February 2009 Issue

District court erred when it found it had personal jurisdiction under Fed. R. Civ. P. 4(k)(2) over Costa Rican corporation that owned a resort in Costa Rica, and could hear personal injury action filed by Florida resident who was injured during a fishing trip he booked through resort’s website. The resort did not own or control the charter service.

RICHARD OLDFIELD, Plaintiff-Appellee. versus PUEBLO DE BAHIA LORA, S.A., d.b.a. Parrot Bay Village, IFFY IFFY DE OSA, S.A., Defendants-Appellants

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2009 U.S. App. LEXIS 2657; 21 Fla. L. Weekly Fed. C 1535

February 12, 2009, Filed

PROCEDURAL POSTURE:

Plaintiff Florida resident filed an action against defendants, two Costa Rican corporations, claiming that the corporations were liable for injuries he sustained. The U.S. District Court for the Southern District of Florida entered a default judgment in favor of the Florida resident and denied a motion to set aside the default judgment on the ground that the court lacked personal jurisdiction. The corporation that filed the motion appealed.

OVERVIEW:

The Florida resident saw an advertisement for a resort located in Costa Rica on the Internet, and he submitted an online reservation request through the resort’s website, a credit card authorization form to secure a room at the resort, and made arrangements with a charter service for a fishing trip. The resident claimed that he was injured while he was on the fishing trip, and he sued the resort and a Costa Rican corporation that was a previous owner. The district court granted the resident’s motion for a default judgment and denied the resort’s motion to set aside the default judgment. The court of appeals found that the district court erred. The district court did not have personal jurisdiction over the Costa Rican corporations under Fed. R. Civ. P. 4(k)(2) because the Florida resident’s claim did not arise out of or relate to the resort’s contacts with the United States. The injury the resident suffered while he was on-board a boat the resort neither owned nor operated, was not a foreseeable consequence of his viewing the resort’s website, reserving a room at the resort, and arranging for a fishing trip run by someone else.

OUTCOME:

The court of appeals vacated the district court’s order denying the Costa Rican corporation’s motion to set aside the default judgment and remanded the case with instructions that the case be dismissed without prejudice.

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In an employee’s suit under maritime law where a trial court properly found that an employee’s injuries were caused by a wave, as an Act of God, the court did not award an employer taxable costs under La. Code Civ. Proc. Ann. art. 1920 as the prevailing party because the trial court had discretion to order each party to bear their own trial costs.

MATTHEW WENDELBOE VERSUS EXXON SHIPPING COMPANY, SEARIVER MARITIME, INC., AND SEARIVER MARITIME FINANCIAL HOLDINGS, INC.

COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2008 1846 (La.App. 1 Cir. 02/13/09); 2009 La. App. LEXIS 210

February 13, 2009, Judgment Rendered

PROCEDURAL POSTURE:

Plaintiff employee appealed a judgment of the 19th Judicial District Court, in and for the Parish of East Baton Rouge (Louisiana) dismissing all of his claims under the Jones Act, 46 U.S.C.S. § 688(a), and general maritime law against defendant employer with prejudice. The employer answered the appeal and argued that the trial court erred in failing to award all taxable costs to defendants as the prevailing party.

OVERVIEW:

While aboard a vessel owned and operated by the employer, the employee and the chief mate went onto the main deck to investigate a noise. A powerful wave struck the vessel and washed the chief mate into the sea. The employee tumbled in the wave and landed on the main deck. The employee alleged that he sustained serious injuries to his right wrist. The trial court found as a matter of fact that no negligence was proved on the part of either party and also that the employee’s injuries were caused exclusively as a result of the wave, an Act of God under the circumstances. The captain had not given permission for the employee or the chief mate to go onto the main deck. The violation of the captain’s orders by the chief mate in venturing out onto the deck did not cause the employee’s injuries. The employer sought an award of taxable costs as the prevailing party, under La. Code Civ. Proc. Ann. art. 1920. The court found no abuse of the trial court’s discretion in ordering each party to bear their own trial costs. In as much as the trial court found neither party to be negligent, the court assumed that the trial court attempted an equitable assessment of costs based on that finding.

OUTCOME:

The court affirmed the judgment of the trial court. Costs of the appeal were assessed to the employee.

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Seaman was properly denied recovery under the Jones Act, 46 U.S.C.S. § 30104, for injuries when he was struck by a bus while returning from shore leave because the vessel did not have a duty to provide safe transportation while on shore leave, and there was no link between his injuries and a shipmate’s drunkenness or the vessel’s alcohol policy.

RICHARD REYNOLDS, Plaintiff-Appellant, v. SEALIFT, INC. and M/V CAPTAIN STEPHEN L. BENNETT, Defendant-Counterclaimant-Appellees. 2

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2009 U.S. App. LEXIS 3390

February 20, 2009, Decided

PROCEDURAL POSTURE:

Appellant seaman sought review of a decision of the United States District Court for the Eastern District of New York, which granted summary judgment in favor of appellees, a company and an oceangoing vessel, on his claims under the Jones Act, 46 U.S.C.S. § 30104, and other maritime-tort theories, for injuries sustained when he was hit by a bus while returning to the vessel from shore leave.

