ALTHOUGH LAUNCH OPERATORS’ DUTIES OF SHUTTLING PILOTS TO BOATS AND MONITORING RADIO CONSTITUTED SEAMEN’S WORK UNDER FSLA, MANY OF THEIR HANDYMAN DUTIES DID NOT. BECAUSE EVIDENCE WAS CONFLICTING AS TO HOW MUCH TIME OPERATORS SPENT ON EACH DUTY, SUMMARY JUDGMENT ON ISSUE OF WHETHER OPERATORS FELL UNDER FLSA’S EXEMPTION FOR SEAMEN WAS INAPPROPRIATE.
J. DANIEL GODARD, JR., et al., Plaintiffs, v. ALABAMA PILOT, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION
2007 U.S. Dist. LEXIS 27009
April 10, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff launch operators filed a collective action under the Fair Labor Standards Act of 1938 (FLSA), as amended, 29 U.S.C.S. § 201 et seq., seeking to recover overtime compensation from defendant employer. The parties filed cross-motions for summary judgment, with the employer arguing that the operators were seamen and therefore were exempt from the overtime provisions of the FLSA under 29 U.S.C.S. § 213(b)(6).
OVERVIEW:
The employer operated a piloting service. The operators’ job entailed shuttling pilots to and from vessels that were leaving port. This duty comprised a maximum of 29.5% of the operators’ work time. The operators performed other duties, such as monitoring the radio and performing handyman work around the station. The employer alleged that the operators were seaman and thus were exempt from the overtime requirements of the FLSA. The court held that (1) whether the operators were “seamen” was determined by rules promulgated under the FSLA, not by the Jones Act definition of “seamen”; (2) the 20% rule, which stated that an employee who spent more than 20% of his time performing tasks that were not rendered primarily as an aid in the operation of a vessel as a means of transportation were not exempt from the FSLA’s overtime requirements, applied; (3) the operators’ shuttling and radio watch duties constituted seamen’s work under the FSLA, but the handyman duties that did not entail the maintenance of the launch vessels did not; and (4) the evidence was conflicting as to how much time the operators spent on non-seaman endeavours, which prevented the court from granting summary judgment.
OUTCOME:
The court denied the cross-motions for summary judgment.
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PLAINTIFF’S CLAIM, SEEKING DAMAGES FOR INJURIES SUSTAINED DURING SHOOTING UNDER NEGLIGENCE THEORY FOR EMPLOYEE’S ASSAULT, FAILED UNDER GENERAL MARITIME LAW. ASSUMING THAT DEFENDANTS OWED PLAINTIFF DUTY OF REASONABLE CARE, THERE WAS NO EVIDENCE THAT DEFENDANTS KNEW OF ASSAILANT’S DANGEROUS TENDENCIES OR THAT IT WAS FORESEEABLE HE WOULD HARM SOMEONE.
TINERMALO TAU, Plaintiff-Appellant v. F/V SAINT JUDE, JOSEPH MALLEY, JANE DOE MALLEY, AND THEIR MARITAL COMMUNITY, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 8981
April 16, 2007, Filed
PROCEDURAL POSTURE:
Plaintiff challenged a judgment from the United States District Court for the Western District of Washington, which granted defendants’ motion for summary judgment on plaintiff’s claims for negligence under general maritime law. The district court found that plaintiff failed to show that a shooting, which caused his injuries, was foreseeable or that defendants failed to exercise reasonable care under the circumstances.
OVERVIEW:
Plaintiff conceded that he was not entitled to recover on his claims for under the Jones Act, 46 U.S.C.S. app. § 688 (current version at 46 U.S.C.S. §§ 30104, 30105), before the district court concluded that he was not entitled to recover under general maritime law. On appeal, the court held that the district court had original jurisdiction because the complaint alleged a Jones Act violation. The court was not required to determine whether the case was governed by maritime law or state law because the result was the same under maritime or state law. Plaintiff advanced negligence, strict vicarious, and strict liability theories for an employee’s assault. There was no maritime theory of strict liability or negligence per se under which defendants could be liable for plaintiff’s injuries. Assuming defendants owed plaintiff a duty of reasonable care, there was no evidence that defendants knew of the assailant’s dangerous tendencies or that it was foreseeable he would harm someone. Plaintiff’s negligent supervision or hiring theory failed under state law, as there was no evidence that defendants knew or should have known of the assailant’s dangerous propensity.
