UPON PROPER STIPULATION U.S. DISTRICT COURT SHOULD DISSOLVE INJUNCTION IN LIMITATION PROCEEDING.
Riverway Harbor Service, St. Louis, Inc., In the matter ofthe complaint of; as owners and/or operators of; in a cause of action forexoneration from or limitation of liability – Bucyrus Erie 30-B Super CraneBarge – M/V Arkie II, Petitioner-Appellee, Fredrick Webber, Claimant-Appellant,Cargo Carriers, a Division of Cargill Marine & Terminal, Inc., Claimant,Riverway Harbor Service, St. Louis, Inc., – M/V Arkie II – Bucyrus Erie 30-BSuper Crane, Third Party Plaintiff, v. Bridge & Crane Inspection, Inc., ThirdParty Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
2001 U.S. App. LEXIS 18728
November 16, 2000, Submitted
August 20, 2001, Filed
The claimant, an individual, appealed the final order entered in the United States District Court for the Eastern District of Missouri following the denial of his motion to dissolve a permanent injunction issued by the district court prohibiting state court proceedings in an admiralty tort action against defendant harbor service.
The claimant was involved in an accident at the harbor service in which a crane malfunctioned and struck the claimant, knocking him into the water. The harbor service filed a complaint invoking admiralty jurisdiction in federal court pursuant to the Limitation of Vessel Owners Liability Act, 46 U.S.C.S. ßß 181-196, seeking exoneration or limitation of liability for the accident. The same day, the claimant filed in state court, seeking damages for personal injury under 46 U.S.C.S. ß 688(a). As required by the injunction, the claimant filed a claim in district court in the limitation proceeding. The claimant moved to dissolve the federal court injunction. The district court denied his initial motion to dissolve and held that his stipulations were inadequate. The claimant filed an amended motion to dissolve, including a supplemental stipulation in conformity with the district court’s order. The district court again refused to dissolve the injunction in a final order. On appeal, the court reversed and remanded because the claimant’s stipulations fulfilled the single-claimant exception permitting limitation of liability and thereby satisfied the limitation statute’s requirements.
The order was reversed and remanded.
SERVICE OF PROCESS BY CERTIFIED MAIL AND BY HAND DELIVERY UPHELD.
SEAN REED vs. WEEKS MARINE, INC.
CIVIL ACTION NO. 01-CV-0759
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2001 U.S. Dist. LEXIS 12847
August 21, 2001, Filed
Plaintiff seaman sued defendant employer pursuant to the Jones Act, 46 U.S.C.S. ß 688 et seq., for injuries he received while working as a crewmember of the employer’s vessel. The employer moved to dismiss the complaint for insufficient service of process or, in the alternative, to transfer venue to another district court.
The court denied the motion to dismiss for failure to effectuate proper service because the employer had received a copy of the summons and complaint by certified mail that was delivered to its principal place of business in another state and the seaman had had a second copy of the summons and complaint hand delivered to the employer’s office. Since the employer had not challenged the authority of the person who had accepted the certified mail on its behalf and had not argued that the receptionist who accepted the hand-delivered copy was not the person in charge of its place of business at the time she received the copy, it was clear that the seaman’s service was effective pursuant to Fed. R. Civ. P. 4(e)(1). Moreover, venue was proper because the balance of interests did not tilt strongly in favor of moving the action to a district that was simply across the river. In other words, the other district was no more convenient to the parties or the witnesses. Therefore, the court declined to disturb the seaman’s choice of forum.
The motion to dismiss was denied.
MOTION IN LIMINIE GRANTED AS TO SEAMAN’S EMAIL TO HIS ATTORNEY THAT WAS PRODUCED BY ACCIDENT.
DANIEL L. JOHNSON, Plaintiff, -against- SEA-LAND SERVICE,INC., Defendant
99 Civ. 9161(WHP)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 11447
August 8, 2001, Decided
August 9, 2001, Filed
In a Jones Act action filed by plaintiff seaman who claimed that he was injured while employed by defendant, the seaman brought a letter-motion seeking to preclude the employer from using at trial an e-mail that was claimed to be privileged, and that was inadvertently produced in discovery.
The employer opposed the motion, arguing that the seaman waived any privilege as to the document, that the document did not contain a privileged communication, and that any claim of privilege was overcome because the document fell within the crime-fraud exception to the attorney-client privilege. The court granted the seaman’s request to preclude the use of the document. The document was an e-mail sent from the seaman to his attorney, and was sent in response to counsel’s inquiry for background information. Therefore the document was covered under the attorney-client privilege. The e-mail did not demonstrate probable cause to believe that either the seaman or his doctor engaged in, or was prepared to engage in, a fraud, and there was nothing that suggested that it was a communication seeking advice on how to perpetuate or cover up a fraud. Thus, the crime-fraud exception did not apply. Under the circumstances, the production of the e-mail was inadvertent and did not waive the attorney-client privilege. The failure to see and withhold the e-mail was, at most, careless, but its production did not evince such extreme carelessness to permit waiver of privileged communications.
