LAND BASED DUMP-FOREMAN WHO WAS PERMANENTLY ASSIGNED TO A DREDGE BUT WHO ONLY SPENT 10 PERCENT OF HIS TIME ABOARD SUCH DREDGE WAS NOT A SEAMAN FOR JONES ACT PURPOSES.

MILFRED J. NUNEZ Plaintiff – Appellee – Cross-Appellant VERSUS B & B DREDGING, INC. ET AL, Defendants; CLARENDON AMERICA INSURANCE COMPANY, Defendant – Appellant – Cross-Appellee

No. 00-30993
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 7410
April 23, 2002, Decided

PRIOR HISTORY: Appeals from the United States District Court For the Eastern District of Louisiana, New Orleans. 98-CV-2572-S. Mary Ann Vial Lemmon, US District Judge.

DISPOSITION:

Reversed and rendered.

PROCEDURAL POSTURE:

The United States District Court For the Eastern District of Louisiana, New Orleans, granted summary judgment against appellants, employer and insurer, holding that appellee land-based employee was a seaman as a matter of law, and thus could enjoy seaman status. The appeal followed.

OVERVIEW:

The court of appeals agreed that it was error to conclude that the employee was a seaman. The employee’s job as dump foreman contributed to the function and mission of the vessel. This was uncontested. His connection to the vessel had to be substantial in both duration and nature. The duration and the nature of his activities had to be considered together. The ultimate inquiry was whether the worker was a crewmember or simply a land-based employee who worked on the vessel. The employee argued that this was disjunctive, because he was permanently assigned to the dredge, and as such, had the requisite connection to a vessel. The court disagreed. This interpretation ignored the fact that a seaman’s connection with a vessel included a temporal requirement. A worker who divided his work time between the shore and the vessel had to demonstrate that he spent a substantial part of his time aboard. The employee spent approximately 10 percent of his work time aboard the dredge, which was insubstantial. Also, since the tortfeasor already settled, the damage award was reduced. Although the employee cross-appealed the reduction, the court’s holding rendered this cross-appeal irrelevant.

OUTCOME:

The judgment was reversed and rendered in favor of the employer.

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DOCKWORKER WHO SPENT OVER HALF OF HIS TIME OVER A FIVE MONTH PERIOD ABOARD A BARGE TIED TO A PIER BUT SPENT THAT TIME MAKING REPAIRS TO THE PIER WAS NOT A SEAMAN FOR JONES ACT PURPOSES.

GERARD O’HARA and LISA O’HARA, Plaintiffs-Appellants, v. WEEKS MARINE, INC. and COLLAZO CONTRACTORS, INC., Defendants-Appellees.

Docket No. 00-7872
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2002 U.S. App. LEXIS 6419
March 15, 2001, Argued
April 1, 2002, Decided

PRIOR HISTORY:

Appeal from two orders of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) granting the defendants’ motions for summary judgment on the plaintiffs’ claims under the Jones Act and the Longshore and Harbor Workers’ Compensation Act, and denying the plaintiffs leave to amend their complaint to add state law claims. We hold that the district court correctly dismissed the Jones Act claims against both defendants. We conclude, however, that the plaintiffs proffered evidence sufficient to withstand Weeks Marine, Inc.’s motion for summary judgment on their claims under the Longshore and Harbor Workers’ Compensation Act. We further hold that this evidence may suffice to state a claim under New York State law. We therefore vacate in part and remand for the district court’s further consideration of these issues.

DISPOSITION:

Affirmed in part, vacated in part, and remanded.

PROCEDURAL POSTURE:

Plaintiffs, a dockworker and his wife, appealed from a judgment of the United States District Court for the Eastern District of New York granting the defendants, subcontractor/employer and general contractor’s summary judgment on claims under the Jones Act, 42 U.S.C.S. App. 688, and the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., and denying them leave to amend their complaint.

