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.

GREAT LAKES EXPLORATION GROUP, LLC, Plaintiff-Appellant, v. UNIDENTIFIED WRECKED AND (FOR SALVAGE-RIGHT PURPOSES), ABANDONED SAILING VESSEL, etc., Defendant, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, MICHIGAN DEPARTMENT OF HISTORY, ARTS AND LIBRARIES, Intervenors-Appellees.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
08a0161p.06; 2008 U.S. App. LEXIS 8654; 2008 FED App. 0161P (6th Cir.)
April 22, 2008, Filed

PROCEDURAL POSTURE: Plaintiff, a private underwater exploration and salvage company, sought review of an order from the United States District Court for the Western District of Michigan at Grand Rapids, which dismissed its in rem admiralty action seeking an arrest for defendant, an ancient vessel that sank in Lake Michigan, after intervenor, the State of Michigan, claimed title to the vessel pursuant to the Abandoned Shipwreck Act (ASA), 43 U.S.C.S. §§ 2101-2106.



OVERVIEW: After the State intervened, the district court ordered the company to disclose the vessel's precise location to allow the State to investigate whether the shipwreck was "embedded" within the meaning of ASA. The company refused, arguing that without additional protections to safeguard federal jurisdiction, such as an arrest of the shipwreck, the State would be free to claim Eleventh Amendment immunity and divest the district court of jurisdiction. The district court refused to arrest the vessel, and it dismissed the complaint without prejudice for failure to comply with its order. The court held that the district court did not err in requiring specific details about the location of the shipwreck at the pleading stage pursuant to Supp. R. Certain Adm. & Mar. Cl. C(2)(b), C(3)(a)(i), and E(2)(a). However, it erred in its enforcement of the requirement before assuring the continuance of federal jurisdiction over the company's claim. The general information provided by the company was sufficient for purposes of allowing the district court to arrest the vessel in order to perfect federal jurisdiction and then require disclosure of the vessel's precise location.



OUTCOME: The court reversed the district court's dismissal of the company's claim, and it remanded the case for further proceedings consistent with the opinion.

THE RICE COMPANY (SUISSE), S.A., Plaintiff-Appellant v. PRECIOUS FLOWERS LIMITED; IBN AGROTRADING GMBH; M/V NALINEE NAREE, her engines, boilers and tackle, Defendants-Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 6918
April 2, 2008, Filed

PROCEDURAL POSTURE: Plaintiff shipper appealed from the United States District Court for the Southern District of Texas in the shipper's action against a vessel owner, the disponent owner, and the vessel, seeking damages and making a motion to compel arbitration in New York and to stay the proceedings pending arbitration.



OVERVIEW: The shipper bought rice to ship to Togo. It voyage chartered the vessel from the disponent owner to ship the rice, but the vessel allegedly had unseaworthy hatch covers and the rice was damaged. The voyage charter required arbitration in New York, and the bill of lading that would have issued, had the vessel not sailed early and the cargo not been damaged due to a storm, incorporated the terms of the voyage charter. The district court concluded that the New York arbitration clause of the voyage charter did not bind the vessel's owner but rather the disponent owner, and that there was no contract binding the vessel owner to New York arbitration. Nor did the in rem fiction of the vessel as defendant bind the vessel owner. The instant court concluded that the parties to the voyage charter unambiguously structured their relationship such that the vessel owner was not a party to the voyage charter. Further, the vessel owner was not bound by the New York arbitration clause incorporated into the bill of lading, given the terms of the New York arbitration clause. Finally, the court could not force the vessel owner into an arbitration agreement that the vessel owner did not sign.



OUTCOME: The judgment was affirmed.