OUTCOME:
The court affirmed the judgment of the district court.
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SUMMARY JUDGMENT WAS REVERSED AND REMANDED BECAUSE IT WAS NOT CLEAR THAT THE CHARTER AGREEMENT EXPRESSED IN CLEAR AND UNEQUIVOCAL TERMS THAT THE BOAT OWNER AND BOAT COMPANY WERE ENTITLED TO INDEMNIFICATION FOR UNSEAWORTHINESS CLAIMS SINCE A STATEMENT TO THAT EFFECT WAS NOTICEABLY ABSENT FROM THE INDEMNITY CLAUSE.
JAMES TYE POOLE VERSUS ELEVATING BOATS, L.L.C.
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2007 La. App. LEXIS 730
April 4, 2007, Filed
PROCEDURAL POSTURE:
Appellant broker challenged the judgment of the 25th Judicial District Court for the Parish of Plaquemines, Louisiana, granting the summary judgment motion filed by appellee boat owner and ordering the broker to indemnify and defend the boat owner and third party plaintiff boat company.
OVERVIEW:
The action arose out of a personal injury sustained by the claimant while he was aboard the boat. The claimant sustained injuries when he fell from an unsecured wood platform located in the vessel’s lavatory. At the time, the claimant was employed by the employer. The employer had used the broker to procure the boat for an offshore construction job. The claimant filed suit against the owner and the boat company. The owner filed a third-party demand against the broker. The appellate court ruled that the district court did not err in determining that the previously executed brokerage agreement was not applicable to the instant dispute, as the terms of the brokerage agreement were nullified by the terms of the charter. The charter agreement solely identified the broker as the charterer and there was an absence of language identifying any other party as having the obligation of indemnifying the owner. Also, there was a genuine issue of material fact as to whether the owner and boat company were entitled to defense and indemnification for the claimant’s claim of unseaworthiness.
OUTCOME:
The judgment was reversed and remanded.
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JUDGMENT FINDING BOATER NEGLIGENT BASED ON FAILURE TO PASS FROM PORT TO PORT IN VIOLATION OF CONNECTICUT LAW WAS AFFIRMED ON OTHER GROUNDS, ALTHOUGH IT WAS ERROR TO BASE NEGLIGENCE FINDING ON FAILURE SINCE COMPLAINT DID NOT MENTION THE CONNECTICUT LAW, OR CONTAIN FACTUAL ALLEGATION THAT BOATER DID NOT PASS FROM PORT TO PORT.
RICHARD W. MICHALSKI ET AL. v. ROBERT HINZ
APPELLATE COURT OF CONNECTICUT
100 Conn. App. 389; 2007 Conn. App. LEXIS 136
April 10, 2007, Officially Released
PROCEDURAL POSTURE:
The Superior Court in the Judicial District of Danbury (Connecticut) found defendant boater negligent and denied his motion for a judgment of dismissal. A motion to assess costs filed by plaintiffs, a fisherman and a passenger, was denied. The boater’s motion for review was granted and an articulation was ordered. After the trial court entered a supplemental decision, all parties appealed. The appeals were consolidated.
OVERVIEW:
The boater argued that a negligence finding was improperly based on his failure to pass from port to port. The appellate court held that the failure to pass from port to port was not pleaded, either with a reference to Conn. Gen. Stat. § 15-131(1) or a factual allegation. The boater was not notified that § 15-131(1) was at issue. Plaintiffs could not recover for negligence from the failure to pass port to port. The fisherman did not claim a variance between the pleadings and the evidence. Plaintiffs did not claim a § 15-131(1) violation, or inform the trial court or the boater that they were pursuing such an allegation. The finding that the boater did not sound his horn was not clearly erroneous. The failure violated Connecticut boating regulations and was a basis for a negligence finding. The horn violation was not based on the federal inland navigation rules. The doctrine of error in extremis did not apply as defendant was negligent. Had he sounded his horn, the collision might have been avoided. Expert testimony was not required. When the motion for a judgment of dismissal was filed, expert testimony had been admitted. Finally, the failure to award plaintiffs costs was in error.
