A FISHING BOAT AND ITS CAPTAIN WERE PROPERLY GRANTED FED. R. CIV. P. 56(C) SUMMARY JUDGMENT IN A PASSENGER’S PERSONAL INJURY LAWSUIT BASED ON INJURIES INCURRED WHEN THE BOAT WAS STRUCK BY A “ROGUE” WAVE BECAUSE THERE WAS NO EVIDENCE THAT THE CAPTAIN’S RESPONSE TO THE WAVE CONSTITUTED A BREACH OF HIS DUTY OF CARE TO THE PASSENGER.
MCRAE B. SOUTHARD, III, Plaintiff – Appellant, versus PAUL LESTER; OREGON INLET FISHING CENTER, INCORPORATED, Defendants – Appellees.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2008 U.S. App. LEXIS 230
January 7, 2008, Decided
Appellant passenger sought review of a decision of the United States District Court for the Eastern District of North Carolina, which granted Fed. R. Civ. P. 56(c) summary judgment in favor of appellees, a fishing boat and its captain, in his negligence lawsuit seeking recovery for personal injuries sustained when a wave struck the boat. The passenger also sought review of the district court’s denial of his motion to alter or amend the judgment.
Before the boat reached the fishing grounds, the captain saw a large wave. He slowed down as quickly as possible, but the captain could not avoid the wave. When the boat struck the wave, it caused the passenger to be lifted out of his seat and sustain serious injuries. In granting summary judgment for appellees, the district court found that the Pennsylvania Rule, requiring a ship to show that its fault was not one of the causes of a collusion, did not apply, and that there was no evidence that the captain breached his duty of care when he failed to avoid the “rogue” wave. On appeal, the court upheld the district court’s ruling, agreeing that the Pennsylvania Rule did not apply because there was no collision, since only one boat was involved, and that the record evidence concerning the timing and formation of the “rogue” wave and the captain’s response to it did not create a genuine issue of material fact warranting a trial. Due to the court’s conclusions regarding the summary judgment ruling, it further found that the district court did not abuse its discretion in denying the motion to alter or amend the judgment.
The court affirmed the district court’s decision.
ILLINOIS WHISTLEBLOWER ACT, 740 ILL. COMP. STAT. 174/20, AND THE SEAMAN’S PROTECTION ACT, 46 U.S.C.S. § 2114(A)(1)(A), WERE INAPPLICABLE TO A DECKHAND’S CLAIM THAT HE WAS FIRED FOR COMPLAINING THAT BARGE CREW MEMBERS WERE USING ILLEGAL DRUGS. RETALIATORY DISCHARGE CLAIM UNDER STATE COMMON LAW WAS NOT PREEMPTED BY ADMIRALTY LAW.
DAVE ROBINSON, Plaintiff-Appellant, v. ALTER BARGE LINE, INC., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2008 U.S. App. LEXIS 871
January 16, 2008, Decided
Plaintiff former deckhand sued defendant barge owner in the United States District Court for the Southern District of Illinois under the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/20, the Seaman’s Protection Act, 46 U.S.C.S. § 2114(a)(1)(A), state common law for retaliatory discharge, and admiralty tort law. The district court granted summary judgment for the barge owner. The deckhand appealed.
The deckhand claimed that he was discharged in retaliation for having complained to management that barge crew members were using illegal drugs while on duty. The court of appeals found that the Illinois Whistleblower Act, which prohibited retaliation based on an employee’s refusal to participate in an illegal activity, was inapplicable because there was no indication that the deckhand was fired because he refused to use drugs. Nor did the Seaman’s Protection Act apply, as the deckhand had not reported and was not about to report the use of illegal drugs to the Coast Guard or any other federal agency when he was fired. The district court erroneously found that the deckhand’s state common law retaliatory discharge claim was preempted by the Seaman’s Protection Act and admiralty law. There was no indication that the Seaman’s Protection Act was intended to occupy the entire field of retaliatory discharge of seamen, and the saving to suitors provision of 28 U.S.C.S. § 1331(1) precluded automatic preemption of state remedies by admiralty law. The deckhand forfeited a claim that a preemptive admiralty tort existed that prohibited discharge for raising safety concerns.
The district court’s judgment was reversed as to the deckhand’s state law retaliatory discharge claim; the judgment was otherwise affirmed. The case was remanded.
