Cruise Ship Law

MARK L MCLAURIN; TAWANA MCLAURIN, Plaintiffs-Appellants v. NOBLE DRILLING (US) INC; NOBLE DRILLING CORPORATION; NOBLE DRILLING SERVICES INC; JOHN DOES 1-100, Defendants-Appellees
No. 07-60402

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 11054
May 22, 2008, Filed

PROCEDURAL POSTURE: Plaintiffs, an injured worker and his spouse, appealed a judgment from the United States District Court for the Southern District of Mississippi granting summary judgment to defendant, the owner of a vessel. Plaintiffs challenged the district court's finding that their state-law tort claims against the vessel owner were preempted by 33 U.S.C.S. § 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950.



OVERVIEW: The worker's arm was crushed by materials that fell from an unattended crane while he was performing carpentry work on a mobile offshore drilling unit, which was moored in his employer's shipyard. After receiving medical and disability compensation from his employer under the LHWCA, he sued the vessel owner, alleging that it had assumed control of the project and negligently failed to observe safety procedures. Plaintiffs appealed the dismissal of their state-law tort claims. On appeal, the court held that the district court correctly found that plaintiffs' claim under 33 U.S.C.S. § 905(b) of the LHWCA failed as a matter of law, but it erred in finding that § 905(b)'s exclusivity provision preempted plaintiffs' state-law tort claims against the vessel owner. Plaintiffs failed to allege a § 905(b) claim for vessel negligence because the worker was injured ashore, not while located on the vessel itself; thus, the claim did not meet the test for a maritime tort. However, although plaintiffs failed to state a cognizable claim under § 905(b), 33 U.S.C.S. § 933(a) did not preempt their state-law negligence claims against the vessel owner as a third-party tortfeasor.



OUTCOME: The court affirmed the district court's dismissal of plaintiffs' claim for vessel negligence under the LHWCA. The court reversed the district court's dismissal of plaintiffs' state-law tort claims against the vessel owner.

DON HAMRICK, Plaintiff, v. DR. RICHARD S. HOFFMAN, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
2008 U.S. Dist. LEXIS 36283
May 6, 2008, Decided

PROCEDURAL POSTURE: Defendants, a shipping company that operated a seafaring vessel, a physician, and a seafarers' union, moved to dismiss a suit filed by plaintiff, a pro se seaman. The seaman alleged that the company wrongfully discharged him as unfit for duty after waiving a preemployment exam by the physician and that the union failed to fairly represent him. The seaman did not sue the holding company that owned the vessel. The seaman moved to recuse the judge.



OVERVIEW: After the union's hiring hall referred the seaman for duty on a vessel operated by the shipping company, the seaman reported for a preemployment exam, as required by his collective bargaining agreement (CBA). After his blood pressure was taken but before the exam began, a union representative ordered the seaman to report for duty immediately. The physician reported that his blood pressure was high, causing the seaman to be sent home after arriving in a foreign port. The seaman argued that, by interrupting the exam, the company had waived the CBA's exam requirement. The court refused to recuse itself based on its rulings in the seaman's separately pending case because they did not demonstrate lack of impartiality in the instant case. The court held that the seaman failed to prove personal jurisdiction over the physician and that the shipping company could not have breached the CBA because it was not a signatory. The union did not breach its duty of fair representation because it was pursuing a grievance the seaman had filed and was not required to file a brief in support of the seaman's argument that he should be exempt from court filing fees under 28 U.S.C.S. § 1916.



OUTCOME: The court granted the company's, the physician's, and the union's motions to dismiss the complaint. The court denied the seaman's motion for recusal. The court dismissed the case.

STEPHEN L WILLIS; CORINNA J WILLIS, Plaintiffs-Appellants v. FUGRO CHANCE, INC, Defendant-Appellee

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 10838
May 21, 2008, Filed

PROCEDURAL POSTURE: In a diversity suit, plaintiffs, an injured worker and his wife, appeal a judgment from the United States District Court for the Eastern District of Texas granting defendant, a Louisiana corporation, summary judgment on their negligence claims under the Merchant Marine Act of 1920, 46 U.S.C.S. §§ 30104-30105, commonly known as the Jones Act. After the suit was removed from state court, the district court denied the worker's motion for remand.



