CONTRACTUAL STATUTE OF LIMITATION OF ONE YEAR NOT ENFORCEABLE WHERE PASSENGER PROVIDED INSUFFICIENT NOTICE THAT THE PASSENGER TICKET CONTAINED IMPORTANT CONTRACTUAL LIMITATIONS

DEBRA WARD, Plaintiff-Appellant, v. CROSS SOUND FERRY, Defendant-Appellee.

Docket No. 01-7502
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
273 F.3d 520; 2001 U.S. App. LEXIS 26345
November 2, 2001, Argued
December 10, 2001, Decided

PRIOR HISTORY:

[**1] Plaintiff-appellant Debra Ward appeals from the March 29, 2001 judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, District Judge) granting summary judgment to defendant-appellee Cross Sound Ferry and dismissing Ward’s complaint as time-barred.

DISPOSITION:

Reversed and remanded.

PROCEDURAL POSTURE:

Plaintiff injured passenger sued defendant ferry operator for personal injuries from a slip and fall on the gangway as she was boarding the operator’s boat. The passenger appealed from the judgment of the United States District Court for the Eastern District of New York granting summary judgment to the operator and dismissing the complaint as time-barred.

OVERVIEW:

The operator sought to enforce a contractual time limitation appearing on the back of the passage ticket that required suits to be filed within one year of an injury. The passenger’s husband obtained her ticket just two to three minutes before boarding the ferry. On boarding, the operator collected the tickets. The operator did not dispute that it typically issued tickets just prior to boarding and collected them upon boarding. The court of appeals found that possession of the ticket for such a short period of time was insufficient to give the passenger reasonable notice that the ticket contained important contractual limitations. Indeed, the fact that the operator collected the tickets so quickly after providing them to the passenger tended to negate the idea that the tickets were important contractual documents. The district court improperly (1) confused the question of reasonable communication with the less important question whether it was possible to read the ticket in the time provided, and (2) shifted the burden to the passenger to learn, after the fact, if notice had been given, rather than determining whether the operator had given reasonable notice in the first place.

OUTCOME:

The court of appeals reversed the district court’s grant of summary judgment for the operator, and remanded for further proceedings.

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COURT HOLDS STATE WAGE STATUTE INAPPLICABLE TO CREWMEMBERS ON FOREIGN FLAG VESSEL

CAPTAIN HARTMUT RATHJE, et al., Plaintiffs v. SCOTIA PRINCECRUISES, LTD., Defendant

Civil No. 01-123-P-DMC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2001 U.S. Dist. LEXIS 21266
December 20, 2001, Decided

PRIOR HISTORY:

None.

DISPOSITION:

[*1] Defendant’s motion granted as to plaintiffs’ claim pursuant to 26 M.R.S.A. § 626, and otherwise denied.

PROCEDURAL POSTURE:

Plaintiffs, former foreign employees, worked on a ship for defendant, foreign employer. Plaintiffs brought two claims against their former employer: breach of employment contract (specifically, wrongful termination) and violation of a Maine wage statute, Me. Rev. Stat. Ann. tit. 26, § 626. Defendant moved for summary judgment.

OVERVIEW:

The employer sought summary judgment as to the first claim on the basis that the employees were not terminated, but rather resigned. The employer specifically argued that the employees’ ultimatum constituted a resignation and that its refusal to accede to that ultimatum did not convert their resignations into discharges. In the employer’s view, it possessed a unilateral right to waive the notice period, which it did. Thus, the employees had no right to receive compensation for their respective notice periods. The employees countered that, rather than resigning, they were effectively terminated. The court held that employees adduced sufficient evidence to raise a genuine issue of material fact as to whether they resigned. With respect to the Maine wage statute, the employees asked the court to employ an eight-factor choice-of-law test designed to ferret out the state with the most significant contacts to a given claim. The employer argued that the most-significant-contacts test was inapplicable to a wage claim. In the employer’s view, the “law of the flag” doctrine governed, and the presumption against extraterritorial application of state statutes applied. The court agreed.

OUTCOME:

The employer’s motion for summary judgment was granted as to the plaintiffs’ state law claim for wages, but was otherwise denied.

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PETITION FOR EXONERATION FROM OR LIMITATION OF LIABILITY DENIED WHERE CAPTAIN OVERLOADED VESSEL IN PREDICTABLY ROUGH SEAS

PETITION OF CAPE FEAR, INC., FOR EXONERATION FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME

CIVIL ACTION NO. 99-11312-REK
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2001 U.S. Dist. LEXIS 21904
December 20, 2001, Decided

PRIOR HISTORY:

None.

DISPOSITION:

[*1] Cape Fear’s Petition for Exoneration DENIED.

