As 33 U.S.C.S. § 905(a) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 901 et seq., preempted an employee’s claim under Ohio law against his employer, alleging that the employer caused an injury through an intentional act committed with the belief that injury was “substantially certain” to occur, the employee’s claim failed.
TALIK, APPELLEE, v. FEDERAL MARINE TERMINALS, INC., APPELLANT.
SUPREME COURT OF OHIO
2008 Ohio 937; 2008 Ohio LEXIS 556
March 13, 2008, Decided
Appellant employer sought review of a judgment from the Court of Appeals for Cuyahoga County (Ohio), which reversed a trial court decision in favor of the employer. The court of appeals held that the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., did not preempt appellee employee’s claim against the employer, alleging employer intentional tort (EIT) based upon substantial certainty.
The employee worked as a longshoreman for the employer, and he was injured when a stack of pipes that he was loading collapsed on his leg. It was undisputed that the employee was covered by the LHWCA, and as a worker in the “twilight zone,” he had the option of obtaining benefits under the LHWCA or Ohio workers’ compensation because his employer participated in both programs under R.C. 4123.35 and 33 U.S.C.S. § 932(a). The employee received benefits under the Ohio workers’ compensation fund. He thereafter filed his “substantial certainty” EIT action, which resulted in a grant of summary judgment to the employer based on the preemption of 33 U.S.C.S. § 905(a). The court of appeals reversed that decision, finding that there was no preemption to the EIT claim. On further review, the court noted that Congress did not expressly preempt the intentional tort standard in Ohio, based on the language of the LHWCA. However, conflict preemption applied in order to avoid inconsistency with the central purpose underlying the LHWCA of creating a uniform compensation system. Accordingly, the court concluded that the LHWCA preempted the substantial certainty EIT claim pursuant to § 905(a).
The court reversed the judgment of the court of appeals and remanded the matter to that court for consideration of the employee’s second assignment of error.
Because of isolated and sporadic nature of calls made on US ports by defendants’ vessels, lack of control defendants possessed over calls, and absence of other contacts with US in Asarco framework, defendants lacked requisite “continuous and systematic” contacts with forum to support exercise of general personal jurisdiction.
OLGA DE LEON; DAURYS BLADIMIL DE LEON; RAFAELA DE LEON; FRANKLIN ROA; JOSE GUERRERO MARTE; CRISTIAN ENCARNACION, Plaintiffs-Appellants v. SHIH WEI NAVIGATION COMPANY LTD; DONG LIEN MARITIME SA PANAMA, Defendants-Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 5464
March 13, 2008, Filed
Plaintiffs, surviving stowaways and heirs of decedent stowaways, initiated an admiralty and maritime tort action seeking damages for personal injuries allegedly suffered by the stowaways. Plaintiffs appealed from the United States District Court for the Southern District of Texas, challenging a dismissal for lack of personal jurisdiction over defendants.
The stowaways boarded a vessel in an ill-fated attempt to enter the United States (US) illegally. While the vessel was in international waters en route to Houston, Texas, the stowaways were discovered by the crew and then either left voluntarily on a raft or were forcibly thrown overboard by the crew. Considering the isolated and sporadic nature of the calls made on US ports by defendants’ vessels, the lack of control defendants possessed over the calls, and the absence of any other contacts with the US in the Asarco framework, defendants lacked the requisite “continuous and systematic” contacts with the forum to support the exercise of general personal jurisdiction. Defendants’ sole contacts with the forum were calls made on forum ports in the years preceding the incident at issue. Defendants were not licensed or authorized to do business in the US; they had never advertised or solicited any business in the US; they did not maintain a place of business or office in the US; they had no employees or agents located in the US; they had never maintained a telephone number or mailing address in the US; and they never owned, leased, or possessed any interest in property in the US.
The dismissal was affirmed.
District court did not err in finding that towing company was not entitled to salvage award because vessel was not in a situation of reasonable apprehension of maritime peril where hurricane had already passed through the area, vessel was secured in marina, and there was no evidence that concrete pilings posed further risk of damage to the vessel.
CAPE ANN TOWING, Plaintiff-Appellant, versus M/Y “UNIVERSAL LADY”, in rem, BP ENTERPRISES OF FLORIDA, LLC, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2008 U.S. App. LEXIS 5237
March 11, 2008, Decided
Appellant towing company sought review of a judgment from the United States District Court for the Southern District of Florida, which denied the company’s in rem claim for a salvage award of $ 487,500 against appellees, a vessel and its owner, and instead awarded the company $ 2,706 on the basis of quantum meruit for marine towing services that the company rendered to the vessel during a hurricane.
The district court held that the company was not entitled to a salvage award because it failed to show the existence of a maritime peril from which the vessel could not have been saved without assistance. On appeal, the court held that the district court did not err in its determination that the vessel was not in a situation of reasonable apprehension of maritime peril. Notwithstanding the company’s assertions that the weather was still perilous and the vessel was positioned next to and above broken concrete pilings, the evidence showed that the weather had dramatically improved from the earlier hurricane conditions and that the vessel was located in a marina, afloat, and secured by a rope to another boat. The company presented no credible evidence that the pilings had damaged or posed further risk of damage to the vessel’s hull. The evidence also showed that the center of the hurricane had already passed through the area. The court also found no merit to the company’s argument that the district court should have awarded compensation on a per foot of vessel charge typically used in salvage situations, as the company had not established that it acted as a salvor to the vessel.
The court affirmed the district court’s judgment.
District court properly granted summary judgment to engineer in pier owner’s action arising out of collapse of pier by upstream construction work because although pier insurer’s transfer of subrogation rights to owner was permissible under state law, further recovery by owner pursuant to subrogation rights constituted impermissible double recovery.
