Summary Judgment In Favor Of Cruise Line Reversed Where Passenger Injured Due To Loose Door Handle And Cruise Line Employees Had Opportunity To Discover The Loose Door Handle.
SHIRLEY CORONA and ANTHONY CORONA, Appellants, vs. COSTACROCIERE S.P.A., COSTA CRUISE LINE N.V., N/K/A COSTA CRUISE LINES, N.V., L.L.C.,Foreign Business Entities, Appellees.
CASE NO. 3D02-2111
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 1809; 28 Fla. L. Weekly D 499
February 19, 2003, Opinion Filed
An appeal from the Circuit Court for Dade County, Paul Siegel, Judge. LOWER TRIBUNAL NO. 00-08535.
Reversed and remanded.
In a premises liability case arising on a cruise ship, plaintiffs, the injured party and her spouse, appealed the judgment of the Circuit Court for Dade County (Florida), which granted summary judgment to defendant corporations, the owners and operators of the cruise ship in question.
The injured party walked with the assistance of a cane. During the first night at sea, she used the bathroom which was within their cabin. While emerging from the bathroom she leaned on the door handle, which came out of its housing. She lost her balance and fell, suffering serious injuries. The appellate court concluded that the corporations had not carried their burden of demonstrating the nonexistence of any disputed issue of material fact. Common experience would indicate that doorknob or door handle assemblies did loosen up from time to time, but typically this was a slow process which should be noticeable to those who use the door. Certainly the cruise ship had a cleaning staff, and undoubtedly they moved the door from time to time in order to clean behind it. It was reasonable to assume that this type of problem would have existed, and worsened, over a period of time such that the cruise ship staff discovered, or reasonably should have discovered, it. The fact that the maintenance person was able to repair the problem using the existing fixture and screws would tend to rule out the possibility that there was any manufacturing defect in the door handle assembly itself.
The judgment of the trial court was reversed and remanded for further proceedings.
Summary Judgment In Favor Of Ship Owner Reversed Where Seaman Was Injured By Slipping On Engine Room Floor Made Wet By Rain Water Coming In Through Open Hatches And Expert Witness Opines That The Hatches Should Not Have Been Left Open.
TEDDY CAMPBELL VERSUS HIGMAN BARGE LINES, INC.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2002-0937 (La.App. 3 Cir, 02/05/03); 838 So. 2d 80; 2003 La. App. LEXIS 194
February 5, 2003, Rendered
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT PARISH OF CALCASIEU, NO. 2001-972. HONORABLE PATRICIA MINALDI, DISTRICT JUDGE.
REVERSED AND REMANDED.
Plaintiff, an employee of defendant barge corporation filed a maritime action following a work-related injury that occurred aboard a barge, in the Fourteenth Judicial District, Parish of Calcasieu (Louisiana). The barge corporation moved for summary judgment. The trial court granted the motion. The employee appealed.
The accident occurred when the employee was instructed to change the oil in the barge engines. He alleged that when he was down in the engine room, with the hatches open above, the weather turned to rain dampening the floor below and he slipped on the wet floor injuring his back. He sought recovery related to what he alleged was a permanent injury, alleging the barge was unseaworthy and the barge corporation was negligent because the hatches were left open. He sought recovery under the saving to suitors clause, 28 U.S.C.S. § 1333, the Jones Act, 46 U.S.C.S. § 688(a) and general maritime law. He argued genuine issues of material fact existed regarding unseaworthiness and Jones Act negligence and maintenance and cure issues. The employee’s expert’s opinion created genuine issues of material fact as to whether the hatches should have been open. The lower court erred in failing to find genuine issues of material fact created by the inferences reasonably drawn from the expert’s affidavit. The appellate court concluded that summary judgment was inappropriate on the negligence question and on the issues of maintenance and cure.
The judgment was reversed and the case was remanded for further proceedings.
Shipowner Negligent And Vessel Unseaworthy Where Water Faucets On Upper Deck Broken And Seaman Injured Back While Carrying Buckets Of Water Up Stairs To Clean Pipe Rack. Verdict Of $3.64 Million Remitted To $1.64 Million.