IN A PERSONAL INJURY CASE INVOLVING COLLISION WITH A BARGE, MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY LIMITATION PETITIONERS WAS DENIED AND THE WIFE OF THE DECEASED WAS NOT JUDICIALLY ESTOPPED FROM ASSERTING A LOSS OF SUPPORT CLAIM BASED ON ASSERTIONS THAT SHE AND HER DECEASED HUSBAND MADE IN AN EARLIER BANKRUPTCY PROCEEDING ABOUT HIS INCOME.
In the Matter of the Complaint of Bluegrass Marine, Inc., as Owner pro hac vice of the M/V TITLETOWN U.S.A. Official No. 289724, and Marquette Transportation Company, Inc., For Exoneration from or Limitation of Liability
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, PADUCAH DIVISION
2008 U.S. Dist. LEXIS 1038
January 4, 2008, filed
Limitation petitioners, owners and interested parties in a vessel filed a motion seeking limitation or exoneration of their liability under the Limitation of Liability Act, 46 U.S.C.S. § 181 et seq., filed a motion for partial summary judgment against plaintiff wife, as personal representative of a deceased’s estate. The wife had filed an action after the deceased was killed in a barge accident.
The vessel at issue was pushing 15 barges on the Ohio River when it collided with a houseboat, killing the deceased and two other men, and injuring a fourth person. The incident was the subject of two separate law suits that were consolidated. The limitation petitioners filed a claim for exoneration under the Limitation of Liability Act, former 46 U.S.C.S. § 181 et seq. and a stipulation on liability was granted. The limitation petitioners sought to judicially estop the wife from asserting a claim for loss of support, based on income claims that the wife and the deceased husband had made in November 2003 in a Chapter 13 bankruptcy proceeding that indicated that the deceased, at that time, did not provide income to the family, The court was not convinced that the factors for judicial estoppel were met. The wife’s loss of support claim was not clearly inconsistent with the representations made in the earlier bankruptcy proceeding or on earlier tax returns. The wife’s loss of support claim did not allow the wife to receive an unfair advantage or impose an unfair detriment on the limitation petitioners. The wife was entitled to produce evidence on the loss of support claim.
The court denied the motion for partial summary judgment filed by the limitation petitioners.
PETITION FOR WRIT OF MANDAMUS WAS DENIED AS COURT DID NOT ABUSE ITS DISCRETION WHEN IT REFUSED TO ENFORCE A VENUE-SELECTION AGREEMENT AS TEXAS LAW PROHIBITED PARTIES FROM CONTRACTING AWAY MANDATORY VENUE AND FORMER TEX. CIV. PRAC. & REM. CODE ANN. § 15.018 PROVIDED THAT JONES ACT CLAIM COULD HAVE BEEN BROUGHT IN COUNTY WHERE EMPLOYEE RESIDED.
IN RE: GREAT LAKES DREDGE & DOCK COMPANY, L.L.C. COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI – EDINBURG
2008 Tex. App. LEXIS 281
January 10, 2008, Opinion Delivered
An employee filed suit against relator employer asserting claims under the Jones Act, 46 U.S.C.S. § 30104. The employer moved to dismiss or, in the alternative, moved to transfer venue. The 92nd District Court of Hidalgo County, Texas, denied the motion. The employer filed a petition, requesting that the instant court issue a writ of mandamus ordering respondent district judge to enforce a venue-selection agreement.
In order for a writ of mandamus to issue, the employer was required to show an abuse of discretion for which an appeal was inadequate. The employer asserted that the trial court abused its discretion in refusing to enforce a forum-selection agreement. In response, the employee asserted that the mandatory venue statute in place at the time suit was filed, former Tex. Civ. Prac. & Rem. Code Ann. § 15.018 (2002) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 15.0181 (2007)), provided that the employee’s Jones Act claim could have been brought in the county where the employee resided. Contrary to the employer’s arguments, the instant court held that the Texas Supreme Court’s recent decisions regarding forum-selection clauses, rejecting the “ouster” doctrine, did not supplant firmly established Texas law regarding the enforcement of venue-selection agreements that contravened a mandatory venue statute. Texas law prohibited parties from contracting away mandatory venue. The trial court, therefore, did not abuse its discretion when it refused to enforce the venue-selection agreement between the employee and the employer.
The petition was denied.