PROCEDURAL POSTURE:

After the vessel sank, petitioner vessel owner petitioned the court for exoneration from or limitation of liability.

OVERVIEW:

The claimants asserted that the vessel was unseaworthy at the commencement of the voyage and became more so as conditions of the vessel and the seas developed during the latter stages of taking clams aboard. The court found that as the captain started the return to port the vessel was unseaworthy because it was substantially overloaded with clams in cages, a practice that had become common on the vessel. A significant portion of the cages of clams were stacked on deck so as to place the center of gravity of the loaded vessel higher than was safe. At that time the sea had already become rough in weather that predictably would produce rougher seas en route to port. These conditions made it highly likely that the vessel would sink and that before settling to the bottom it would roll, creating a very high risk not only of loss of the vessel and cargo but as well loss of life of one or more persons among the captain and crew.

OUTCOME:

The vessel owner’s petition for exoneration was denied

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SUMMARY JUDGMENT AGAINST JONES ACT SEAMAN DENIED WHERE SEAMAN PROVIDED EXPERT MEDICAL TESTIMONY ESTABLISHING A CAUSAL CONNECTION BETWEEN SEAMAN’S INJURIES AND INCIDENT ON THE VESSEL EVEN IN LIGHT OF EVIDENCE THAT INJURY PRE-EXISTED INCIDENT AND ALLEGATIONS THAT SEAMAN’S EXPERT MEDICAL TESTIMONY WAS BASED ON INCORRECT AND FALSE INFORMATION

DANIEL GINTHER VERSUS SEA SUPPORT SERVICES L.L.C., ZURICH AMERICAN INSURANCE COMPANY

CIVIL ACTION No. 00-2928 SECTION “K
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 21225
December 12, 2001, Decided
December 12, 2001, Filed
December 13, 2001, Entered

PRIOR HISTORY:

None.

DISPOSITION:

[*1] Defendants’ Motion for Partial Summary Judgment DENIED.

PROCEDURAL POSTURE:

Defendants, employing vessel owner and its insurer, moved for partial summary judgment on the claims of plaintiff injured seaman brought under the Jones Act, 46 U.S.C.S. § 688. The owner and insurer asserted that the seaman could not establish that his cervical injuries occurred during his employment because uncontroverted facts showed the injury was pre-existing.

OVERVIEW:

The seaman alleged that he injured his neck on or about August 16, 2000, when he fell down stairs while going below deck to the engine room. He had surgery after the fall. However, the employer and insurer presented evidence that he had suffered a herniated cervical disk and was referred to a neurosurgeon on February 17, 2000, and before he began working for the employer. The seaman presented the expert testimony of a physician that there could be a causal connection between his injuries and his fall while employed. The owner argued that evidence should be disregarded because the medical opinion was based on incorrect and false information. The court noted the physician also stated that the seaman’s condition was worsened from a compression of the nerve root to a compression of the spinal cord, and necessitated the surgery. He based his opinion on the data and the information that neurosurgeons typically rely, and raised an issue sufficient to deny summary judgment.

OUTCOME:

The motion for partial summary judgment was denied, because there was an issue of material fact as to whether plaintiff’s neck injuries were caused during his employment with defendant.

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FEDERAL COURT LIFTS STAY ON JONES ACT STATE COURT PROCEEDINGS AFTER SHIPOWNER FILED LIMITATION PROCEEDING WHERE THE SEAMAN STIPULATED THE LIMITATION PROCEEDING BE HELD IN ABEYANCE PENDING THE RESOLUTION OF THE STATE COURT ACTION

IN THE MATTER OF THE COMPLAINT OF FRS CORPORATION, AS OWNERAND/OR OWNER PRO HAC VICE OF THE VESSEL M/V HERCULES, HER ENGINES, TACKLE,APPURTENANCE, ETC. PRAYING FOR EXONERATION FROM OR LIMITATION OF LIABILITY

CIVIL ACTION NO:01-2443 SECTION: “G”(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 21224
December 11, 2001, Decided
December 12, 2001, Filed, Entered

PRIOR HISTORY:

None.

DISPOSITION:

[*1] Claimant’s motion to lift stay of his state court proceeding granted.

PROCEDURAL POSTURE:

Plaintiff corporation filed a limitation proceeding in connection with claimant seaman’s state court civil action for injuries allegedly sustained after he fell from a vessel. The court approved the corporation’s letter of undertaking, directed an issuance of notice to claimants, and restrained prosecution. The seaman moved to lift the stay and to hold the limitation proceeding in abeyance pending the resolution of his state court action.

