SEAMAN’S EMPLOYER HELD NOT TO HAVE SUFFICIENT CONTACTS WITH STATE FROM WHERE EMPLOYER HIRED SEAMAN TO SUPPORT PERSONAL JURISDICTION AGAINST EMPLOYER DESPITE ARBITRATING THE CASE THERE AND NEGOTIATING WITH A HIRING AGENT THERE
SILVERINO BASUEL ESTIGOY, Plaintiff-Appellant, v. OSG CARCARRIERS, INC., In personam; MARITIME OVERSEAS CORPORATION, In personam,Defendants-Appellees, and M/V OVERSEAS JOYCE O.N. D921012, In Rem, Defendant.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2538
January 17, 2002, Argued and Submitted, San Francisco, California
February 14, 2002, Filed
Appellant seaman sued appellee employer under the Jones Act, 46 U.S.C.S. § 688, for negligence, unseaworthiness, and maintenance and cure. The United States District Court for the District of Hawaii dismissed the seaman’s claims against the employer for lack of personal jurisdiction. The seaman appealed.
The seaman argued that the employer had sufficient contacts with Hawaii to create general personal jurisdiction. The district court and, in turn, the appeals court found that the contacts were not sufficient to create either general or specific jurisdiction. The employer had no agent, office, or property in Hawaii; the employer did not advertise and was not authorized to do business in Hawaii; and the employer’s ships did not call on ports within Hawaii except in cases of emergency. The employer paid the seaman’s airfare and arbitrated the dispute in Hawaii pursuant to a collective bargaining agreement. Those “contacts” did not constitute purposeful acts by which the employer invoked the benefits and protections of Hawaii’s laws. Further, the court would not attribute to the employer the acts of another entity that served as the exclusive bargaining agent for seamen employed by the employer.
The court affirmed the judgment of the district court.
DOHSA HELD TO APPLY TO AIRLINE INCIDENT IN FOREIGN TERRITORIAL WATERS SO AS TO PRECLUDE PUNITIVE DAMAGE RECOVERY
IN RE AIR CRASH DISASTER NEAR PEGGY’S COVE, NOVA SCOTIA ON SEPTEMBER 2, 1998
MDL NO. 1269 THIS DOCUMENT RELATES TO: ALL CASES
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 3309
February 27, 2002, Filed
Plaintiffs, the heirs of passengers killed in a plane crash within the territorial waters of Canada, filed several actions against defendants, the airline companies and the manufacturers, to recover for the deaths. The cases were transferred to the court for coordinated and consolidated pretrial proceedings. The airlines and the manufacturers moved to dismiss the punitive damages claims.
The airlines and the manufacturers argued that the punitive damages claims were precluded by the Death on the High Seas Act (DOHSA), 46 U.S.C.S. app. § 761 et seq., because the 2000 amendments to the DOHSA demonstrated that the term high seas was to be given a geographic meaning. The heirs argued that in enacting the 2000 amendments, Congress intended to adopt the definition of high seas as developed in the most recent case law prior to the passage of the amendments. The court found that the DOHSA, as amended, applied to aviation incidents in foreign territorial waters because the case law cited by the heirs did not address whether the DOHSA applied to foreign territorial waters. Rather, the decision was limited to whether the DOHSA applied to domestic waters between three and 12 miles from the shores of the United States. Since the amended DOHSA did not allow recovery for punitive damages, 46 U.S.C.S. app. § 762(b)(1), the airlines’ and the manufacturers’ motion to dismiss all claims for punitive damages under United States law was granted.
The motion to dismiss the punitive damages claims was granted.
SEAMAN’S VERDICT AGAINST EMPLOYER VACATED AND JONES ACT CASE DISMISSED WHERE COURT HELD NO SUBJECT MATTER JURISDICTION OVER PHILIPPINE SEAMAN EMPLOYED BY A GERMAN NATIONAL ON A GERMAN FLAGGED VESSEL SUFFERED AN INJURY IN JAMAICA, DESPITE THE FACT THAT THE VESSEL WAS CHARTERED BY MIAMI CORPORATION
HARLEY AMANQUITON, Appellant, v. JONNY PETERSON, a foreign corporation, and PARTENREEDERI M.S. “KERSTIN,” a foreign corporation, Appellees.
CASE NO. 4D01-217
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2002 Fla. App. LEXIS 1402
February 13, 2002, Opinion Filed
Plaintiff injured employee sued defendant employer, a foreign corporation, under the Jones Act, 46 U.S.C.S. § 688. The Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), entered a final judgment of dismissal for the employer. The employee appealed.
