Seaman Who Was Injured While Exiting A Crane Which Should Have Been Operated By Remote Control Awarded Judgment; However, Maintenance Rate Of $8 Per Day Upheld When Coupled With More Extensive Benefits Package As Part Of A Collective Bargaining Agreement.

GARY AMMAR, Plaintiff-Appellant-Cross-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellee-Cross-Appellant, BAY SHIP MANAGEMENT,INC., Defendant.

Docket Nos. 02-6047, 02-6048
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2003 U.S. App. LEXIS 18022
January 16, 2003, Argued
August 29, 2003, Decided

PRIOR HISTORY:

Appeal and cross-appeal from a judgment entered in the United States District Court for the Eastern District of New York following a bench trial before Reena Raggi, then-District Judge, awarding plaintiff $364,309 against defendant United States under the Jones Act, 46 U.S.C. § 688, and general maritime law.

DISPOSITION:

Affirmed in part, vacated and remanded in part.

PROCEDURAL POSTURE:

Plaintiff seaman sued defendant United States under the Jones Act, 46 U.S.C.S. § 688, and general maritime law for injuries sustained as a result of negligence and unseaworthiness while working on a United States naval ship. The United States District Court for the Eastern District of New York entered judgment following a bench trial awarding $364,309. The seaman appealed and the United States cross-appealed.

OVERVIEW:

The seaman was injured while operating a shipboard crane. Although the crane normally could be operated by using a remote control, the remote control was inoperable at the time of accident. The seaman was injured getting down from his position on the crane’s pedestal. The district court had apportioned responsibility for the accident 60 percent to the United States and 40 percent to the seaman holding that he knew of a safer way to perform the job. The circuit court found no clear error in that finding. The circuit court concluded that although maintenance of $8 per day was not sufficient to meet modern daily living expenses that per diem was more properly viewed as but a small component of the union-negotiated package of compensation and benefits that should have been accorded deference by the district court rather than awarding maintenance of $18 per day. The district court also should have applied a 2 percent discount rate to the award for lost future wages and future medical expenses.

OUTCOME:

On the cross-appeal, the circuit court vacated so much of the judgment as (a) awarded maintenance in excess of $8 per day, and (b) awarded damages for lost future wages and future medical expenses without discounting those awards to present value; in all other respects, the circuit court affirmed the district court’s judgment.

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Court Has Jurisdiction To Reinstate Jones Act Action Which Was Dismissed After Being Settled But Where The Defendant Did Not Comply With The Terms Of The Settlement Even Where The Court Did Not Specifically Retain Jurisdiction To Enforce The Settlement Because The Court Has An Independent Basis Of Jurisdiction Over Maritime Contracts, Including Maritime Settlements.

LAWRENCE BROWN, Plaintiff, – against – M/V “GLOBAL LINK” etal., Defendants.

01 Civ. 8298 (DC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2003 U.S. Dist. LEXIS 14723
August 21, 2003, Decided
August 26, 2003, Filed

DISPOSITION:

Plaintiff’s request to reinstate action to enforce settlement agreement granted.

PROCEDURAL POSTURE:

Plaintiff seaman’s personal injury action against defendants under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime and admiralty laws was settled. The court entered a 60-day order, dismissing the action, and subsequently entered a stipulation of dismissal. When a dispute arose regarding defendants’ compliance with the settlement agreement, the seaman requested that the court reinstate the action and enforce the agreement.

OVERVIEW:

Neither the court’s 60-day order nor the stipulation of dismissal provided for the retention of jurisdiction or incorporated the terms of the settlement. The parties disputed whether defendants were required to pay a portion of the settlement to the New York County Child Support Enforcement Unit pursuant to a restraining notice. The court held that while it did not retain jurisdiction over the action for purposes of enforcing the terms of the settlement, the settlement agreement was a maritime contract over which the court had an independent basis for jurisdiction pursuant to 28 U.S.C.S. § 1333. Specifically, the agreement related to maritime employment and extinguished the seaman’s claims against defendants for injuries sustained while employed on a maritime vessel. Because the agreement was a maritime contract, the court had jurisdiction to enforce the terms of the agreement.

OUTCOME:

The court granted the seaman’s request to reinstate the action.

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Seaman Injured While Tripping Over A Plastic Packing Strap That Fell From A Carton To The Deck Recovers For Unseaworthiness Because A Shipowners Warranty Of Seaworthiness Extends To Its Stores And Their Defective Packaging.

EDUARDO B. BARLAS, Plaintiff, – against – UNITED STATES OFAMERICA, Defendant.

01 Civ. 6420 (DC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2003 U.S. Dist. LEXIS 14298
August 18, 2003, Decided
August 18, 2003, Filed

DISPOSITION:

Court found defendant liable for plaintiff’s injuries and awarded damages.