OUTCOME:
The judgment was reversed only as to the denial of plaintiffs’ motion for costs. The case was remanded to the trial court for further proceedings regarding the award of costs. Otherwise, the judgment was affirmed.
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IN A NEGLIGENCE ACTION ARISING OUT OF A MOTOR VEHICLE COLLISION IN WHICH A CREW MEMBER WAS INJURED, THE NONRESIDENT OWNER AND MANAGERS OF A VESSEL WERE NOT SUBJECT TO PERSONAL JURISDICTION BECAUSE THE VESSEL’S CALLS TO PORTS IN TEXAS WERE INSUFFICIENT TO ESTABLISH GENERAL JURISDICTION WHERE THE OWNER AND MANGERS DID NOT CONTROL THE PORTS OF CALL.
PARAMJIT FARWAH, Appellants v. PROSPEROUS MARITIME CORP. AND OCS SERVICES (INDIA) LTD.- DIVISION: NORTRANS MARITIME SERVICES, Appellees
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2007 Tex. App. LEXIS 2743
April 5, 2007, Opinion Delivered
PROCEDURAL POSTURE:
Appellants, relatives of a crew member who suffered fatal injuries in a motor vehicle collision that occurred while crew members were returning to a vessel, filed interlocutory appeals from orders in which the 136th District Court, Jefferson County, Texas, granted the special appearances of appellees, a vessel owner, a vessel manager, an assisting manager, and a crewing manager, and dismissed appellees from the negligence action.
OVERVIEW:
While docked at a Texas port, crew members hired a driver to take them into a town to purchase personal items and supplies. Upon returning to the vessel, the vehicle in which the crew members were traveling was hit by another vehicle. Appellants alleged that appellees, foreign companies that had their principal places of business outside the United States, breached their duty to provide the deceased crew member a safe workplace and safe transportation. On appeal, the court held that appellees’ special appearances were properly granted under Tex. R. Civ. P. 120a because appellants’ claims did not arise from appellees’ purposeful contacts with Texas and appellees did not have continuous and systematic contacts with Texas of such quality that they could be subject to personal jurisdiction. The court held that the vessel’s calls to ports in Texas were insufficient to establish general jurisdiction because appellees did not have the right to control the vessel’s ports of call. The assisting manager’s purchase of supplies and use of repair services in Texas did not satisfy the requirements for personal jurisdiction because the contacts did not relate to the cause of action.
OUTCOME:
The court affirmed the trial court’s orders.
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DISTRICT COURT PROPERLY ENTERED JUDGMENT FOR FIRED TOW-BOAT OPERATOR ON HIS 46 U.S.C.S. § 2114(A)(1)(B) WRONGFUL TERMINATION CLAIM. EVIDENCE SHOWED THAT EMPLOYER HAD IMPLICITLY ORDERED OPERATOR TO PERFORM DUTIES THAT OPERATOR BELIEVED WERE UNSAFE. SECTION 2114(B) SUPERSEDED FED. R. CIV. P. 54(D). EMPLOYER’S CLAIMS FOR COSTS SHOULD BE RECONSIDERED.
LARRY GWIN, Plaintiff-Appellee, v. AMERICAN RIVER TRANSPORTATION COMPANY, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2007 U.S. App. LEXIS 8215
April 10, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff, a fired tow-boat operator, filed a suit against defendant former employer alleging that it violated 46 U.S.C.S. § 2114(a)(1)(B) by terminating him for refusing to perform unsafe duties. The employer appealed after the United States District Court for the Southern District of Illinois denied its motions for judgment as a matter of law, for an award of costs under Fed. R. Civ. P. 54(d), and to compel payment of its experts’ expenses.