The employee was injured aboard a ship owned by his employer. His Jones Act complaint against the employer was served on a Miami corporation that had chartered the ship from the employer. After a jury awarded the employee $900,000, and judgment was entered against the employer in that amount, the employer filed a post-trial motion for new trial or rehearing. During the motions hearing, the question of subject matter jurisdiction under the Jones Act was addressed and memoranda were submitted. The employer argued that the trial court lacked jurisdiction to award damages to a Philippine seaman, employed by a German national, as a seaman upon a German flag vessel, employed under a Philippine Overseas Employment Administration contract, for an injury in Jamaica. The trial court granted the employer’s motion to dismiss on the grounds of void service and lack of Jones Act jurisdiction, vacated the final judgment, and entered a judgment favoring the employer. The appellate court concluded the trial court did not abuse its discretion in deciding the employer did not have a sufficient nexus with Florida or the United States to confer Jones Act jurisdiction.
The judgment was affirmed.
UNSEAWORTHINESS DENIED AND INJURED SEAMAN FOUND 75% COMPARATIVELY NEGLIGENT FOR INJURY SUSTAINED WHERE SEAMAN CLAIMED SHIP’S CAPTAIN MADE HIM WORK IN DARK AND REFUSED TO PROVIDE HIM A FLASHLIGHT, SHIP’S CAPTAIN’S RACIST STATEMENTS TO SEAMAN DEEMED INADMISSIBLE
BRIAN PREATTO VERSUS TIDEWATER MARINE, INC.
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2000-0624 (La.App. 4 Cir, 02/06/02); 2002 La. App. LEXIS 246
February 6, 2002, Decided
Appellant seaman sued appellee employer in the Civil District Court, Orleans Parish (Louisiana), for maintenance and cure under general maritime law and under the Jones Act, regarding injuries suffered during his employment. The trial court awarded the seaman damages, and he appealed.
The seaman was injured in a pre-dawn accident aboard ship. The appellate court held the trial court did not abuse its discretion by excluding the seaman’s uncorroborated testimony that the ship’s captain had made an extremely offensive racial slur. La. Code Evid. Ann. art. 607 did not mandate the admissibility of statements of racial animus without regard to the balancing required by La. Code Evid. Ann. art. 403. The seaman did not show the exclusion of this evidence constituted an error subject to appeal under La. Code Evid. Ann. art. 103 by affecting his substantial right. The jury’s verdict apportioning 75 percent of fault to the seaman was not manifestly erroneous. The seaman did not prove his claim that the captain’s alleged refusal to give the seaman a flashlight showed the vessel was unseaworthy. Considering the seaman’s lies to various doctors and the jury about prior injuries, the jury’s award of damages was not an abuse of its vast discretion.
The trial court’s judgment was affirmed.
NOTE: Preatto and his fellow deckhand, who Tidewater terminated for poor work performance, testified that Captain Hale ordered them to board the assist tug in the dark, that they asked for a flashlight but Captain Hale refused, that they boarded the assist tug and the barge and that Preatto stumbled in the dark and injured his knee and back. However, several witnesses, both expert and fact, testified that the accident occurred in the daylight. Moreover, several members of the crew of the MV GULF MISS testified that they had access to flashlights and that they knew to use them in the dark.
NINTH CIRCUIT REVERSES DISTRICT COURT FINDING OF UNSEAWORTHINESS FOR CREWMEMBERS UNPROVOKED KNIFE ATTACK ON ANOTHER CREWMEMBER
EDWIN TORRES, Plaintiff-Appellee, v. CARIBBEAN FISHINGCOMPANY, INC., STARKIST FOODS, INC. and the M/V FUIONO, Defendants-Appellants, and DOES 1 – 50, Defendants.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 2220
January 16, 2002, Argued and Submitted, Pasadena, California
February 6, 2002, Filed
The United States District Court for the Southern District of California found that appellant vessel was unseaworthy and that appellee injured party was entitled to an award of maintenance and cure. The vessel appealed.
