Because ramps leading from the land to a floating dock were considered extensions of land for purposes of determining whether an incident occurred on or over navigable waters, and defendant’s alleged accident occurred on such a ramp, plaintiff could not satisfy the locality prong of the test for invoking federal admiralty tort jurisdiction.

MLC FISHING, INC., as owner of the vessel “Capt Mike,” the Plaintiff for Exoneration from or Limitation of Liability, Plaintiff-Appellant, —v.— JULIO ANGEL VELEZ, Defendant-Appellee,
Docket No. 10-903-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2011 U.S. App. LEXIS 24808

December 15, 2011, Decided

PROCEDURAL POSTURE:

Defendant fell and was injured on a ramp leading from a marina to a floating dock that passengers were required to traverse in order to access a fishing vessel. Plaintiff appealed from the U.S. District Court for the Eastern District of New York’s judgment, dismissing plaintiff’s complaint seeking exoneration from or limitation of liability pursuant to the Exoneration and Limitation of Liability Act, 46 U.S.C.S. § 30501 et seq.

OVERVIEW:

The ramp on which defendant slipped and fell was properly considered an extension of the land, and the accident was not “caused by” the vessel or its appurtenances. Given that floating docks were considered extensions of land for purposes of determining whether an incident occurred on or over navigable waters, a ramp leading from the land to a floating dock was likewise so considered. Accordingly, because defendant’s alleged accident occurred on such a ramp, the district court was correct in ruling that plaintiff could not satisfy the locality prong of the two-part test for invoking federal admiralty tort jurisdiction. Additionally, the court held that the Exoneration and Limitation of Liability Act, 46 U.S.C.S. § 30501 et seq., did not provide an independent jurisdictional basis for petitions that arose from incidents not occurring on or over navigable waters. The Exoneration and Limitation of Liability Act did not confer federal admiralty jurisdiction over any action not already encompassed within the Extension Act’s jurisdictional grant.

OUTCOME:

The judgment of the district court was affirmed

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In a worker’s action against a tugboat owner for damages pursuant to the Jones Act, 46 U.S.C.S. § 30104, and general maritime law, the district court’s finding that the worker was not contributorily negligent was not error because the district court found that the captain’s testimony was not credible and that the worker was following orders.

CHAD DAVID LEDET, Plaintiff-Appellee v. SMITH MARINE TOWING CORPORATION, Defendant-Appellant
No. 11-30413 Summary Calendar

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2011 U.S. App. LEXIS 25506

December 21, 2011, Filed

PROCEDURAL POSTURE:

Appellant tugboat owner appealed the judgment of the United States District Court for the Eastern District of Louisiana in favor of appellee deckhand worker in his action for damages pursuant to the Jones Act, 46 U.S.C.S. § 30104, and general maritime law for injuries he sustained during an accident aboard the tugboa

OVERVIEW:

The owner sought remittitur and review of the district court’s finding that the worker was not contributorily negligent. The court held that the owner’s argument about the worker’s own negligence was foreclosed by case law because the district court found that the worker was following orders. Moreover, the district court specifically found that the captain’s testimony was not credible and that findings of fact, like that the worker was not negligent, were even harder to upset when they were based on a credibility determination of the district court. The court ruled that it found no clear error in the district court’s $1.3 million dollar award. The maximum recovery rule was inapplicable under the rough guidance of Louisiana case law, and the owner provided no other basis to upset the award.

OUTCOME:

The judgment was affirmed.

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IN AN APPEAL WHERE LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A., DID AN AMICUS BRIEF TO THE ELEVENTH CIRCUIT OF APPEALS (CLICK HERE TO SEE THE BRIEF), THE COURT RULED THAT Where a passenger alleged negligence regarding personal injuries sustained while participating in a simulated surfing activity on a cruise ship, the waiver she signed was void under 46 U.S.C.S. § 30509 because, AMONG OTHER THINGS, the statute contained no exceptions regarding the type of activity.

CHARLENE I. JOHNSON, Plaintiff-Appellant, versus ROYAL CARIBBEAN CRUISES, LTD., a Liberian corporation, Defendant-Appellee.
No. 11-11729 Non-Argument Calendar

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2011 U.S. App. LEXIS 25240

December 20, 2011, Decided

PROCEDURAL POSTURE:

Plaintiff passenger sued defendant cruise ship owner, alleging negligence regarding a personal injury. The United States District Court for the Southern District of Florida granted summary judgment in favor of the cruise ship owner. The passenger appealed.

OVERVIEW:

Before purchasing a ticket to participate in a simulated surfing and body boarding activity on a cruise ship, the passenger signed an electronic waiver. The passenger was injured when an instructor attempted a maneuver with the passenger that was in violation of the safety guidelines. The cruise ship owner argued that the waiver precluded the passenger from recovering for these injuries. The appellate court determined that remand was warranted because 46 U.S.C.S. § 30509 applied and the waiver was void under § 30509 since (1) the waiver was clearly a contract with a provision that limited the liability of the owner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents, (2) the cruise ship owner undoubtedly was the owner of a vessel transporting passengers between a port in the United States and a port in a foreign country, and (3) the statute contained no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found.

OUTCOME:

The appellate court reversed the judgment of the district court and remanded the case for further proceedings.

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Plaintiff had identified no reason why the jurisdictional defect that rendered the electronic funds transfers unattachable under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B would not also render unattachable the same funds in the district court’s court registry investment system.

INDIA STEAMSHIP COMPANY LIMITED, Plaintiff-Appellant, -v.- KOBIL PETROLEUM LIMITED, Defendant-Appellee.
Docket No. 10-4066-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2011 U.S. App. LEXIS 24585

December 13, 2011, Decided

PROCEDURAL POSTURE:

Plaintiff appealed from an order of the United States District Court for the Southern District of New York vacating the attachment, pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B, of a check issued by the district court clerk made payable to defendant.

OVERVIEW:

Plaintiff did not contest that the electronic funds transfers (EFT) were transferred from the bank into the district court’s court registry investment system (CRIS) solely as a result of the order of attachment, which the district court subsequently vacated. Nor was there any dispute that the check issued from the CRIS represented the proceeds of EFTs now deemed to be beyond the reach of the district court. Plaintiff had identified no reason why the jurisdictional defect that rendered those EFTs unattachable under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B would not also render unattachable the same funds in the CRIS. No alchemy by the bank could transform EFTs that could not be attached into property of the defendant that could be attached. Accordingly, the attachment of the CRIS check was no more lawful than was the attachment of the EFTs. Further, whether Fed. R. Civ. P. 62(a) applied to stay the execution of the release order, had nothing to do with whether the CRIS check was properly subject to attachment.

OUTCOME:

The order of the district court was affirmed.