DIAMOND OFFSHORE MANAGEMENT COMPANY v. ARCHIE MARKS
SUPREME COURT OF MISSISSIPPI
2003 Miss. LEXIS 88
February 27, 2003, Decided
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF TRIAL COURT JUDGMENT: 10/2/2000. TRIAL JUDGE: HON. JOHN H. WHITFIELD.
AFFIRMED AS TO LIABILITY; JUDGMENT VACATED AND REMITTED FROM $3,643,018.00 TO $1,643,018. 00, CONDITIONED UPON ACCEPTANCE WITHIN TWENTY-ONE (21) DAYS AND PAYMENT WITHIN THIRTY (30) DAYS; OTHERWISE, THE CASE IS REMANDED FOR A NEW TRIAL AS TO DAMAGES ONLY.
Appellee seaman sued appellant employer in the Harrison County Circuit Court (Mississippi), alleging, inter alia, negligence under the Jones Act, and maintaining an unseaworthy vessel. The trial court found the employer was negligent and the vessel was unseaworthy, and awarded the seaman damages. It denied the employer’s motion for a new trial, but granted its motion for remittitur, and reduced the damage award. The employer appealed.
The seaman permanently injured his back by carrying buckets of water up stairs to clean a pipe rack. The Supreme Court held that it was immaterial whether the trial court applied the ordinary or the “relaxed” negligence standard, as there was split in the federal circuits as to which standard applied in Jones Act cases, and under either standard, the employer was negligent. The trial court found that the employer provided an unseaworthy vessel (in part because the faucets on the upper deck were broken), and that the seaman had not been contributorily negligent; these findings were proper. However, the award (which had been reduced from $3.75 million to $3.643 million) was excessive. Though the seaman was totally disabled, could not work, and suffered great physical and mental pain, an award of $3 million, plus economic damages, was so high as to be unreasonable; a remittitur to $1 million (plus economic damages) was deemed appropriate. The trial court had personal jurisdiction, as the employer recruited Mississippi residents for employment, and contracted with the seaman in Mississippi by offering him advance payments in exchange for keeping it informed of his progress.
The Supreme Court vacated the award and remitted the judgment from $3.643 million to $1.643 million, provided that this remitted judgment was accepted within two days and paid within 30 days. Otherwise, a new trial confined to the issue of damages was granted, and the case was remanded for such. On all other issues, the Supreme Court affirmed the decision of the trial court.
No Federal Protection For Seaman Who Is Wrongfully Discharged For Refusing To Violate A Federal Safety Statute. Employer Granted Summary Judgment Pursuant To Employment-At-Will Doctrine.
RAYMOND ZBYLUT, Plaintiff, vs. HARVEY’S IOWA MANAGEMENTCOMPANY INC. and/or HARVEY’S CASINO, Defendant.
CIVIL NO. 1-00-CV-10076
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFIOWA, WESTERN DIVISION
2003 U.S. Dist. LEXIS 3752
February 28, 2003, Decided
Defendant’s motion for summary judgment granted.
Plaintiff employee sued defendant employer and alleged that he was wrongfully terminated for refusing to violate a federal safety statute, and that he was constructively discharged due to his resistance to the employer’s allegedly illegal practices. The employer moved for summary judgment and argued that general admiralty and maritime law did not provide a private cause of action for wrongful discharge.
The employee, an at-will employee, worked as a licensed engineer aboard the employer’s casino vessel. The employee alleged that he was personally ordered to falsify the engine room log books in violation of a federal safety statute. The employee alleged that after he complained about falsifying the engine room books he was ostracized by his superior officers in the engineering department and subjected to constant harassment. The employee alleged that the working environment was so unbearable that he was forced to leave. The court found that admiralty and general maritime law did not recognize an exception to the employment-at-will doctrine where the employee was discharged for the refusal to violate a federal safety regulation. Thus, recognizing a federal cause of action in that instance would have exceeded the scope of the judiciary’s power. The chief engineer and other engine room employees’ conduct did not render the employee’s work environment so difficult or unpleasant that a reasonable person in the employee’s position would have been compelled to resign as was evidenced by the fact that the employee continued working for nearly eight months after the alleged conduct started.
The employer’s motion for summary judgment was granted. The clerk of court was directed to enter judgment in favor of the employer and against the employee.