IN RE: COMPLAINT OF WEEKS MARINE, INC. AS OWNER OF THE WEEKS 263 LOADLINE DECK BARGE, WEEKS 272 CARFLOAT AND WEEKS 524 GANTRY CRANE, FOR EXONERATION FROM OR LIMITATION OF LIABILITY; SOUTH JERSEY PORT CORPORATION, Appellant in No. 06-3586; IN RE: COMPLAINT OF WEEKS MARINE, INC. AS OWNER OF THE WEEKS 263 LOADLINE DECK BARGE, WEEKS 272 CARFLOAT AND WEEKS 524 GANTRY CRANE, FOR EXONERATION FROM OR LIMITATION OF LIABILITY, S.T. HUDSON ENGINEERS, INC., Appellant in No. 06-4639

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2008 U.S. App. LEXIS 6384
March 27, 2008, Opinion Filed

PROCEDURAL POSTURE: Appellant pier owner challenged orders of the United States District Court for the District of New Jersey granting summary judgment to appellees, an engineer, a pile driving company, and a construction manager, in actions arising out of the collapse of the owner's piers allegedly caused by pile driving at an upstream construction site where appellees were working. The engineer appealed the denial of its motion for Fed. R. Civ. P. 11 sanctions.



OVERVIEW: The company moved to dismiss the owner's strict liability claim, asserting that federal maritime law preempted state law and that pile driving was not an abnormally dangerous activity to which strict liability attached. The district court converted the motion to one for summary judgment and granted it. The engineer sought summary judgment claiming that the owner was precluded from pursuing an action against it premised on the pier insurer's assignment of its subrogation rights. The engineer also sought Fed. R. Civ. P. 11 sanctions. The district court granted the motion, noting that the owner asserted that its damages totaled $ 6.3 million and it had recovered $ 7.3 million from a settlement with the insurer. The district court found that although the insurer's transfer of the subrogation rights to the owner was permissible under state law, further recovery by the owner pursuant to the subrogation rights would constitute impermissible double recovery. The district court also denied the engineer's request for sanctions. On appeal, the court discerned no error in the district court's rulings and affirmed substantially for the reasons set forth in the district court's written opinions.



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

NEW HAMPSHIRE INSURANCE CO., Plaintiff-Appellee, v. C'EST MOI, INC., Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2008 U.S. App. LEXIS 5836
March 20, 2008, Filed

PROCEDURAL POSTURE: Defendant insured, a corporation that owned a vessel, appealed from a judgment of the United States District Court for the Central District of California, which granted summary judgment in favor of plaintiff insurer, holding that uberrimae fidei applied and that the insured misrepresented material facts on its insurance application.



OVERVIEW: The insured obtained marine coverage for a yacht from the insurer. Subsequently, the yacht sank in calm waters while docked. The insurer determined that the likely cause was a malfunctioning bilge pump. It then sued the insured to rescind the insurance policy, and the district court granted summary judgment in favor of the insurer. On appeal, the court held that uberrimae fidei was a well-entrenched doctrine that protected not merely the insurer but also the integrity of the risk pool. Only an unambiguous statement in the policy, purporting to supersede the doctrine in express terms would be sufficient to accomplish that purpose. There was no such clause in the policy at issue. Affirming, the court held that the district court correctly found that there was no factual dispute as to whether the insured made material misrepresentations in the insurance policy application. The fact that the insurer demanded answers to specific questions in the application was sufficient to establish materiality as a matter of law. The application asked for the yacht's purchase price and present insurer and the insured misrepresented both facts.



OUTCOME: The court affirmed the district court's judgment

TALIK, APPELLEE, v. FEDERAL MARINE TERMINALS, INC., APPELLANT.

SUPREME COURT OF OHIO
2008 Ohio 937; 2008 Ohio LEXIS 556
March 13, 2008, Decided

PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the Court of Appeals for Cuyahoga County (Ohio), which reversed a trial court decision in favor of the employer. The court of appeals held that the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., did not preempt appellee employee's claim against the employer, alleging employer intentional tort (EIT) based upon substantial certainty.