OVERVIEW:

The dockworker’s Jones Act claims against both the employer/subcontractor and the general contractor were dismissed because the barge on which the dockworker sustained his injury was not a “vessel in navigation;” and because he did not qualify as a “seaman” within the meaning of the Jones Act. On review, the court of appeals agreed with the district court that the dockworker did not qualify as a “seaman” under the Jones Act, and agreed that the dockworker’s connection to the vessel qua vessel (a barge) was insufficiently substantial in terms of both its duration and its nature, to support the conclusion that he qualified as a seaman. Notably, he spent more than half his working hours during a five-month period aboard the barges, but spent all of that time performing tasks related to repair of the Staten Island pier, while the barges were secured to the pier. However, because issues within the province of the trier of fact could subject the employer/subcontractor to liability as a third-party vessel owner pursuant to 33 U.S.C.S. § 905(b), the court of appeals concluded that the district court’s grant of summary judgment to the employer/subcontractor on the LHWCA claim was mistaken.

OUTCOME:

The district court’s dismissal of the dockworker’s Jones Act claims and his LHWCA claim against defendant, general contractor were affirmed. The district court’s grant of summary judgment to employer/subcontractor on the dockworker’s claims under the LHWCA and its denial of O’Hara’s motion to amend his complaint were reversed and remanded for further proceedings.

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FILIPINO SEAMAN’S JONES ACT CLAIMS DISMISSED PURSUANT TO A POEA (PHILIPPINES OVERSEAS EMPLOYMENT AGENCY) FORUM SELECTION CLAUSE IN HIS EMPLOYMENT CONTRACT WHICH SETS FORTH EXCLUSIVE JURISDICTION FOR SUCH CLAIMS IN THE PHILIPPINES

ERNANY DE JOSEPH, Plaintiff, v. ODFJELL TANKERS (USA), INC.,ODFJELL TANKERS A.S.A., ODFJELL A.S.A., and M/T BOW FAGUS, Defendants.

CIVIL ACTION NO. G-01-215
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2002 U.S. Dist. LEXIS 7643
April 18, 2002, Decided
April 18, 2002, Entered

DISPOSITION:

Defendants’ Motion to Dismiss GRANTED, and Plaintiff’s action DISMISSED WITHOUT PREJUDICE.

OVERVIEW:

A Filipino seaman was injured aboard a Norwegian-flagged vessel. Like all other Filipino seamen hired to work aboard foreign vessels, the Plaintiff executed a contract of employment approved by the Philippine Overseas Employment Agency (“POEA”) which stipulates: “All claims, complaints or controversies relative to the implementation of this overseas employment contract shall be resolved through the established Grievance Machinery in the Revised Employment Contract for Seafarers. If result of the procedure is unsatisfactory to any of the parties, it may be appealed to the management of the company or with the Philippine Labor Attaché or consular office overseas. This procedure shall be without prejudice to any action that the parties may take before the appropriate authority.” As a result of the injuries sustained while he was in the service of the vessel, the Plaintiff filed suit against Defendants seeking to recover damages under the Jones Act and the General Maritime Law of the United States for injuries arising from the August 3, 2000 incident. Defendants thereafter filed a Motion to Dismiss, asking the Court to dismiss Plaintiff’s action on the basis of the forum selection clause contained in Plaintiff’s POEA employment contract, or in the alternative, on the grounds of forum non-conveniens. The court held the forum selection clause at issue is both valid and enforceable. The Court wholly rejects Plaintiff’s insinuation that the last sentence of Paragraph 4 somehow renders the POEA forum selection clause permissive or ambiguous. In stark contrast, the Court unequivocally holds that the instant POEA forum selection clause is mandatory and exclusive, such that the Plaintiff is required by its plain terms to adjudicate his grievance solely in a Filipino venue. Although the Court admittedly sympathizes with Plaintiff’s plight, as it does in any and every case involving an injured seaman, it also realizes that the POEA forum selection clause was designed to protect Filipino seamen working aboard international vessels. That vessel owners, who are also obliged to accept the POEA terms, rather than Filipino seamen, have thus far been the parties seeking to enforce these clauses, does not in any way diminish the beneficent and liberal purposes behind the enactment.

