Appeals Court Holds That Florida Constitution Provides That Florida’s (East Coast) Territorial Waters Extend To The Outside Of The Gulf Stream (Well Beyond Three Miles But Possibly Limited By Twelve Miles) So That A Cruise Ship’s Doctor Who Allegedly Committed Malpractice 11.7 Nautical Miles East Of Florida’s Coastline Is Subject To Florida’s Long Arm Jurisdiction
ROGER C. BENSON and PATRICIA HARDY-SMITH, individually and as Co-Personal Representatives of the Estate of NOAH BENJAMIN BENSON, a minor, Appellants, vs. NORWEGIAN CRUISE LINE LIMITED, and CARLA VON BENECKE, M.D., Appellees.
CASE NO. 3D01-1845
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 225; 28 Fla. L. Weekly D 213
January 15, 2003, Opinion Filed
PRIOR HISTORY:
An appeal from the Circuit Court for Dade County, Judith L. Kreeger, Judge. LOWER TRIBUNAL NO. 99-4704.
DISPOSITION:
Reversed and remanded.
PROCEDURAL POSTURE:
The Circuit Court, Dade County (Florida), granted appellee ship’s doctor’s motion to dismiss based on a lack of personal jurisdiction over her where appellant estate representative alleged the ship’s doctor committed medical malpractice after the estate representative’s decedent suffered an allergic reaction onboard ship and died while the ship was 11.7 nautical miles east of the Florida shore. The estate representative appealed.
OVERVIEW:
The decedent was a passenger traveling on appellee cruise line’s ship. While on board, the decedent suffered an allergic reaction and could not breathe. The ship’s doctor attempted to insert a breathing tube, but he died. The estate representative sued both the cruise line and the ship’s doctor. The ship’s doctor moved to dismiss for lack of personal jurisdiction since she was a South African national. Since no dispute existed that the ship’s doctor was a nonresident of Florida, the question was whether her alleged medical malpractice occurred within Florida’s territorial boundaries. Expert evidence established that the ship was located 11.7 nautical miles east of Florida’s coastline. The trial court granted the motion to dismiss after concluding that the ship was outside Florida territorial waters. After that decision was entered, the appellate court found that Florida’s boundaries were established in Fla. Const. art. II, § 1 (1968) and included the edge of the Gulf Stream, which was 14 nautical miles east of Florida’s coastline. Accordingly, it found that the ship was in Florida’s territorial waters and that long arm personal jurisdiction existed over her.
OUTCOME:
The judgment dismissing the ship’s doctor from the lawsuit was reversed and the case was remanded for further proceedings.
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Court Denies Extension Of Time For Cruise Line Passengers To Appeal Dismissal Of Passengers’ Case Against Cruise Line In Violation Of The Terms Of The Passenger Ticket Contract Because Such Appeal Would Likely Be Unsuccessful.
MARINA KOT and ALEX KOT, Plaintiffs-Appellants, v. CARNIVAL CORPORATION and CARNIVAL CRUISE LINES, Defendants-Appellees.
No. 02-7393
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2003 U.S. App. LEXIS 1031
January 23, 2003, Decided
PRIOR HISTORY:
Appeal from the United States District Court for the Eastern District of New York (Edward R. Korman, Judge).
DISPOSITION:
Affirmed.
OVERVIEW:
Plaintiffs-appellants Marina and Alex Kot appeal from the district court’s March 7, 2002 order, denying the Kots’ motion seeking: 1) extension of time to file a motion for reconsideration and reargument of the district court’s December 6, 2001 judgment dismissing the Kots’ tort claim against defendants-appellees Carnival Corporation and Carnival Cruise Lines (“Carnival”); 2) vacatur of the district court’s December 6, 2001 judgment under Federal Rule of Civil Procedure 60(b); and 3) extension of time to file a Notice of Appeal. The district court concluded, and the appellate court agreed, that the Kots’ motion seeking an extension of time to file a Notice of Appeal is dispositive, because if that motion is not granted the remaining motions are moot. The district court then determined that the rule set forth in Ward–that a ticket must reasonably communicate the existence of important terms and the passenger must have the opportunity to become meaningfully informed of those terms–was satisfied in this case. The district court then declined to grant the Kots’ motion seeking an extension of time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure (“FRAP”) 4(a)(5).
OUTCOME:
The district court did not abuse its discretion when it declined to grant an extension because it determined that, even after Ward, any appeal would be to no avail.
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Court Holds That Louisiana’s State Statute Prohibiting Forum Selection Clauses Within Employment Contracts Constructively Voided Foreign Forum Selection Clause In Foreign Seamen’s Contracts Despite The Fact That The Seamen Brought Suit In Federal Court.
JOSELITO MADRIAGA LIM VERSUS OFFSHORE SPECIALTY FABRICATORS, INC.