OVERVIEW: The employee worked as a longshoreman for the employer, and he was injured when a stack of pipes that he was loading collapsed on his leg. It was undisputed that the employee was covered by the LHWCA, and as a worker in the "twilight zone," he had the option of obtaining benefits under the LHWCA or Ohio workers' compensation because his employer participated in both programs under R.C. 4123.35 and 33 U.S.C.S. § 932(a). The employee received benefits under the Ohio workers' compensation fund. He thereafter filed his "substantial certainty" EIT action, which resulted in a grant of summary judgment to the employer based on the preemption of 33 U.S.C.S. § 905(a). The court of appeals reversed that decision, finding that there was no preemption to the EIT claim. On further review, the court noted that Congress did not expressly preempt the intentional tort standard in Ohio, based on the language of the LHWCA. However, conflict preemption applied in order to avoid inconsistency with the central purpose underlying the LHWCA of creating a uniform compensation system. Accordingly, the court concluded that the LHWCA preempted the substantial certainty EIT claim pursuant to § 905(a).



OUTCOME: The court reversed the judgment of the court of appeals and remanded the matter to that court for consideration of the employee's second assignment of error.

CAPE ANN TOWING, Plaintiff-Appellant, versus M/Y "UNIVERSAL LADY", in rem, BP ENTERPRISES OF FLORIDA, LLC, Defendants-Appellees.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2008 U.S. App. LEXIS 5237
March 11, 2008, Decided

PROCEDURAL POSTURE: Appellant towing company sought review of a judgment from the United States District Court for the Southern District of Florida, which denied the company's in rem claim for a salvage award of $ 487,500 against appellees, a vessel and its owner, and instead awarded the company $ 2,706 on the basis of quantum meruit for marine towing services that the company rendered to the vessel during a hurricane.



OVERVIEW: The district court held that the company was not entitled to a salvage award because it failed to show the existence of a maritime peril from which the vessel could not have been saved without assistance. On appeal, the court held that the district court did not err in its determination that the vessel was not in a situation of reasonable apprehension of maritime peril. Notwithstanding the company's assertions that the weather was still perilous and the vessel was positioned next to and above broken concrete pilings, the evidence showed that the weather had dramatically improved from the earlier hurricane conditions and that the vessel was located in a marina, afloat, and secured by a rope to another boat. The company presented no credible evidence that the pilings had damaged or posed further risk of damage to the vessel's hull. The evidence also showed that the center of the hurricane had already passed through the area. The court also found no merit to the company's argument that the district court should have awarded compensation on a per foot of vessel charge typically used in salvage situations, as the company had not established that it acted as a salvor to the vessel.



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

Jack Oltman et al., Petitioners, v. Holland America Line Usa, Inc. et al., Respondents.

SUPREME COURT OF WASHINGTON
2008 Wash. LEXIS 211
March 13, 2008, Filed

PROCEDURAL POSTURE: Petitioners, cruise ship passengers and a family member, filed suit against respondent cruise line alleging several causes of action. The King County Superior Court, Washington, granted summary judgment for the cruise line. The Washington Court of Appeals affirmed. Petitioners appealed.



OVERVIEW: Two cruise ship passengers became ill on a cruise ship. They filed suit against the cruise line in the King County Superior Court. The wife of one of the passengers asserted a claim for loss of consortium. The trial court did not err in refusing to strike the cruise ship's untimely answer and affirmative defenses, and in refusing to strike the declaration of the cruise line's attorney that contained citations to unpublished trial court decisions. The trial court held that a forum selection clause in the cruise contracts required that suit be brought in the United States District Court for the Western District of Washington. The Court of Appeals affirmed. The Supreme Court of Washington concluded that the wife's loss of consortium claim was not subject to the forum selection clause; she did not sign the cruise contract, nor did she agree to its terms. As to the passengers, the forum selection clause was valid and enforceable. The passengers could not file their suit in state court under the savings to suitors clause and thereby deprive the federal court of jurisdiction.



OUTCOME: The summary judgment in favor of the cruise line was affirmed on all issues except the loss of consortium claim. The summary judgment on the loss of consortium claim was reversed, and this claim was remanded to the trial court for further proceedings.

