TUGBOAT CAPTAIN WAS FOUND NEGLIGENT BASED ON THE PENNSYLVANIA RULE AND THE LAST CLEAR CHANCE DOCTRINE due, in part, to the tugboat’s CREATION OF AN EXCESSIVE WAKE WHICH CAUSED THE DECEDENT’S VESSEL TO CAPSIZE.
BECKY MATHENY, individually and as Surviving Spouse of RONALD MATHENY, Deceased, Plaintiff, v. THE TENNESSEE VALLEY AUTHORITY, Defendant/Third-Party Plaintiff/ Counter-Defendant. v. THOMAS LAWRENCE and JOHNNA LAWRENCE, Third-Party Defendant/ Counter-Plaintiff and Counter-Plaintiff
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2007 U.S. Dist. LEXIS 90764
December 6, 2007, Decided
A bench trial was held on various claims including, but not limited to negligence, negligent supervision and entrustment, arising from a boating accident that occurred on the Cumberland River.
The plaintiff, widow of Ronald Matheny, who drowned when a small boat in which he was fishing capsized in the Cumberland River. Third-party defendant and counter-plaintiff Thomas “Steve” Lawrence, Mr. Matheny’s cousin, was the owner and pilot of the fishing boat in question. The fishing boat capsized when it was swamped by the wake of a tug boat, The Patricia H., owned by defendant Tennessee Valley Authority (“TVA”) and operated by pilot Jeff Ralls, a TVA employee. Mr. Lawrence was successfully rescued by pilot Ralls and his crew. Mr. Matheny, however, drowned before he could be rescued. During the bench trial, the Court analyzed various factors surrounding the underlying accident, including the position and speed of the boats, the size of the wake created by the tugboat and the training received by the Captain of the tugboat and his crew and found that the defendants were liable for the accidents. In apportioning liability among the Defendants, the court found the Captain’s negligent operation of the tugboat, specifically, the creation of an excessive wake was 100% responsible for the capsize of the fishing boat and the death of Mr. Matheny. In determining the Tugboat Captain’s negligence, the court analyzed the Pennsylvania Rule and the Last Clear Chance Doctrine. Additionally, the court found no negligence in the defendant’s attempts at resuscitating Mr. Matheny nor in the promptness with which Mr. Matheny was taken to the hospital. The limitation of liability statute was found not to apply because lack of privity or knowledge was not proven. As to the Negligent Supervision and Entrustment claims, while the court found there was negligent supervision of the tugboat Captain in failing to specifically instruct him to maintain a low speed or a low wake in the presence of small fishing vessels. The defendant did not, however, commit negligent entrustment because such a claim requires a showing that a chattel was entrusted to one incompetent to use it with knowledge of the incompetence, and that its use was the proximate cause of injury or damage to another, and the court did find that the Captain was incompetent.
Judgment is entered for the plaintiff in the amount of $ 2,159,153.00 for compensatory damages, and in favor of the counter-plaintiffs in the amount of $ 238,685.10 for compensatory damages.
Crew member, who was working on his employer’s vessel and was allegedly injured when he threw a pump onto another owner’s distressed vessel, could bring a claim for unseaworthiness against the other vessel owner; an amendment to the LHWCA limiting unseaworthiness claims did not imply that the crew member’s claim was precluded.
MIKE JENKINS, Plaintiff, vs. FITZGERALD MARINE, & REPAIR, INC., et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, SOUTHEASTERN DIVISION
2007 U.S. Dist. LEXIS 89310
December 4, 2007, Decided
Plaintiff crew member sued defendants, his employer and a vessel owner; the crew member brought claims against the employer under the Jones Act and for maintenance and cure and against both defendants for unseaworthiness. The owner moved to dismiss.
The crew member claimed that he was working on the employer’s vessel and was injured when he threw a pump onto the owner’s distressed vessel. He alleged that the owner’s vessel was unseaworthy at the time that he attempted to rescue it. The vessel owner argued that the crew member could bring an unseaworthiness claim only against his employer. The court found that the duty to maintain a seaworthy vessel was owed to anyone who performed services for the vessel with the owner’s consent. Although Congress had amended the Longshore and Harbor Workers’ Compensation Act (LHWCA) to preclude persons covered under the LHWCA from bringing an unseaworthiness claim against a third-party vessel owner, nothing in that amendment implied that an unseaworthiness claim could not be brought by members of other vessels’ crews. The fact that the crew member could bring a variety of claims against his employer did not preclude him from asserting an unseaworthiness claim against the vessel owner.