The seaman’s application to preclude the employer from using the e-mail at trial of action was granted.
ADA RELIEF FOR PASSENGERS GRANTED IN PART AGAINST CASINO VESSEL
ASSOCIATION FOR DISABLED AMERICANS, INC., DANIEL RUIZ, andLUIS RODRIGUEZ, Plaintiffs, v. CONCORDE GAMING CORPORATION and GOLDCOASTENTERTAINMENT CRUISES, INC., Defendants.
Case No. 99-1058-CIV-HIGHSMITH
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2001 U.S. Dist. LEXIS 12774; 14 Fla. L. Weekly Fed. D 495
August 20, 2001, Decided
August 20, 2001, Filed
Plaintiffs, disabled individuals and an organization supporting the disabled, sued defendants, a gaming corporation and a cruise line, alleging that defendants’ gaming vessel failed to accommodate the disabled persons, in violation of Title III of the Americans with Disabilities Act of 1990 (Title III), 42 U.S.C.S. ß 12181 et seq. The court conducted a trial.
The disabled individuals were wheelchair-bound, and alleged that during their cruise on defendant’s gaming vessel they were confined to the lower deck and they were unable to use the restrooms, the craps table, the bar, the restaurant, and the cashier counter. The court first held that the disability organization lacked standing to assert a Title III claim on behalf of its members, and the gaming corporation was not subject to Title III liability since it was not the vessel owner or operator. Further, with the exception of the restrooms, the disabled individuals failed to show that the areas of the vessel which constituted public accommodations were subject to reasonable modifications to permit access by the disabled individuals. The disabled individuals failed to proffer readily achievable alternatives for services or facilities available only on the upper decks, and unreasonable time and expense precluded installation of an elevator. Further, wait service was available for the bar and restaurant, the height of the cashier counter was required for security reasons, and the proposed modifications to the craps tables would fundamentally alter the nature of the game.
The cruise line was directed to modify its restrooms to accommodate disabled individuals, but the disabled individuals’ claims were otherwise denied.
PERSONAL CONTRACT ACTION IS AN EXCEPTION TO LIMITATION OF LIABILITY ACTION
TRICO MARINE ASSETS, INC., ET AL VERSUS DIAMOND B MARINESERVICES, INC., ET AL
CIVIL ACTION NO. 99-0951 C/W NO. 99-0984, C/W NO. 99-1346 SECTION “N”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 13257
August 17, 2001, Decided
August 21, 2001, Filed, Entered
[*1] Diamond B’s motion to enjoin further prosecution of Texaco’s third party demand in state court DENIED. Diamond B’s motion to hold Texaco and its attorneys in contempt DENIED. Texaco’s motion to recognize Texaco’s rights to Diamond B’s insurance proceeds DENIED.
In two limitation proceedings consolidated with an admiralty suit, defendant shipowners moved for an injunction and sanctions against intervenor employer for the employer’s alleged violation of an order enjoining the commencement and further prosecution of any action against the shipowners pursuant to 46 U.S.C.S. ß 181 et seq. The employer moved for an order recognizing its contractual rights to the shipowners’ insurance proceeds.
Plaintiff vessel owners sued the shipowners after their vessels collided. Both of them then petitioned for exoneration and/or limitation of liability. The court consolidated the three actions and issued the order enjoining commencement and prosecution of other actions against the shipowners. Passengers on the shipowners’ vessel filed claims in both limitation actions. The passengers worked for the employer, and the employer intervened in the limitation actions. The passengers also sued in state court, naming as defendants the captains of the vessels, a mate of one vessel, and the employer. The employer then filed a third-party demand against the shipowners. That action, the shipowners argued, violated the instant court’s injunction. The instant court disagreed. The employer’s third-party demand arose from a personal contract between the employer and the shipowners; thus, the claims fell outside of the Limitation of Vessel Owner’s Liability Act, 42 U.S.C.S. app. ß 181 et seq., and the court’s injunction. For the same reason, the court lacked jurisdiction to recognize the shipowners’ obligation to the employer under their contract.
The court denied all three motions.
CRUISE SHIP PASSENGER SUBJECT TO PASSENGER TICKET EVEN WHEN INJURED ON LAND
RONNIE J. KONIKOFF, Plaintiff, v. PRINCESS CRUISES, INC.,LISTON BRADSHAW d/b/a LISTON RELIABLE TAXI SERVICE, and THE WEST INDIAN COMPANY,LTD., Defendants.