OLGA DE LEON; DAURYS BLADIMIL DE LEON; RAFAELA DE LEON; FRANKLIN ROA; JOSE GUERRERO MARTE; CRISTIAN ENCARNACION, Plaintiffs-Appellants v. SHIH WEI NAVIGATION COMPANY LTD; DONG LIEN MARITIME SA PANAMA, Defendants-Appellees

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 5464
March 13, 2008, Filed

PROCEDURAL POSTURE: Plaintiffs, surviving stowaways and heirs of decedent stowaways, initiated an admiralty and maritime tort action seeking damages for personal injuries allegedly suffered by the stowaways. Plaintiffs appealed from the United States District Court for the Southern District of Texas, challenging a dismissal for lack of personal jurisdiction over defendants.

OVERVIEW: The stowaways boarded a vessel in an ill-fated attempt to enter the United States (US) illegally. While the vessel was in international waters en route to Houston, Texas, the stowaways were discovered by the crew and then either left voluntarily on a raft or were forcibly thrown overboard by the crew. Considering the isolated and sporadic nature of the calls made on US ports by defendants' vessels, the lack of control defendants possessed over the calls, and the absence of any other contacts with the US in the Asarco framework, defendants lacked the requisite "continuous and systematic" contacts with the forum to support the exercise of general personal jurisdiction. Defendants' sole contacts with the forum were calls made on forum ports in the years preceding the incident at issue. Defendants were not licensed or authorized to do business in the US; they had never advertised or solicited any business in the US; they did not maintain a place of business or office in the US; they had no employees or agents located in the US; they had never maintained a telephone number or mailing address in the US; and they never owned, leased, or possessed any interest in property in the US.



OUTCOME: The dismissal was affirmed.

ALLISON MARIE DUNBAR GUILLORY, Administratrix of the Estate of Patrick Guillory, and as Parent and Next Friend of WINTER LAPATRIA GUILLORY and ARIEL JU'NEA KEON GUILLORY, Plaintiff, v. REASON GUKUTU and CHRISTIAN PERSONNEL, INC. d/b/a CHRISTIAN CONSTRUCTION, INC., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
2008 U.S. Dist. LEXIS 11728
February 13, 2008, Decided

PROCEDURAL POSTURE: Defendants, an employee and a staffing company, moved jointly for summary judgment on all claims brought against them by plaintiff administratrix. The administratrix's decedent was killed while working at a shipbuilding company, when the man-lift that the employee had been operating pinned the decedent between the man-lift basket and the controls. The staffing company had sent the employee to work for the shipbuilding company.



OVERVIEW: The employment status of the employee under the Longshore and Harbor Workers' Compensation Act (LHWCA) determined the potential liability that he and the staffing company faced. Therefore, the primary issue before the court was whether the employee was a borrowed servant of the shipbuilding company at the time of the accident, because if he was, both he and the staffing company were cloaked from liability by the immunity enjoyed by the shipbuilding company. The court found the Fifth Circuit's nine-part test a useful rubric by which to assess the question of control in the context of borrowed servant status. Denying the motion for summary judgment, the court noted that, although the staffing company may have had continued contact with the employee, the actual work performed at the shipbuilding company was directed, controlled, and overseen by the shipbuilding company alone. Applying the nine factors as a part of a "control" inquiry, the court concluded that the employee was the shipbuilding company's borrowed servant. Because the employee and the decedent were persons in the same employ, compensation benefits were the administratrix's sole available remedy against the employee.



OUTCOME: The court granted summary judgment on all counts

IN THE MATTER OF THE COMPLAINT OF DELMARINE, INC., AS OWNER OF A CERTAIN 1973 18' SIGNA BOWRIDER FOR EXONERATION FROM OR LIMITATION OF LIABILITY.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 9216
February 1, 2008, Decided

PROCEDURAL POSTURE: Claimants, husband and wife, collided with another boat and the wife was injured. The owner of the boat commenced a maritime claim under the limitations of Shipowners' Liability Act, 46 App. U.S.C.S. § 181 et seq., now 46 U.S.C.S. § 30503 et seq. The court found the boat's operator 85 percent liable and the husband 15 percent liable. Before the court was, inter alia, the issue of reducing the wife's future damages award to present value.