TRIAL COURT ORDERS DISMISSING PASSENGERS’ MARITIME PERSONAL INJURY ACTIONS WERE AFFIRMED BECAUSE THE FORUM-SELECTION CLAUSE IN FORM CONTRACTS A CRUISE LINE ISSUED TO THE PASSENGERS, WHICH DIRECTED THAT PASSENGER LAW SUITS ARISING OUT OF A PASSENGER’S CRUISE WERE TO BE FILED EXCLUSIVELY IN A SPECIFIED UNITED STATES DISTRICT COURT, WERE ENFORCEABLE.
Thomas Leslie, etc., et al., Appellants, vs. Carnival Corp., etc., et al., Appellees
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2008 Fla. App. LEXIS 9; 33 Fla. L. Weekly D 105
January 2, 2008, Opinion Filed
Appellant passengers commenced maritime personal injury actions against appellee cruise line in the Circuit Court for Miami-Dade County (Florida). The court dismissed the complaints. The passengers appealed.
The passengers contended that the trial court erred by enforcing a forum-selection clause in form contracts issued by the cruise line to the passengers, two of the cruise line’s fare-paying customers, prior to embarking on their respective cruises. The clause directed that passenger law suits arising out of a passenger’s cruise were to be filed exclusively in the United States District Court for the Southern District of Florida. The passengers’ chief grievance regarding the clause was that it stripped them of their constitutional right to a jury trial, and instead afforded them a jury trial in their federal forum only with the consent of both parties, pursuant to Fed. R. Civ. P. 39(c). The cruise line represented in its answer brief that it had no intention of opposing the passengers’ request for a jury trial in their pending federal actions. On appeal, the court interpreted the cruise line’s statement to mean that if the United States District Court lifted the stays in the passengers’ federal admiralty actions, the cruise line would consent to a jury trial in their cases. The court concluded that the forum-selection clause was enforceable under the general maritime law.
The orders of dismissal were affirmed.
WHERE FISHERMEN WORKED UNDER LAY SHARE CONTRACTS CONTRAVENING 46 U.S.C.S. § 10601, A TRIAL COURT, IN APPLYING THE DOCTRINE OF LACHES, CORRECTLY CHOSE R.I. GEN. LAWS § 28-14-20 AS THE MOST ANALOGOUS STATUTE OF LIMITATIONS AND BARRED CLAIMS OLDER THAN THREE YEARS AS § 28-14-20 COVERED WAGES AND COMPORTED WITH THE HOSPITABLE VIEW TAKEN TOWARD SEAMAN.
TIMOTHY DOYLE; GREG HAGAMAN; BRIAN LAGUE; ANTHONY W. RICHARDS; ERIC EDWARDS, Plaintiffs, Appellants/Cross-Appellees, v. HUNTRESS, INC.; RELENTLESS, INC., Defendants, Appellees/Cross-Appellants, GREG BRAY and KYLE GOODWIN, Defendants.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2008 U.S. App. LEXIS 1436
January 25, 2008, decided
Plaintiff fishermen sued defendant vessel owners, alleging that, as the owners did not reduce to writing their compensation arrangements, they had violated 46 U.S.C.S. § 10601. The U.S. District Court for the District of Rhode Island granted partial summary judgment in favor of the fishermen, finding that a cause of action was created under 46 U.S.C.S. § 11107. At issue on interlocutory appeal was the application of the doctrine of laches.
The fishermen, while paid, worked on voyages from 1993 to 2000 under lay share contracts that did not comply with 46 U.S.C.S. § 10601. The vessel owners asserted a laches defense, which the federal district court found meritorious as to all claims before August 1, 1998, three years before the filing of the complaint. Neither § 10601 nor 46 U.S.C.S. § 11107 contained a statute of limitations; the initial determination, therefore, was the most analogous statute of limitations. According to the federal court of appeals, the district court correctly chose R.I. Gen. Laws § 28-14-20, which provided for the coverage of unpaid wages, and which comported with the hospitable view that the law had traditionally taken toward seaman. Further, the lay shares met the R.I. Gen. Laws § 28-14-1(4) definition of wages. Moreover, the district court’s reasoning-that it was inequitable to require the vessel owners, who had paid all wages from 1993 to 1998, to come up with additional monies, particularly as the fishermen had been determined not to be as valuable as others to the success of the enterprise-was within its discretion. So too was its calculation of amounts due for claims after August 1, 1998.
The judgment of the federal district court was affirmed.