OVERVIEW:
The operator alleged that he was fired because he had refused to join, on safety grounds, a purportedly voluntary program that required all-river vessels to push six long tows on the Mississippi River. A jury returned a verdict for the operator but rejected the claims asserted by five co-workers. The employer argued: 1) that the operator’s 46 U.S.C.S. § 2114(a)(1)(B) claim failed as a matter of law because he admitted that the employer had not explicitly ordered him to push the six long tows; 2) that as the prevailing party, it was entitled to a cost award under Fed. R. Civ. P. 54(d); and 3) that the parties had previously agreed to pay each others’ expert fees. The court found error with regard to a portion of the district court’s cost rulings, but otherwise found no error. The evidence showed that employer implicitly ordered the operator to push the six long tows by regularly asking him to do so, despite his prior refusals, and by providing poor performance evaluations based on his failure to push the tows. Fed. R. Civ. P. 54(d) was superseded by 46 U.S.C.S. § 2114(b). The employer was properly denied costs with regard to the § 2114(a)(1)(B) claims, but not as to other claims.
OUTCOME:
The court affirmed the district court’s judgment, but partially reversed its orders denying the employer’s requests for costs. It remanded the case back and directed the district court to determine which of the employer’s costs were solely allocable to claims that the operator and his co-workers had dismissed before the case was submitted to the jury and to determine whether the employer’s expert’s fees were reasonable.
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BECAUSE OF TRIABLE ISSUES REGARDING WHETHER A HUSBAND WAS A DE FACTO OWNER OF A BOAT UNDER NAVIGATION LAW § 48 AND WHETHER A REPAIRMAN HAD BEEN PROPERLY INFORMED OF THE BOAT’S ALLEGED MISALIGNMENT PROBLEMS, THE TRIAL COURT ERRED IN GRANTING THE OWNERS’ MOTION FOR SUMMARY JUDGMENT.
DAVID DOBSON et al., as Parents and Guardians of ETHAN DOBSON, an Infant, Respondents-Appellants, v LINDA J. GIOIA et al., Appellants-Respondents, and FRANCIS A. MARTIN et al., Respondents-Appellants.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
2007 NY Slip Op 3042; 2007 N.Y. App. Div. LEXIS 4440
April 12, 2007, Entered
PROCEDURAL POSTURE:
The parties cross-appealed an order by the Saratoga County Supreme Court (New York) that, inter alia, partially granted the cross-motion of defendant owners, a husband and his wife, for summary judgment in plaintiff parents’ action for personal injuries and spoliation of evidence.
OVERVIEW:
After the owners’ boat flipped to the left and capsized while being operated by a relative, the husband took it to defendant repairman for repairs. While the owners were attempting to sell the boat, it remained in the custody of the repairman, who claimed that the husband granted him permission to operate it for recreational purposes. During one such excursion, the boat again flipped over, injuring the parents’ child. The owners’ insurer was allegedly told by the parents’ attorney to preserve the boat in its current condition and that no repairs, alterations or modifications be made to it. However, the engine and other component parts had already been removed from the boat for purposes of the damage estimate. The appellate court found that the imposition of sanctions against the owners for the alleged spoliation of evidence under CPLR 3126 by its insurer was properly denied. However, triable issues regarding whether the husband was a de facto owner under Navigation Law § 48, and whether the repairman had been properly informed of the alleged misalignment problems. Therefore, the trial court erred in granting summary judgment to the owners.
OUTCOME:
The order was modified by reversing the partial grant of the owners’ cross-motion for summary judgment, the cross-motion was denied to that extent, and, as so modified, the order was affirmed.
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IN A CASE BROUGHT UNDER § 905(B) OF THE LHWCA, IN THE VESSEL OWNERS SOUGHT SUMMARY JUDGMENT, ARGUING THAT THE WORKER WAS UNABLE TO PROVE THAT THEY OWED A LEGAL DUTY TO PROTECT HIM FROM THE INJURY HE ALLEGEDLY SUFFERED, THAT MOTION WAS DENIED BECAUSE THERE WERE SERIOUS FACT ISSUES REGARDING THE CONDITION OF THE VESSEL.