OVERVIEW: Claimant wife was awarded $ 750,000 for her injuries and pain and suffering, $ 500,000 for future pain and suffering, and $ 23,422.10 for past medical expenses. The court noted that the award for future pain and suffering had to be reduced to its present value. The determination of the appropriate discount rate was discretionary with the court. Claimant wife argued that the court should discount her award for future pain and suffering by two percent pursuant to the U.S. Court of Appeals for the Second Circuit's decision in Doca. The owner and the operator argued that based on current market information a discount rate of 4.15 percent would reasonably represent a conservative long-term investment. The court held that the Doca discount rate of two percent was a reasonable representation of the present value of the claimant's award for future pain and suffering. Here, the parties had stipulated that if the court applied the two percent Doca discount rate, the present value of claimant wife's $ 500,000 future pain and suffering was $ 347,898.

OUTCOME: The court ordered that the clerk of the court was directed to enter final judgment in favor of claimant wife against the boat operator in the amount of $ 953,122. The court ordered that the owner and operator disclose the remaining policy limits of their insurance coverage.

RICHARD L. TAYLOR, Plaintiff-Appellee, v. TECO BARGE LINE, INC., Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2008 U.S. App. LEXIS 3497; 2008 FED App. 0085P (6th Cir.)
February 20, 2008, Decided

PROCEDURAL POSTURE: Plaintiff former deckhand sued defendant former employer alleging claims under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law. A jury returned a verdict in favor of the employee and awarded him $ 1 million dollars in damages. The United States District Court for the Western District of Kentucky discounted the award and denied the employer's motions for judgment as a matter of law and for a new trial. The employer appealed.



OVERVIEW: The deckhand developed a skin rash after he was ordered to clean out a water tank. The deckhand was given no protective equipment and emerged from the tank covered in dust. He sought medical treatment but the rash continued to worsen. About three years later, the deckhand was again ordered to cleaned the tank and again he developed a reaction. The other employees who cleaned the tank with him also suffered chemical burns. The deckhand sued for personal injuries due to his exposure to coal tar that left him with a permanent, severe skin reaction. The appellate court found that even if the admission of the 2006 photographs was error, the admission did not alter the outcome of the trial because there were uncontested photographs from 2003 which also showed the inflamed condition of the deckhand's skin. The district court did not abuse its discretion when it admitted the material safety data sheets. Even if OSHA did not apply, the testimony regarding OSHA would not have affected the unseaworthiness claim. The jury instructions provided the employer with ample opportunity to establish cleaning substance's harmlessness. The jury's award was supported by the evidence presented.



OUTCOME: The judgment was affirmed.

ROCKY H CAIN, Plaintiff - Appellee v. TRANSOCEAN OFFSHORE USA, INC; SEDCO FOREX CORP, Defendants - Third Party Plaintiffs - Appellants v. FONTANA CENTER LLC, Third Party Defendant - Appellee

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 3643
February 21, 2008, Filed

PROCEDURAL POSTURE: The United States District Court for the Western District of Louisiana denied defendant employer's motion for summary judgment in plaintiff workers's negligence action under the Jones Act, holding that the semi-submersible drilling rig under construction and on which the worker was injured was a vessel because it was capable of transporting workers and equipment over water, and thus, the worker was a "seaman." The employer appealed.



OVERVIEW: The employer argued that under established precedent, the rig was not a vessel in navigation, and therefore the worker was not a Jones Act seaman, because the rig was still under construction at the time of the injury. It further argued that the United States Supreme Court's decision in Stewart did not change prior case law. The appellate court agreed. The rig was still under construction at the time of the injury. Although it was capable of self-propulsion and had run some test pipe, it lacked vital equipment to make it fully operational. An engineer for the employer testified that no contractor would have found the rig fit to drill a deepwater well in the Gulf of Mexico as it was intended to do when complete. An incomplete structure not yet put into navigation as an instrument of commerce was not a vessel. That it was not yet certified as operational and in compliance with all safety requirements cast doubt as to the practicality of its use as a means of transportation. It was not a vessel in navigation and the worker was not a Jones Act seaman; he was not entitled to relief under the Jones Act for his injury.



