Melvin Gualberto Medina MARTINEZ, Plaintiff-Appellant,

v. CARNIVAL CORPORATION, a.k.a. Carnival Cruise Lines, Inc., Defendant-Appellee.

744 F.3d 1240
United States Court of Appeals, Eleventh Circuit.

No. 12-15164. | Feb. 24, 2014.


Cruise ship worker who sustained a back injury while working on the ship brought action against owner of cruise ship, alleging Jones Act negligence, unseaworthiness, and failure to provide adequate maintenance and cure. The United States District Court for the Southern District of Florida granted owner’s motion to compel arbitration pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Worker appealed.


Appellant Melvin Gualberto Medina Martinez (“Martinez”) appeals the district court’s order compelling arbitration of his claims pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Martinez argues his claim of Jones Act negligence, 46 U.S.C. § 30104, does not fall within his employment contract (“Seafarer’s Agreement”) with Carnival Cruise Lines, Inc. (“Carnival”) and, therefore, is not within the scope of the contract’s arbitration clause. We agree with the district court that arbitration is required, and therefore, we affirm the district court’s order compelling arbitration. Martinez is a Honduran citizen who suffered a back injury while employed as a mason aboard Carnival’s vessel, the Fascination. Martinez worked ten hours per day, seven days a week, and was required to lift and transport boxes of tiles and cement and heavy rolls of carpet. During his employment, Martinez developed back pain, which he reported to his supervisor. After his condition worsened, and he began to feel pain not only in his back but also in his lower extremities, Martinez sought further medical care. Martinez had back surgery in Panama, performed by Carnival’s selected physician, Dr. Avelino Gutierrez. After the surgery, Martinez continued to experience serious orthopedic and neurological problems, including numbness in both legs, difficulty urinating, need for a catheter, sexual dysfunction, and psychological problems. Carnival sent Martinez to Miami, where he continued to receive medical treatment. The Seafarer’s Agreement, which covered the terms of Martinez’s employment, included an arbitration clause stating that, except for wage disputes, “any and all disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, or Seafarer’s service on the vessel, shall be referred to and finally resolved by arbitration.”

After his injury, Martinez filed suit against Carnival in Florida state court, asserting claims of Jones Act negligence, unseaworthiness, and failure to provide adequate maintenance and cure. In his Jones Act claim, Martinez alleged that the physician chosen and paid by Carnival negligently performed his back surgery. Carnival removed the case to the federal district court and filed a motion to compel arbitration. The district court granted the motion, dismissed as moot all other pending motions, and closed the case for administrative purposes. Martinez then timely appealed. On appeal, Carnival contends that we lack jurisdiction because the district court’s order compelling arbitration was a non-appealable interlocutory order, not a final appealable decision. We are unpersuaded. The Federal Arbitration Act provides that a party may appeal “a final decision with respect to an arbitration.” 9 U.S.C. § 16(a)(3). A final decision “is a decision that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 519, 148 L.Ed.2d 373 (2000) (internal quotation marks omitted). Yet, a party may not appeal “an interlocutory order … compelling arbitration.” 9 U.S.C. § 16(b)(3).1 Thus, a district court order compelling arbitration and dismissing a plaintiff’s claim is a final decision within the meaning of § 16(a)(3). Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir.2005). In contrast, a district court order compelling arbitration and staying the proceedings before the court is an interlocutory order that cannot be appealed. Am. Express Fin. Advisors, Inc. v. Makarewicz, 122 F.3d 936, 939 (11th Cir.1997). Carnival essentially argues that because the district court simply granted the motion to compel and closed the case for administrative purposes, but did not dismiss the case, its order was more akin to a stay of the proceedings; thus, the district court’s decision was an interlocutory order that may not be appealed under § 16(b)(3). The Supreme Court has adopted a functional test for finality, examining what the district court has done, and has reiterated that a decision is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Our court has applied the same test for finality, see, e.g., W.R. Huff Asset Mgmt. Co. v. Kohlberg, Kravis, Roberts & Co., 566 F.3d 979, 984 (11th Cir.2009); Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir.1983), and looks to the practical effect of the district court’s order, not to its form. See Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir.2010) (“In making [§ 1291 finality] determinations, ‘we take a functional approach, looking not to the form of the district court’s order, but to its actual effect.’ “) (quoting Birmingham Fire Fighters Ass’n 117 v. Jefferson Cnty., 280 F.3d 1289, 1293 (11th Cir.2002)). In Young v. Prudential Insurance Co. of America, 671 F.3d 1213 (11th Cir.2012), looking to the substance of the district court’s order, we held that it was not final even though it dismissed the case on the merits because the order had remanded part of the case, but “in substance,” left unresolved whether the plaintiff was entitled to relief. Id. at 1215. Accordingly, we conclude that the order compelling Martinez to arbitrate his claims was “a final decision with respect to an arbitration,” and we have appellate jurisdiction. 9 U.S.C. § 16(a)(3). See also Montero v. Carnival Corp., 523 Fed.Appx. 623, 625 (11th Cir.2013) (per curiam) (holding that the district court order compelling arbitration was a final appealable decision even though the order closed rather than dismissed the case).