CIVIL ACTION NO: 02-2126 SECTION: “J”(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2003 U.S. Dist. LEXIS 1198
January 28, 2003, Decided
January 28, 2003, Filed, Entered
DISPOSITION:
DISPOSITION: Defendant’s Motion to Dismiss for Improper Venue and Lack of Subject Matter Jurisdiction denied.
PROCEDURAL POSTURE:
Plaintiff employees sued defendant employer alleging the employer violated the minimum wage requirements of the Fair Labor Standards Act by failing to pay them for overtime hours they worked. The employees were foreign seamen. The employer moved to dismiss for improper venue and lack of subject matter jurisdiction.
OVERVIEW:
Plaintiffs were hired through a foreign employment administration. The contract contained a forum selection clause choosing a foreign forum and an arbitration clause. Of the three argument plaintiffs made the court only needed to address the assertion that Louisiana’s prohibition of forum selection clauses in employment contracts rendered the forum selection and arbitration clauses in their contracts void. La. Rev. Stat. § 23:921(A)(2) made forum selection clauses in employment contracts null and void. The case relied on by the employer that the employment contract should be enforced was decided before the statute was amended. The court rejected the employer’s contention that the state statute did not apply because plaintiffs brought the case in federal court and had they brought in state court, it would have removed the case. The employer’s reliance on the ratification clause of the statute was misplaced. The ratification contemplated had to take place after the occurrence of the incident, which was the subject of the civil or administrative action.
OUTCOME:
The employer’s motion to dismiss for improper venue and lack of subject matter jurisdiction was denied.
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Limitation Of Liability Petition Granted In Claim Brought By A Passenger Of A Cabin Cruiser Who Was Advised By A Member Of The Boating Party That The Water Was Sufficiently Deep For Him To Dive Into Resulting In A Paralyzing Neck Injury – Owner, Who Was Present On The Vessel At The Time Of The Incident, Not Deemed To Have Privity And Knowledge To Defeat Petition For Limitation.
MATTHEW GINOP, Plaintiff, v. A 1984 BAYLINER 27′ CABINCRUISER, HIN No: BLBA29SG0983 and JAMES JACOBS, Defendant.
Civil No. 01-72245
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2003 U.S. Dist. LEXIS 1321
January 27, 2003, Decided
January 27, 2003, Filed
PROCEDURAL POSTURE:
Plaintiff sued defendant owner of a cabin cruiser alleging that the owner’s negligence caused plaintiff’s injuries from diving into shallow water. The owner petitioned for limitation of liability under 46 U.S.C.S. § 185, and plaintiff and the owner cross-moved for summary judgment with regard to the petition.
OVERVIEW:
Plaintiff suffered a paralyzing neck injury from diving into shallow water after another member of the boating party and the cabin cruiser’s depth finder advised everyone, including plaintiff, that the water was shallow. Parties in other boats were observed standing in the water, but plaintiff dove into the water while the owner was lowering the anchor. Plaintiff contended that the owner was negligent in failing to warn plaintiff of the shallow water and that the owner had privity in causing plaintiff’s injuries. The court first held that no breach of the owner’s duty of care was shown since plaintiff was provided with sufficient information concerning the shallowness of the water. Further, plaintiff failed to use reasonable care for his own safety in diving into water of an unknown depth after the warnings, and thus plaintiff’s unilateral actions were the proximate cause of his injuries. Finally. The owner’s mere presence on the boat at the time of the incident was insufficient by itself to establish privity, and there was no showing that the owner otherwise personally participated in causing the injuries.
OUTCOME:
Plaintiff’s motion for summary judgment was denied, and the owner’s cross-motion and his petition for limitation of liability were granted.
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Seaman’s Motion For New Trial Denied Where Seaman Presents Newly Obtained Evidence Which The Trial Court Deemed Unlikely To Change The Outcome Of The Trial.
LCDR JOHN R. DALY, JR. U.S.N., Plaintiff, v. FAR EASTERNSHIPPING COMPANY PLC, FESCO AGENCIES N.A., INC. AND FESCO INTERMODAL, INC., Defendants.
CASE NO. CO1-0880C
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE DIVISION
2003 U.S. Dist. LEXIS 914
January 7, 2003, Decided
January 7, 2003, Filed, Entered
DISPOSITION:
Plaintiff’s motion for a new trial denied and plaintiff’s motion to file declaration granted.
PROCEDURAL POSTURE:
Plaintiff seaman moved for a new trial after the jury returned a verdict for defendant merchant vessel owner (owner) in the seaman’s action seeking damages for an eye injury.