OUTCOME: The district court's denial of summary judgment on the Jones Act claim was reversed and the case was remanded.

JOHN MORRELL & CO., Plaintiff, vs. ROYAL CARIBBEAN CRUISES, LTD., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2008 U.S. Dist. LEXIS 9575
February 8, 2008, Decided

PROCEDURAL POSTURE: Plaintiff, an employer, brought an action against defendant, a cruise ship operator, asserting claims for subrogation or reimbursement of worker's compensation benefits made to an employee, who was injured during a shore excursion while on a employer-sponsored cruise. The employer alleged claims of negligence and negligent supervision against the operator, and the operator filed a motion for summary judgment under Fed. R. Civ. P. 56.



OVERVIEW: The injured employee had purchased a ticket for a dune buggy shore excursion sponsored by a tour company having an oral agreement with the operator to provide the excursion. The dune buggy accident occurred when a moped struck the dune buggy causing the dune buggy to roll over. Both of the negligence claims against the operator were premised on the an alleged failure to warn that the dune buggy was dangerous and might be involved in an accident with another vehicle. The court granted the operator's motion for summary judgment. Applying Florida law, the court found that the operator had no duty to warn about the obvious danger that the dune buggies used in the excursion, like automobiles, might be involved in collisions with other vehicles driven carelessly by others. The dangerous instrumentality doctrine did not apply because there was no evidence that the operator owned, leased, or otherwise had a property interest in any of the vehicles involved in the accident occurring the shore excursion. Finally, the employer failed to show that even if there had been a breach of a duty to warn by the operator, the breach was the proximate cause of the employee's injuries.



OUTCOME: The court granted the operator's motion for final summary judgment and by separate order entered judgment for the operator.

In the Matter of the Complaint of Bluegrass Marine, Inc., as Owner pro hac vice of the M/V TITLETOWN U.S.A. Official No. 289724, and Marquette Transportation Company, Inc., For Exoneration from or Limitation of Liability
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, PADUCAH DIVISION
2008 U.S. Dist. LEXIS 1038
January 4, 2008, filed

PROCEDURAL POSTURE Limitation petitioners, owners and interested parties in a vessel filed a motion seeking limitation or exoneration of their liability under the Limitation of Liability Act, 46 U.S.C.S. ¤Ê181 et seq., filed a motion for partial summary judgment against plaintiff wife, as personal representative of a deceased's estate. The wife had filed an action after the deceased was killed in a barge accident.

OVERVIEW: The vessel at issue was pushing 15 barges on the Ohio River when it collided with a houseboat, killing the deceased and two other men, and injuring a fourth person. The incident was the subject of two separate law suits that were consolidated. The limitation petitioners filed a claim for exoneration under the Limitation of Liability Act, former 46 U.S.C.S. ¤Ê181 et seq. and a stipulation on liability was granted. The limitation petitioners sought to judicially estop the wife from asserting a claim for loss of support, based on income claims that the wife and the deceased husband had made in November 2003 in a Chapter 13 bankruptcy proceeding that indicated that the deceased, at that time, did not provide income to the family, The court was not convinced that the factors for judicial estoppel were met. The wife's loss of support claim was not clearly inconsistent with the representations made in the earlier bankruptcy proceeding or on earlier tax returns. The wife's loss of support claim did not allow the wife to receive an unfair advantage or impose an unfair detriment on the limitation petitioners. The wife was entitled to produce evidence on the loss of support claim.

OUTCOME: The court denied the motion for partial summary judgment filed by the limitation petitioners.