OUTCOME:

Plaintiff’s claims were dismissed to bring in the Philippines under the POEA contract provisions.

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INJURED BOAT PASSENGERS CLAIMS OF NEGLIGENT REPAIR, MAINTENANCE, BREACH OF CONTRACT AND BREACH OF WARRANTIES DISMISSED AGAINST THE SELLER OF THE BOAT; HOWEVER, PASSENGERS’ CLAIM OF NEGLIGENT FAILURE TO WARN AGAINST SELLER SURVIVES MOTION TO DISMISS.

NANCY LEE SMITH, individually and on her own behalf and on behalf of: JOSHUA OSBORNE, JONATHAN OSBORNE and THOMAS OSBORNE, minors by their parent and guardian Nancy Lee Smith, KEVIN McGINN, individually and on his own behalf and on behalf of: ERIN McGINN, CONNOR McGINN and REBECCA McGINN, minors by their parent and guardian Kevin McGinn, DAWN HACKETT, JOSEPH PECORARO, LINDA PECORARO and MICHAEL HUREWITZ, Plaintiffs, – against – JOSEPH MITLOF, et al.,Defendants/Third-Party Plaintiff, – against – THE MARITIME AQUARIUM AT NORWALK,INC., Third-Party Defendant. SUSAN THORSON, WILLIAM L. THORSON, DENNY JACOBSON,ELEANOR BUDOFF, HELEN GURVITCH, JOHN L. RUSSO and FRANCIS O’BRIEN, Plaintiffs, -against – THE MARITIME AQUARIUM AT NORWALK, INC., et al., Defendants.

99 Civ. 10833 (WCC), 01 Civ. 7880 (WCC) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 2002 U.S. Dist. LEXIS 6931 April 17, 2002, Decided

DISPOSITION:

Plaintiffs’ claims of negligent repair or maintenance, negligent misrepresentation, fraud, violation of statutory duty, breach of contract and breach of express and implied warranties against defendant Norwalk Maritime dismissed with prejudice. Defendant Norwalk Maritime’s motion to dismiss with respect to plaintiffs’ claim of negligent failure to warn denied.

PROCEDURAL POSTURE:

The instant case involved two related actions brought by plaintiff, passengers, who suffered injuries when a pontoon boat they were riding in capsized. Defendants, individual buyer of the boat, the seller and others, moved to dismiss both claims. The passengers maintained that their numerous claims in contract and tort were brought pursuant to the court’s admiralty jurisdiction pursuant to 28 U.S.C.S. § 1333(1).

OVERVIEW:

The passengers alleged that the corporation was aware that the boat was dangerous and non-compliant with the federal regulations, including regulations regarding stability and hull integrity. This information was not disclosed to the individual when he purchased the boat. The court held that the contract was unequivocally one for the sale of a vessel. Therefore, passengers’ breach of contract claims against the corporation did not come within the court’s admiralty contract jurisdiction. Nor did admiralty tort jurisdiction apply. The pivotal issue presented was whether the corporation owed a duty to the passengers. If the corporation knew or had reason to know that, as a result of the vessel’s latent defects and limitations, the boat would be dangerous for the individual’s intended use, and had reason to believe that the individual would not discover these defects, it could be found liable to prospective passengers for failure to warn of the dangerous conditions. Because the corporation may have owed the boat’s users a duty to warn of defects, corporation’s motion to dismiss the passengers’ claims involving its negligent failure to warn was denied.

OUTCOME:

The passenger’s claims of negligent repair or maintenance, negligent misrepresentation, fraud, violation of statutory duty, breach of contract and breach of express and implied warranties against the corporation were dismissed with prejudice. However, the corporation’s motion to dismiss with respect to the passengers’ claim of negligent failure to warn was denied.