Martinez argues the district court erred in compelling arbitration because the Seafarer’s Agreement terminated before this dispute arose. Under the Agreement’s language, the Seafarer’s Agreement terminated when Martinez disembarked from the cruise ship to seek treatment for his back injury which was preventing him from doing his job. The Seafarer’s Agreement’s arbitration clause does not expressly state whether it survives the termination of the Seafarer’s Agreement, but its unambiguous language suggests viability. Court found that the parties contemplated some circumstances in which the arbitration clause would survive the termination of the Seafarer’s Agreement. Martinez also argues that even if the arbitration provision survives the termination of the agreement, his claim for medical negligence falls outside the scope of the arbitration clause in his employment contract because it did not arise under the Seafarer’s Agreement. He asserts that the language requiring arbitration pursuant to the Agreement does not include claims that arise from shoreside medical negligence.

In determining whether a dispute arises out of a contract, “the focus is on whether the tort or breach in question was an immediate, foreseeable result of the performance of contractual duties.” Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir.2011) (internal quotation marks omitted). In Doe, we held that claims arising under the Jones Act “are dependent on [the plaintiff’s] status as a seaman employed by the cruise line and the rights that [the plaintiff] derives from that employment status.” Id. at 1221. See also O’Boyle v. United States, 993 F.2d 211, 213 (11th Cir.1993) (“[I]n order to recover damages under the Jones Act, [a plaintiff] must have the status of a seaman.”). Although the Jones Act dictates Carnival’s duty of care, that duty extends to Martinez only because he was employed by Carnival as a seaman under the contract. In addition, the terms of the Agreement, which specifically reference Carnival’s obligation to provide medical treatment aboard the vessel or ashore, contemplated that Carnival would provide shoreside medical care for injuries Martinez sustained while on the job. Accordingly, we conclude that Martinez’s dispute with Carnival clearly arose out of or in connection with the Seafarer’s Agreement and is subject to arbitration.




Starleen CLINE, et al., Plaintiffs, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Defendant.

2014 WL 550738
Only the Westlaw citation is currently available.
United States District Court, N.D. Texas,
Dallas Division.

Civil Action No. 3:13-CV-1090-B. | Feb. 12, 2014.


Defendant Carnival Corporation d/b/a Carnival Cruise Lines (“Carnival”) moves to dismiss, or alternatively, transfer this case to a federal district court in Florida in light of the forum selection clause found in Carnival’s passenger ticket contracts with Plaintiffs.


Plaintiffs, passengers aboard the Carnival Triumph (the “Triumph” ) that left port from Galveston, Texas on February 7, 2013, brought this action against Carnival to recover for the “unsafe, unsanitary, and unreasonable living conditions” they had to endure over a five-day period after an engine room fire caused the Triumph to lose power on February 10, 2013. Carnival had allegedly “encountered related safety issues with” the Triumph in “the weeks leading up to” Plaintiffs’ voyage, but proceeded with the voyage anyway, without warning passengers or taking adequate precautions. (Id. § III ¶ 11; §§ IV, VI-VIII.) In their Amended Complaint filed May 6, 2013, Plaintiffs assert five causes of action, including negligence, breach of maritime contract, negligent misrepresentation, fraud by non-disclosure, and fraud. Carnival now seeks to dismiss or transfer Plaintiffs’ claims based on the forum selection clause set forth in Carnival’s passenger ticket contract. The Ticket Contract also advised Plaintiffs, in bold and capital letters at the top of the document, that its terms were legally binding, and specifically directed passengers to the clauses in the Ticket Contract limiting their rights to file suit, including the forum selection clause in paragraph 12. Carnival presented evidence showing that each plaintiff acknowledged receipt of the Ticket Contract, and accepted its terms and conditions, prior to boarding the Triumph. Most plaintiffs did so through Carnival’s Online Check-In system, which allows passengers to obtain a boarding pass after completing several sections of information, including “information related to the [Ticket Contract’s] terms and conditions.” Relying on the Ticket Contract’s forum selection clause, Carnival filed these six pending motions to dismiss, or alternatively, transfer venue on May 28, 2013 (“Carnival’s Motions”), which separate the twenty-eight plaintiffs into six groups based on similar booking facts. All six motions first seek dismissal without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(3) for “improper venue.” Alternatively, Carnival’s Motions ask the Court to transfer Plaintiffs’ claims to the U.S. District Court for the Southern District of Florida, Miami Division, under 28 U.S.C. § 1406(a) and/or 28 U.S.C. § 1404(a).