OVERVIEW: The worker was employed by the corporation as a survey party chief who assisted in moving vessels and other devices, such as semi-submersible drilling rigs, from dry-docks and harbors to drill site locations. Using a satellite telephone, the worker was responsible for consulting global positioning satellites, maps, and the corporation's database and notifying rig movers of potential underwater hazards. While aboard a submersible offshore drilling rig leased, owned, and crewed by parties other than the corporation, the worker was exposed to mercury and other toxic chemicals, resulting in severe damage to his brain and central nervous system. The district court found that the worker did not qualify as a "seaman" for purposes of the Jones Act, as determined under the U.S. Supreme Court's Chandris rule. The Chandris rule required that a maritime worker spend 30 percent of his time on vessels under the common ownership or control of his employer. The worker performed his job on various vessels as the need arose, none of which were owned or controlled by the corporation. Because the worker did not qualify as a seaman, he could not recover damages for negligence under 46 U.S.C.S. § 30104(a).



OUTCOME: The court affirmed.

JERRY WALKER, Plaintiff-Appellee, v. CARNIVAL CRUISE LINES, INC., a Corporation, CARNIVAL CRUISE LINES, a Corporation, and CARNIVAL CORPORATION, a Panama Corporation, doing business in the United States, Defendants-Appellants.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
2008 Ill. App. LEXIS 461
May 21, 2008, Filed

PROCEDURAL POSTURE: Plaintiff passenger sued defendant cruise ship line in the Circuit Court of Cook County (Illinois). The trial court denied the line's motion to dismiss, under 735 Ill. Comp. Stat. Ann. 5/2-619(a)(9) (2006), which was based on a forum-selection clause in the passenger's contract, and certified two question for review under Ill. Sup. Ct. R. 308. The line appealed, requesting review of the first certified question.



OVERVIEW: The trial court certified whether it erred in applying the law in denying the line's motions to dismiss and reconsider, and whether its orders denying the line's motions were appealable under Ill. Sup. Ct. R. 304, 306 or 308. The appellate court held the first question improperly sought a review of the trial court's application of the law to given facts, but it was necessary to address the propriety of the trial court's underlying order. The forum selection clause was enforceable because (1) the contract's physical characteristics reasonably communicated the forum-selection clause's existence, and (2) undisputed facts showed the passenger had an adequate chance to read the contract. She did not dispute that she had a reasonable time to read the contract, so undisputed facts showed she had a chance to become meaningfully informed of the contract's terms. While the cost of litigating her claim in the designated forum might deter her from bringing suit there, it did not bar her claim or satisfy the high burden required to void a forum-selection clause. It did not impose an unreasonable burden by mandating litigation in a "remote alien forum," so it bound the passenger.



OUTCOME: The first certified question was answered in the affirmative, and the matter was remanded to the trial court.

DANIEL C. PRICE, Plaintiff and Appellant, v. CONNOLLY-PACIFIC CO., Defendant and Respondent.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
2008 Cal. App. LEXIS 695
May 13, 2008, Filed

PROCEDURAL POSTURE: After his employment was terminated, plaintiff commuter seaman, who suffered from a vector-borne sickness known as West Nile Virus as a result of being bitten by mosquitoes, sued defendant barge owner, contending that he was entitled to "maintenance and cure." The Los Angeles County Superior Court, California, entered judgment for the owner, finding that the seaman failed to carry his burden of proof. The seaman appealed.



OVERVIEW: The seaman worked on board the barge owner's derrick barge five days a week. Because the seaman's home was so far from the job site, the owner gave the seaman permission to park his camper truck in its parking lot near the job site so he could live there during the work week. The court concluded that the seaman was not entitled to receive maintenance and cure under the Ship Owner's Liability Convention. The stipulated scientific evidence that was presented at trial indicated that the seaman was far more likely infected with the disease at night while he was camping out in the owner's parking lot than during the day while working on the barge. While spending the night in his camper in the parking lot, the seaman was under no obligation to perform any services for the owner and was not in any way answerability to the "call of duty." That the seaman's illness may have been contracted between the date he was hired and the date his employment on the barge ended did not justify an award of maintenance and cure. The owner's generosity in allowing the seaman to use his camper in its parking lot, without more, was an insufficient basis on which to award him maintenance and cure.



OUTCOME: The judgment was affirmed.

