Even if a charterer had a designated agent in Jamaica, New York, it had not shown it could be found in the district under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(4)(f) because it had not alleged it engaged in sufficient activity in the district for jurisdiction absent an authorized agent for process; attachment was not vacated.
BELUGA CHARTERING GMBH, Plaintiff, -against- KOREA LOGISTICS SYSTEMS INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 99723
December 4, 2008, Decided
PROCEDURAL POSTURE: Under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(4)(f), defendant charterer moved to vacate the attachments obtained by plaintiff vessel operator, and under Rule E(7) , for countersecurity on its counterclaims for indemnity on a claim by its client for damage to the cargo.
The contract was a maritime contract and thus, the operator had an in personam claim cognizable in admiralty to support admiralty jurisdiction under 28 U.S.C.S. § 1333. The charterer’s argument, that no prima facie case was stated failed to show a legal infirmity in that it relied on factual assertions that any vessel damage was due to the operator’s own negligence or an act of God. Even if the charterer had a designated legal agent in Jamaica, New York, it had not shown it could be found within the district because it had not alleged it engaged in sufficient activity in the district to subject it to jurisdiction even absent a resident agent expressly authorized to accept process. Even with an arbitration pending in London, England, the court could order provisional relief and attachment could be obtained under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, as implemented by 9 U.S.C.S. §§ 201-208. No countersecurity was warranted as the indemnity claim was unripe, since there were no assertions that the charterer had paid the client or that the client had filed suit.
The charterer’s motion was denied.
In Jones Act personal injury suit, McCorpen defense did not apply as a matter of law; although employee intentionally concealed prior and material medical history information from employer, evidence tended to show that employee’s prior injuries did not involve head injuries, and employee’s current suit sought damages for head injuries.
TROY JENKINS VERSUS ARIES MARINE CORPORATION, ET AL.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2008 U.S. Dist. LEXIS 102931
December 9, 2008, Decided
Plaintiff employee filed suit against defendants, an employer, vessel owner one, and vessel owner two, seeking damages for personal injuries that the employee sustained when he was struck in the head by a crane while moving pipe from vessel owner one’s boat to vessel owner two’s boat. The employer moved for summary judgment.
The employer argued that it was entitled to summary judgment because the employee was not a seaman under the Jones Act and because the employee withheld information about injuries that the employee, who worked as a rigger, had previously sustained in an automobile accident and in a work-related fall. The court disagreed. First, the court had already determined that the employee was a Jones Act seaman. No intervening precedent from the United States Court of Appeals for the Fifth Circuit overruled the decision upon which the court relied to determine seaman status. Second, there existed genuine issues of fact as to the causal connection prong of the McCorpen defense asserted by the employer. The employee intentionally concealed his prior injuries from the employer, and that medical history information was material because the employer relied on it to determine if the employee was physically capable of working as a rigger. However, there was evidence that the employee had not sustained head injuries during either accident, and thus, it could not be said as a matter of law that the employee’s current head injuries were related to the injuries he sustained in the two prior accidents.
The court denied the employer’s motion for summary judgment.
In suit to determine liability for collision of two vessels, district court’s findings of fact were not clearly erroneous under Fed. R. Civ. P. 52(a), as evidence supported finding that each vessel’s pilot believed that other vessel had shallow draft and could get out of the way, leading pilots to agree to a port-to-port pass that caused collision.
In Re: In the Matter of the Complaint of Cardinal Services Inc as Owner of the L/B W Lopez Official No 1060683 for Exoneration from or Limitation of Liability; CARDINAL SERVICES INC, Plaintiff – Appellee v. OMEGA PROTEIN INC, Defendant – Appellant v. CLIFTON LEWIS; GEORGE DECLOUETTE, Movants – Appellees; In Re: In the Matter of the Complaint of Omega Protein Inc as Owner of the F/V Raccoon Point Official No 532143 for Exoneration from or Limitation of Liability; OMEGA PROTEIN INC, Plaintiff – Appellant v. CARDINAL SERVICES INC; CLIFTON LEWIS, Defendants – Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 25631
December 17, 2008, Filed
Appellant vessel owner sought review of a judgment from the United States District Court for the Western District of Louisiana, which assigned fault equally between appellant and appellee vessel owner with regard to a collision between the parties’ vessels and struck a release executed by a seaman who was injured during the collision.
