District Court’s Failure To Dismiss Employer’s Counterclaim Against Estate Of Jones Act Seaman For Loss Of Ship Was Not Immediately Appealable Under 28 Usc §1292(A)(3)
LUIS BOLANOS, et al., Plaintiffs, -against- NORWEGIAN CRUISE LINES LIMITED, d/b/a NORWEGIAN CRUISE LINES, et al., Defendants.
IN THE MATTER OF THE COMPLAINT OF PMD ENTERPRISES, INC., AS OWNER OF THE VESSEL BETH DEE BOB, FOR EXONERATION FROM AND LIMITATION OF LIABILITY; LISA MCLAUGHLIN, as wife and Personal Representative of the Estate of Edward J. McLaughlin, Deceased, Appellant v. CAPE MAY FOODS, INC. and PETER A. LAMONICA
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2002 U.S. App. LEXIS 17281
On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 00-cv-00161). District Judge: Hon. Garrett E. Brown, Jr.
Appeal was dismissed.
Plaintiff widow filed a wrongful death suit against defendants, the employer of her deceased seaman husband, and others (claims against which were dismissed), under the Jones Act, 46 U.S.C.S. § 688. The employer filed a counterclaim for loss of its ship. The widow moved to dismiss the counterclaim. The United States District Court for the District of New Jersey denied the motion. Relying on 28 U.S.C.S. § 1292(a)(3), the widow appealed.
The district court treated the widow’s motion to dismiss as a motion for summary judgment. The issue for the appellate court was whether the denial of summary judgment determined the rights and liabilities of the parties under 28 U.S.C.S. § 1292(a)(3). The appellate court held that no right or liability of the parties had been conclusively determined. Rather, the district court simply allowed the case to proceed. If the employer proved successful at trial with respect to its counterclaim, the widow could then, on appeal, advance what the appellate court described as an “interesting argument” that the employer could not counterclaim against the seaman’s estate under the Jones Act, 46 U.S.C.S. § 688. Because the district court had not made a decision establishing the rights and liabilities of the parties, 28 U.S.C.S. § 1292(a)(3) did not permit an interlocutory appeal. The widow misconstrued the purpose of 28 U.S.C.S. § 1292(a)(3) in admiralty proceedings — to allow a party found liable in an admiralty proceeding to take an immediate appeal without submitting to a protracted trial of the damage issues.
The appellate court dismissed the appeal for lack of jurisdiction.
Summary Judgment Granted For Employer On Claim For Jones Act Negligence For Injury Sustained In Port When Seaman Was Running A Personal Errand And Summary Judgment Denied As To Maintenance And Cure Claim Where Triable Issue Remains As To Whether Seaman Was Acting In The Scope Of His Employment When He Was Injured.
EDWIN V. CALLBREATH, Plaintiff – Appellant, v. UNITED STATES OF AMERICA, Defendant – Appellee.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 16339
July 8, 2002, Argued and Submitted, Seattle, Washington
August 8, 2002, Filed
Appellant crewmember aboard a ship owned by appellee the United States that was docked at a port facility was injured upon returning from a personal errand. The crewmember sued the government for negligence under the Jones Act, 46 U.S.C.S. app. § 688(a), as well as for maintenance and cure. The United States District Court for the Western District of Washington granted the government’s motion for summary judgment. The crewmember appealed.
The crewmember was injured on railroad tracks that were adjacent to the port facility where his ship was docked. The district court granted summary judgment to the government on the ground that the crewmember was not within the scope of his employment when the accident occurred. The appellate court affirmed the grant of summary judgment on the claim under the Jones Act, 46 U.S.C.S. app. § 688(a), because the crewmember adduced no evidence of employer negligence. Even construing all of the evidence in the light most favorable to the crewmember, he could not prove that the government had any duty to provide for his safe passage across the railroad tracks, which were not under its direct control. Because there was a triable jury question as to whether the crewmember was acting within the scope of his employment while returning to ship on the night of the accident, the district court’s determination to the contrary on the maintenance and cure claim was in error. As maintenance and cure was in no sense predicated on the fault or negligence of the ship owner, the absence of negligence on the government’s part was not sufficient to deny recovery at the summary judgment stage.
The district court’s order which granted the government’s motion for summary judgment was affirmed as to the Jones Act claim, but was reversed as to the claim for maintenance and cure, and was remanded for further proceedings. Costs on appeal were awarded to the crewmember.
