Because a management company primary obligations under contract were to secure freight for the charterer’s outbound voyages and handle all port operations, it was a maritime contract and vacating a writ of attachment as against the charterer’s ship for lack of jurisdiction under 28 U.S.C.S. § 1333 was reversed.
PROSHIPLINE INC; EP-TEAM INC., Plaintiffs-Appellants, v. ASPEN INFRASTRUCTURES LTD, formerly known as Suzlon Infrastructure Ltd; SUZLON INFRASTURCTURE LTD, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
594 F.3d 681; 2010 U.S. App. LEXIS 2292
February 3, 2010, Filed
Plaintiffs, a management company and contract carrier, obtained a writ of maritime attachment as to a ship against defendant charterer who posted security under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(5). No security was ordered on a second ship, and its fuel was removed, sold, and placed with the court by plaintiffs. The United States District Court for the Western District of Washington vacated the writ. Plaintiffs appealed.
Vacating the writ was proper as to the carrier but not the management company (MC). Plaintiffs’ primary obligations under contract were to secure freight for the charterer’s outbound voyages and handle all port operations. It was a maritime contract giving rise to jurisdiction under 28 U.S.C.S. § 1333. Because a New York court could not entertain an admiralty attachment matter on ships in Washington, res judicata had not bound the district court to vacate the writ to conform with the New York’s decision to vacate a writ involved in the New York action. The carrier’s principal place of business was in Texas, but the MC was not “located” in Texas. Thus, equitable vacatur as to the MC was error. 9 U.S.C.S. § 8 did not permit vacating the Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B writ by deeming arbitration was not being pursued. Neither Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(4)(b), (5), granted the district court authority to order security in lieu of garnishment. Because the writ was improperly vacated as to the MC, the order to reimburse the charterer for the value of the garnished fuel was also improper as to the second ship.
The decision that the charterer could not be compelled to post security in lieu of garnishment was proper, but the district court abused its discretion in equitably vacating the Rule B writ and exonerating security posted for that writ. The order requiring plaintiffs to reimburse the charterer for the value of the property seized in accord with that writ was also error. Equitable vacatur should not have been applied against the MC.
Employer was entitled to summary judgment on owners’ indemnification claim in worker’s suit seeking damages for work injury because barge on which worker was injured was vessel within meaning of federal maritime law and the LHWCA, 33 U.S.C.S § 901 et seq., and the LHWCA prohibited indemnification actions against an injured worker’s employer.
Arra Ashjian, respondent-appellant, v Orion Power Holdings, Inc., et al., defendants third-party plaintiffs-respondents, et al., defendant; Elliott Turbomachinery Co., Inc., et al., third-party defendants-appellants-respondents (and additional third-party actions). (Index No. 7115/03)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2010 NY Slip Op 911; 895 N.Y.S.2d 459; 2010 N.Y. App. Div. LEXIS 931
February 9, 2010, Decided
Appellant worker sued respondent owners of a barge seeking damages for a work injury. The owners asserted a third-party claim against respondent employer. The Supreme Court, Kings County (New York), inter alia, denied the employer’s motion to dismiss the owners’ claim, granted the owners’ motion to dismiss the negligence claim, and denied the worker leave to amend to assert a Labor Law § 200 claim. The worker and the employer appealed.
The worker alleged that he was injured when he stepped into an unguarded, open hatch on the deck of the owners’ barge while overhauling a turbine. The appellate court found that Court of Appeals of New York had determined that a barge similar to the one in question here was a “vessel” within the meaning of federal maritime law and that the federal Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S § 901 et seq., applied to work injuries occurring thereon. Since the barge was a vessel within the meaning of federal maritime law and the LHWCA, and since the LHWCA prohibited indemnification actions against an injured worker’s employer, the trial court erred in denying the employer’s summary judgment motion dismissing the owners’ third-party indemnification claim. Further, the LHWCA preempted causes of action under Labor Law §§ 240(1) 241(6), and the worker should not have been granted leave to amend to assert claims under those provisions. The worker failed to rebut the owners’ prima facie showing that they did not have actual or constructive notice of the condition and, thus, he failed to raise a triable issue of fact as to his common-law negligence claim.