PROCEDURAL POSTURE:

Plaintiff seaman was injured when he tripped on a plastic packing strap on the deck of a ship owned by defendant United States. He filed suit and the U.S. conceded to jurisdiction under the Suits in Admiralty Act, 46 U.S.C.S. §§ 741-52. The case was tried to the court. At trial, the seaman withdrew his claim based upon negligence under the Jones Act, and proceeded solely with a claim of unseaworthiness under the general maritime law.

OVERVIEW:

The seaman’s feet became entangled in the strap while he was carrying two heavy boxes of canned goods, and the fall injured his ankle, knee, and lower back. He contended that dual defects rendered the ship “unseaworthy:” the plastic strap was inadequate because it must have slipped off a carton, uncut, and the deck was unsafe because it contained a nearly invisible entanglement hazard. In the peculiar world of the general maritime law and the “unusual liability” that was unseaworthiness, the court concluded that the fallen packing strap rendered the ship “unseaworthy” and the U.S. was liable in tort to the seaman for his injuries. The warranty of seaworthiness extended both to ships’ stores and to their defective packaging. Notwithstanding the short time that the strap lay on the deck, its presence was both the result and the cause of a defect that caused the seaman’s injuries. The presence of the uncut strap on the ship’s deck was the result of a defect — coming loose from its carton — and rendered the deck defective, or temporarily unsafe, and unfit for the operation of unloading stores.

OUTCOME:

Judgment was to be entered in favor of the seaman against the U.S.

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Court Holds That Cruise Lines Ships Doctors Are Agents Of The Cruise Line And, As Such, The Ships Doctors’ Negligence Is Imputed To The Cruise Line.

DARCE CARLISLE, Appellant, vs. CARNIVAL CORPORATION, et al.,Appellees.

CASE NO. 3D01-1518
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 12794
August 27, 2003, Opinion Filed

DISPOSITION:

Affirmed in part; reversed in part and remanded.

PROCEDURAL POSTURE:

Appellant parents appealed from the entry of summary judgment by the Circuit Court for Miami-Dade County (Florida), in favor of appellee cruise line, in the parents’ suit seeking to hold the cruise line vicariously liable for the negligence of a ship’s doctor in his treatment of their daughter.

OVERVIEW:

The parents argued that the cruise line was vicariously liable for the doctor’s negligence under agency and apparent agency law. The appellate court held that the cruise line had control over the doctor’s medical services for agency law purposes. The doctor was to provide medical services to passengers and crew in accordance with the cruise line’s guidelines. As it was foreseeable that some passengers at sea would develop medical problems and that the only realistic alternative for such a passenger was treatment by the ship’s doctor, the cruise line had an element of control over the doctor-patient relationship. The holding of the Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir.1988), line of cases was rejected. The cruise line’s duty to exercise reasonable care under the circumstances extended to the actions of a ship’s doctor placed on board by the cruise line. For purposes of fulfilling the cruise line’s duty to exercise reasonable care, the ship’s doctor was an agent of the cruise line whose negligence was imputed to the cruise line. 46 U.S.C.S. app. § 183c invalidated the cruise ticket’s purported limitation of the cruise line’s liability for the negligence of its agents.

OUTCOME:

The summary judgment was reversed on the issue of vicarious liability, and the case was remanded for further proceedings.

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Service Of Process On A Cruise Ships’ Doctor Made By Serving The Doctor’s Attorney Aboard The Cruise Ship Docked In Miami, Florida Is Deemed Proper Service.

ANDRAS POTA, etc., et al., Appellants, vs. KENNETH HOLTZ,M.D., Appellee.

CASE NO. 3D02-1095
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 12371
August 20, 2003, Opinion Filed

PRIOR HISTORY:

An Appeal from the Circuit Court for Miami-Dade County, Barbara Levenson, Judge. LOWER TRIBUNAL NO. 01-1315.

DISPOSITION:

Reversed.

PROCEDURAL POSTURE:

Appellant parents, individually and as personal representatives of their deceased son’s estate, sued appellees, a cruise line and a ship’s doctor, for wrongful death, medical malpractice, personal injury, and negligent and intentional infliction of emotional distress. Appellants sought review of the non-final order of the Circuit Court for Miami-Dade County (Florida), which granted the doctor’s motion to dismiss for lack of personal jurisdiction.

OVERVIEW:

The doctor authorized his attorney to accept personal service and his attorney acknowledged that the doctor had been personally served. However, on appeal, the doctor argued that he was not served within the trial court’s jurisdiction, i.e., Florida, because service took place aboard a foreign-flagged vessel. The appellate court concluded that a Liberian vessel moored at a dock in the City of Miami was within the State of Florida, not Liberia. Thus, because the ship was in Florida, the process server could have boarded the ship and served the doctor personally. Instead, by agreement of counsel, service was effected on the doctor’s attorney. Thus, personal jurisdiction over the doctor was attained through personal service and the service was proper.

OUTCOME:

The order dismissing the case was reversed.