EDMUNDO R. STIWARD VERSUS UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2008 U.S. Dist. LEXIS 37181
May 7, 2008, Decided

PROCEDURAL POSTURE: In plaintiff injured seaman's suit asserting Jones Act negligence and unseaworthiness claims against defendant United States of America under the Suits in Admiralty Act, 46 U.S.C.S. § 30903, the court issued findings of fact and conclusions of law after a nonjury trial. The United States was the owner of a merchant vessel operated by a former defendant, a private marine transport line.



OVERVIEW: The seaman alleged that the transport line, which operated the vessel as an agent of the United States, negligently failed to provide him with medical assistance over the course of a week after he developed acute diabetes during a transoceanic cargo trip. As a result, the seaman had to be evacuated by helicopter and developed life-threatening injuries resulting in amputation of his forefeet. Sitting as factfinder, the court found the operator and the vessel's crew negligent under the Jones Act for breaching its duty of care by failing to stock insulin and to medically train its third mate, who failed to inform and consult with the ship's captain about the seaman's medical decline until it was too late to avoid the amputations. The discretionary function exception under the Federal Tort Claims Act, 28 U.S.C.S. § 2680(a), did not apply because there was no justification for such inaction. Additionally, the vessel's lack of medical supplies rendered it unseaworthy. The seaman was not comparatively negligent for failing to report his medical condition because he had never been diagnosed with diabetes. The court awarded damages for past and future wages and pain and suffering.



OUTCOME: The court found in favor of the seaman on his claims for negligence and unseaworthiness. The court ordered the United States to pay economic damages and pain-and-suffering damages, with prejudgment interest on both awards accruing at a rate of four percent per year from the date the action was filed. The court also awarded costs to the seaman.

DAY CRUISES MARITIME, L.L.C, AND CORPUS CHRISTI DAY CRUISE, L.L.C., Appellants, v. CHRISTUS SPOHN HEALTH SYSTEM D/B/A CHRISTUS SPOHN HOSPITAL MEMORIAL, Appellee.

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG
2008 Tex. App. LEXIS 2763
April 17, 2008, Opinion Filed

PROCEDURAL POSTURE: Appellant employers challenged a decision from the 117th District Court of Nueces County, Texas, which granted summary judgment in favor of appellee hospital on a counterclaim and on a plea in intervention in a dispute over a seaman's medical bills.



OVERVIEW: A seaman became ill while on a vessel. A negligence claim was filed against the hospital where she was treated. The employers tried to intervene in the lawsuit, and a counterclaim was filed by the hospital to recover the seaman's medical bills. Judgment was eventually entered for the hospital, and this appeal followed. In partially affirming, the appellate court held that summary judgment was improperly granted for the hospital on its counterclaim. Although the medical bills at issue could have been recovered in a suit on a sworn account and the employers' sworn denial was ineffective, the employers' request to file a fourth amended answer to the counterclaim was improperly denied. Next, the hospital did not have standing to enforce the guarantee under 8 U.S.C.S. § 1283 because it was not a third-party beneficiary of such. The employers raised material issues of fact with respect to the extent of their liability under the doctrine of maintenance and cure. However, the employers did not establish that they were entitled to be equitably subrogated to the rights of the seaman's family under a settlement agreement. Finally, the employers' due process rights were not violated.



OUTCOME: The portion of the judgment denying the employers' motion for summary judgment on a plea in intervention was affirmed. The portion of the decision granting the hospital's motion for summary judgment on its counterclaim and on the plea in intervention was reversed. The case was remanded for further proceedings.

IVAN VISIN SHIPPING, LTD., Plaintiff, -v- ONEGO SHIPPING & CHARTERING B.V., Defendant.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 30689
April 14, 2008, Decided

PROCEDURAL POSTURE: Plaintiff moved under S.D.N.Y & E.D.N.Y. Civ. R. 6.3 for reconsideration of the court's order vacating the process of maritime attachment.



OVERVIEW: Plaintiff argued that the court's holding that the District of New Jersey was a convenient adjacent jurisdiction to the Southern District of New York was wrong, but pointed to no controlling authority that the court did not consider in its earlier order. Therefore, the motion for reconsideration had to be denied. Plaintiff claimed that the Second Circuit's decision in Aqual Stoli established that a convenient adjacent jurisdiction had to be a district located in the same state as the attaching district. Although it used the Eastern and Southern Districts of New York as a paradigmatic example of a case where attachment should be vacated, the court in Aqua Stoli did not state that such an example could not extend to the District of New Jersey or that a "convenient adjacent jurisdiction" could only be a district within the same state. On the contrary, the U.S. Court of Appeals for the Second Circuit stressed that the focus should be on convenience to the plaintiff, an inquiry not necessarily tied to whether the attaching district and the district where defendant was subject to personal jurisdiction were in the same state.