Fifth Circuit Court Of Appeals Stays Proceedings On Jones Act Case For Australian Court To Determine Validity Of A Contractual Forum Selection Clause
ALISTAIR J. MACPHAIL, Plaintiff-Appellee, VERSUS OCEANEERING INTERNATIONAL, INC., Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 15782
August 7, 2002, Decided
Appeal from the United States District Court For the Southern District of Texas. G-01-CV-266. Samuel B Kent, US District Judge. MacPhail v. Oceaneering Int’l, Inc., 186 F. Supp. 2d 704, 2002 U.S. Dist. LEXIS 2428 (S.D. Tex. 2002).
VACATED in part, STAYED, and REMANDED.
Appellant employer appealed the decision of the United States District Court for the Southern District of Texas regarding the admiralty and maritime law claim appellee employee brought against the employer. Specifically, the appeal concerned the validity of contractual forum selection clause and an injunction preventing the employer from further prosecuting any action against the employee in Australia.
The suit involved injuries the employee suffered while on a deep ocean diving job for the employer. The employer presented two issues on appeal: (1) whether the district court abused its discretion when it enjoined the employer from prosecuting its contract claims against the employee in Australia; and (2) whether the district court erred when it denied the employer’s motion to dismiss. The court held that the employer instituting an enforcement action in Australia was not duplicitous or vexatious. The two suits were not duplicitous because even though the suit filed by the employee in the Texas arose out of facts contemplated in the release, it was a maritime tort claim. If the District Court of Australia had proper jurisdiction to rule on the validity of the release, as it already had, it was hard for the appellate court to imagine how seeking enforcement of that ruling was vexatious. Whether or not Texas had jurisdiction was a function of whether or not the Australian court had jurisdiction of the suit filed by the employee to secure that court’s approval of his original settlement agreement and release with the employer, which it did.
The appellate court vacated the district court’s order granting the employee’s motion to enjoin and the employer’s motion for reconsideration. Further, the appellate court stayed the district court proceedings pending judgment by the Australian court. The case was remanded for proceedings consistent with the instant opinion.
Court Enters Judgment Against Decedent Sea Captain’s Claims For His Death Pursuant To The Primary Duty Rule Where Court Found That Captain Was Operating Vessel In An Unsafe Manner.
NORTHERN QUEEN INC., an Alaska corporation, as owner and operator of the F/V LIN J, Official No. 538018, for exoneration from or limitation of liability, Plaintiff-Appellee, v. KATHRYN KINNEAR, the Estate of Blake Kinnear, Claimant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
298 F.3d 1090; 2002 U.S. App. LEXIS 15775
June 13, 2002, Argued and Submitted, Seattle, Washington
August 7, 2002, Filed
Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-99-1113-MJP. Marsha J. Pechman, District Judge, Presiding. In re N. Queen, Inc., 2000 U.S. Dist. LEXIS 20142, 2001 A.M.C. 556 (W.D. Wash. 2000).
Claimant estate of decedent sea captain appealed from an order of the United States District Court for the Western District of Washington, that entered judgment in favor of plaintiff vessel owner and operator limiting its liability under the Limitation of Liability Act, 46 U.S.C.S. app. § 181 et seq., to the decedent’s estate under the primary duty doctrine.
Decedent’s estate sought recovery for his death in a shipping accident. The vessel was captained by the decedent, and capsized with the loss of all hands in icy waters off Alaska. At trial, the district court found it was more probable than not that the vessel was traveling too rapidly before the casualty to avoid excessive icing or to permit removal of the ice build-up, and that the presence of 62 crab pots on board prevented the situation involving bilge in the lazarette from being corrected. As captain of the vessel, the decedent assumed responsibility for operating the vessel safely. Since he was the one person on board who could have given orders that could have corrected that situation, his own failure to perform duties imposed on him by his employment precluded his recovery from the vessel owner under the primary duty rule.
The judgment of the district court was affirmed.
Cruise Line’s Summary Judgment Motion Was Granted As To (1) The Retroactive Application Of The Harbor Maintenance Tax For Layover Stops, (2) The Inclusion Of “Port Taxes” And Other Federal Agency Charges; (3) The Inclusion Of Some Charges For Airfare And Land-Based Services, And (4) The Assessment Of “Pre-Billing” Interest On The Principal Owed For Harbor Maintenance Tax.
PRINCESS CRUISES, INC., Plaintiff, v. THE UNITED STATES, Defendant.