OVERVIEW:

The seaman alleged that he suffered personal injuries as a result of falling off a vessel while employed by another company. The seaman further alleged that the vessel was in an unseaworthy condition at the time of his accident, that the corporation was liable as a result of its negligence and fault, and that he was entitled to recovery as a Jones Act seaman. The corporation opposed the motion to lift the stay and asserted that the stipulations filed by the seaman in support of his motion were inadequate. The court held that the corporation did not allege that the seaman’s counsel did not have authority to sign for him, and did not cite any statute or case for its contention that the stipulation should be signed by the seaman individually. The stipulations offered by the seaman adequately protected the corporation’s right to seek limitation of liability in the court. The issues of “seaman” and “vessel” status could be determined by the state court and there was no requirement that these issues be resolved before the stay could be lifted.

OUTCOME:

The motion to lift the stay of state court proceedings was granted.

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VERDICT FOR INJURED JONES ACT SEAMAN ON LIGHT DUTY STATUS MADE TO PERFORM HEAVY MANUAL LABOR IN CLUTTERED AND NARROW WORK SPACE CAUSING HIM TO FALL FURTHER INJURING HIS BACK

MACK ATES VERSUS MALLARD BAY DRILLING, INC.

01-0836
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
01-0836 (La.App. 3 Cir, 12/12/01); 2001 La. App. LEXIS 2958
December 12, 2001, Decided

PRIOR HISTORY:

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NUMBER 81,648, GERARD B. WATTIGNY, DISTRICT JUDGE.

DISPOSITION:

Affirmed.

PROCEDURAL POSTURE:

The Sixteenth Judicial District Court, Parish of Iberia (Louisiana), entered a final judgment in favor of plaintiff employee and against defendant employer, and awarded damages, after the employee sued the employer under the Jones Act, 46 U.S.C.S. § 688, and general maritime law for injuries the employee sustained aboard the employer’s vessel on which he was working. Both parties appealed.

OVERVIEW:

The employee worked for the employer as a rig mechanic. He was on light duty status with the employer while he recovered from surgery and from back pain from a previous accident. He was then assigned to a particular vessel that needed a mud pump repaired. That job required heavy manual labor, which was ordinarily part of the employee’s responsibilities but for his light duty status. Nevertheless, his supervisor told him to assist with the repair. He did as he was told. The chief mechanic on the rig picked up one end of a 150-pound metal mud slide and gestured to the employee for assistance. The employee had no option but to walk backwards in a very cluttered and narrow work space. He fell and injured his back. After the employee received a judgment for his injuries and was awarded damages, the appellate court found liability was established because the vessel was unseaworthy, as the deck was cluttered and obstructed. It also found the employer was liable for making the employee do work in violation of his light duty restriction and for not providing a safe work area. It further concluded the damage award was supported by the record and should not be disturbed.

OUTCOME:

The judgment was affirmed.

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SUMMARY JUDGMENT ON SEAMAN STATUS REVERSED WHERE A JURY COULD HAVE CONCLUDED THAT WORKER SPENT OVER 30% OF HIS WORK TIME ABOARD VESSELS AND/OR THAT HIS WORK ABOARD VESSELS EXPOSED HIM TO MARITIME HAZARDS

HEATH BUFORD VERSUS CARDINAL SERVICES, INC. AND B. T. OPERATING CO.

01-0738
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
01-0738 (La.App. 3 Cir, 12/12/01); 2001 La. App. LEXIS 3006
December 12, 2001, Rendered

PRIOR HISTORY:

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT. PARISH OF IBERIA, NO. 90,901, HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE.

DISPOSITION:

Reversed and remanded.

PROCEDURAL POSTURE:

Plaintiff worker sued defendant employer under the Jones Act, specifically 46 U.S.C.S. § 688, after he suffered a work-related injury. The Sixteenth Judicial District Court, Parish of Iberia, Louisiana, granted summary judgment to the employer, and the worker appealed.

OVERVIEW:

The worker performed his tasks on land, on fixed platforms, and on vessels. The employer claimed that over 55 percent of his work was done either in the shop or on a fixed platform, and that he worked on vessels only 27.30 percent of the time. The trial court found that the worker was not a Jones Act seaman. The appellate court held that issues of material fact as to the worker’s seaman status precluded summary judgment. The trial judge neglected to consider his time aboard all five of the employer’s vessels, and that some of the work he performed contributed to the function of these vessels. A jury could have concluded that his total work time aboard vessels owned and controlled by the employer was over 30 percent, the normal cutoff for seaman status under the Jones Act. Even a finding of less than 30 percent would not necessarily have defeated a finding of seaman status, if the jury found that his work aboard the vessels exposed him to maritime hazards. There was thus evidence from which a jury could have found that the worker met both the 30 percent requirement and the two-part test for seaman status under the Jones Act.

OUTCOME:

The judgment was reversed and the case was remanded for trial on the merits.