The owner’s motion to dismiss was denied.
Trial court properly found for an employee in a case under the Jones Act, 46 U.S.C.S. § 688, because there was sufficient testimony concerning the seriousness of her injuries and there was testimony establishing that the lighting in the area where she fell and was injured was very poor, rendering the vessel in question unseaworthy.
DIONE CAGLE VERSUS HARRAH’S LAKE CHARLES, L.L.C. AND/OR PLAYERS LAKE CHARLES, L.L.C.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
07-653 (La.App. 3 Cir. 12/12/07); 2007 La. App. LEXIS 2250
December 12, 2007, Decided
Defendant former employer appealed from a judgment of the Fourteenth Judicial District Court, Parish of Calcasieu (Louisiana), which ruled in favor of plaintiff former employee, who had worked as a slot machine technician aboard a casino riverboat, in her action to recover under the Jones Act, 46 U.S.C.S. § 688, for negligence and unseaworthiness. The employee asserted that the amount of damages awarded was inadequate.
The trial court found that the lighting around steps upon which the employee fell was inadequate and rendered the riverboat unseaworthy. Affirming, the court held, inter alia, that (1) although the trial court noted some doubt as to the extent of the employee’s injuries, it believed that the independent medical examination substantiated the employee’s complaints and, therefore, there was no merit to the argument that the evidence contradicted the employee’s assertions; (2) the trial court did not err in finding that the stairs were inadequately lit as a security officer who investigated the area immediately after the incident testified that the lighting in the stairwell was non-existent and that it was dim in surrounding areas; (3) there was ample testimony that the employee’s fall was caused by inadequate lighting; (4) the trial court did not err in not assessing any comparative fault to the employee based on the allegedly routine nature of her actions because traversing wet stairs in lighting that was deficient to the degree that it rendered the vessel unseaworthy was not routine; and (5) the level of damages assessed, as well as prejudgment interest on past losses, was proper.
The court affirmed the trial court’s judgment.
Crew members had a valid lien on proceeds from sale of vessel for unpaid tips. Trustee assumed and continued operation of vessel until its arrest for benefit of bankruptcy estate, and, in so doing, trustee stepped into shoes of vessel owner; vessel was not in judicial custody at time that tips claimed by crew were collected by trustee.
ADMIRAL CRUISE SERVICES, INC., et al., Plaintiffs, vs. M/V ST. TROPEZ, her engines, tackle and appurtenances, in rem, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2007 U.S. Dist. LEXIS 92488
December 6, 2007, Decided
Plaintiff filed an action seeking a maritime lien in the amount of $ 1,631,598.35 against defendant vessel. Plaintiff moved for summary judgment on crew members’ claims for unpaid tips.
The vessel owner had previously filed for bankruptcy. The only pending dispute concerns the crew members’ claims for tips collected during the time that the vessel was under the control of the bankruptcy trustee–and before its arrest. Plaintiff contended that the crew members’ claims for tips lay in bankruptcy and not in admiralty. The crew members contended that maritime liens for wages were liens independent from the bankruptcy estate. The court concluded that the crew members had a valid lien on the proceeds from the sale of the vessel. The trustee in this case assumed and continued the operation of the vessel until its arrest for the benefit of the bankruptcy estate. In so doing, the trustee stepped into the shoes of the owner of the vessel. The vessel was not in judicial custody at the time that the tips claimed by the crew were collected by the trustee. Even if the vessel was deemed to be in judicial custody at the time in question, the crew members’s claims had to be paid from the proceeds of the sale as an expense of justice.
The court entered summary judgment in favor of the crew members and against plaintiff.
In a Jones Act seaman’s suit to recover damages for injuries sustained while working as a deckhand for defendants, seaman’s motion to sever his cure claim for an expedited trial was granted; seaman had not reached maximum medical improvement, immediate treatment and surgery were recommended, and bench trial was not scheduled for seven more months.
