APPEAL OF DISTRICT COURT ORDER DENYING MOTION TO COMPEL ARBITRATION AND REMANDING THE ACTION IN SEAFARER’S JONES ACT CLAIM WAS DISMISSED FOR LACK OF JURISDICTION
Erikson HARRISSON, Plaintiff–Appellee, v.
NCL (BAHAMAS) LTD., d.b.a. NCL, Defendant–Appellant.
United States Court of Appeals, Eleventh Circuit.
Aug. 22, 2012.
Former seaman employee filed action in state court claiming that employer was negligent under Jones Act and failed to provide maintenance and care as required by United States maritime law. NCL removed the matter, but the United States District Court for the Southern District of Florida, denied employer’s motion to enforce arbitration clause and remanded matter back to state court. Employer appealed.
A former seaman employee of NCL was injured on the job and sued NCL in Florida state court claiming that NCL was negligent under the Jones Act, and failed to provide maintenance and care as required by U.S. maritime law. NCL, noting that Harrisson’s employment contract required the parties to submit disputes to arbitration, removed the case to federal district court under 9 U.S.C. § 205, After the removal, the district court in a single order denied NCL’s motion to enforce the arbitration clause on the basis that the arbitration clause was void under the Convention for violating public policy and remanded the matter back to state court. The seaman employee moved to dismiss NCL’s appeal arguing that by concluding that the arbitration clause was null and void and thus no longer a basis for jurisdiction, the district court dismissed the case for lack of subject-matter jurisdiction. NCL argues that § 1447(d) does not apply because we should construe the remand as based on the district court’s interpretation of a contract clause and not on based on the district court lacking subject-matter jurisdiction. Alternatively, NCL argues that even if § 1447(d) applies, we can review the denial of the motion to compel arbitration based on exceptions to the rule of § 1447(d). The Court discussed two exceptions to § 1447(d). First, that courts are permitted to review a remand order that is based on grounds other than a lack of jurisdiction or a defect in the removal procedure. Second, the Court may review orders “that lead to, but are separate from, orders of remand and have a conclusive effect upon the ensuing state court action.” The Court found neither exception applied.
Appellate Court dismissed the appeal for lack of jurisdiction and held that the district court’s determination that arbitration agreement was not valid was not conclusive determination, separable from court’s remand order.
APPELLATE COURT AFFIRMS ENTRY OF SUMMARY JUDGMENT OF SEAFARER’S JONES ACT, UNSEAWORTHINESS AND MAINTENANCE AND CURE CLAIMS WHERE NO BREACH OF ANY DUTY WAS FOUND AND THE SEAFARER INTENTIONALLY CONCEALED A PREEXISTING CONDITION DURING A PRE-EMPLOYMENT PHYSICAL
James LETT, Plaintiff–Appellant
v. OMEGA PROTEIN, INCORPORATED; Anna f/v; Tiger Point f/v, Defendants-Appellees.
United States Court of Appeals, Fifth Circuit.
Aug. 6, 2012.
District Court granted summary judgment on all counts. The seafarer appealed.
From 2007 to 2009, James Lett (“Lett”) worked for Omega Protein, Inc. (“Omega”) as a seaman and engineer aboard several of Omega’s fishing vessels. On September 15, 2008, he spent several hours using a needle gun to chip the rust off of the floor of the engine room, which resulted in injuries to his back and neck. Lett did not report his injuries to Omega. In January 2009, Lett went to Dr. Stephen West (“Dr.West”) complaining of severe neck pain that radiated down his arm. Dr. West prescribed medication to Lett for his pain. In March 2009, Lett underwent a pre-employment physical. Lett did not tell the examining physician that he had neck pain or that he was taking medication for this pain. After Lett was cleared by the examining physician, Omega employed Lett as the second engineer aboard the F/V ANNA for the 2009 fishing season. As part of his duties, Lett was responsible for lifting hatch covers. According to Lett, this repetitive, heavy lifting aggravated his prior neck and back injuries. Again, Lett failed to report his injuries to Omega. Lett filed suit and alleged that he injured his neck and back by using the needle gun aboard the F/V TIGER POINT on September 15, 2008. He asserted that he “was forced to work approximately 5 hours on his hands and knees to chip away the rust … using equipment not made for such a job.” He further alleged that he injured his neck and back by “working with hatch covers that were too heavy” aboard the F/V ANNA in 2009. Lett asserted negligence claims against Omega under the Jones Act, and he asserted unseaworthiness claims against the F/V TIGER POINT and the F/V ANNA under general maritime law. Lett also sought maintenance and cure for his 2008 and 2009 injuries. Omega filed a motion for summary judgment, seeking the dismissal of all of Lett’s claims. With regard to the 2008 needle gun incident, Omega argued that it was not negligent because Mike Lombardo (“Lombardo”), Omega’s safety, health, and environment director, testified that using a needle gun is a routine, safe, and simple task that does not require any training. Omega further contended that the F/V TIGER POINT was not unseaworthy because Lett testified that the needle gun was working properly. With regard to the 2009 lifting of hatch covers, Omega argued that it was not negligent because it was the company’s policy that seamen should ask for assistance if they felt something was too heavy to lift, and Lett never asked for help in moving the covers. Last, Omega argued that, pursuant to McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir.1968), Lett was not entitled to maintenance and cure for his 2009 injuries. Omega asserted that Lett intentionally concealed medical facts during his pre-hiring examination, that these facts were material to Omega’s decision to hire Lett, and that there was a causal link between Lett’s non-disclosure and his 2009 injuries. The district court granted summary judgment on all counts, and the appellate court affirmed.