Consol. Court No. 94-06-00352, (98-03-00463)
UNITED STATES COURT OF INTERNATIONAL TRADE
2002 Ct. Intl. Trade LEXIS 99; SLIP OP. 2002-99
August 29, 2002, Dated
Princess’s motion for summary judgment granted in part and Customs’ cross-motion for summary judgment granted in part.
In this consolidated action, plaintiff cruise lines contested the assessment and calculation of the Harbor Maintenance Tax (HMT) on passenger cruise ships by defendant, the United States Customs Service (Customs), and Customs’ assessment of pre-billing interest on allegedly underpaid HMT and Arriving Passenger Fee (APF) amounts. The matter was on remand from the Court of Appeals for the Federal Circuit.
Customs notified the cruise line that it had underpaid HMT and APF and owed substantial pre-billing interest on both amounts. The court had previously ruled the HMT unconstitutional, but was reversed on appeal. The appellate court ruled that the Customs’ APF regulation and the HMT statute and regulation were entitled to Chevron deference. The court found that the cruise line was not liable for the HMT on cruises which made only layover stops at HMT covered ports prior to the issuance of the Customs’ ruling resolving the ambiguity in the statute and regulation to include such stops. The court also held that Customs should not have included port taxes and charges for Customs and United States Immigration and Naturalization services in the cruise value on which the HMT was assessed, but was correct in assessing the HMT on the price paid for the cruise exclusive of land-based services and commissions. Thus, the cruise line was not liable for interest on those amounts, but it was liable for interest on the APF amounts.
The cruise line’s summary judgment motion was granted as to (1) the retroactive application of the Customs’ assessment of the HMT for layover stops, (2) the inclusion of “port taxes” and other federal agency charges; (3) the inclusion of some charges for airfare and land-based services, and (4) the assessment of “pre-billing” interest on the HMT principal. Customs’ cross-motion for summary judgment was granted as to all other issues.
Court Denies Employer’s Motion For Summary Judgment That Seaman Is Bound By A Forum Selection Clause In Her POEA Contract Where The Seaman Signed A One Page Document Referring To Two Other Documents That The Seaman Testifies She Did Not Receive.
Jocelyn D. Angeles, Plaintiff, -against- Norwegian Cruise Lines, Inc., Defendant.
No. 01 CV 9441(RCC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 16134
August 28, 2002, Decided
August 29, 2002, Filed
Defendant’s motion for summary judgment denied without prejudice.
Plaintiff former employee brought a maritime action against defendant former employer, a cruise line, alleging sexual harassment and gender discrimination. The employer filed a motion for summary judgment contending that the employment arrangement between the parties was subject to a forum selection clause.
The employee claimed that she was sexually harassed and discriminated against primarily because of conduct of her supervisor. The employer filed a motion for summary judgment, contending that the employment agreement signed by the employee and the employer contained a forum selection clause that gave the Philippine Overseas Employment Administration (POEA) or the National Labor Relations Commission (NLRC) exclusive jurisdiction over the action. The employee had signed a one-page document, which referred to two other standard documents. The forum selection clause was contained in the two standard documents, but the employee claimed in her affidavit that she had never received copies of the two standard documents. The court denied the employer’s motion for summary judgment without prejudice. The court found that the employer had not provided any evidence to rebut the employee’s assertion that she had not been given notice of the forum selection clause. The court indicated that it would reconsider the employer’s motion at a later time, if appropriate after discovery.
The court denied the employer’s motion for summary judgment without prejudice. The court indicated that it would re-hear the employer’s motion, if appropriate, after the employer and the employee had conducted discovery.
Court Finds For Ship Operator And Against Seaman On Jones Act Negligence And Unseaworthiness Claims Based On Injury Allegedly Caused By Seaman Banging Knee On Lashing Device Protruding Into Walkway Where Court Found That Injury Could Be Caused By Repetitive Overuse And Exacerbated By Overweight.
LARRY EDGELL, Plaintiff, v. AMERICAN SHIP MANAGEMENT, LLC, Defendant.
No. C 00-2549 SI
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2002 U.S. Dist. LEXIS 15866
August 20, 2002, Decided
August 20, 2002, Filed
Judgment entered in favor of defendant.
Plaintiff maritime seaman filed a complaint against defendant ship management LLC, alleging causes of action for (1) negligence under the Jones Act, 46 U.S.C.S. § 688, (2) unseaworthiness as to its ship, and (3) for maintenance and cure.