In accordance with the Supreme Court’s opinion in Atlantic Marine Construction Co., Inc. v. U.S. Dist. Ct. for the W.D. of Tex., —U.S. —-, 134 S.Ct. 568, — L.Ed.2d —- (2013), the Court must first determine whether the forum selection clause is valid and enforceable under applicable contract law, and assuming it is, the Court must next evaluate whether to enforce the clause under Atlantic Marine’s analytical framework. As established by the Supreme Court in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), federal law dictates “that in maritime actions forum selection clauses are to be enforced unless the forum selection clause is fundamentally unfair and therefore unreasonable.” Calix-Chacon v. Global Intern. Marine, Inc., 493 F.3d 507, 511 (2007) (summarizing Bremen ). In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), the Supreme Court applied (and extended) the “Bremen analysis” to the “cruise ship passage contract ticke[t]” context. Calix-Chacon, 493 F.3d at 511-12 (summarizing Shute ). Disagreeing with the lower court’s application of Bremen, the Court held that the forum selection clause was not unreasonable “simply because it is not the subject of bargaining.” Shute, 499 U.S. at 594. The Court also found that the clause was not fundamentally unfair because “there is no indication that petitioner set Florida as the forum in which disputes were to be resolved as a means of discouraging cruise passengers from pursuing legitimate claims.” Id. at 595. Shute further pointed out that the plaintiffs provided “no evidence” of the clause being “obtained … by fraud or ovverreaching” and that plaintiffs “conceded that they were given notice of the forum provision and, therefore, presumably retained the option of rejecting the contract with impunity.” Id. The district court found that the instant case resembled Shute in several respects. First, the forum selection clause in this case, and its surrounding provisions, are nearly identical to language approved by the Supreme Court in Shute. Like in that case, the language of the forum selection clause, and the Ticket Contract’s terms impressing the importance of provisions such as the forum selection clause, “reasonably communicate” the clause “to [Carnival’s] passengers.” Second, Carnival established-and Plaintiffs did not dispute-that, at a minimum, each plaintiff acknowledged receipt of the Ticket Contract before boarding the Triumph and being given a reasonable opportunity to review its provisions. And since Plaintiffs thereafter accepted passage on the Triumph, they are bound under federal law by the terms of the Ticket Contract regardless of whether they read and signed it. Third, Carnival also showed that, like in Shute, Plaintiffs “retained the option of rejecting the contract with impunity” as Carnival’s cancellation policy allowed for a complete refund. Fourth, the forum selection clause, like the one in Shute, is not fundamentally unfair because there is no indication that the clause itself is intended to discourage legitimate claims by requiring that they be filed in Florida where Carnival is based. Finally, the forum selection clause is not unreasonable simply because it was not explicitly negotiated. While Plaintiffs emphasize throughout their filings that the forum selection clause was not a product of negotiations between the parties, this Court, like “the Supreme Court” and Fifth Circuit before it, finds this argument to be an insufficient basis for setting aside the forum selection clause. In sum, the Court found that the circumstances were substantively indistinguishable from Shute, and thus, enforcement of the forum selection clause would not be unreasonable. Accordingly, the Court concludes that the forum selection clause is valid and enforceable under federal law.


The Court GRANTS Carnival’s Motions to transfer pursuant to 28 U .S.C. § 1404(a), and ORDERS that this case be transferred to the parties’ contractually specified forum: the U.S. District Court for the Souther District of Florida, Miami Division.


Lito Martinez ASIGNACION

v. Rickmers Genoa SCHIFFAHRTS.

2014 WL 632177
Only the Westlaw citation is currently available.
United States District Court, E.D. Louisiana.

Civil Action Nos. 13-0607, 13-2409. | Feb. 10, 2014.


Before the Court is a Motion to Recognize and Enforce Arbitral Award filed by Defendant Rickmers Genoa Schiffahrtsgesellschaft mbH & Cie KG. Plaintiff Lito Martinez Asignacion opposes the motion.