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JONES ACT SEAMAN WHO HAD SUMMARY JUDGMENT GRANTED AGAINST THEM IN LOUISIANA STATE COURT FOR FAILURE TO BRING SUIT IN A FOREIGN JURISDICTION AND THEN WHO REFILED IDENTICAL CLAIMS IN FEDERAL COURT IN LOUISIANA ARE BARED FROM DOING SO PURSUANT TO RES JUDICATA.

REYNOLD KALLOO and TYRONE STEVENSON VERSUS TT BOAT CORPORATION

CIVIL ACTION NO. 02-138 SECTION “N”(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 7416
April 15, 2002, Decided
April 15, 2002, Filed; April 16, 2002, Entered

DISPOSITION:

Defendant T. T. Boat Corporation’s Rule 12(b)(6) Motion to Dismiss, summary judgment GRANTED. Plaintiffs’ claims dismissed in their entirety as barred by the doctrine of res judicata.

PROCEDURAL POSTURE & OVERVIEW:

Plaintiffs originally filed suit against TT Boat in the Civil District Court for the Parish of Orleans, State of Louisiana asserting causes of action under the Jones Act, 46 U.S.C. § 688, the general maritime law for unseaworthiness, along with various state and foreign law claims. The state court suit was prosecuted only against TT Boat, since the Louisiana court was without jurisdiction over the Tidewater entities. TT boat filed a Motion for Summary Judgment in the Civil District Court proceeding seeking dismissal of the plaintiffs’ state court suit arguing that 46 U.S.C. § 688(b), which precludes actions in United States courts by certain foreign seamen, served to bar plaintiffs’ claims subject to the jurisdiction of the courts of either Trinidad-Tobago or Colombia. The trial court denied TT Boat’s Motion for Summary Judgment. The Louisiana Fourth Circuit Court of Appeals unanimously reversed and granted summary judgment in favor of TT Boat — precisely the same relief requested by that defendant in its motion for summary judgment — dismissing plaintiffs’ claims against it (i.e., with prejudice as to the plaintiffs’ Jones Act, General Maritime Law, and State law claims, and without prejudice as to plaintiffs’ right to proceed with foreign law claims in foreign venues with jurisdiction over such claims). The Louisiana Supreme Court denied plaintiffs’ Application for Writ of Certiorari and Review from the Decision of the Court of Appeal for the Louisiana Fourth Circuit. Plaintiffs did not file a writ application with the United States Supreme Court. Instead, the foreign plaintiffs filed an identical complaint in U.S. District Court for the Eastern District of Louisiana, urging the same claims which are the subject of the Louisiana Fourth Circuit Court of Appeal’s ruling granting TT Boat’s Motion for Summary Judgment, seeking dismissal of the plaintiffs’ federal and state law claims with prejudice, and dismissal of the plaintiffs’ foreign law claims without prejudice to any right they may have to proceed in the foreign jurisdictions aforestated. Plaintiffs base their arguments on exceptional circumstances because their time to file suit in the foreign jurisdictions lapsed.

OUTCOME:

Considering that the Louisiana Fourth Circuit previously considered the issue of exceptional circumstances and rejected plaintiffs’ argument in that regard, re-litigating that issue again in this Court would permit an end-run around the doctrine of res judicata, which Louisiana courts broadly construe. Principles of comity counsel in favor of respecting final decisions of Louisiana courts, and in this case the Court is presented with all of the facts necessary to make the determination that res judicata serves to bar the plaintiffs’ claims in the captioned proceeding.

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COURT’S RULING ON JONES ACT CLAIM AFFIRMED DESPITE EMPLOYER’S MOTION TO RECUSE THE TRIAL JUDGE BECAUSE HE AND THE SEAMAN’S COUNSEL WERE FRIENDS, THE SEAMAN’S COUNSEL HAD REPRESENTED THE JUDGE IN AN ELECTION DISPUTE, THE SEAMAN’S COUNSEL HAD HELPED WITH THE JUDGE’S JUDICIAL CAMPAIGN AND THE SEAMAN’S COUNSEL’S IN-LAWS HAD PURCHASED THE JUDGE’S FORMER OFFICE BUILDING.