OVERVIEW:
The seaman was conducting surveillance of the owner’s merchant vessel on behalf of the U.S. Navy when allegedly a laser on the vessel struck and injured the seaman’s eye, causing him permanent eye damage. The seaman moved for a new trial after the jury found in the owner’s favor. The court held that the seaman was not entitled to a new trial based upon newly obtained evidence, namely a letter from a longshoreman stating that there was a laser on the owner’s vessel. Portions of potential testimony, that the longshoreman told the seaman that there was a laser, that the laser’s presence was common knowledge, and that a doctor had found the longshoreman’s eyes were irritated, were inadmissible hearsay. The fact that the longshoreman claimed to have seen a light coming from the vessel would not have changed the trial’s outcome because it was undisputed at trial that a light was housed on the vessel’s bridge. The court’s imposition of an eight-day limit on the trial did not necessitate a new trial; the seaman’s counsel failed to object during the trial, the time limit was based on the parties’ own pretrial estimates, and it was more than enough time to try the simple battery claim.
OUTCOME:
The seaman’s motion for a new trial in his battery action against the owner was denied.
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New Trial Granted In Passenger Slip And Fall Case Where Passenger’s Expert Was Permitted To Render Opinions At Trial Based On Unconfirmed Data.
CARNIVAL CORPORATION and, CARNIVAL CRUISE LINES, Appellants,vs. SUSAN STOWERS, Appellee.
2003, CASE NO. 3D01-1516
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 231; 28 Fla. L. Weekly D 213
January 15, 2003, Opinion Filed
PRIOR HISTORY:
An Appeal from the Circuit Court for Miami-Dade County, Jon I. Gordon, Judge. LOWER TRIBUNAL NO. 99-14143.
DISPOSITION:
Reversed and remanded for a new trial.
PROCEDURAL POSTURE:
Appellee passenger injured her leg and ankle when she slipped and fell on a granite step while on a cruise ship. She sued appellants, a corporation and its cruise lines, for negligence. Appellants sought review of the adverse order of the Circuit Court for Miami-Dade County (Florida).
OVERVIEW:
The passenger alleged that she slipped on the step after stepping in soapy liquid on a section of carpet in one of the ship’s lounges. After the passenger allegedly stepped in this liquid, she walked the length of the dry carpeted room and outside to the kiddie pool area. She then went back inside the lounge and again walked the length of the carpeted room to the granite step where she slipped and fell. The passenger contended that soapy liquid remained on her shoe from the puddle she stepped in and caused her to slip. The appellate court concluded that the trial court improperly permitted an expert witness to render an opinion based on unconfirmed data. The passenger’s expert admitted that he did not know the composition of the carpet, had not tested the water absorbing properties of the carpet, and did not attempt to recreate the incident. Instead, the expert based his opinion on the results of coefficient of friction tests he performed solely on the granite stairs. The expert clearly did not establish the existence of valid underlying data upon which he based his opinion.
OUTCOME:
The order of the trial court was reversed and remanded for a new trial.
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New Trial Granted After Verdict For Seaman Of $1.137 Million On Claims Of Negligence, Unseaworthiness, And Maintenance And Cure (But Not Attorneys Fees) Because Seaman Introduced Evidence That His Employer Wrongfully Terminated Him Which Was Deemed By The Appellate Court To Be Non Relevant To The Seaman’s Claims (Because Attorneys Fees Were Not Sought) And Were Prejudicial To The Employer.
Mark E. Holley, Plaintiff-Respondent, v. Transoceanic Cable Company, Defendant-Appellant.
2233
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2003 N.Y. App. Div. LEXIS 292
January 16, 2003, Decided
January 16, 2003, Entered
PROCEDURAL POSTURE:
Plaintiff seaman sued defendant former employer under the Jones Act (46 U.S.C.S. § 688) and general maritime law, seeking damages for personal injuries, maintenance and cure, and compensatory damages for the employer’s failure to provide maintenance and cure. A jury in the Supreme Court, New York County, New York, returned a $1.137 million verdict for the seaman. The employer appealed.
OVERVIEW:
The seaman fell while on board his employer’s ship, injuring his back and neck. He alleged he was in pain and unable to work, and that the captain fired him for failing to return to work. The employer claimed that he was not entitled to maintenance and cure because he was able to work within two days of his fall. The seaman testified as to his version of his firing, and was allowed to present the view of a fellow seaman that the discharge was unfair, and testimony from his therapist that his depression was exacerbated, if not caused, by the firing. The appellate court held that the trial court erred by permitting the seaman to present evidence as to the circumstances of his discharge. Such evidence was clearly not relevant to his negligence and unseaworthiness claims, or to his claim for maintenance and cure and for damages for not providing maintenance and cure. Further, it was highly prejudicial to the employer. The seaman argued that the evidence related to his discharge was relevant to show the employer’s “callousness.” However, such “callousness” was relevant only with regard to a claim for attorneys’ fees — a claim that the seaman had not asserted in his complaint.
OUTCOME:
The judgment was reversed and the case was remanded for a new trial.
