(A)STATE COURT HAS JURISDICTION OF DOHSA CLAIM; (B) WHERE SHIPBOARD INCIDENT CONTRIBUTES TO DEATH OF PASSENGER 18 MONTHS LATER, DOHSA IS EXCLUSIVE REMEDY; (C) WORKERS COMPENSATION CARRIER’S SUBROGATION CLAIM IS DERIVATIVE AND THEREFORE IS LIMITED TO DOHSA DAMAGES.
FRANK GAROFALO, Plaintiff, v. PRINCESS CRUISES, INC.,Defendant and Respondent; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP,Intervener and Appellant.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,DIVISION THREE
2000 Cal. App. LEXIS 999
December 29, 2000, Filed
This case presents a novel issue arising from the intersection of the Death on the High Seas Act (“DOHSA”), 46 United States Code section 761 et seq., and the California workers’ compensation law. The question is whether DOHSA preempts an employer’s state law claim in a subrogation action to recover from a third party tortfeasor sums the employer was obligated to pay for an employee’s injury. We hold that it does. We also hold that California courts have concurrent jurisdiction over DOHSA claims.
(1) DOHSA preempts state wrongful death and survival[*24] claims when the incident leading to death occurs on the high seas; and (2) DOHSA limits recovery to pecuniary damages and prohibits litigants from supplementing their DOHSA claims with claims brought either under state law or the general maritime law. (E.g., Zicherman v. Korean Air Lines Co. (1996) 516 U.S. 217, 230, 133 L. Ed. 2d 596, 116 S. Ct. 629.)
INJURED PASSENGERS PRECLUDED FROM INTERVENING IN COVERAGE DISPUTE CASE BETWEEN INSURANCE CARRIER AND VESSEL OWNER BY REASON OF NEW YORK’S DIRECT ACTION STATUTE.
HARTFORD FIRE INSURANCE COMPANY, Plaintiff, – against -JOSEPH MITLOF d/b/a HUDSON VALLEY WATERWAYS, VILLAGE OF TARRYTOWN, VILLAGE OF NYACK, NYACK PARKING AUTHORITY, KEY BANK U.S.A., RIVERCREST HOMEOWNERS ASSOCIATION a/k/a RIVERCREST CORP., GARRISON YACHT CLUB and NYACK BOAT CLUB, Defendants.
99 Civ. 9841 (WCC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2000 U.S. Dist. LEXIS 18200
December 15, 2000, Decided
Defendant operated a water taxi service on the Hudson River. Plaintiff issued defendant a marine hull protection and indemnity policy with passenger vessel amendments for two vessels. One of the boats capsized and several injured passengers brought personal injury lawsuits against defendant in state court. None of these actions had yet been litigated to judgment. Plaintiff ultimately denied coverage and commenced declaratory judgment litigation. Defendant intervenor passengers (“passengers”) moved to intervene. They claimed they should be allowed to intervene under either Fed. R. Civ. P. 24(a) (Intervention of Right) or Fed. R. Civ. P. 24(b) (Permissive Intervention). Plaintiff claimed that they were precluded from intervention by New York’s direct action statute, N.Y. Ins. Law § 3420(i) and N.Y. Ins. Law § 2117(b)(3). The court had to decide whether the passengers were foreclosed by N.Y. Ins. Law § 3420(i), § 2117(b)(3) from intervening. The court concluded that the New York Court of Appeals would not allow the passengers into the action without their first obtaining a judgment against defendant. They were barred from intervening as defendants by N.Y. Ins. Law § 3420.
Defendant intervenor passengers’ motions to intervene were denied because they were strangers to the indemnity contract and granting them intervention would have circumvented the judgment requirement of the New York State Insurance Law, a prerequisite for actions actions by injured third parties against indemnity insurers.
(A) ERROR TO ALLOW DIRECT ACTION AGAINST INSUROR OF OIL RIG; (B) ISOLATED INCIDENT OF OPERATIONAL NEGLIGENCE DID NOT RENDER VESSEL UNSEAWORTHY.
RANDOLPH (RANDY) WALLACE HARPER, ETC. VERSUS FALRIGOFFSHORE, INC., ET AL.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
00 694 (La.App. 3 Cir, 12/20/00); 2000 La. App. LEXIS 3383
December 20, 2000, Rendered
Plaintiff was asked to weld a rain shield on defendant’s oil rig. He was on a ladder, reaching for a sledge hammer which was being handed to him from above, when he fell and broke his heel bone and injured his back and neck. Plaintiff filed suit against defendants, rig owner and insurer, alleging unseaworthiness and negligence under the Jones Act. The trial court assessed 75 percent fault to plaintiff and 25 percent fault to defendant, and awarded plaintiff medical costs, general damages, loss of household services, and lost wages. All parties appealed. The court found that an unsafe work method which partially caused plaintiff to fall was an isolated incident of operational negligence, not a pervasive condition which rendered the rig unseaworthy. The trial court’s findings of fault were not manifestly erroneous. The general damages award was not an abuse of trial discretion. The trial court’s future wage loss calculation was in error because it was not based on plaintiff’s gross wages at the time of his injury. The trial court also erred in allowing plaintiff to sue defendant insurer under the direct action statute, because the rig was not in Louisiana waters.
The court affirmed the trial court’s finding that the rig was seaworthy, its fault finding, its fault apportionment between the parties, and the award of general damages. It reversed the future wage loss award, and remanded for a new trial on that issue. It also reversed the trial court’s decision not to dismiss defendant insurer from the case, and ordered its dismissal.
EXERCISE OF ADMIRALTY JURISDICTION DOES NOT MEAN STATE LAW IS AUTOMATICALLY PREEMPTED.