The parties were attempting to get their respective vessels through a channel when the vessels collided. The district court concluded that the collision was caused by the pilots’ mistakes in navigation and found each party to be 50% at fault. On appeal, the court held that the district court’s findings of fact were not clearly erroneous under Fed. R. Civ. P. 52(a), as the evidence supported the finding that each vessel’s pilot believed that the other vessel had a shallow draft and could get out of the way, leading the pilots to agree to a port-to-port pass that caused the collision. The court also held that the district court properly found that the seaman’s release was invalid. First, the release was executed after a doctor hired by appellant told the seaman that he was bruised and sore but would suffer no permanent problems. In fact, the seaman had a serious back injury. Second, the consideration for the release was $ 500, which was so grossly inadequate that it tended to show that the seaman did not understand his rights. Third, the seaman signed the release shortly after the collision, after being awake all night on the stricken vessel.
The court affirmed the district court’s judgment.
Summary judgment that state claim was preempted was error because Whistleblower Act, 740 ILCS 174/1 et seq., was not inconsistent with Seaman’s Protection Act, 46 U.S.C.S. § 2114, or hostile to uniformity of federal maritime law. Disputed question of fact existed as to whether employer had a retaliatory motive in terminating ship’s captain.
WILLIAM ZUCCOLO, Plaintiff-Appellant, v. HANNAH MARINE CORPORATION, Defendant-Appellee.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
2008 Ill. App. LEXIS 1281
December 16, 2008, Filed
Appellant captain of a vessel challenged a decision of the Circuit Court of Cook County (Illinois) that entered summary judgment in favor of appellee employer, finding that his claims brought under the Whistleblower Act (740 ILCS 174/1 et seq. (2004)) and the Illinois common-law tort of retaliatory discharge were preempted by federal maritime law.
The captain claimed error in finding that federal law preempted his claims brought under the Whistleblower Act and the Illinois common-law tort of retaliatory discharge. The employer claimed that the Whistleblower Act claim was preempted by the Seaman’s Protection Act (46 U.S.C.S. § 2114). The court disagreed. Nothing in the enactment of the Seaman’s Protection Act suggested that Congress sought to provide an exclusive remedy for retaliatory discharge claims brought by seamen. Because the Whistleblower Act was neither inconsistent with the Seaman’s Protection Act nor hostile to the uniformity of federal maritime law, the Whistleblower Act claim was not preempted. In the absence of a well-established body of precedent, the court was unable to say that the common-law retaliatory discharge claim conflicted or interfered with the uniformity of federal maritime law. Summary judgment was not appropriate because a disputed question of fact existed as to whether the employer had a retaliatory motive in terminating the captain.
The court reversed the summary judgment and remanded the cause for further proceedings.
Where a laborer who was sandblasting offshore platforms was injured doing unrelated work, his claims under both the Jones Act, former 46 U.S.C.S. app. § 688, and maritime common law for unseaworthiness against the time-charterer that had hired him both failed, as he was not a “seaman” under the statute.
BUTCHER VERSUS SUPERIOR OFFSHORE INTERNATIONAL, LLC
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2008 U.S. Dist. LEXIS 97712
December 2, 2008, Decided
Plaintiff, a sand blaster, brought claims against defendant, the time-charterer of a lift boat on which the blaster was injured, the party with which he had contracted, under the Jones Act, former 46 U.S.C.S. app. § 688, and for unseaworthiness. The blaster contracted to blast and paint offshore platforms. The time-charterer moved for summary judgment, asserting the blaster was not a seaman nor owed a duty of seaworthiness.
The time-charterer hired the blaster to do work on third party platforms. To transport and house him during the work period, the time-charterer chartered a lift boat, on which the blaster lived and ate, and did occasional work for the lift boat crew. He was injured as he worked with the lift boat’s crane operator on work unrelated to the blasting. The blaster’s Jones Act claim turned on whether he qualifies as a “seaman” under the Jones Act. Although he contributed to the function or mission of the lift boat, he failed to show a connection to the lift boat that was substantial in both nature and duration. He admitted that he spent only one-fourth of his time onboard the lift boat, which made him ineligible for seaman status. The time-charterer was thus entitled to summary judgment on the Jones Act claim. Because the time-charterer did not qualify as a demise charterer, it did not owe a duty of seaworthiness to the blaster, and his common law seaworthiness claim against the time-charterer also failed.
The time-charterer’s motion for summary judgment was granted.