Plaintiff, a citizen of the Republic of the Philippines, was employed by Defendant, a German corporation, to work as a fitter in the engine room of the M/V RICKMERS DALIAN, a vessel owned by Defendant and flagged in the Republic of the Marshall Islands. Plaintiff and Defendant entered into a written employment contract that was executed by the Philippine government through the Philippine Overseas Employment Administration (“POEA”). The employment contract requires that all employment claims must be resolved through arbitration in the Philippines.

On October 26, 2010, Plaintiff was working aboard the M/V RICKMERS DALIAN, as it was docked in the Port of New Orleans, when a cascade tank in the vessel’s engine room overflowed and splashed scalding water on Plaintiff who was standing nearby. Plaintiff was immediately rushed by ambulance to West Jefferson Medical Center in Marrero, Louisiana. After receiving emergency medical attention and evaluation, Plaintiff was transferred to the burn unit of Baton Rouge General Medical Center in Baton Rouge, Louisiana, where he stayed and received treatment for nearly a month. Plaintiff was then repatriated to the Philippines, where he continued to receive medical attention.

As a result of the accident aboard Defendant’s vessel, Plaintiff sustained severe burns to 35% of his body, including his abdomen, upper and lower extremities, and genitalia. Plaintiff filed suit in state court on November 12, 2010, against Defendant to recover for his injuries pursuant to the Jones Act and the general maritime law of the United States. Defendant filed exceptions to enforce the arbitration clause in Plaintiff’s employment contract. On May 16, 2012, the state court granted Defendant’s exceptions, stayed litigation of Plaintiff’s claims, and ordered arbitration to take place in the Philippines, pursuant to the arbitration clause in Plaintiff’s employment contract. Arbitration commenced before the Department of Labor and Employment, National Conciliation of Mediation Board in Manila. On February 15, 2013, the Philippine arbitral panel issued a decision finding that United States law would not be applied, that Philippine law controlled and accordingly, that Plaintiff was entitled only to scheduled benefits based on his level of disability resulting in an award of $1,870.00. On March 4, 2013, Plaintiff filed a motion in state court requesting that the court order Defendant to show cause as to why the stay of litigation should not be lifted and why the decision of the Philippine arbitrators should not be set aside as being against public policy of the United States. On April 3, 2013, Defendant removed the action to this Court. In the instant motion, Defendant moves for the Court to recognize and enforce the award. Plaintiff opposes Defendant’s motion, arguing that enforcement of the award would violate the public policy of the United States. For the reasons that follow, Defendant’s motion is DENIED.

The Convention provides a carefully structured framework for the review and enforcement of international arbitral awards. When an award is rendered in a signatory country, courts in that country have primary jurisdiction over the award, giving them the exclusive authority to annul the award. Courts in other signatory countries have secondary jurisdiction over the award, which limits them to consider only whether to enforce the award in their country. Since the award was rendered in the Philippines, this Court has secondary jurisdiction over the award and the authority to consider only whether to enforce the award in the United States. Article V of the Convention enumerates the seven exclusive grounds on which a court with secondary jurisdiction may refuse enforcement of an international arbitral award. Under the Convention, if the court having secondary jurisdiction does not find any of the Article V grounds to be applicable, it must enforce the award. The party defending against enforcement of the arbitral award bears the burden of proof that one of these defenses applies. “Absent extraordinary circumstances, a confirming court is not to reconsider an arbitrator’s findings.” Furthermore, courts “may not refuse to enforce an arbitral award solely on the ground that the arbitrator[s] may have made a mistake of law or fact.” The only Article V ground for refusal that Plaintiff invokes is the public policy defense found in Art. V(2)(b). The public policy defense provides that recognition and enforcement of an arbitral award may be refused if the competent authority in the country where recognition and enforcement is sought finds that “[t]he recognition or enforcement of the award would be contrary to the public policy of that country.” The public policy defense is to be construed narrowly and applied only where enforcement of an award would violate the forum state’s most basic notions of morality and justice .