Willie Cammon, Respondent, v. City of New York et al.,Appellants. Anjac Enterprises, Inc., Third-Party Plaintiff, v. MacroEnterprises, Inc., Third-Party Appellant. William M. Kimball, for third-partyappellant.
COURT OF APPEALS OF NEW YORK
2000 N.Y. LEXIS 3902
December 21, 2000, Decided
Plaintiff injured employee sued defendant general contractor and city, and alleged violations of state labor laws after he was injured while doing repair work on a floating raft on navigable waters, but where the raft was anchored to land and the repair work involved a land structure. Defendant general contractor and city moved for summary judgment on the ground that federal maritime law preempted state labor law. The trial court granted the motion. The appellate court reversed and held plaintiff’s causes of action were not preempted by federal maritime law. Leave to appeal was granted. The court affirmed the order reversing the grant of summary judgment and concluded the appellate court properly ruled that the causes of action were not preempted. Exercise of admiralty jurisdiction did not automatically mean state law was preempted and in the present case the “maritime but local rule” applied because even though plaintiff was on a floating raft in navigable waters, the raft was anchored to land and the repair was to a land structure. As a result, exercise of state law would not frustrate federal maritime law.
Order reversing the grant of summary judgment to defendant general contractor and city affirmed and certified question about whether the appellate division acted properly in granting the reversal answered in the affirmative because plaintiff’s complaint alleging violations of state labor law was not preempted by federal maritime law as the state’s strict liability statutes were not at odds with federal maritime law in the present case.
CRANE OPERATOR HELD TO BE SEAMAN EVEN THOUGH CONNECTION WITH BARGE DID NOT TAKE HIM TO SEA.
In Re: In the Matter of the Complaint of Endeavor Marine,Inc. and Tako Towing, Inc., as Owner and/or owner pro hac vice of the vessel M/VTako Endeavor, her engines, tackle, appurtenances, etc., praying for Exonerationfrom or Limitation of Liability: ENDEAVOR MARINE, INC.; TAKO TOWING, INC., asowner and/or owner pro hac vice of the vessel M/V Tako Endeavor her engines,tackle, appurtenances, etc., praying for exoneration from or limitation ofliability, Petitioners-Appellants, versus CRANE OPERATORS, INC.; ET AL.,Claimants, CRANE OPERATORS, INC., Claimant-Appellee, versus KEVIN M. BAYE, SR.,Claimant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2000 U.S. App. LEXIS 31624
December 11, 2000, Decided
In an action under the Limitation of Liability Act brought by petitioner vessel owners, claimant employee sought recovery under the Jones Act, from petitioners and claimant employer, for injuries suffered while employed as a crane operator on one petitioner’s barge. Claimant employer asserted that there was no liability under the Jones Act because claimant employee was not a seaman. The court held that claimant employee was a seaman under the Jones Act since he contributed to the function of the vessel and had a substantial employment connection to the vessel in terms of both duration and nature. Even though claimant employee’s connection with the vessel did not take him to sea, where claimant employee boarded the barge only after the vessel was moored or in the process of mooring, the sole purpose of the barge was to load and unload cargo vessels, and claimant was regularly exposed to the perils of the sea in the course of his employment.
Judgment was reversed; since claimant employee’s duties as a crane operator aboard a barge regularly exposed claimant employee to the perils of the sea, claimant employee was a seaman and liability under the maritime statute was thus applicable to claimant employer.
SEAMAN STATUS NOT DEPENDANT ON BEING EXPOSED TO THE PERILS OF THE SEA.
LAUREN KNIGHT, Plaintiff, vs. GRAND VICTORIA CASINO,Defendant.
No. 98 C 8439
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2000 U.S. Dist. LEXIS 18868
December 18, 2000, Decided
At the final pretrial conference, the Court advised the parties that it would use the Fifth Circuit’s pattern Jones Act jury instructions; reviewed with the parties the proposed jury instructions that they had tendered; and made rulings on disputed matters. One of the disputes that the Court did not resolve concerned a modification that defendant proposed to the Fifth Circuit pattern instruction regarding the plaintiff’s seaman status. See Fifth Circuit Pattern Jury Instructions[*12] (Civil) 4.1. Specifically, defendant proposed to modify the instruction to (among other things) add a sentence requiring the jury to find that the plaintiff faced the “perils of the sea” in order to qualify as a seaman. See Dfdt’s Proposed Jury Instruct. No. 2. As support for this modification, defendant relied on the Supreme Court’s decisions in Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 137 L. Ed. 2d 800, 117 S. Ct. 1535 (1997) and Chandris, Inc. v. Latsis, 515 U.S. 347, 132 L. Ed. 2d 314, 115 S. Ct. 2172 (1995).
The Court has considered the effect of Papai and Chandris and concludes that they do not support the modification that defendant proposed. Indeed, Papai (relying on Chandris) reaffirms the test for seaman status found in the Fifth Circuit pattern instruction:
The essential requirements for seaman status are twofold. First, … an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission…. Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial[*13] in terms of both its duration and its nature.
Id. at 554 (quoting Chandris, 515 U.S. at 368)(citations and internal quotation marks omitted). Though the Court in Papai did say that Jones Act coverage is limited to those subjected to the “perils of the sea,” Papai, 520 U.S. at 555, 560, it did so not to announce a separate requirement that must be met, but rather to explain the reason for the second part of the Chandris standard:
“The fundamental purpose of the substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection with a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.”
Id. (quoting Chandris, 515 U.S. at 368).
There is no basis to include a “perils of the sea” requirement in the jury instruction regarding seaman status.