IN CRUISE SHIP PASSENGER INJURY CLAIM WHILE IN PORT IN MEXICO, DISTRICT COURT DENIED DEFENDANTS’ MOTION TO DISMISS FOR FORUM NON CONVENIENS AFTER CONDUCTING A CHOICE OF LAW ANALYSIS AND THE TRADITIONAL FORUM NON CONVENIENS TEST.
Michael BELIK, Plaintiff, v. CARLSON TRAVEL GROUP, INC. d/b/a SinglesCruise.com, et al., Defendants.
United States District Court,
No. 11-21136-CIV. | Jan. 25, 2013.
Defendants, Operadora Anderson’s, S.A. de C.V. (“Operadora”) and Palangana, S.A. de C.V.’s (“Palangana[‘s]”) (sometimes collectively referred to as the “Señor Frog’s Defendants [‘]”) Moved to Dismiss the Plaintiff’s Complaint Pursuant to the Forum Non Conveniens Doctrine.
Plaintiff Michael Belik is a New York resident who took a cruise upon Carnival Cruise Lines’ (“Carnival[‘s]”) ship Valor (the “Vessel”) in April 2010. Belik purchased his ticket for the cruise from Carnival’s purported agents, the SinglesCruise Defendants, which contract with Carnival to funnel passengers to Carnival. The SinglesCruise Defendants created and marketed to Belik a port-of-call excursion in Cozumel, Mexico known as the “Cozumel Beach Party!”. While Belik was aboard the Valor, the SinglesCruise Defendants sold Belik a ticket for the excursion. The event was held at the Señor Frogs Restaurant in the port of Cozumel within sight of the Valor. The Cozumel Beach Party! was promoted to occur at the Señor Frog’s Restaurant, complete with a rooftop waterslide directly into the ocean, with “plenty of music and drinks to keep us partying the day away!”. Belik maintains Carnival and the SinglesCruise Defendants knew the passengers attending the Cozumel Beach Party! would be drinking and partying, and would be encouraged to slide, jump, and dive into the waters from a seawall adjacent to the½ Señor Frog’s Restaurant. On April 9, 2010, Belik dove into the water from the seawall on numerous occasions, and on his final dive, hit his head on the ocean floor, resulting in tetraplegia. Belik filed suit and the Senor Frog Defendants moved to dismiss for forum non conveniens. The district court conducted a choice of law analysis, as well as the traditional forum non conveniens analysis and found that the Señor Frog’s Defendant failed to meet their burden in opposing Plaintiff’s choice of forum.
The district court denied defendant’s motion to dismiss for forum non conveniens.
SUMMARY JUDGMENT DENIED ON ISSUE OF SEAMEN STATUS AS DISTRICT COURT HELD THE QUESTION OF WHETHER A MAINTENANCE MECHANIC WAS A SEAMEN WAS A QUESTION OF FACT FOR THE JURY
Gregory BOYD v. ERGON MARINE & INDUSTRIAL SUPPLY, INC., Defendant.
United States District Court, S.D. Mississippi,
Civil Action No. 3:11-CV-694-CWR-LRA. | Jan. 15, 2013.
Defendant Ergon Marine & Industrial Supply, Inc.’s Motion for Partial Summary Judgment. The Court, after reviewing the motion, briefs of the parties, and relevant law, finds that the motion must be DENIED.
Plaintiff Gregory Boyd alleges that he sustained an electrical injury while working for Defendant Ergon Marine & Industrial Supply, Inc. (“Ergon”) on December 3, 2008, aboard an Ergon tugboat. At the time of Plaintiff’s injury, he was a maintenance mechanic, a position that he held from May 2006 to May 2010. Plaintiff filed a negligence action against Ergon, under the Jones Act, 46 U.S.C. § 30104, for injuries that he sustained on December 3, 2008. In addition, this lawsuit alleges negligence and seeks damages for a second injury he sustained on August 11, 2010. Ergon acknowledges that Plaintiff was a seaman at the time of his August 11, 2010, incident. It, however, has filed a motion for partial summary judgment, arguing that Plaintiff “was a land-based employee in 2008 and his sole remedy for damages related to the December 3, 2008 incident is through the Longshore and Harbor Workers’ Compensation Act,” 33 U.S.C. §§ 901–950, not the Jones Act. “The seaman inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question from the jury.” Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997). The courts have established numerous guidelines to consider when analyzing the requirements for seaman status. On the issue of whether a vessel is “in navigation,” the general rule “is that vessels undergoing repairs or spending a relatively short period of time in drydock are still considered to be ‘in navigation’ whereas ships being transformed through ‘major’ overhauls or renovations are not.” Id. at 374 (citation omitted). Furthermore, “the underlying inquiry whether a vessel is or is not ‘in navigation’ for Jones Act purposes is a fact-intensive question that is normally for the jury and not the court to decide.” Id. at 373.
In support of its motion, Ergon relies heavily on the affidavit of Daniel Koestler, an Ergon executive, who avers that Plaintiff’s duties as a mechanic consisted of “minor maintenance” to Ergon’s vessels that typically took place at Ergon’s permanently moored dock barge, but that “[t]he majority of [Plaintiff’s] work … was performed around the facility and in the maintenance warehouse, working on pumps and grounds equipment.” Koestler asserts that Plaintiff “was not a crew member of any vessels,” and that “[l]ess than 10% of [Plaintiff’s] work as a mechanic occurred in the service of vessels in navigation.” Plaintiff’s testimony contradicts that which has been offered by Ergon. He insists that as a mechanic, he was a crew member of “[a]ll of Ergon’s boats,” and that he spent 60 to 80 percent of his work hours on Ergon’s vessels. He further states that during his employment with Ergon, he serviced and repaired the vessels; rode the vessels on a daily basis to determine what repairs were needed and to reach other vessels; sometimes ate on the vessels; and performed duties such as tying lines, fueling vessels, loading and unloading equipment, and bilging out vessels.
Although Ergon argues that at the time of Plaintiff’s December 2008 accident, Plaintiff was a land-based maintenance mechanic who did not qualify as a seaman, summary judgment is inappropriate because of the following: (1) A reasonable jury could conclude on these facts that Plaintiff’s duties as a mechanic contributed to the function or mission of a fleet of vessels in navigation. (2) Genuine disputes of material fact exist regarding the duration and nature of Plaintiff’s connection to Ergon’s fleet of vessels. Because there is a genuine dispute of material fact, summary judgment must be denied.