HAROLD YOUNCE VERSUS PACIFIC GULF MARINE, INC. AND ABC INSURANCE COMPANY

NO. 01-CA-546
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-546 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 991
April 10, 2002, Decided

DISPOSITION:

AFFIRMED.

PROCEDURAL POSTURE:

Plaintiff seaman sued defendant employer in the Twenty-Fourth Judicial District Court, Jefferson Parish (Louisiana), for damages under the Jones Act and general maritime law for injuries incurred unloading a vessel, and attorney fees because the employer stopped his maintenance and cure payments. The employer’s motion to recuse the trial judge was denied. Judgment was awarded to the seaman for damages and attorney fees. The employer appealed.

OVERVIEW:

The employer argued that the trial court erred in denying its recusal motion because the trial judge and the seaman’s co-counsel were personal friends, co-counsel had helped with the judicial campaign, co-counsel had represented the judge in an election dispute, and co-counsel’s in-laws had purchased the judge’s former office building. The trial judge stated their friendship had been disclosed. The appellate court saw no reason to disturb the ruling on the motion to recuse the trial judge. The employer also argued that the trial judge’s findings of unseaworthiness and negligence were manifestly erroneous, the findings regarding medical causation and lost income were not correct, and they disputed the amount of the general damage awards and the finding that the seaman was entitled to attorney’s fees on the maintenance and cure claim. Finally, they raised several errors regarding the admission of evidence during the trial. The appellate court found no manifest error in any of the trial judge’s findings or rulings. The appellate court noted that the trial judge’s findings were amply supported in the record.

OUTCOME:

The appellate court affirmed the trial court’s judgment.

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A JONES ACT SEAMAN WHO FAILS TO DISCLOSE PRIOR INJURIES TO HIS EMPLOYER IS BARRED FROM MAKING A CLAIM FOR MAINTENANCE AND CURE FOR THE SAME INJURIES IN A SUBSEQUENT ACCIDENT.

LAZARO HERNANDEZ VERSUS BUNGE CORPORATION, MCKINNEY TOWING,INC., ZEN-NOH GRAIN CORPORATION, WELCOME FLEET & STATE OF LOUISIANA BARGE SERVICE, INC., ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY AND XYZ INSURANCE COMPANY

NO. 01-CA-1201
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-1201 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 993
April 10, 2002, Decided

DISPOSITION:

AFFIRMED.

PROCEDURAL POSTURE:

Plaintiff employee filed a petition for damages for injuries he sustained while working for defendant barge company. In his original petition, the employee asserted a Jones Act, specifically 46 U.S.C.S. § 688, and an unseaworthiness claim. The employee also asserted a claim for maintenance and cure against the barge company. The 29th Judicial District Court, Parish of St. Charles, State of Louisiana, dismissed his claims. The employee appealed.

OVERVIEW:

The employee was working as a deckhand when he injured his back and shoulder. The employee, however, had been previously injured. The employee’s physician testified that the employee had a permanent disability of 10 to 20 percent after the first accident, which did not change after the second accident. On appeal, the employee argued that the information about the first accident that was not disclosed to the barge company was immaterial, and was not connected to the second injury. The employee did not refute that he fraudulently filled out his employment application. He also lied to the physician chosen by the barge company. There was no indication that the barge company was privy to the information that the employee suffered a prior work related back injury. Under these circumstances, the trial court was correct in it’s finding that the employee forfeited his right to maintenance and cure benefits through his misrepresentations. The trial court also correctly found that the employee failed to meet his burden to support his negligence claim. Finally, the appellate court could not say the trial court erred in finding that there was no showing of unseaworthiness in this case.

OUTCOME:

The appellate court affirmed the trial court’s judgment.

