WHEN BOTH PARTIES VIOLATED FED RULE 26, NO LATE DISCLOSED EXPERTS WERE ALLOWED TO PROVIDE TESTIMONY IN THE ACTION, BUT THE COURT HAS SUBSTANTIAL DISCRETION TO PERMIT UNTIMELY DISCLOSURES AND TO TAKE MEASURES TO CURE THE PREJUDICE THAT ACCOMPANIES THEM.

JOHN R. HOULE, Plaintiff, v. JUBILEE FISHERIES, INC., et al., Defendants.

No. C04-2346JLR
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
424 F.3d 488; 2005 U.S. App. LEXIS 21010; 2005 FED App. 0400P (6th Cir.)
2006 U.S. Dist. LEXIS 1408
January 5, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff deckhand sued defendants, the owners and operators of a vessel, asserting claims under the Jones Act and the maritime doctrine of unseaworthiness. The owners moved for summary judgment and an order striking testimony from two of the deckhand’s expert witnesses. In addition, both deckhand and the owners filed motions in limine.

OVERVIEW:

The deckhand developed Carpal Tunnel Syndrome (CTS) while working on the owners’ vessel. He alleged that the owners’ negligence and the vessel’s unseaworthiness were responsible, at least in part, for his CTS. His claims relied upon expert witnesses to prove causation and damages. The owners sought to strike the deckhand’s experts and for summary judgment. The deckhand moved in limine to strike the owners’ experts and to exclude certain evidence. Neither party complied with Fed. R. Civ. P. 26 and the court’s scheduling order when disclosing expert witnesses. No late-disclosed experts would be permitted to testify. While it appeared that two of the deckhand’s experts might not be qualified to offer opinions about the cause of the deckhand’s CTS, the record did not establish that the experts’ training and experience and methodology for determining causation were inadequate. The court reserved its decision on the admissibility of those experts’ opinions under Fed. R. Evid. 702, pending an evidentiary hearing. The parties resolved most of the other evidentiary issues.

OUTCOME:

The court reserved ruling on the owners’ summary judgment motion, pending an evidentiary hearing on the admissibility of testimony from the deckhand’s experts. The court granted in part and denied in part the parties’ motions in limine, declining to preclude evidence of the owners’ maintenance and cure payments to the deckhand and reserving ruling on the admissibility of evidence of the deckhand’s past drug and alcohol use.

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A VESSEL IS SATISFACTORY FOR JONES ACT PURPOSES IF IT IS PRACTICALLY CAPABLE OF MARITIME TRANSPORTATION EVEN THOUGH IT WAS NOT INTENDED TO TRANSPORT.

ADDIE HOLMES, Plaintiff-Appellant, versus ATLANTIC SOUNDING COMPANY INC; WEEKS MARINE INC; ABC INSURANCE CO; XYZ INSURANCE CO, Defendants-Appellees; ADDIE HOLMES, Plaintiff-Appellant, versus ATLANTIC SOUNDING COMPANY INC; ABC INSURANCE CO INC, Defendants-Appellees.

No. 04-30732, Cons. No. 04-30750
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
437 F.3d 441; 2006 U.S. App. LEXIS 1175; 2005 AMC 2612
January 19, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff injured employee appealed decisions of the United States District Court for the Western District of Louisiana, which (1) denied her motion to remand her Jones Act, 46 U.S.C.S. app. ¤ 688, and general maritime law personal injury suit against defendants, her nominal employer and the company for which she was actually performing services at the time of the injury, and (2) dismissed the suit.