Affirmed on all counts.
IN WRONGFUL DEATH JONES ACT CLAIM WHERE SEAFARER WAS ACCIDENTALLY KILLED BY A GUNSHOT WOUND INFLICTED BY ANOTHER CREWMEMBER, BENCH TRIAL AWARD WAS REVERSED BASED ON FINDING BY THE FIFTH CIRCUIT COURT OF APPEALS THAT THE CONDUCT WAS NOT IN THE COURSE OF EMPLOYMENT
Amanda BEECH, individually and as tutrix, guardian of her minor child, Jax Delton Beech, Plaintiff–Appellee Cross–Appellant, v.
HERCULES DRILLING COMPANY, L.L.C., Defendant–Appellant Cross–Appellee.
United States Court of Appeals, Fifth Circuit.
Aug. 14, 2012.
After a bench trial, the district court granted judgment in favor of Mrs. Beech, individually, in the amount of $876,997.00 and as tutrix, guardian of her minor child, Jax Delton Beech, in the amount of $317,332.00, for a total recovery of $1,194,329.00.
Keith Beech died after his co-worker, Michael Cosenza, accidentally shot him aboard a Hercules-owned vessel. Keith Beech (“Beech”) was a crane operator working aboard a jack-up drilling rig that his employer, Hercules, owned. Michael Cosenza (“Cosenza”) worked as a driller aboard the same vessel. When Cosenza came aboard, he accidentally brought a firearm with him, which violated Hercules’ policy prohibiting weapons on the vessel. Cosenza and Beech were both aware of Hercules’ policy against firearms. After discovering the firearm in some of his laundry, Cosenza did not tell anyone that he had inadvertently brought it aboard. Instead, he kept it hidden in his locker on the rig. This failure to report the firearm constituted an additional violation of Hercules’ safety policy. One evening, Cosenza was assigned to work a night shift and was the only crewman on duty. Cosenza’s duties that night were to monitor the rig’s generator, to check certain equipment, and to report any suspicious activity or problems. Beech was not on duty but was aboard the vessel and subject to the call of duty. Both men were in the rig’s television room, watching television and chatting. Beech mentioned that he was thinking about purchasing a small firearm, and Cosenza, thinking Beech might be interested in seeing his firearm, left the break room and went to his locker to retrieve it. Upon returning, Cosenza showed the firearm to Beech, who inspected it but did not handle it. As Cosenza sat back down in the TV room, his arm bumped a part of the couch, and the firearm accidentally discharged, mortally wounding Beech. Mrs. Beech subsequently brought a wrongful death action against Hercules under the Jones Act. After a bench trial, the district court granted judgment in favor of Mrs. Beech, individually, in the total amount of $1,194,329.00. Hercules contends on appeal that Beech and Cosenza were not acting in the course of their employment at the time of the accident and that the district court’s judgment in favor of Mrs. Beech must, for that reason, be reversed. This case turns on the meaning of the phrase “in the course of employment” and more specifically on whether Cosenza and Beech were acting in the course of their employment when Cosenza accidentally shot Beech. The court held the test for whether a Jones Act employee was acting within the course and scope of his employment is whether his actions at the time of the injury were in furtherance of his employer’s business interests. The Court concluded that Cosenza was not acting within the course and scope of his employment when he accidentally shot Beech.
The Court reversed the district court’s findings and remanded with instructions to render judgment in favor of Hercules.
JONES ACT CLAIM REMANDED TO STATE COURT WHERE CRUISE LINE FAILED TO PRODUCE A VALID ARBITRATION AGREEMENT.
Andrea CAPPELLO, et al., Plaintiffs, v.
CARNIVAL CORPORATION, Defendant.
United States District Court, S.D. Florida.
Aug. 10, 2012.
Plaintiffs filed a Seaman’s Complaint and Jury Demand in the Circuit Court of the Eleventh Judicial Circuit in and for Miami–Dade County, Florida alleging six counts: breach of the warranty of seaworthiness (Count I); Jones Act negligence (Count II); failure to provide maintenance and cure (Count III); failure to provide prompt, proper and adequate maintenance and cure (Count IV); common law negligence (Count V); and loss of consortium (Count VI). Defendant Carnival removed the matter and Plaintiff moved to Remand the matter.