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ELEVENTH CIRCUIT HOLDS THAT FEDERAL FORUM NON CONVENIENS LAW TRUMPS FLORIDA FORUM NON CONVENIENS LAW IN DIVERSITY CASES WHERE THERE IS A FEDERAL COUNERVAILING INTEREST AT STAKE – REVERSING DISTRICT COURT JUDGMENT OF DISMISSAL OF PASSENGER INJURY CLAIMS AGAINST ITALIAN CRUISE LINE WITH MIAMI MARKETING, SALES, AND ADVERTISING OFFICE

PATRICIA ESFELD, DONALD ESFELD, her husband, Plaintiffs-Appellants, versus COSTA CROCIERE, S.P.A., a foreign corporation doing business in Miami-Dade County, Florida, Defendant-Appellee. ELEANOR COHON,JULIAN COHON, her husband, Plaintiffs-Appellants, versus COSTA CROCIERE, S.P.A.,a foreign corporation, Defendant-Appellee. BELLE BESTOR, STANLEY BESTOR, her husband, Plaintiffs-Appellants, versus COSTA CROCIERE, S.P.A., a foreign corporation doing business in Miami-Dade County, Florida, Defendant-Appellee.

No. 01-11072, No. 01-11073, No. 01-11074
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2002 U.S. App. LEXIS 7867
April 30, 2002, Decided
April 30, 2002, Filed

PRIOR HISTORY:

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 00-01662 CV-SH, D.C. Docket No. 00-01661 CV-SH, D.C. Docket No. 99-01914 CV-SH. Bestor v. Costa Crociere, S.P.A., 128 F. Supp. 2d 1356, 2000 U.S. Dist. LEXIS 19714 (2000, S.D. Fla., Oct. 25).

OVERVIEW:

These consolidated cases arise out of an accident that occurred during a guided van tour through the Da Nang area of Vietnam. Appellants are three elderly married couples that were injured in the accident, which occurred in January of 1994. All three couples are United States citizens, the Bestors residing in the State of California, and the Cohons and Esfelds residing in the State of Washington. At the time of the accident, the Appellants were on a Western Pacific cruise that had begun in Singapore and was set to terminate in Hong Kong. The cruise ship upon which they were traveling, the Ocean Pearl, was owned and operated by Costa. The three couples had contracted with Costa in 1993 to take the 13-night cruise of the Western Pacific aboard the Ocean Pearl. Although Costa is an Italian corporation, n2 the Appellants have argued throughout this litigation that all of Costa’s marketing, advertising, and sales for the United States are done through an office in Miami with over 110 employees. These marketing and sales activities, the Appellants assert, generate between 30,000 and 52,000 United States customers per year. They also argue that Costa advertises in all major United States markets, runs an Internet site from Miami, and issues cruise brochures that list Miami as its address. According to the Appellants, the advertising was successful with respect to them, for they contracted for the Western Pacific cruise only after receiving uninvited solicitations in the United States from Costa, through American travel agents. The travel agents booked the cruise for them, and arrangements for the trip then were made through a company affiliated with Costa that was located in South Florida. It is as a result of these Miami-based sales activities by Costa, the Appellants maintain, that they contracted for the Western Pacific cruise that took them to Vietnam. After the accident in this case, Costa was acquired in part by Carnival Corporation, which is headquartered in Miami, Florida. Costa moved to dismiss pursuant to the doctrine of forum non-conveniens. The court determined that the primary question in these consolidated cases is whether there is a federal countervailing interest at stake that trumps the application of Florida law on forum non-conveniens in diversity cases. The court decided that federal law on forum non-conveniens should apply. This decision was based on the court’s analysis showing that several federal interests, other than restricting access to the federal docket, are at stake in the forum non-conveniens context. Such interests include the federal goal of ensuring that United States citizens generally have access to the courts of this country for resolution of their disputes; the federal government’s interest in foreign relations; and the federal concern over maintaining a national, unified set of venue rules among the several circuits. These federal interests trump outcome-determinative state law on forum non-conveniens.

OUTCOME:

The court of appeals reversed the judgment of dismissal of the district court and remanded for further proceedings.