OVERVIEW:

The employee sued defendants in state court seeking damages for injuries that she allegedly sustained on her first day of work as a cook aboard the BT-213. The BT-213 was a floating dormitory, a barge on the deck of which a two-story, 50-bed quarters package was mounted. The BT-213 was incapable of self-propulsion and was towed by tugs from place to place to house and feed employees during dredging projects at various locations. It was not intended to transport personnel, equipment, passengers, or cargo, and no evidence in the record reflected that it had ever done so. It did have a raked bow on each end and two end tanks where the rakes were for flotation. The district court held that the BT-213 was not a vessel for purposes of the Jones Act, 46 U.S.C.S. app. ¤ 688. In reversing the district court’s decisions, the court held that a recent U.S. Supreme Court decision had broadened the definition of vessel. The court held that the BT-213 was a vessel for Jones Act purposes because it was practically capable of maritime transportation.

OUTCOME:

The court reversed and remanded the district court’s decisions.

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DISTRICT COURT TOO READILY ADOPTED THE SHIP OWNER’S THEORY OF THE CASE WITHOUT PROPERLY DRAWING REASONABLE INFERENCES FROM THE EVIDENCE PRESENTED IN FAVOR OF THE PLAINTIFF LONGSHOREMAN.

ANTHONY PAPARO, Plaintiff, Appellant, v. M/V ETERNITY; DENHOLM SHIP MANAGEMENT, LTD., Defendants, Appellees.

No. 05-1767
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
433 F.3d 169; 2006 U.S. App. LEXIS 152
January 5, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff longshoreman appealed an order of the United States District Court for the District of Massachusetts, which granted summary judgment to defendant ship owner on a claim for negligence under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. ¤ 905(b).

OVERVIEW:

The longshoreman claimed that that the accident occurred when someone on board a ship prematurely used the ship’s winch to haul a line back in, thus jerking the line out of the longshoreman’s grip, causing him to fall. The ship owner contended that a co-worker was accumulating slack on the pilings, and that the ship’s winch was not capable of running fast enough to first take up that slack and then yank the line from the longshoreman’s grip hard enough to knock him down. The district court concluded that it was impossible for the accident to have occurred as the longshoreman theorized. The court held that the district court too readily adopted the ship owner’s theory of the case without properly drawing reasonable inferences from the evidence presented in favor of the longshoreman. There were triable issues of material fact about the cause of the accident. An opinion by the ship owner’s expert rested on disputed facts: the operating speed of the winch and the number of feet of slack that were out on the line between the ship and the longshoreman. It was not the case that the only possible cause for the accident was that accumulated slack fell from the pilings into the water.

OUTCOME:

The court reversed the district court’s grant of summary judgment to the ship owner and remanded to the district court.

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FLAWED JURY INSTRUCTIONS REGARDING A SUBSTANTIVE ELEMENT OF THE SHIP’S DUTY TO LONGSHOREMAN LEAD TO NEW TRIAL.

CORNELIUS HILL; TRUDIE HASTINGS HILL, H/W, Appellants v. REEDEREI F. LAEISZ G.M.B.H., ROSTOCK; SCHIFFARHTSGESELLSCHAFT MS PRIWALL MBH & CO. KG

No. 04-4335
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
435 F.3d 404; 2006 U.S. App. LEXIS 2317; 23 I.E.R. Cas. (BNA) 1842
January 31, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff longshoreman appealed from a judgment of the United States District Court for the Eastern District of Pennsylvania, which found in favor of defendants, the ship’s owner and the ship’s operator (ship), on the longshoreman’s negligence claim under the Longshore and Harbor Workers Compensation Act (LHWCA). The longshoreman asked the instant court to vacate the judgment of the district court and remand for a new trial.

OVERVIEW:

The longshoreman was injured while unloading cargo in the hold of the ship. He and another longshoreman were loosening the steel “lashing rods” which hold the cargo containers in place. While the other longshoreman was attempting to loosen a rod, it sprung off its housing and flew through the air, hitting plaintiff longshoreman in the head, smashing his hard hat, knocking him unconscious and almost killing him. On appeal, the longshoreman contended that the jury instructions were an inaccurate statement of the turnover duty. The instant court found that the instruction in this case omitted a substantive element of the ship’s duty, and based on the evidence presented at trial it could not conclude that it was highly probable that the omission did not affect the outcome. The longshoreman also argued that there was not sufficient evidence presented to support a finding of superseding cause, and that superseding cause was conceptually in tension with the remedial scheme set forth in the LHWCA. The instant court found that because there was no evidentiary basis for a superseding cause finding, the district court erred in giving a superseding cause instruction.

