Unsafe on the High Seas

by Charles R. Lipcon

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Cruise Line Law Reporter

February 2007 ISSUE:
FLORIDA SUPREME COURT FOUND THAT IT WAS REQUIRED TO ADHERE TO THE FEDERAL PRINCIPLES OF HARMONY AND UNIFORMITY WHEN APPLYING FEDERAL MARITIME LAW, AND, THUS, THAT IT WAS REQUIRED TO RULE IN A CASE CERTIFIED TO IT OF GREAT PUBLIC IMPORTANCE THAT THE SHIP OWNER WAS NOT VICARIOUSLY LIABLE FOR THE MEDICAL NEGLIGENCE OF THE SHIP BOARD PHYSICIAN.

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.

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SUMMARY JUDGMENT FOR EMPLOYER/VESSEL OWNER WAS IMPROPER IN PERSONAL INJURY ACTION BECAUSE EMPLOYEE RAISED GENUINE ISSUE AS TO STATUS AS "SEAMAN" UNDER JONES ACT; EMPLOYEE ALSO RAISED GENUINE ISSUE WITH RESPECT TO CHARACTERIZATION OF RAMP AND EXERCISE OF TURNOVER DUTY FOR PURPOSES OF CLAIM UNDER 33 U.S.C.S. § 905(B) OF LHWCA.

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.

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IN A JONES ACT CASE, AN EMPLOYEE WAS A SEAMAN WHILE THE DREDGE TO WHICH HE HAD BEEN ASSIGNED WAS UNDERGOING REPAIRS BECAUSE HIS BASIC ASSIGNMENT DID NOT CHANGE WHEN HE WORKED AT THE REPAIR FACILITY; HE CONTRIBUTED TO THE FUNCTION OF THE DREDGE BY REPAIRING IT.

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.

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UNDER RHODE ISLAND STATE LAW, WHICH APPLIED A THREE-YEAR PERIOD FOR WAGE CLAIMS, 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, 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.

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.

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A SHIP CHARTERER'S MOTION TO VACATE A MARITIME ATTACHMENT ORDER WAS GRANTED. PLAINTIFF'S INDEMNITY CLAIM AGAINST CHARTERER WAS NOT RIPE BECAUSE IT HAD NOT YET BEEN ORDERED TO PAY DAMAGES TO VESSEL OWNER. PLAINTIFF DID NOT HAVE VALID PRIMA FACIE ADMIRALTY CLAIM, WHICH WAS REQUIRED FOR ATTACHMENT ORDER UNDER SUPP. R. CERTAIN ADM. & MAR. CL. B, E.

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.

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AN INDEMNIFICATION CLAIM THAT A CARRIER FILED AGAINST A STEVEDORE WITHIN THE THREE-YEAR LIMITATIONS PERIOD SET FOR IN A STEVEDORING CONTRACT BETWEEN THE CARRIER AND THE STEVEDORE WAS TIMELY BECAUSE A ONE-YEAR LIMITATIONS PERIOD THAT WAS SET FORTH IN A BILL OF LADING ISSUED TO A SHIPPER APPLIED TO CARGO-DAMAGE CLAIMS AND NOT TO INDEMNITY CLAIMS.

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.

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SECTION 29 U.S.C.S. § 213(B) OF THE FAIR LABOR STANDARDS ACT OF 1938 (FLSA) APPLIED TO A PUTATIVE CLASS OF FOREIGN SEAMEN WORKING ON A FOREIGN-FLAG VESSEL OPERATING IN THE GULF OF MEXICO; A GENUINE ISSUE OF FACT EXISTED AS TO WHETHER THE VESSEL WAS OWNED PRO HAC VICE BY AN AMERICAN CORPORATION THAT PAID SUBMINIMUM AND NO OVERTIME WAGES TO FOREIGN SEAMEN WHO WORKED AS RIGGERS.

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.

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IN A CASE WHERE AN INJURED PARTY SUFFERED A FALL DURING A TRANSPORT FROM A VESSEL TO A FIXED PLATFORM, THE OUTER CONTINENTAL SHELF LANDS ACT, 43 U.S.C.S. § 1331, DID NOT APPLY WHERE THE EVIDENCE SHOWED THAT THE INJURED PARTY NEVER MADE IT TO THE PLATFORM; THEREFORE, THE CLAIM WAS PRESCRIBED UNDER 46 U.S.C.S. § 763(A).

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.

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