OUTCOME: Plaintiff's motion for reconsideration was denied.

VICTORIJA PORINA, as personal representative of Arnis Porins, deceased, LUBOVA BOILOVICA, as personal representative of Victor Boilovic, deceased, JEKARETINA JEMELIGANOVA, as personal representative of Vladimir Lisenko, deceased, KARLIS PUKITIS, as personal representative Ignus Pukitis, deceased, MARTIN ZAKALOVSKIS, as personal representative of Janis Zakalovskis, deceased, TAMARA NAZAROVA, as personal representative of Igors Nazarovs, deceased and SIA "BUTE", Plaintiffs-Appellants, v. MARWARD SHIPPING CO., LTD., Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2008 U.S. App. LEXIS 6903
April 1, 2008, Decided

PROCEDURAL POSTURE: Plaintiffs, the owner of a fishing vessel and representatives of the fishermen who died when the vessel sank, sued defendant, the owner of a cargo ship, alleging that the cargo ship struck the fishing vessel, and that the collision resulted from the negligence of those operating the cargo ship. The United States District Court for the Southern District of New York dismissed the complaint for lack of personal jurisdiction. Plaintiffs appealed.



OVERVIEW: Plaintiffs' suit relied on general maritime law; their claim, therefore, was one that arose under federal law for the purposes of Fed. R. Civ. P. 4(k)(2). However, the Fifth Amendment's due process clause barred the exercise of personal jurisdiction. In asserting that the ship owner had continuous and systematic contacts with the United States, plaintiffs relied primarily on the cargo ship's repeated visits to various ports in the United States. The difficulty with plaintiffs' assertion was that none of the visits were made at the ship owner's direction. The decision to bring the cargo ship to the United States was made, in each case, by the ship's charterers, who were free under the charters to take the ship to any safe port in the world. The ship owner was entitled to receive the same financial benefit regardless of where the charterers directed the vessel. The ship owner could not constitutionally be subjected to personal jurisdiction with respect to an unrelated suit merely because, as the owner may have expected, the ship had repeatedly visited the forum's ports at the sole direction of its charterers.



OUTCOME: The judgment of the district court was affirmed.

In re: ARAMARK LEISURE SERVICES, as owner of a certain 1997 19' Mirage Runabout for exoneration from or limitation of liability, Plaintiff, v. CHARLES F. KENDRICK, Claimant/Third Party Plaintiff - Appellee, v. ALBANY INSURANCE COMPANY, Third Party Defendant - Appellant, TRACI A. SEVY, Claimant - Amicus Curiae.
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
2008 U.S. App. LEXIS 8638
April 21, 2008, Filed

PROCEDURAL POSTURE: Third party defendant insurer appealed from the U.S. District Court for the District of Utah, which held that it had to provide primary coverage to third party plaintiff renter. The renter, in plaintiff leisure boat service's special proceeding under the Limitation of Vessel Owner's Liability Act, 46 U.S.C.S. § 30501 et seq., filed a claim against the service and third party defendant insurer; subsequently, his primary insurer became insolvent.

OVERVIEW: The renter was involved in a boating accident. The service filed the proceeding, as part of which the renter waged claims against it and its insurer. The insurer argued that the renter's personal liability insurance provided primary coverage and that, pursuant to an escape clause, the insurer was not liable. While the litigation was ongoing, the primary insurer became insolvent, and the Utah Property and Casualty Insurance Guaranty Association (UPCIGA) became potentially responsible. The UPCIGA stated that, under the exhaustion provision in Utah Code Ann. § 31A-28-213(1)(A), the insurer was required to provide primary coverage. The federal district court agreed; the federal court of appeals reversed. The insurer's policy contained a valid escape clause. The existence of the primary policy on the accident date triggered the clause, and, at that point, the renter no longer had a claim against the insurer that he could exhaust. The insurer, therefore, was not required to provide primary coverage to the renter. Rather, the UPCIGA was primarily responsible under Utah Code Ann. § 31A-28-207(1)(f)(ii), and it could not, as a primary insurer, prevail against the insurer's escape clause.

OUTCOME: The court of appeals reversed and remanded.