The district court made extensive findings of fact regarding a crewmember’s conduct prior to and during the incident with the injured party. However, the facts as found by the district court did not support the legal conclusion that the vessel was unseaworthy due to the crewmember’s presence on the vessel. The specific incidences of fighting in the crewmember’s past did not reflect a vicious nature unequal to that of the ordinary men in the calling. Further, the fight between the crewmember and the injured party did not itself make the vessel unseaworthy, but only provided facts by which to measure the crewmember’s disposition. It was significant that the crewmember did not provoke the fight but was reacting in self-defense of the injured party’s unprovoked knife attack. The district court erred in concluding that the vessel was unseaworthy under the facts of this case. The district court allocated 50 percent responsibility for the injury party’s injuries to both the injured party and the crewmember. The district court did not err in awarding the injured party maintenance and cure because his willful misconduct was not the sole cause of his injuries.
The appellate court reversed the judgment in part, and affirmed it in part.
CRUISE LINE STAYS EXECUTION OF JUDGMENT PENDING APPEAL WITHOUT POSTING A BOND BUT PROVIDING A LETTER OF UNDERTAKING BY P&I CLUB, OVER OBJECTION OF PLAINTIFF
JOHN and JOYCE SILIVANCH, Plaintiffs, – against – CELEBRITY CRUISES, INC., FANTASIA CRUISING INC., ESSEF CORP., PRE-FAB, and STRUCTURALEUROPE N.V. (f/n/a SFC), Defendants. CELEBRITY CRUISES, INC. and FANTASIACRUISING INC., Third-Party Plaintiffs, – against – STRUCTURAL EUROPE, ESSEFCORP., and PRE-FAB, Third-Party Defendants.
95 Civ. 0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 3270
February 28, 2002, Decided
February 28, 2002, Filed
Celebrity’s motion for a stay of execution of judgment pending appeal granted.
Defendants Celebrity Cruises, Inc. and Fantasia Cruising, Inc. (collectively “Celebrity”) have moved for an order staying execution of judgment pending appeal. Celebrity seeks to be relieved of the obligation of posting a bond and suggests, instead, that it would submit a Club Letter of Undertaking from its insurer United Kingdom Mutual (the “U.K. Club”). The plaintiffs object to this alternative, primarily on the ground that, should they prevail on appeal, they could be faced with further litigation to collect on the undertaking, rather than simply being able to draw down on a bond. In this case, the plaintiffs can be reasonably assured of obtaining full and prompt relief pursuant to the alternative proposed by Celebrity. “Celebrity is part of a multi-billion dollar company with hundreds of millions of dollars in net income.” Moreover, the U.K. Club, which would submit the Club Letter of Undertaking, is the largest P & I club in the world and is itself “double-A” rated. In response to the Plaintiff’s concerns, the court attached certain conditions to Celebrity’s proposal. It shall be required to submit a Club Letter of Undertaking in which the U.K. Club: (1) consents to jurisdiction in this Court for all purposes relating to execution of the judgment, (2) appoints local counsel with authority to accept service of process here, and (3) concedes liability, jointly and severally with Celebrity, for any attorneys’ fees and costs that may be incurred by the plaintiffs in the event that Celebrity’s share of the judgment is not promptly paid to the extent affirmed on appeal.
VENUE HELD PROPER WHERE DEFENDANT CRUISE LINE HAS AGENTS OR OTHER REPRESENTATIVES WITHIN THE COURT’S JURISDICTION
SUERTELO M. YEE, Appellant, vs. NEW COMMODORE CRUISE LINES, LIMITED, INC., Appellee. NEW COMMODORE CRUISE LINES, LIMITED, INC.,Appellant, vs. RALSTON MOODIE, Appellee.
CASE NO. 3D00-2740, CASE NO. 3D01-1989
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2002 Fla. App. LEXIS 1684
February 13, 2002, Opinion Filed
Appeals from Non-Final orders from the Circuit Court for Miami-Dade County, Celeste Hardee Muir and Thomas S. Wilson, Jr, Judges. LOWER TRIBUNAL NO. 00-10380; LOWER TRIBUNAL NO. 00-13540
New Commodore Cruise Lines Limited, Inc., appeals an order denying its motion to transfer venue in a Jones Act negligence action brought by Ralston Moodie. This appeal was consolidated with the appeal brought by Suertelo Yee from a trial court order granting NCCL’s motion to transfer venue in Yee’s negligence action. We affirm the denial in Moodie’s action and reverse the order transferring venue in Yee’s case. The court finds that the Defendant has agents or other representatives in Miami-Dade County within the meaning of Section 47.051, Florida Statutes, to wit: Blanca Santos and Jeffrey Binder. Accordingly, venue is proper in Miami-Dade County according to Section 47.051, Florida Statutes.