While the seaman was walking on a catwalk inspecting containers, the electricity went out, the ship experienced a blackout, and he took one step and hit his right knee on a bent turnbuckle, a lashing device, which was protruding into the walkway. He testified that “it hurt,” but that rubbed his right knee and shook it off. The court found the kind of plica syndrome plaintiff suffered could be caused by repetitive overuse and exacerbated by overweight. Under the Jones Act, the seaman had the burden of proving by a preponderance of the evidence the LLC was negligent and the negligence was a cause of his injury. He did not meet this burden. He did not prove, by a preponderance of the evidence, the LLC’s negligence, if any, was a cause of his claimed knee injury. On the unseaworthiness claim, he did not prove by preponderance that the vessel was unseaworthy and its condition was a cause of his injury.
The court entered judgment in favor of the LLC and against the seaman, since he failed to meet his burden of proof on any of his claims.
Ship Owner’s Motions For Summary Judgment For Its Liability For The Death Of An Elderly Woman (Grandmother Of Seaman Working For Ship Owner) Denied Where Seaman Is Struck In The Head While Working And Then Later Intentionally Kills His Grandmother.
OBEDEAN CREAR, JR. VERSUS OMEGA PROTEIN, INC.
CIVIL ACTION NUMBER 99-420, REF: ALL CASES SECTION “L” (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15759
August 20, 2002, Decided
August 21, 2002, Filed; August 22, 2002, Entered
Defendant’s motion to dismiss denied and Defendant’s motion for summary judgment denied as premature.
Plaintiff crewmember was struck in the head as he worked on defendant vessel owner’s vessel. The crewmember filed suit against the vessel owner under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law. The crewmember killed his grandmother. The children of the deceased brought suit against the vessel owner and alleged negligence. The suits were consolidated. The vessel owner moved to dismiss and for summary judgment.
The deceased’s children alleged that the proximate cause of the crewmember’s act was the vessel owner’s negligence in injuring the crewmember and in failing to live up to its obligations under the general maritime law, which exacerbated his mental impairment. The vessel owner argued that the claims were governed by general maritime law and that the crew member’s intentional murder of his grandmother, was an unforeseeable, superseding cause of harm for which the vessel owner was not liable. The court found that the incident in which the crewmember killed his grandmother fell within admiralty jurisdiction since the alleged damages were “consummated on land” but were allegedly “caused by a vessel on navigable waters.” The incidents complained of, maritime negligence and/ or unseaworthiness, and failure to provide maintenance and cure, had the potential to disrupt maritime commerce and the general character of the activity showed a substantial relationship to traditional maritime activity. Because the children’s’ claims stemmed from the death of a non-seafarer, and Congress had not prescribed a comprehensive remedy for such claims, state law could supplement general maritime law.
The vessel owner’s motion to dismiss was denied and the vessel owner’s motion for summary judgment was denied as premature, and the vessel owner’s right to rearurge the motion at a later date was reserved.
Court Dismisses Seaman’s Complaint For Wrongful Discharge But Recognizes A Public Policy Exception To The At-Will Nature Of Maritime Employment
WALTER C. KRETZER, Plaintiff/Appellant, v. HESS OIL VIRGINISLANDS CORP., Defendant/Appellee.
Civ. App. No. 2001-0019
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX, APPELLATE DIVISION
2002 U.S. Dist. LEXIS 15576
April 12, 2002, Considered
August 16, 2002, Decided
August 16, 2002, Filed
On Appeal from the Territorial Court of the Virgin Islands. Re: Terr. Ct. Civ. No. 913/1991.
Decision of Territorial Court affirmed.
Appellant seaman appealed the order of the Territorial Court of the Virgin Islands the Territorial Court which entered judgment on the pleadings in favor of appellee, the seaman’s former employer, and found that federal maritime law preempted the seaman, as a seaman operating in territorial waters, from bringing any claim under the Virgin Islands Wrongful Discharge Act (VIWDA), 24 V.I. Code Ann. § 76.
The employer specifically stated that the seaman refused to pilot small ships under the observation of an experienced pilot. The seaman alleged that the employer lacked just cause for terminating him and attempted, but was unable, to meet with the employer to discuss the reasons for his termination. The court agreed with the trial court that maritime law governed the case. The trial judge applied its preemptive effect too broadly in effectively ruling that the seaman, as an at-will employee under federal maritime law, could never bring a claim for wrongful discharge under the VIWDA. Substantive maritime law recognized a public policy exception to the at-will maritime employment, whether such a public policy exception was grounded in the VIWDA or elsewhere. The court also agreed with the trial court, however, that the complaint as it was pleaded did not state a claim for a maritime tort for wrongful discharge and was therefore properly dismissed. Accordingly, the court affirmed the trial court’s judgment, which dismissed the seaman’s complaint on the pleadings.