Plaintiff argues that enforcement of the foreign arbitral award would violate the public policy of the United States due to the arbitral panel’s refusal to apply United States law, depriving him of his rights under United States general maritime law, as well as his statutory rights under the Jones Act. For this reason, Plaintiff argues that the Court should refuse to enforce the award pursuant to Article V(2)(b) of the Convention. Plaintiff argues that enforcement of the award violates public policy under the Supreme Court cases of Mitsubishi18 and Vimar. In these cases, the Supreme Court contemplates condemning arbitration awards as being in violation of public policy when the choice-of-forum and choice-of-law clauses operate in tandem as a prospective waiver of a party’s right to pursue certain remedies they are entitled to under law. This has been referred to as the “prospective waiver” defense. Plaintiff argues that by providing for the arbitration proceedings to take place in the Philippines and to apply Philippine law, the arbitration agreement prospectively waived his right to pursue the rights he was entitled to under United States law. Mitsubishi and Vimar gave rise to the “prospective waiver” defense. Mitsubishi and Vimar provide that when there will be subsequent opportunity for review of the foreign award, a court should enforce the arbitration agreement at the agreement-enforcement stage, despite the appearance that arbitration under the terms of the agreement will likely result in a deprivation of rights. This is because at the agreement-enforcement stage “it is not established what law the arbitrators will apply to petitioner’s claims or that petitioner will receive diminished protection as a result.” Even though the arbitration agreement may provide that a certain country’s law will be applied, the Supreme Court contends that it is proper “to reserve judgment on the choice-of-law question,” since this “must be decided in the first instance by the arbitrator.” The liberal enforcement of arbitration agreements at the agreement-enforcement stage is justified by the district court’s retention of jurisdiction over the case.28 Since the district court retains jurisdiction, it “will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the … laws has been addressed.”29 Thus, it is at the award-enforcement stage of proceedings, where this case currently stands, where the court is to apply the prospective waiver defense to ensure that the award has addressed the plaintiff’s legitimate interest in the enforcement of the laws. The Court conducted that review and first applied the choice of law Lauritzen-Rhoditis test and held that the law of the vessel’s flag should be applied. The Marshall Islands have the greatest interest in this dispute, as the injury occurred on a vessel registered under Marshall Islands law. Plaintiff’s claims should be governed by the general maritime law of the United States, as adopted by the Marshall Islands.

Having determined that United States general maritime law applies to Plaintiff’s claim and having reviewed the remedies that Plaintiff is entitled to under that law, the Court reviewed the arbitral proceedings to determine whether the Plaintiff’s interests in the enforcement of the law were properly addressed. The Supreme Court has provided some guidance as to the review a court performs at this stage. “While the efficacy of the arbitral process requires that substantive review at the award-enforcement stage remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the … claims and actually decided them.” In rendering Plaintiff’s award, the arbitral panel refused to consider Plaintiffs’ claims for maintenance and cure, negligence, and unseaworthiness under United States general maritime law. Instead, the panel applied Philippine law which required that Plaintiff’s compensation be based on the Schedule of Disability Allowances found in Plaintiff’s employment contract. In determining the amount of recovery Plaintiff was entitled to under the schedule, the panel considered Plaintiff’s disability level as designated by the physician Defendant had chosen. In conducting a non-intrusive inquiry into the foreign arbitration, as this Court is permitted to do, it is obvious that the rights Plaintiff was entitled to under the general maritime law of the United States were not available to him in the arbitration. The arbitral panel did not consider, nor did Philippine law require or allow that it consider, any evidence pertaining to Plaintiff’s lost wages and medical expenses or the moral and compensatory damages and punitive damages to which he had a right to seek. It is clear to the Court that the arbitral proceedings and the award of $1,870.00 did not address Plaintiff’s legitimate interest in the enforcement of United States general maritime law. The arbitral panel did not take cognizance of these claims and decide them.

Next, the Court determined whether Plaintiff’s prospective waiver and deprivation of his rights under general maritime law constitutes a violation of United States public policy. The Supreme Court in Mitsubishi and Vimar contemplated a violation of public policy when arbitral awards result from the prospective waiver of one’s rights in the context of United States antitrust law and COGSA.58 This Court must determine whether this reasoning should extend to a seaman’s rights under the general maritime law of the United States. Citing the longstanding Wards of the Court doctrine, the Court found that based on the aforementioned precedent, as well as similar notions found in many decades of binding court decisions, the deprivation of the rights and protections that injured seamen are afforded under United States general maritime law constitutes a violation of this country’s public policy. The Supreme Court has stated that a public policy must be well defined and dominant, and is to be ascertained by reference to the laws and legal precedents rather than from general considerations of supposed public interests. The Court found these requirements to be satisfied. The Fifth Circuit has stated that public policy is not offended simply because the body of foreign law upon which the judgment is based is different from the law of the forum or less favorable to plaintiff than the law of the forum would have been. However, in this case, the Philippine law applied by the arbitral panel did not simply provide less favorable remedies than United States general maritime law would have. Instead, the Philippine law provided no such remedies. Accordingly, the remedies available under Philippine law were not less favorable, but rather were nonexistent. In short, the Court found a violation of public policy in that the panel and the award altogether failed to address the substantive rights afforded to Plaintiff by the United States general maritime law. The Court reiterated that its finding of a public policy violation lies neither in the arbitral panel’s failure to apply United States law nor its decision to apply foreign law. Rather, what forms the basis of the public policy violation is the effective denial of Plaintiff’s opportunity to pursue the remedies to which he was entitled as a seaman that resulted from the panel’s application of Philippine law. Had the panel applied a set of foreign laws which provided a basis for pursuing similar rights and protections, public policy would have been satisfied. However, such a basis was absent under Philippine law, as evidenced by the proceedings.