MCRAE B. SOUTHARD, III, Plaintiff - Appellant, versus PAUL LESTER; OREGON INLET FISHING CENTER, INCORPORATED, Defendants - Appellees.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2008 U.S. App. LEXIS 230
January 7, 2008, Decided

PROCEDURAL POSTURE Appellant passenger sought review of a decision of the United States District Court for the Eastern District of North Carolina, which granted Fed. R. Civ. P. 56(c) summary judgment in favor of appellees, a fishing boat and its captain, in his negligence lawsuit seeking recovery for personal injuries sustained when a wave struck the boat. The passenger also sought review of the district court's denial of his motion to alter or amend the judgment.

OVERVIEW: Before the boat reached the fishing grounds, the captain saw a large wave. He slowed down as quickly as possible, but the captain could not avoid the wave. When the boat struck the wave, it caused the passenger to be lifted out of his seat and sustain serious injuries. In granting summary judgment for appellees, the district court found that the Pennsylvania Rule, requiring a ship to show that its fault was not one of the causes of a collusion, did not apply, and that there was no evidence that the captain breached his duty of care when he failed to avoid the "rogue" wave. On appeal, the court upheld the district court's ruling, agreeing that the Pennsylvania Rule did not apply because there was no collision, since only one boat was involved, and that the record evidence concerning the timing and formation of the "rogue" wave and the captain's response to it did not create a genuine issue of material fact warranting a trial. Due to the court's conclusions regarding the summary judgment ruling, it further found that the district court did not abuse its discretion in denying the motion to alter or amend the judgment.

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

IN RE: GREAT LAKES DREDGE & DOCK COMPANY, L.L.C. COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG
2008 Tex. App. LEXIS 281
January 10, 2008, Opinion Delivered

PROCEDURAL POSTURE An employee filed suit against relator employer asserting claims under the Jones Act, 46 U.S.C.S. ¤ 30104. The employer moved to dismiss or, in the alternative, moved to transfer venue. The 92nd District Court of Hidalgo County, Texas, denied the motion. The employer filed a petition, requesting that the instant court issue a writ of mandamus ordering respondent district judge to enforce a venue-selection agreement.

OVERVIEW: In order for a writ of mandamus to issue, the employer was required to show an abuse of discretion for which an appeal was inadequate. The employer asserted that the trial court abused its discretion in refusing to enforce a forum-selection agreement. In response, the employee asserted that the mandatory venue statute in place at the time suit was filed, former Tex. Civ. Prac. & Rem. Code Ann. ¤ 15.018 (2002) (current version at Tex. Civ. Prac. & Rem. Code Ann. ¤ 15.0181 (2007)), provided that the employee's Jones Act claim could have been brought in the county where the employee resided. Contrary to the employer's arguments, the instant court held that the Texas Supreme Court's recent decisions regarding forum-selection clauses, rejecting the "ouster" doctrine, did not supplant firmly established Texas law regarding the enforcement of venue-selection agreements that contravened a mandatory venue statute. Texas law prohibited parties from contracting away mandatory venue. The trial court, therefore, did not abuse its discretion when it refused to enforce the venue-selection agreement between the employee and the employer.

OUTCOME: The petition was denied.

TIMOTHY DOYLE; GREG HAGAMAN; BRIAN LAGUE; ANTHONY W. RICHARDS; ERIC EDWARDS, Plaintiffs, Appellants/Cross-Appellees, v. HUNTRESS, INC.; RELENTLESS, INC., Defendants, Appellees/Cross-Appellants, GREG BRAY and KYLE GOODWIN, Defendants.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2008 U.S. App. LEXIS 1436
January 25, 2008, decided

PROCEDURAL POSTURE Plaintiff fishermen sued defendant vessel owners, alleging that, as the owners did not reduce to writing their compensation arrangements, they had violated 46 U.S.C.S. ¤ 10601. The U.S. District Court for the District of Rhode Island granted partial summary judgment in favor of the fishermen, finding that a cause of action was created under 46 U.S.C.S. ¤ 11107. At issue on interlocutory appeal was the application of the doctrine of laches.