The court affirmed the decision of the trial court.
Court Reduces Jury Finding Of $80 Maintenance Per Day To $68.95 Per Day For A Jones Act Seaman.
TANNOUS L. BACHIR, Plaintiff, -against- TRANSOCEANIC CABLE SHIP COMPANY and C. S. LONG LINES, L.P., Defendants.
98 Civ. 4625 (JFK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2002 U.S. Dist. LEXIS 14908
August 14, 2002, Decided
August 14, 2002, Filed
A jury awarded plaintiff seaman past maintenance at a rate of $80 per day. Defendants argued in post-trial motions that the seaman was not entitled to the $80 rate, that he was entitled to recover his individual costs and not those of his family members, and that the award should not extend beyond the date that he was declared fit for duty. The court ordered the seaman to submit evidence establishing his actual expenses.
Upon a review of the evidence, the court found as follows: that $10 for food per day was a reasonable amount; the $300 utilities amount did not appear reasonable and since no documentation was provided to support it, that amount was disallowed in its entirety; the seaman’s salary paid the full mortgage amount, the amount was reasonable, and such amount was allowed because to award the seaman any less for a home he shared with his family would cause him to lose his home; the award period extended only to the date the seaman was declared fit; no maintenance was allowed for automobile expenses.
The court reduced the amount of maintenance awarded by the jury and limited the period for which maintenance was to be paid.
Seaman’s Motion In Limine To Preclude Ship Owner From Arguing Contributory Negligence Because Ship Owner Failed To Report The Accident Pursuant To 46 C.F.R. § 4.05-10 Was Denied.
PRESTON P. JOSEPH VERSUS TIDEWATER MARINE, LLC
CIVIL ACTION NO: 01-3594 SECTION: “J”(4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 15711
August 13, 2002, Decided
August 13, 2002, Filed; August 14, 2002, Entered
Plaintiff seaman alleged he was injured when he fell on board defendant’s vessel. In his suit for liability for maintenance and cure he moved in limine to preclude the vessel owner from putting on evidence of its liability and of his contributory negligence due to failure to report the accident in violation of 46 C.F.R. § 4.05-10, and to exclude testimony of one of his own doctors.
The seaman argued that because the owner failed to report his accident as required by 46 C.F.R. § 4.05-10 it was precluded from putting on evidence of the seaman’s contributory negligence; that its submission of an inaccurate accident report created a presumption that the owner was responsible and liable for his injuries. The court disagreed. Even if the owner was required to file a maritime injury report, its failure to do so was not a cause of the injuries. The court also found there was no basis for denying a treating doctor’s testimony that was adverse with respect to the causation of the seaman’s current injured status.
Plaintiff’s motions in limine on liability for maintenance and cure and to preclude his doctor’s testimony were denied.
Cruise Ship Doctor’s Motion To Dismiss Claim Of Malpractice Brought In Florida State Court For Lack Of Personal Jurisdiction Denied Where The Doctor Treated The Patient As The Ship Sailed Into Florida Waters And Docked At The Port Of Miami.
K. RANA, M.D., Appellant, vs. MARION FLYNN, Appellee.
CASE NO. 3D02-216
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2002 Fla. App. LEXIS 11555; 27 Fla. L. Weekly D 1837
August 14, 2002, Opinion Filed
Plaintiff patient sued defendant doctor for medical malpractice. The doctor moved to dismiss for lack of personal jurisdiction. The Circuit Court for Miami-Dade County (Florida) denied the motion to dismiss, and the doctor appealed the order.
The patient had a heart attack while a passenger on a cruise ship. The doctor was the physician on board the ship. The doctor treated the patient as the ship sailed into Florida waters, docked at the Port of Miami, and transport to a local hospital was arranged. The patient claimed that that the care received was inadequate. The appellate court held the trial court properly determined that personal jurisdiction under the long-arm statute was proper over the doctor, who allegedly committed a tort within Florida, Fla. Stat. ch. 48.193(1)(b) (2002). The doctor ministered to the patient’s condition in Florida waters and while in the Port of Miami awaiting transportation to a Miami hospital. These facts were sufficient to establish that the doctor committed a tort within Florida, satisfying jurisdiction under the long-arm statute. In addition, the multiplicity of contacts set forth in the complaint satisfied the minimum contacts requirements. The doctor’s conduct was such that he could reasonably have anticipated being haled into court in Florida.
The order was affirmed.