Civ. No. 1999-224
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGINISLANDS, DIVISION OF ST. THOMAS AND ST. JOHN
2001 U.S. Dist. LEXIS 14034
August 13, 2001, Decided
Princess Cruises, Inc.’s motion for summary judgment GRANTED. Princess Cruises, Inc. DISMISSED as a defendant in this action.
Defendant cruise line moved for summary judgment in plaintiff passenger’s action for personal injury damages.
The passenger was on a ship owned and operated by the cruise line. While the ship was docked, she disembarked and used a taxi. As she later exited the taxi, she fell and sustained injuries. She sued the cruise line and others for damages. She alleged that she was the intended third-party beneficiary of a contract or agreement between the cruise line and the taxi to provide tour and taxi services. The cruise line moved for summary judgment based on the statute of limitations. The court held that the passenger could not be an intended beneficiary of the alleged third-party contract, whose expressed intent would be to benefit passengers, without also being a passenger subject to the ticket contract. Because she was subject to the ticket contract, she was subject to its terms. One of those terms was to timely file a action against the cruise line, which she failed to do.
The motion for summary judgment was granted and the cruise line was dismissed as a defendant in the action.
DAMAGES FOR LEGIONAIRES DISEASE EXCESSIVE. ISSUE OF LOSS OF SOCIETY STILL UNDECIDED
RAYMOND HAGUE and MARY RUTH HAGUE, Plaintiffs, – against -CELEBRITY CRUISES, INC., FANTASIA CRUISING, INC., ESSEF CORPORATION, PAC-FAB,INC., ESSEF MANUFACTURING FSC, INC., and SFG, Defendants.
95 Civ. 4648 (BSJ) (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10824
August 1, 2001, Decided
August 1, 2001, Filed
[*1] Defendants’ Rule 50 motion in instant case denied without prejudice. Defendants’ motion for new trial denied.
A jury awarded damages to plaintiffs, a passenger who contracted Legionnaires’ Disease from a cruise ship whirlpool and his wife, in the sum of $350,000 for past pain and suffering, $15,000 for future pain and suffering, $100,000 for past loss of society, and $15,000 for future loss of society. Defendants moved for judgment as a matter of law to strike the damages for loss of society and for a new trial on damages or remittitur.
The cruise line and other defendants’ motion to strike the loss of society damages was denied without prejudice to modification based on the determination of whether such damages were available in admiralty in another, pending bellwether case. The award for past pain and suffering did not shock the conscience of the court given the seriousness of the passenger’s illness. However, the award for future pain and suffering for the injuries, and derivative damages to wife, was seriously erroneous and warranted a new trial. According to the medical testimony, the illness was acute but had no demonstrable permanent effects. Also, the award for loss of society to the wife up to the date of trial was excessive. In the court’s view, given the limited period of incapacity, the evidence justified a maximum award of $25,000.
The court denied the cruise line and other defendants’ motion for new trial, provided that the passenger and his wife accepted a judgment of $350,000 for past pain and suffering, $25,000 for past loss of society, and prejudgment interest.
FEDERAL BOAT SAFETY ACT PREEMPTS COMMON LAW CLAIMS FOR FAILURE TO INSTALL PROPELLER GUARDS
REX R. SPRIETSMA. Adm’r of the estate of Jeanne Sprietsma,Deceased, Appellant, v. MERCURY MARINE, a Division of Brunswick Corporation,Appellee.
Docket No. 89492-Agenda 17-March 2001.
SUPREME COURT OF ILLINOIS
2001 Ill. LEXIS 1039
August 16, 2001, Filed
Appellant survivor filed a wrongful-death action against appellee manufacturer, among others. The circuit court of Cook County (Illinois) granted the manufacturer’s motion to dismiss, finding the claims to be impliedly preempted. The appellate court affirmed, holding that the common law claims for failure to install propeller guards were expressly preempted. The supreme court granted the survivor’s petition for leave to appeal.
The issue was whether the Federal Boat Safety Act of 1971 (FBSA), 46 U.S.C.S. ß 4301 et seq. (1994), preempted state common law causes of action based on the manufacturer’s failure to install propeller guards on its boat engines. The survivor’s decedent fell from a motor boat and was struck by the motor’s propeller blades. Although the survivor’s claims bore upon state and federal concerns, the supreme court ruled that federal concerns predominated. Therefore, the supreme court did not apply a presumption against preemption. The supreme court addressed whether the FBSA expressly preempted the survivor’s common law tort claims. The inclusion of a savings clause prohibited a broad reading of the express preemption provision, so there was no express preemption. However, the supreme court found that implied preemption was warranted in order to continue the line of uniformity laid down by the federal courts that found preemption under the FBSA. Several federal district courts and courts of appeal found preemption, express or implied, in similar propeller guard cases.
Judgement was affirmed.