OVERVIEW:

In summarily upholding the district court’s decision, the court found that the district court did not find that the seaman’s intoxication caused his injuries, but rather, it found that his injuries could not be legally attributed to appellees’ alleged negligence under § 30104 because they did not own the bus that injured him and otherwise had no duty to provide him with a safe means of transportation between the vessel and his chosen venue for shore-leave amusement. Similarly, there was no record evidence demonstrating a cognizable link between the seaman’s injuries and his shipmate’s drunkenness or the vessel’s alcohol policy. In particular, drinking alcohol was not within the scope of the shipmate’s employment, and the vessel’s alcohol policy did not lead to the shipmate’s shore-leave drunkenness and thus cause the seaman’s injuries when he assisted his shipmate; any causal link was too attenuated for liability. In addition, contrary to the seaman’s contention, the Pennsylvania rule was inapplicable to this situation, and the district court did not abuse its discretion in its discovery rulings excluding four unsworn affidavits and in limiting certain discovery.

OUTCOME:

The district court’s decision was affirmed.

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The capsizing of a small fishing boat was caused by a tugboat captain’s navigational decisions and his acts could not be imputed to the tugboat’s owner because there was no evidence that the tugboat had privity or knowledge of the acts that led to a drowning death. The owner’s liability was limited pursuant to 46 U.S.C.S. § 30505.

BECKY MATHENY, Individually and as Surviving Spouse of Ronald Matheny, Deceased, Plaintiff-Appellee, v. TENNESSEE VALLEY AUTHORITY, Defendant/Third-Party Plaintiff/Counter Defendant-Appellant, JOHNNA LAWRENCE; THOMAS LAWRENCE, Third-Party Defendants/Counter Plaintiffs-Appellees.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
09a0060p.06; 2009 U.S. App. LEXIS 2976; 2009 FED App. 0060P (6th Cir.)

February 19, 2009, Filed

PROCEDURAL POSTURE:

After a bench trial, the United States District Court for the Middle District of Tennessee at Nashville concluded that a decedent’s death was caused by the negligent operation of a tugboat and that defendant tugboat owner was not entitled to limitation of liability under the Limitation of Liability Act, 46 U.S.C.S. § 30505, because the tugboat captain’s actions were within the privity or knowledge of the owner. The owner appealed.

OVERVIEW:

The tugboat captain violated Rules 2(b) and 6 of the Inland Rules of Navigation, 33 U.S.C.S. §§ 2002(b) and 2006, by operating the tugboat at an excessive speed when it passed the boat from which the decedent was fishing and that the captain’s creation of an excessive wake was 100% responsible for the capsize of the fishing boat and the decedent’s death. The district court held that the Limitation Act did not limit the owner’s liability to the value of the tugboat ($ 420,000) because the owner had privity or knowledge of the risks posed by the captain’s negligent operation of the tugboat at an excessive speed and also that the owner negligently supervised the captain, by failing to specifically instruct him to maintain a low speed or a low wake in the presence of small fishing vessels. However, there was no evidence to justify imputing knowledge to the owner about the specific conditions that led to the accident. The captain’s errors were mistakes of navigation, which did not justify denying limitation of liability. The owner properly relied on the navigational expertise of an experienced competent operator; it had no duty to remind the captain to follow the rules.

OUTCOME:

The judgment was reversed in part as to the denial of the tugboat owner’s limitation on liability and negligent supervision and the case was remanded for further proceedings, specifically, how to apportion liability between plaintiff decedent’s widow and plaintiff injured party who was also in the capsized fishing boat.

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Vessel owner’s order of attachment against a vessel purchaser’s agent was vacated under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(4)(f) because the court lacked admiralty jurisdiction over the owner’s breach of contract claim, which was not a valid admiralty claim, since the parties’ contract was solely for the sale of a vessel.

AGGELIKOS PROSTATIS CORP., Plaintiff, -against- SHUN DA SHIPPING GROUP LTD. and ZHENG TAI SHIPPING GROUP LTD., Defendants.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2009 U.S. Dist. LEXIS 7770

February 2, 2009, Filed

PROCEDURAL POSTURE:

Plaintiff, a vessel owner, brought an admiralty action against defendants, a vessel purchaser and its agent, alleging a breach of contract and seeking an ex parte order of attachment. Subsequently, an order authorizing process of maritime attachment and garnishment was entered against the assets of the purchaser and agent. The agent moved, pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(4)(f), to vacate the order.

OVERVIEW:

The agent claimed that the owner had no valid prima facie admiralty claim against it because the underlying breach of a contract claim did not provide a basis for admiralty jurisdiction. The court held that the agent was entitled to vacation, pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(4)(f), of the attachment order against it. The court lacked admiralty jurisdiction over the owner’s breach of contract claim because the owner did not have a valid prima facie admiralty claim against the agent, and, thus, failed to demonstrate that the requirements of Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B and E were satisfied; the primary and only objective of the parties’ contract for the sale of a vessel was not maritime. The newer Kirby approach to mixed contracts did not apply in the instant case because the parties’ contract, which was solely for the sale of a vessel, was not comprised of a mix of well-established maritime components and nonmaritime components.

OUTCOME:

The agent’s motion to vacate the attachment against it was granted. The writ of attachment against the agent was vacated.