ROLDIN DINET VERSUS RENE J. CHERAMIE & SONS, INC., A.R. CHERAMIE MARINE MANAGEMENT, INC., and MARTIN GAS MARINE LLC
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2007 U.S. Dist. LEXIS 90202
December 5, 2007, Decided
Plaintiff, a Jones Act Seaman, filed a motion to sever for expedited trial to determine his right to cure benefits. The seaman had filed suit against defendants, a vessel owner and an employer, seeking to recover damages in connection with the seaman’s slip and fall accident while working as a deckhand.
The seaman alleged that his physician was recommending that the seaman undergo lumbar steroid injections and a cervical fusion but that defendants had not paid for any cure benefits. The seaman alleged that he was in dire need of medical treatment and could not wait until the bench trial on his claims, some seven months hence, to obtain the recommended medical treatment. Defendants opposed the motion to sever, asserting that the two trials would be duplicative, and further, defendants had agreed to pay for the injections to see if such treatment would improve the seaman’s condition so that he could avoid the fusion surgery. In granting the motion to sever, the court held that the seaman had a compelling interest in an expedited trial to determine his entitlement to cure benefits because he had not reached maximum medical improvement. Further, the seaman had not requested a jury trial, and thus, defendants’ concerns about duplicative trials were unavailing. Finally, defendants’ objections to severance were generalized in nature and would apply to any situation in which there was a severance.
The court granted the seaman’s motion to sever. The trial on the right to cure benefits would take place several months prior to the bench trial on the remainder of the seaman’s claims. The court also granted the seaman leave to have new counsel enroll.
Release that seaman signed in favor of employer in exchange for $ 4,000 was properly found to be invalid where neither doctor nor employer informed seaman of his injuries, seaman had no legal representation when he executed release, and release contained no explanation of maintenance and cure or any other rights that seaman was forfeiting therein.
TRANSOCEAN OFFSHORE USA INC., Plaintiff-Appellant v. DAVID CATRETTE, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 27870
December 3, 2007, Filed
Appellant employer sought review of a decision from the United States District Court for the Eastern District of Louisiana, which found that a seaman’s release executed by appellee seaman was not valid.
The seaman suffered a work-related injury to his shoulder. The seaman’s diagnosis was conveyed only to the employer. The seaman signed a release of all his rights against the employer in exchange for $ 4,000. The seaman filed suit against the employer. The district court found the release invalid. On appeal, the court held that the district court’s finding was not clearly erroneous. The evidence showed that the release was invalid because the seaman was not fully informed of his medical condition or future prognosis and was not fully advised of his legal rights when he executed the release where (1) the employer informed the seaman that there was no tear in his shoulder; (2) the seaman was not shown his medical test reports; (3) the seaman was not informed that he could ask another doctor to review the findings; (4) the seaman had no legal representation when he executed the release; (5) the attorney hired by employer to go over the release with the seaman simply read the contract and asked the seaman if he understood it; and (6) the release contained no explanation of maintenance and cure or any other rights that the seaman was ostensibly forfeiting in the release.
The court affirmed the district court’s finding.
The dismissal of a seaman’s maritime negligence complaint against a tug boat owner was affirmed; the district court properly articulated the legal standard for negligence, properly admitted evidence of industry practices, customs, and norms as to what constituted reasonable and due care, and properly credited the testimony of the owner’s witness.
Barry Berretta, Plaintiff-Appellant, v. Tug Vivian Roehrig, LLC, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 28678
December 11, 2007, Decided
Appellant, a seaman, sued appellee, a tug boat owner, alleging maritime negligence after he was injured during a make up procedure connecting a barge to the owner’s tug boat. The United States District Court for the Southern District of New York dismissed the seaman’s complaint. The seaman appealed.
The seaman claimed that the district court applied the wrong legal standard to determine negligence, misapprehended certain facts derived from the testimony at trial, and erroneously credited the testimony of a witness for the owner over his own testimony. The appellate court held that the district court’s articulated standard to determine negligence conformed to the law, and that the district court’s admission of evidence of industry practices, customs, and norms regarding what constituted reasonable prudence and due care during a make up procedure connecting a barge to a tugboat was not an error. The appellate court further held that it was appropriate for the district court to hear testimony from witnesses for the owner regarding their understanding of standard practices on tug boats, since a key factual issue was what, if anything, the individuals working on the tug could have done in the situation in which the seaman was injured, and that, because the evidence elicited from the seaman and the owner’s witnesses conflicted on the issue of standard practices, the district court, as the finder of fact, was entitled to credit one the testimony of one witness over another.