OUTCOME:

The district court’s order was vacated and the case was remanded for a new trial.

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THE QUESTION AS TO WHETHER A PLAINTIFF WAS EXPOSED TO THE PERILS OF THE SEA WHILE WORKING ON A BARGE AND QUALIFIED AS A SEAMAN UNDER THE JONES ACT WAS A JURY ISSUE.

Dennis G. GULASKY, Sr., PLAINTIFF v. INGRAM BARGE COMPANY, DEFENDANT

5:02-CV-173-R
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, PADUCAH DIVISION
2006 U.S. Dist. LEXIS 1188
January 10, 2006, Decided

PROCEDURAL POSTURE:

Defendant employer filed a motion for summary judgment in connection with plaintiff employee’s claim for negligence under the Jones Act, 46 U.S.C.S. App. 688, and for unseaworthiness under general maritime law.

OVERVIEW:

Plaintiff fell from a ladder while climbing out of a barge floating on a river. Defendant operated several vessels that were used in cleaning, repair, and fleeting work. Defendant argued that plaintiff was not a “seaman” at the time of the accident because he lacked a connection to a vessel or identifiable fleet and his duties did not expose him to the perils of sea. The court held that the question as to whether plaintiff qualified as a seaman under the Jones Act was a jury issue. Defendant owned approximately 70 percent of the vessels on which plaintiff worked, and he spent approximately 80 percent of his time working on vessels owned by defendant. These facts could have led the finder of fact to hold that plaintiff had a connection to defendant’s vessels. An employee was not required to go out to sea in order to have been exposed to the perils of sea. Rather, one of the factors to take consideration when determining whether or not an employee was exposed to the perils of sea included the seagoing nature of his/her duties.

OUTCOME:

The court denied defendant’s motion for summary judgment.

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GOOD CAUSE MUST BE SHOWN IN ORDER TO DEPART FROM THE ORDINARY DISCOVERY SEQUENCE.

ROBIN FLETCHER VERSUS TRANSOCEAN OFFSHORE USA INC. TRANSOCEAN DRILLING (U.S.A.), INC. AND TRANSOCEAN DEEPWATER, INC.

CIVIL ACTION NUMBER 05-2992 SECTION “L”(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 198
January 4, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff employee sued defendant employers, seeking to recover for injuries he allegedly sustained while he was working aboard the employers’ ship. The magistrate judge denied the employers’ Fed. R. Civ. P. 37(d) motion to compel the employee to appear at a deposition and ruled that written discovery should precede deposition discovery. Pursuant to Fed. R. Civ. P. 72(a), the employers appealed to the district court.

OVERVIEW:

The employers argued that under Fed. R. Civ. P. 37(d), the employee’s failure to appear at his deposition was not excusable because he failed to file a motion for a protective order before the time for the deposition. The district court held that the magistrate’s ruling was not, as the employers alleged, an excuse for the employee, as it did more than just pardon his failure; it set forth a comprehensive sequence of discovery. The employers claimed that there was sufficient doubt about the employee’s credibility to allow them to depose him before responding to his request, under Fed. R. Civ. P. 26(b)(3), for statements he made to the employers’ agents. If those statements were disclosed to him before the deposition, they argued, he could tailor his deposition testimony to conform to them. The district court held that the magistrate performed the necessary review to determine whether the employers had established good cause to depart from the ordinary discovery sequence. After performing this review, the magistrate determined there was not good cause. As this decision was supported by the law and the facts, there was no basis to reverse it under Fed. R. Civ. P. 72(a).

OUTCOME:

The magistrate’s order was affirmed.