Plaintiffs seek remand for lack of federal jurisdiction. Plaintiffs contend there is no federal jurisdiction, and removal is defective, because: (1) the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201, et seq. (“Convention”) does not apply; and (2) removal on the basis of admiralty jurisdiction alone would violate Plaintiffs’ rights under 28 U.S.C. section 1333. (See Mot. 1–2). District Court found that the Convention does not apply because there is no agreement in writing covered by the Convention. Plaintiffs assert Carnival has not presented a signed arbitration agreement between the parties. (See Mot. 6). Carnival has instead produced an “Officer’s Agreement” [ECF No. 1–1], which was signed and entered into by Cappello and Golden Falcon, a non-party to this action. (See id.). Carnival does not dispute that it is not a signatory to the Officer’s Agreement between Cappello and Golden Falcon. It contends nevertheless that the requirement to arbitrate in the Officer’s Agreement should be enforced against Cappello under the doctrine of equitable estoppel. (See Resp. 4).
“A rule of contract law is that one who is not a party to an agreement cannot enforce its terms against one who is a party…. The right of enforcement generally belongs to those who have purchased it by agreeing to be bound by the terms of the contract themselves.” Lawson v. Life of the South Ins. Co., 648 F.3d 1166, 1167–68 (11th Cir.2011) (internal citations omitted). There are, however, exceptions to this general rule, including the exception of equitable estoppel. See id. at 1168. The Eleventh Circuit in Lawson explained that many of that court’s “decisions involving the question of whether a non-party can enforce an arbitration clause against a party have not made clear that the applicable state law provides the rule of decision for that question,” citing a number of pre–2009 Eleventh Circuit decisions, some of which are cited by Carnival, including MS Dealer Service Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999). Id. at 1170–71. Court found no exceptios apply. Plaintiffs also seek attorney’s fees and costs for improper removal under 28 U.S.C. § 1447(c). (See Mot. 12–13). Carnival declined to address the appropriateness of fees and costs in its Response, instead requesting leave to address this issue separately should the Court find remand appropriate. (See Resp. 1 n. 1). The Court grants Carnival’s request.
Plaintiff’s Motion to Remand Case and Request for Attorneys’ Fees and Costs for Improper Removal was granted.
LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. OBTAINS ELEVENTH CIRCUIT COURT OF APPEALS OPINION REVERSING AND REMANDING DISMISSAL ON COLLATERAL ESTOPPEL AND RES JUDICATA GROUNDS, AND WHICH EXPRESSLY REAFFIRMS RHODITIS.
Franklin VASQUEZ, Plaintiff–Appellant, v. YII SHIPPING COMPANY, LTD., Defendant–Appellee. 2012 WL 3740435; No. 11–15141.
United States Court of Appeals, Eleventh Circuit.
Aug. 30, 2012.
Seaman and former employee brought action against shipping company, alleging violations of Jones Act and federal maritime law of unseaworthiness, failure to provide maintenance and cure, and failure to treat plaintiff for injuries he suffered when gas–powered tool exploded in his hands while working aboard cargo ship owned by company. The United States District Court for the Southern District of Florida dismissed complaint on res judicata and collateral estoppel grounds. Plaintiff appealed.
Franklin Vasquez, a seaman and former employee of YII Shipping Company, Ltd. (YII), a Bahamian corporation, appeals the dismissal of his complaint against YII alleging violations of the Jones Act, and federal maritime law of unseaworthiness, failure to provide maintenance and cure, and failure to treat Vasquez for injuries he suffered when a gas-powered tool exploded in his hands while working aboard a cargo ship owned by YII, severely burning his left arm, ear, and the left side of his mouth. Vasquez originally filed this suit in Florida court, which dismissed his claims based on Florida’s doctrine of forum non conveniens, and the dismissal was affirmed on appeal. Vasquez then brought the same claims in federal district court, arguing that federal maritime law applied to his case and that venue was not improper under federal forum non conveniens principles. Although the Florida court never decided whether federal maritime law was applicable to Vasquez’s case, the district court ruled that under principles of res judicata and collateral estoppel, Vasquez was precluded from litigating facts relevant to his federal maritime claims. The district court then dismissed Vasquez’s complaint on the grounds of federal forum non conveniens and the Rooker–Feldman doctrine based on its application of collateral estoppel and res judicata. We vacate and remand because the Rooker–Feldman doctrine is a narrow doctrine that only applies to an attempt to appeal a state court judgment. The issues pertaining to the Florida forum non conveniens doctrine are not the same as those pertaining to the federal maritime choice of law issues and, thus, we are not asked to review, for appellate purposes, the Florida ruling. Moreover, collateral estoppel applies only when identical issues are involved and that is not the case here. Likewise, res judicata applies only to a final judgment on the merits and, therefore, is not applicable here where there has been no merits determination.
Accordingly, the district court erred in dismissing Vasquez’s complaint under the Rooker–Feldman doctrine and in applying collateral estoppel and res judicata to Vasquez’s claim that U.S. maritime law is applicable in his case. On remand, the district court must consider all of YII’s business contacts with Florida and with the rest of the United States in determining whether the base of operations requirement as well as all other factors have been fulfilled pursuant to Rhoditis. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953).