The district court’s judgment was affirmed.
Because 46 C.F.R. § 92.25-5’s three-course safety rail requirement applied to vessel and because vessel only had two-course rail, longshoreman established regulatory violation. Longshoreman belonged to class of beneficiaries and suffered injury of type regulation sought to prevent, and therefore he could prevail on 33 U.S.C.S. § 905(b) claim.
JOSEPH ABRUSKA, Plaintiff – Appellant, v. NORTHLAND VESSEL LEASING CO., LLC; NAKNEK BARGE, LLC; NORTHLAND SERVICES, INC., Defendants – Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 29039
December 10, 2007, Filed
Plaintiff longshoreman challenged the decision entered by the United States District Court for the District of Alaska that granted summary judgment in favor of defendants, the owner of the vessel upon which the longshoreman was working, in the longshoreman’s action filed pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950.
While performing work aboard the vessel, the longshoreman fell overboard and sustained serious injuries. After recovering statutory damages from his employer, he sought damages in negligence from the vessel pursuant to § 5 of the LHWCA, 33 U.S.C.S. § 905(b). The district court granted summary judgment in favor of the vessel. On appeal, the court found that the longshoreman produced evidence sufficient to survive summary judgment on both his negligence per se and common-law negligence claims. The court therefore reversed the district court’s summary judgment in favor of defendants and remanded for further proceedings. Because 46 C.F.R. § 92.25-5’s three-course safety rail requirement applied to the vessel and because the vessel only had a two-course rail, the longshoreman established a regulatory violation. There was also sufficient evidence of the remaining elements to survive summary judgment. The longshoreman belonged to the class of beneficiaries and suffered an injury of the type the regulation sought to prevent. As to excuse, defendants produced no evidence to support their burden of proving the affirmative defense.
The appellate court reversed the decision of the district court and remanded for further proceedings.
MOTION FOR SUMMARY JUDGMENT DENIED WHERE SHIPOWNER FAILED TO EXERCISE REASONABLE CARE BY CREATING A FORESEEABLE HAZARDOUS SITUATION. IN SUCH INSTANCES, A PLAINTIFF NEED NOT SHOW THAT THE SHIPOWNER HAD NOTICE OF THE HAZARD.
JESSICA BAILEY, et al., Plaintiff, v. CARNIVAL CORPORATION, Defendant.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
CASE NO. 06-21915-CIV-COOKE/BROWN
Filed December 21, 2007
Plaintiff passenger aboard Defendant’s vessel filed suit alleging negligence based upon personal injuries sustained as a result of an accident onboard the ship. Defendant Carnival moved for Summary Judgment regarding the issue of notice.
Plaintiff, a passenger aboard Defendant’s cruise ship, was injured when she was struck in her right eye by a golf ball while she was sitting on a bench near the miniature golf course on the sun deck of the ship. The golf ball that struck Ms. Bailey was hit by a young boy, who was playing with the golf equipment in a baseball manner with a group of unsupervised young boys, with one pitching the ball and the other hitting it with a putter. The young boys were using the putters and balls that were laying on the miniature golf course. Carnival Corporation did not have any rules prohibiting the unsupervised boys from using the miniature golf equipment. Carnival argued that the plaintiff could not prove that Carnival had actual or constructive notice of the boys’ misbehavior in the short period before the accident, or during the entire cruise. In analyzing the motion to dismiss, the court cited to the traditional rule that, to prove that Carnival did not use reasonable care, Ms. Bailey would have to show that the cruise ship operator had actual or constructive notice of a dangerous condition. However, a shipowner can also fail to exercise reasonable care when it creates a foreseeable hazardous situation, and in such instances, a plaintiff does not have to show that the shipowner had notice of the hazard. Furthermore, the court held that to require a plaintiff to also establish notice in a case where the defendant’s own activities created a foreseeable and unreasonable risk of harm would be inappropriate. Such a requirement would have the absurd result that negligence actions could only be brought after a dangerous condition or practice created by a defendant claimed a previous victim, whose own recovery would be barred by the absence of notice. A genuine issue of material fact existed as to whether Carnival created a dangerous and hazardous situation with the operation of the miniature golf course sufficient to constitute a breach of its duty of reasonable care.
Carnival’s Motion for Summary Judgment is denied.