LYDIA CLEMENTS and RAYMOND CLEMENTS VERSUS QUARK, LTD., QUARK FISHING LTD. AJC INTERNATIONAL, INC., AJC INTERNATIONAL (EXPORT), INC., AJC INTERNATIONAL (WEST), INC., AJC INTERNATIONAL TRADING CORPORATION, AJC INTERNATIONAL, LTD., (VIRGIN ISLANDS), AJC ATLANTIC, AJC FOODS, NORBULK SHIPPING (UK) LTD.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2007 U.S. Dist. LEXIS 26387
April 10, 2007, Filed
PROCEDURAL POSTURE:
In a personal injury case brought under § 905(b) of the Longshore and Harbor Workers’ Compensation Act, plaintiff worker sued defendants, the owner/operators (owners) of a vessel and a voyage charterer. The worker claimed that he was disabled due to his injury. The owners moved for summary judgment, arguing that the worker was unable to prove that they owed a legal duty to protect him from the injury he allegedly suffered.
OVERVIEW:
The worker countered that they failed to turn over a reasonably safe vessel to the stevedore. To bolster that argument, the worker relied on testimony from his expert, who testified that the deckboards of the vessel were in substandard condition under circumstances in which insufficient time was given for proper maintenance and no safe alternative was provided to protect the stevedore from the defects. The worker argued that the obvious lack of maintenance and/or the insufficient maintenance by the owners and crew of the vessel raised factual issues as to its responsibility under their control. Further, the expert opined that the grated decks of the vessel were not properly placed, supported, maintained, or designed to support workers and that the owners of the vessel did not comply with the mandatory duty to inspect and find defects and to warn of these defects. The worker’s expert added that there was no safety management system in place to identify and safeguard against risks such as cracked and defective floorboards, as required by the International Safety Management Code. Those serious fact issues precluded the granting of summary judgment in favor of the owners.
OUTCOME:
The motion for summary judgment was denied.
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APPLYING ERIE PRINCIPLES TO CASE THAT WAS REMOVED UNDER 28 U.S.C.S. § 1441(B), COURT HELD THAT PREJUDGMENT INTEREST, WHICH WAS A SUBSTANTIVE ISSUE, WAS GOVERNED BY STATE LAW; THERE WAS NO FEDERAL PREEMPTION AS NO ACT OF CONGRESS PROHIBITED RECOVERY FOR ECONOMIC LOSS AND STATE HAD STRONG INTEREST IN REGULATING ISSUE IN QUESTION.
In re: THE EXXON VALDEZ, SEA HAWK SEAFOODS, INC., Plaintiff-Appellant, v. EXXON CORPORATION and EXXON SHIPPING COMPANY, Defendants-Appellees, and UNITED STATES OF AMERICA, Intervenor-Appellee.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 8621
April 16, 2007, Filed
PROCEDURAL POSTURE:
Plaintiff corporation filed suit against defendant companies, seeking to recover under Alaska state law for business losses resulting from an oil spill. The parties settled all issues except for that of a prejudgment interest rate. The U.S. District Court for the District of Alaska determined prejudgment interest rates under federal law, and plaintiff appealed.
OVERVIEW:
The case had been removed to the court by virtue of 28 U.S.C.S. § 1441(b). The district court used the Treasury rate prescribed by 28 U.S.C.S. § 1961(a). Consequently, the district court determined the prejudgment interest rates to be 4.11% and 3.54% for losses occurring in 1992 and 1993, respectively. On appeal, the court held that Erie principles applied when federal courts exercised jurisdiction over state law claims pursuant to 28 U.S.C.S. § 1441(c). Under that doctrine, a court was to apply state law to substantive issues. Prejudgment interest was a substantive, rather than procedural, issue. Thus, absent federal preemption, state law applied to the issue of prejudgment interest. In reversing, the court held that the Alaska prejudgment interest rate set forth in Alaska Stat. § 09.30.070 applied because no act of Congress prohibited recovery for purely economic loss and Alaska had a strong interest in regulating oil pollution and in providing remedies for damages caused by oil spills. Consequently, as an aspect of the Alaska claims for economic harm, plaintiff’s claims for prejudgment interest were not preempted by federal law.
OUTCOME:
The court reversed the district court’s judgment and remanded the case with instructions to calculate prejudgment interest under Alaska law using a rate of 10.5 percent.