“Vacation Pay” Held Not To Be A Wage Within The Meaning Of 46 U.S.C. §10313 And Collective Bargaining Agreement Reducing Union Members’ “Vacation Pay” Valid Because It Does Not Deprive Union Members Of A Remedy For Recovery Of Wages.
STAVROS E. FANOS, On Behalf of Himself and Those Similarly Situated, Plaintiff, v. MAERSK LINE, LTD., MAERSK SEALAND, A.P. MOLLER GROUP,MAERSK, INC., WILMINGTON TRUST, EXPANDER TRANSPORT CORPORATION, EXPEDITERTRANSPORT CORPORATION, EXPRESSER TRANSPORT CORPORATION, EXPORTER TRANSPORTCORPORATION, and EXTENDER TRANSPORT CORPORATION, Defendants.
CIVIL ACTION NO. G-02-119
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, GALVESTON DIVISION
2003 U.S. Dist. LEXIS 2991
February 21, 2003, Decided
February 21, 2003, Entered
Defendants’ Motion for Summary Judgment GRANTED. Plaintiff’s Motion for Partial Summary Judgment DENIED. Plaintiff’s claims DISMISSED WITH PREJUDICE.
Plaintiff seaman brought the instant action for seamen’s wages and penalty wages under 46 U.S.C.S. § 10313 against defendants, shippers and charters. The seaman moved for partial summary judgment and the shippers and charters moved to dismiss. The parties’ relationship was governed, in part, by a collective bargaining agreement.
Defendant shipper successfully bid on a contract to provide ships and after the contract was awarded the charters agreed to bareboat charter each of the ships. The viability of the seaman’s claim for wages and penalty wages depended on whether the vacation benefit provided in the collective bargaining agreement was a “wage” within the meaning of 46 U.S.C.S. § 10313. The court’s narrow holding was that the seaman’s vacation benefits, which were separate from his base wages and were payable some time after discharge through an independent entity upon application by the seaman, were not wages under 46 U.S.C.S. § 10313. Alternatively, the court held that even if the seaman’s vacation pay were a wage, the seaman’s wage penalty claim would fail because the pay was not wrongfully withheld. In agreeing to reduce union members’ vacation pay by approximately one day per year, the seamen were not deprived of a remedy which the master or seamen otherwise would be entitled for recovery of wages. Vacation pay was not a “remedy” in this case, it was a contractual right, which was validly modified by an agreement between the union and the employers.
The court granted the shippers and charters’ motion for summary judgment and denied the seaman’s motion for partial summary judgment and accordingly did not reach the shippers and charters’ motion to dismiss.
Employer’s Motion To Dismiss For Improper Venue Based On Forum Selection Clause In Employment Contract Denied Where Employer’s Headquarters Were Located Within Forum. Employer’s Motion To Transfer Venue Granted Where Tort Occurred Off Shore In Other Venue And Majority Of Witnesses Reside In Other Venue.
CHARLES EDWARD SPEED, Plaintiff, v. OMEGA PROTEIN, INC., Defendant.
CIVIL ACTION NO. G-02-740
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2003 U.S. Dist. LEXIS 2990
February 21, 2003, Decided
February 21, 2003, Entered
Defendant’s Motion to Dismiss for Improper Venue denied. Defendant’s Motion to Transfer Venue to Western District of Louisiana granted.
Plaintiff seaman sued defendant ship owner for injuries he allegedly sustained while working aboard the owner’s ship. The ship owner moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(3) because of a forum-selection clause in the seaman’s employment contract with the ship owner. In the alternative, the owner sought transfer of the suit to the United States District Court in the Western District of Louisiana.
The owner argued that the employment contract required all lawsuits arising out of the seamen’s employment to be filed in a United States District Court in Mississippi or Louisiana. The seaman urged the court to maintain the action, both because the forum-selection clause was unenforceable, and because the interests of justice militated in favor of maintaining the action in the forum district. The court held that venue was proper within its jurisdiction because the owner maintained its headquarters in the forum. The court then held that the forum selection clause was enforceable, as it was not the result of overreaching. Noting that 28 U.S.C.S. § 1404 was the proper means to analyze whether to transfer a lawsuit because of a forum-selection clause mandating that the lawsuit be brought in another federal court, if venue was otherwise proper, the court next considered the forum-selection clause in its transfer analysis under 28 U.S.C.S. § 1404(a). The court found that, while deference was due the seaman’s choice of forum, the accident occurred offshore of Louisiana, the majority of the key witnesses resided in Louisiana, and the seaman was treated in and resided in Louisiana.