IN RE: COMPLAINT OF WEEKS MARINE, INC. AS OWNER OF THE WEEKS 263 LOADLINE DECK BARGE, WEEKS 272 CARFLOAT AND WEEKS 524 GANTRY CRANE, FOR EXONERATION FROM OR LIMITATION OF LIABILITY; SOUTH JERSEY PORT CORPORATION, Appellant in No. 06-3586; IN RE: COMPLAINT OF WEEKS MARINE, INC. AS OWNER OF THE WEEKS 263 LOADLINE DECK BARGE, WEEKS 272 CARFLOAT AND WEEKS 524 GANTRY CRANE, FOR EXONERATION FROM OR LIMITATION OF LIABILITY, S.T. HUDSON ENGINEERS, INC., Appellant in No. 06-4639
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2008 U.S. App. LEXIS 6384
March 27, 2008, Opinion Filed
Appellant pier owner challenged orders of the United States District Court for the District of New Jersey granting summary judgment to appellees, an engineer, a pile driving company, and a construction manager, in actions arising out of the collapse of the owner’s piers allegedly caused by pile driving at an upstream construction site where appellees were working. The engineer appealed the denial of its motion for Fed. R. Civ. P. 11 sanctions.
The company moved to dismiss the owner’s strict liability claim, asserting that federal maritime law preempted state law and that pile driving was not an abnormally dangerous activity to which strict liability attached. The district court converted the motion to one for summary judgment and granted it. The engineer sought summary judgment claiming that the owner was precluded from pursuing an action against it premised on the pier insurer’s assignment of its subrogation rights. The engineer also sought Fed. R. Civ. P. 11 sanctions. The district court granted the motion, noting that the owner asserted that its damages totaled $ 6.3 million and it had recovered $ 7.3 million from a settlement with the insurer. The district court found that although the insurer’s transfer of the subrogation rights to the owner was permissible under state law, further recovery by the owner pursuant to the subrogation rights would constitute impermissible double recovery. The district court also denied the engineer’s request for sanctions. On appeal, the court discerned no error in the district court’s rulings and affirmed substantially for the reasons set forth in the district court’s written opinions.
The court affirmed the district court’s judgments.
Uberrimae fidei supported a marine insurer’s request to rescind a marine insurance policy because the insured made material misrepresentations in the insurance policy application; the application requested the yacht’s purchase price and the present insurer, and the insured misrepresented both facts.
NEW HAMPSHIRE INSURANCE CO., Plaintiff-Appellee, v. C’EST MOI, INC., Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2008 U.S. App. LEXIS 5836
March 20, 2008, Filed
Defendant insured, a corporation that owned a vessel, appealed from a judgment of the United States District Court for the Central District of California, which granted summary judgment in favor of plaintiff insurer, holding that uberrimae fidei applied and that the insured misrepresented material facts on its insurance application.
The insured obtained marine coverage for a yacht from the insurer. Subsequently, the yacht sank in calm waters while docked. The insurer determined that the likely cause was a malfunctioning bilge pump. It then sued the insured to rescind the insurance policy, and the district court granted summary judgment in favor of the insurer. On appeal, the court held that uberrimae fidei was a well-entrenched doctrine that protected not merely the insurer but also the integrity of the risk pool. Only an unambiguous statement in the policy, purporting to supersede the doctrine in express terms would be sufficient to accomplish that purpose. There was no such clause in the policy at issue. Affirming, the court held that the district court correctly found that there was no factual dispute as to whether the insured made material misrepresentations in the insurance policy application. The fact that the insurer demanded answers to specific questions in the application was sufficient to establish materiality as a matter of law. The application asked for the yacht’s purchase price and present insurer and the insured misrepresented both facts.
The court affirmed the district court’s judgment
Where cruise ship passengers got sick aboard a cruise ship, a forum selection clause in the cruise contracts required that suit be brought in the federal district court in Washington. The passengers could not file suit in state court under the savings to suitors clause, 28 U.S.C.S. § 1333(1), and thereby deprive the federal court of jurisdiction.
Jack Oltman et al., Petitioners, v. Holland America Line Usa, Inc. et al., Respondents.
SUPREME COURT OF WASHINGTON
2008 Wash. LEXIS 211
March 13, 2008, Filed
Petitioners, cruise ship passengers and a family member, filed suit against respondent cruise line alleging several causes of action. The King County Superior Court, Washington, granted summary judgment for the cruise line. The Washington Court of Appeals affirmed. Petitioners appealed.
Two cruise ship passengers became ill on a cruise ship. They filed suit against the cruise line in the King County Superior Court. The wife of one of the passengers asserted a claim for loss of consortium. The trial court did not err in refusing to strike the cruise ship’s untimely answer and affirmative defenses, and in refusing to strike the declaration of the cruise line’s attorney that contained citations to unpublished trial court decisions. The trial court held that a forum selection clause in the cruise contracts required that suit be brought in the United States District Court for the Western District of Washington. The Court of Appeals affirmed. The Supreme Court of Washington concluded that the wife’s loss of consortium claim was not subject to the forum selection clause; she did not sign the cruise contract, nor did she agree to its terms. As to the passengers, the forum selection clause was valid and enforceable. The passengers could not file their suit in state court under the savings to suitors clause and thereby deprive the federal court of jurisdiction.
The summary judgment in favor of the cruise line was affirmed on all issues except the loss of consortium claim. The summary judgment on the loss of consortium claim was reversed, and this claim was remanded to the trial court for further proceedings.