OVERVIEW: The fishermen, while paid, worked on voyages from 1993 to 2000 under lay share contracts that did not comply with 46 U.S.C.S. ¤ 10601. The vessel owners asserted a laches defense, which the federal district court found meritorious as to all claims before August 1, 1998, three years before the filing of the complaint. Neither ¤ 10601 nor 46 U.S.C.S. ¤ 11107 contained a statute of limitations; the initial determination, therefore, was the most analogous statute of limitations. According to the federal court of appeals, the district court correctly chose R.I. Gen. Laws ¤ 28-14-20, which provided for the coverage of unpaid wages, and which comported with the hospitable view that the law had traditionally taken toward seaman. Further, the lay shares met the R.I. Gen. Laws ¤ 28-14-1(4) definition of wages. Moreover, the district court's reasoning-that it was inequitable to require the vessel owners, who had paid all wages from 1993 to 1998, to come up with additional monies, particularly as the fishermen had been determined not to be as valuable as others to the success of the enterprise-was within its discretion. So too was its calculation of amounts due for claims after August 1, 1998.

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

Thomas Leslie, etc., et al., Appellants, vs. Carnival Corp., etc., et al., Appellees
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2008 Fla. App. LEXIS 9; 33 Fla. L. Weekly D 105
January 2, 2008, Opinion Filed

PROCEDURAL POSTURE Appellant passengers commenced maritime personal injury actions against appellee cruise line in the Circuit Court for Miami-Dade County (Florida). The court dismissed the complaints. The passengers appealed.

OVERVIEW: The passengers contended that the trial court erred by enforcing a forum-selection clause in form contracts issued by the cruise line to the passengers, two of the cruise line's fare-paying customers, prior to embarking on their respective cruises. The clause directed that passenger law suits arising out of a passenger's cruise were to be filed exclusively in the United States District Court for the Southern District of Florida. The passengers' chief grievance regarding the clause was that it stripped them of their constitutional right to a jury trial, and instead afforded them a jury trial in their federal forum only with the consent of both parties, pursuant to Fed. R. Civ. P. 39(c). The cruise line represented in its answer brief that it had no intention of opposing the passengers' request for a jury trial in their pending federal actions. On appeal, the court interpreted the cruise line's statement to mean that if the United States District Court lifted the stays in the passengers' federal admiralty actions, the cruise line would consent to a jury trial in their cases. The court concluded that the forum-selection clause was enforceable under the general maritime law.

OUTCOME: The orders of dismissal were affirmed.

DAVE ROBINSON, Plaintiff-Appellant, v. ALTER BARGE LINE, INC., Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2008 U.S. App. LEXIS 871
January 16, 2008, Decided

PROCEDURAL POSTURE Plaintiff former deckhand sued defendant barge owner in the United States District Court for the Southern District of Illinois under the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/20, the Seaman's Protection Act, 46 U.S.C.S. ¤ 2114(a)(1)(A), state common law for retaliatory discharge, and admiralty tort law. The district court granted summary judgment for the barge owner. The deckhand appealed.

OVERVIEW: The deckhand claimed that he was discharged in retaliation for having complained to management that barge crew members were using illegal drugs while on duty. The court of appeals found that the Illinois Whistleblower Act, which prohibited retaliation based on an employee's refusal to participate in an illegal activity, was inapplicable because there was no indication that the deckhand was fired because he refused to use drugs. Nor did the Seaman's Protection Act apply, as the deckhand had not reported and was not about to report the use of illegal drugs to the Coast Guard or any other federal agency when he was fired. The district court erroneously found that the deckhand's state common law retaliatory discharge claim was preempted by the Seaman's Protection Act and admiralty law. There was no indication that the Seaman's Protection Act was intended to occupy the entire field of retaliatory discharge of seamen, and the saving to suitors provision of 28 U.S.C.S. ¤ 1331(1) precluded automatic preemption of state remedies by admiralty law. The deckhand forfeited a claim that a preemptive admiralty tort existed that prohibited discharge for raising safety concerns.

OUTCOME: The district court's judgment was reversed as to the deckhand's state law retaliatory discharge claim; the judgment was otherwise affirmed. The case was remanded.