The ship owner’s motion to dismiss for improper venue was denied, but the ship owner’s motion to transfer venue to the Western District of Louisiana was granted.
Private Ship Operators’ Motion For Summary Judgment Allgeing Only United States Is Proper Party Under Suits In Admiralty Act Denied Where Contract Between The U.S. And Private Ship Operators Is Not Conclusive Regarding The U.S. Agency Status Of The Private Ship Operators.
MICHAEL LEVENE VERSUS UNITED STATES, ET AL.
CIVIL ACTION NO. 02-0242 SECTION “A”(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2003 U.S. Dist. LEXIS 1894
February 7, 2003, Decided
February 10, 2003, Filed, Entered
Motion for Partial Summary Judgment filed by defendants General Dynamics Corporation and American Overseas Marine Corporation denied. Motion in Limine filed by defendant United States granted in part and denied in part.
Plaintiff seaman sued defendant, the United States and operators of vessels owner by the United States, alleging that the unseaworthiness of the vessels caused injuries to the seaman. The operators moved for summary judgment, and the United States moved in limine to exclude the testimony of the seaman’s maritime expert.
The operators contended that, since they were merely agents of the United States in operating the vessels, only the United States was a proper party defendant. The United States asserted that the testimony of the seaman’s maritime expert was mere legal conjecture and contained unsupported opinions. The court first held that the contract between the operators and the United States by itself did not conclusively establish or negate the agency status of the operators, and thus fact issues remained concerning such status. Further, the seaman’s expert was not entitled to testify concerning the seaworthiness of vessels he never inspected, nor to offer inadmissible legal conclusions as to liability, but the expert could testify concerning vessel operating procedures.
The operators’ motion for summary judgment was denied; the United States motion in limine was granted in part to limit the expert’s testimony to vessel operating procedures, but the motion was otherwise denied.
Forum Non Conveniens Motion Granted In Seaman’s Wrongful Death Case Where Seaman Was Russian, Tort Occurred In Chinese Territorial Waters, And All Witnesses Were Russian Nationals.
HELGA VARNELO, as Personal Representative of the Estate of STANISLAV VARNELO, Deceased, Plaintiff, -against- EASTWIND TRANSPORT, LTD.,CHARM NAVIGATION, LTD., & MAYFLOWER SHIP MANAGEMENT CORP., Defendants.
02 Civ. 2084 (KMW)(AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2003 U.S. Dist. LEXIS 1424
February 3, 2003, Decided
Magistrate recommended that defendant’s motion to dismiss be granted.
Plaintiff, the personal representative of the estate of decedent, filed suit against defendant ship owners and operators under the Jones Act, 28 U.S.C.S. § 688 et seq., and the Death On the High Seas Act, 46 U.S.C.S. § 761 et seq., alleging that defendants negligently caused the decedent’s death aboard ship while in Chinese territorial waters. One owner moved to dismiss on forum non conveniens grounds. The matter was referred to a magistrate.
The decedent, a Russian citizen residing in Kaliningrad, Russian Federation, was employed as a “boatswain” or “bosun” aboard defendants’ ship. The decedent fell overboard and drowned while the ship was off the port of Shanghai, China. At the time of the accident, the ship’s “pilot ladder” was being installed in order to take a Chinese river pilot aboard and proceed to Jiangjin, China. Defendants asserted that the accident was the decedent’s fault. The personal representative alleged that the vessel was unseaworthy in that the pilot ladder was not safe for its intended use and that defendants were negligent in not securing the pilot ladder in a safe manner. The magistrate found that the private and public interest factors, balanced together, weighed strongly in favor of trial of the action in Russia. The magistrate reasoned that the decedent was a Russian citizen and was hired in Kaliningrad. Moreover, all of the relevant witnesses, including the decedent’s shipmates, were Russian nationals. Further, no evidence as to causation or damages appeared to be located in New York. Finally, defendants had consented to jurisdiction in Russia.
The magistrate recommended that the owner’s forum non conveniens motion should be granted and that the case be dismissed without prejudice.