The order was modified by granting the employer’s motion for summary judgment dismissing the third-party indemnification claim against it, and by denying the worker’s cross motion for leave to amend the complaint to assert Labor Law §§ 240(1), 241(6) claims against the owners. As so modified, the order was affirmed insofar as appealed and cross-appealed from.
In Jones Act case, district court did not err in apportioning fault to seaman for his own injuries based on contributory negligence because his misrepresentation of his prior medical history, coupled with his participation in hazardous employment conditions, constituted legal cause of re-injury, and was properly found to be contributory negligence.
ORLANDO RAMIREZ, Plaintiff — Appellant v. AMERICAN POLLUTION CONTROL CORPORATION; M/V AMPOL RECOVERY, Defendants — Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2010 U.S. App. LEXIS 2235
February 2, 2010, Filed
In a Jones Act case against defendants, a ship owner and a ship, plaintiff seaman appealed a judgment of the United States District Court for the Southern District of Texas, awarding him lost wages for an injury he sustained aboard the ship. The seaman appealed the district court’s apportionment of fault to him for his own injuries based on contributory negligence.
The seaman was injured when he slipped on a wet rubber glove on the floor of the ship’s galley, which was also cluttered with empty grocery boxes. The seaman argued that the owner alone was responsible for creating the conditions which led to the accident. He recited evidence from the record showing that the captain’s failure to notify him about the wet glove created a safety hazard and that the box-strewn condition of the galley was attributable to the captain. The district court held that the captain’s failure to notify the seaman about the glove was negligent, and for that reason, it found the owner 60 percent at fault. The seaman did not contest the finding below that he was negligent to have thrown the glove and to have attempted to navigate the galley with his hands full. On appeal, the court held that nothing in the seaman’s argument persuaded it that the apportionment of fault was clearly erroneous. The court further held that the seaman’s misrepresentation of his prior medical history, coupled with his participation in hazardous employment conditions, constituted a legal cause of reinjury, and was properly found to be contributory negligence.
The court affirmed the district court’s judgment.
Nothing supported a conclusion that defendant supplier relied on the vessels’ credit in supplying its steel and labor to a subcontractor, or established that it supplied the necessaries to the vessels as required by 46 U.S.C.S. § 31342(a). Thus, the supplier lacked standing to claim a maritime lien upon the vessels.
CIANBRO CORPORATION; HORNBECK OFFSHORE SERVICES, LLC; and HORNBECK OFFSHORE TRANSPORTATION, LLC, Plaintiffs, Appellees, v. GEORGE H. DEAN, INC., d/b/a DEAN STEEL, Defendant, Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
596 F.3d 10; 2010 U.S. App. LEXIS 3572
February 22, 2010, Decided
Plaintiff, a general contractor for performing conversion work on vessels owned by intervenor-plaintiffs, sought a declaration that the vessels were not subject to a maritime lien in favor of defendant, a supplier of steel to a sub-contractor for fabrication of components for installation on the vessels. The U.S. District Court for the District of Massachusetts granted plaintiffs’ motion for summary judgment. Defendant appealed.
Defendant delivered steel to the sub-contractor’s facilities for fabrication of components for plaintiff general contractor to install in the vessels. Defendant never delivered any components directly to plaintiff general contractor or to the vessels. The general contractor installed the steel sections onto the vessels. Defendant failed to show that it provided necessaries to the vessels as required by 46 U.S.C.S. § 31342(a). Only plaintiff general contractor supplied “necessaries” (i.e., the steel components) to the vessels, and thus only it could have had standing to assert a maritime lien on its own behalf. Nothing supported a conclusion that defendant relied on the vessels’ credit in supplying its steel and labor to the sub-contractor. Defendant also failed to show that by providing material and labor to the sub-contractor, it acted on order of the vessels’ owners or a person authorized by the owners as required by § 31342(a)(1). There was no evidence that plaintiff owners had any dealings or communications with defendant, much less that they authorized it to provide material and labor to anyone.
The court affirmed the judgment of the district court.