After considering the foreign arbitral award in this matter, as well as this country’s strong public policy in favor of protecting seamen, the Court finds that enforcement of the award would violate this country’s most basic notions of morality and justice. As such, the Court refuses to enforce the award on public policy grounds pursuant to Art. V(2)(b) of the Convention. Defendant’s Motion to Recognize and Enforce Arbitral Award was Denied.


Marilyn F. Quirin, Special Representative of the Estate of Ronald J. Quirin, Deceased, Plaintiff,
v. Lorillard Tobacco Company, et al., Defendants.

2014 WL 585090

United States District Court, N.D. Illinois, Eastern Division.

Case No. 13 C 2633
Filed February 14, 2014


This case was removed to federal court on diversity grounds in April 2013, and Plaintiff’s Fifth Amended Complaint was filed in this court on April 26, 2013. Against each defendant, Quirin brings negligence claims under the Wrongful Death Act and the Illinois Survival Act. Quirin alleges that the defendants failed to exercise ordinary care and caution in various ways, such as by including asbestos in their products, marketing and distributing products containing asbestos, failing to provide warnings to people working around the products, and failing to provide instructions as to safe methods for working with asbestos-containing products. Following removal and death of worker, one defendant (“Crane Co.”) who had manufactured and sold industrial valves used on the tanker now moved for summary judgment.


Mr. Quirin was diagnosed with mesothelioma on or about December 27, 2011. In 2012, Mr. Quirin and his wife, Marilyn, filed a complaint against numerous defendants in the Circuit Court of Cook County, alleging claims for injuries caused by asbestos exposure. Mr. Quirin passed away on March 31, 2013, and Mrs. Quirin was appointed his executor. Now, Crane Co. argues that it owed no legal duty to Mr. Quirin and therefore cannot be held liable for negligence. This case was removed to federal court based on diversity jurisdiction, pursuant to 28 U.S.C. § 1332. The fact that the case is before this court pursuant to diversity rather than admiralty jurisdiction, however, “does not preclude the application of maritime law.”Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir.1988); see also Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Whether maritime law governs a tort action turns on two factors: (1) whether the situs of the tort was maritime, and (2) whether the tort bore a significant relationship to traditional maritime activity; these are also referred to as the “location” and “nexus” tests. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); Here, both requirements for the application of maritime law are satisfied. The alleged exposure to asbestos occurred during Mr. Quirin’s naval service, specifically while he performed maintenance on a vessel that traveled in navigable waters. The “location” test is thus satisfied because the alleged asbestos exposure occurred on a vessel on navigable waters, while the “nexus” test is satisfied because the alleged exposure arose as a result of Mr. Quirin’s sea-based work maintaining the vessel. The asbestos MDL court, applying Third Circuit law, has similarly concluded that, if an allegedly defective product was produced for use on a naval vessel, an ensuing tort inflicted on a sea-based service member working on that vessel is governed by maritime law. A reasonable jury could further conclude that the risks of exposure to asbestos resulting from the use of those products were foreseeable. Quirin cites to evidence that Crane Co. should have known, given its position in the industry and membership in various organizations, about the hazards of asbestos at the time it supplied the valves and that breathing in dust while working with asbestos-containing materials could be hazardous to workers like Mr. Quirin. Based on those facts, Crane Co. owed a duty to warn Mr. Quirin of foreseeable risks related to its products.


The District Court, Joan B. Gottschall, J., held that: maritime law, rather than the law of Illinois, governed negligence claims based on asbestos exposure at sea, and genuine issue of material fact as to whether defendant had duty to warn of foreseeable risk of asbestos exposure precluded summary judgment on negligence claim. Motion denied.