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A LIMITATION OF LIABILITY ACTION MUST BE FILED WITHIN SIX MONTHS OF RECEIVING ADEQUATE NOTICE, OTHERWISE IT IS UNTIMELY.

P.G. CHARTER BOATS, INC., Plaintiff-Cross-Defendant-Appellant, versus JOHN S. SOLES, Defendant-Cross-Claimant-Appellee, QUALITY INSPECTION SERVICES, Defendant-Appellee.

No. 05-15395 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
437 F.3d 1140; 2006 U.S. App. LEXIS 2228; 19 Fla. L. Weekly Fed. C 227
January 30, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff vessel owner appealed a decision of the United States District Court for the Southern District of Alabama, which dismissed as untimely its limitation of liability action filed pursuant to the Limitation of Liability Act, 46 U.S.C.S. app. ¤¤ 181-196.

OVERVIEW:

An employee of an inspection company was injured while working on a vessel. The employee filed a tort action against several named defendants, including his employer and the president and sole shareholder of the vessel’s corporate owner. At that time, because the employee did not know the actual name of the company that owned the vessel, he also named as defendants three fictitious corporations. During discovery, the employee learned the name of the corporate owner and amended the complaint to expressly name the corporation as a defendant. Seven months after the filing of the initial complaint, the vessel owner filed the instant action. In affirming the district court’s dismissal of the action under 46 U.S.C.S. app. ¤ 185 because it was not filed within six months of the vessel owner’s receipt of written notice of the employee’s claim, the court held that the original complaint adequately gave notice to the vessel owner that the employee was making a claim against the vessel owner because the original complaint clearly asserted claims against the vessel’s owner and was served on the sole shareholder and president of the vessel owner.

OUTCOME:

The court affirmed the district court’s decision.

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EVIDENTIARY HEARING REQUIRED BEFORE DECIDING JONES ACT NEGLIGENCE CLAIM TO DETERMINE WHETHER THE NEGLIGENT CONDITION WAS EITHER CREATED BY THE EMPLOYER OR THAT IT EXISTED AT A TIME WHEN THE EMPLOYER SHOULD HAVE BEEN ABLE TO DISCOVER THE CONDITION THROUGH A REASONABLE INSPECTION OF THE BARGE TO ENSURE A SAFE WORKPLACE.

JOEY ROULSTON, PLAINTIFF versus YAZOO RIVER TOWING, INC., DEFENDANT

CIVIL ACTION NO. 5:04cv199-DCB-JCS
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, WESTERN DIVISION
418 F. Supp. 2d 851; 2006 U.S. Dist. LEXIS 12593
February 28, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff seaman brought claims under the Jones Act, 46 U.S.C.S. app. ¤ 688, and general maritime law against defendant employer claiming that the employer’s negligence and failure to maintain a seaworthy vessel caused the seaman’s injuries. The seaman also sought maintenance and cure. The cause was transferred to the court, and the employer filed a motion for summary judgment under Fed. R. Civ. P. 56 as to all claims.

OVERVIEW:

While boarding a barge to prepare for towing, the seaman stepped backwards onto a manhole cover, which flipped causing the seaman to fall into the opening. The court granted summary judgment as to the unseaworthiness claim but denied it as to the maintenance and cure claim. The court found that an evidentiary hearing was needed before deciding the Jones Act negligence claim. To overcome summary judgment, the seaman had to offer proof that the improperly secured manhole cover was either created by the employer or that it existed at the time when the employer should have been able to discover the condition through a reasonable inspection of the barge to ensure a safe workplace. To sustain the unseaworthiness claim, the seaman failed to establish some special relation between the employer and the barge where the employer did not own the barge. As to the maintenance and cure claim, there were disputed issues of material fact as to whether the seaman obtained maximum medical recovery, whether he was paid a proper maintenance rate, and whether his maintenance pay was prematurely terminated. The court did find that future wages were unavailable under a maintenance and cure claim.

