him by the forklift operated by the forklift operator. The dock worker was a borrowed servant of the employer, and the forklift operator was an employee of the employer. Thus, the two were co-employees. The dock worker sought compensation and medical expenses under the Maryland Workers' Compensation Act and obtained such benefits. The dock worker was advised he was eligible for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950, but never applied for such benefits. The court agreed with the lower court that the LHWCA preempted a state tort claim for damages against a co-employee in the twilight zone, namely when there existed concurrent state and federal jurisdiction. The court examined the legislative history of the LHWCA and considered the Supremacy Clause of the United States Constitution in making its determination.

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

RICHARD LAUX and MARTHA LAUX, Plaintiffs, vs. CARNIVAL CORPORATION, a foreign corporation d/b/a CARNIVAL CRUISE LINES, and DIANNE NICHOL, Defendants. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2007 U.S. Dist. LEXIS 3395; 20 Fla. L. Weekly Fed. D 302
January 17, 2007, Decided

PROCEDURAL POSTURE: Plaintiffs, a husband and his wife, filed suit against defendants, a cruise line and a doctor, seeking to recover damages for injuries that the husband allegedly sustained as a result of the doctor's misdiagnosis of the husband's brain bleed while the husband was a passenger on the cruise line's ship. The doctor moved to dismiss the suit for lack of personal jurisdiction.

OVERVIEW: The doctor, an Australian citizen, alleged that the court lacked personal jurisdiction over her because she was not licensed to practice in Florida, she was not a resident of Florida, and she did not own any property or maintain any businesses or bank accounts there. Plaintiffs argued that the court had personal jurisdiction over the doctor pursuant to Fla. Stat. § 48.193 because the doctor's malpractice occurred in Florida. The court noted that, under Florida case law, Florida courts only had personal jurisdiction over a ship's doctor if the alleged malpractice occurred inside Florida's territorial boundaries. The wife's affidavit stated that the doctor, while the ship was in port in Florida, refused to examine the husband, told the wife that the husband did not need to be seen at a local hospital and instead could see his primary care physician when he returned to Pennsylvania, and the doctor refused to allow the husband to stay in the infirmary during the disembarking process. The doctor alleged that she never treated or saw the husband while the ship was in a Florida port. Because the affidavits were conflicting, an evidentiary hearing was necessary.

OUTCOME: The court denied the motion to dismiss and ordered that an evidentiary hearing be held.

TRANSOCEAN OFFSHORE USA, INC., Plaintiff-Appellant v. DAVID CATRETTE, Defendant-Appellee UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 732
January 12, 2007, Filed

PROCEDURAL POSTURE: Appellant employer sought review of an order from the United States District Court for the Eastern District of Louisiana, which granted appellee employee's motion for a stay in the employer's suit alleging that the employee breached a settlement agreement between the parties by filing suit against the employer in a state court in connection with an injury sustained by the employee while working on the employer's ship.

OVERVIEW: The district court held that the stay was warranted because the state court gave the employee a right to a jury trial and proceeding with the federal suit would amount to an impermissible constructive removal of the employee's Jones Act claim. The court disagreed. The employer's suit, in which damages were sought, was one for breach of contract, rather than a declaratory judgment suit. Thus, the Colorado River doctrine applied. Under that doctrine, the court considered six factors in determining whether exceptional circumstances warranted a stay. The state and federal forums were convenient for the parties; neither court had assumed jurisdiction over a res; and although the employee had filed suit first, the employer could not have filed its suit until after the employee breached the agreement. Thus, none of these factors cut in favor of a stay. The state court could protect the employer's rights, and maritime law provided the rules of decision in both cases. Thus, those factors were neutral. The need to avoid piecemeal litigation weighed in favor of a stay, but that one factor alone was insufficient to create the exceptional circumstances necessary to warrant a stay.

OUTCOME: The court reversed the district court's order staying the suit and remanded for further proceedings.

CLINTON RIVER CRUISE CO., Petitioner-Appellant, v. NATHANIEL C. DELACRUZ, II, as Personal Representative of the Estate of Rafael C. DeLaCruz, II, Deceased, Claimant-Appellee. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2007 U.S. App. LEXIS 765
January 10, 2007, Filed

PROCEDURAL POSTURE: Appellant ship company sought review of a decision from the United States District Court for the Eastern District of Michigan, which denied its motion for summary judgment and granted summary judgment in favor of appellee, the personal representative of a deceased passenger's estate, in the personal representative's action arising out of the passenger's death.

OVERVIEW: The company's vessel took a river cruise with two crewmembers, a captain, and a bartender. As the vessel was returning to its berth, the passenger and another person decided to hold a swimming race to land. The passenger drowned. The company filed a complaint for exoneration from or limitation of liability. The district court granted summary judgment to the personal representative based on one crewmember's assertion that she was not a deckhand and the failure of the company to conform to a certificate of inspection directing it to man the vessel with two deckhands as required by 46 U.S.C.S. § 8101(a). Because the company had not conformed to § 8101(a), the district court held that it had been negligent per se. On appeal, the court vacated that decision and remanded. The court found that the affidavits offered by the company to provide a more complete explanation of the crewmember's duties should have been taken into account by the district court even though they were provided after depositions because they did not contradict the deposition testimony. Thus, a genuine fact existed as to whether the crewmember was a second deckhand.

OUTCOME: The court vacated the district court's award of summary judgment in favor of the personal representative, affirmed the denial of the company's motion for summary judgment, and remanded the action to the district court for further proceedings.

TERRELL PARFAIT VERSUS TRANSOCEAN OFFSHORE, INC., AND SHELL OIL PRODUCTS CO. COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2007 La. App. LEXIS 51
January 5, 2007, Decided

PROCEDURAL POSTURE: The Civil District Court, Orleans Parish, Division "G-11" (Louisiana), rendered a judgment in favor of plaintiff employee for damages he sustained in a work-related accident aboard a vessel, a semi-submersible drilling rig, owned by defendant employer. The vessel was under contract with defendant contractor to drill several oil wells in the Gulf of Mexico. The employer and the contractor appealed.

OVERVIEW: A Jones Act employer's duty to the employee was that of ordinary prudence, that was, the duty to take reasonable care under the circumstances. The jury could have concluded from the evidence that the employer failed to exercise reasonable care by having the employee work on an elevated platform without railings, but that the platform did not make the vessel unseaworthy, i.e., the platform did not render the vessel unfit for drilling wells in the Gulf of Mexico. Based on the photographs and an expert witness's testimony that the employer failed to comply with its own safety policy to minimize any fall hazard and could have done so by installing a handrail on the platform, the jury could have concluded that the employer breached its duty of care to the employee by not exercising reasonable care under the circumstances. Thus, the appellate court could not say that the jury was clearly wrong in determining that the employer's negligence contributed to the employee's injuries. However, because the employee had recovered future lost wages as a result of an accident in 1988, the amount of his award was reduced by the appellate court.

OUTCOME: The appellate court reversed the trial court's judgment in favor of the employee, in part, to dismiss his claim against the contractor and to vacate the damage award. The appellate court amended the judgment to cast the employer 100% at fault and award the employee total damages of only $ 712,029.11. As amended, the appellate court affirmed the trial court's judgment.