OUTCOME:

The court granted the employer’s motion for summary judgment as to the seaman’s general maritime unseaworthiness claim but denied the motion as to the seaman’s maintenance and cure claim. The court dismissed the seaman’s general maritime unseaworthiness claim with prejudice and ordered an evidentiary hearing as to the seaman’s Jones Act negligence claim.

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PLAINTIFF’S COMPLAINT AGAINST A CRUISE LINE WAS TIME BARRED BECAUSE PLAINTIFF WAITED MORE THAN A YEAR TO FILE SUIT UPON REACHING THE AGE OF MAJORITY EVEN THOUGH THREE YEARS HAD NOT PASSED FROM THE TIME OF THE ACCIDENT.

JANE DOE (A.H.), Plaintiff-Appellant, versus CARNIVAL CORP., Defendant-Appellee.

No. 05-13906 Non-Argument Calendar
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
167 Fed. Appx. 126; 2006 U.S. App. LEXIS 3627
February 14, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff brought an action against defendant corporation, alleging that she was sexually assaulted by the corporation’s employee when she took a cruise as a seventeen year-old. The United States District Court for the Southern District of Florida granted the corporation’s motion for summary judgment. Plaintiff appealed. On appeal, the only issue was whether or not plaintiff’s complaint was time-barred.

OVERVIEW:

The corporation presented evidence that it sent each ticket holder a contract upon purchase that contained a limitations period for the filing of suits based on personal injuries sustained aboard the ship. The limitations period on plaintiff’s ticket was for one year from the time she sustained the injury. Plaintiff filed the action more than one year from the date of her injury; and, more significantly, more than one year from the date of her eighteenth birthday, when she reached the age of majority. The instant court found that 46 U.S.C.S. app. ¤ 183b(c) did not abrogate the contractually shortened statute of limitations, but rather simply tolled its operation until the appointment of the guardian. Section 183b(c) merely tolled the operation of the shortened statute of limitations during the time that the party was a minor. Thus, ¤ 183b(c) tolled the operation of the contractually shortened statute of limitations until plaintiff reached the age of majority. Because plaintiff waited more than a year from that date, the district court correctly held that the action was barred by the statute of limitations.

OUTCOME:

The decision of the district court was affirmed.

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A LIFEBOAT, ALTHOUGH NOT UNDER SAIL, WAS A VESSEL ON NAVIGABLE WATERS AND FAILING TO PROVIDE A SAFE WORKPLACE ABOARD A VESSEL WAS A MARITIME TORT FOR STATUTE OF LIMITATIONS PURPOSES.

Alan Strong, etc.; et Al. Plaintiffs, Alan Strong, Individually and in His Capacity as Administrator on Behalf of Lindsey Strong Estate, on Behalf of Chelsey Strong Estate, Plaintiff-Appellee, VERSUS B.P. Exploration & Production, Inc., Defendant-Appellant.

No. 05-30153
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
440 F.3d 665; 2006 U.S. App. LEXIS 3542
February 15, 2006, Filed

PROCEDURAL POSTURE:

Appellant corporation sought review of an order from the United States District Court for the Western District of Louisiana, which denied the corporation’s motion for summary judgment in a suit by appellees, an oil well worker, his wife, and his minor children, to recover damages associated with an injury that the worker sustained when plugging an oil well owned by the corporation’s predecessor in interest.

OVERVIEW:

The worker and his crew were transported to the predecessor’s oil platform in a utility boat. A lifeboat was jacked up next to the platform to provide additional work space, but it was cluttered with equipment. In trying to load some toolboxes under cluttered conditions, the worker alleged that he sustained a back injury. The corporation alleged that the three-year statute of limitations in 46 U.S.C.S. app. ¤ 763a precluded the claim. The worker alleged that state law, as incorporated by the Outer Continental Shelf Lands Act, governed the claim, and thus, the claim was timely because Louisiana’s one-year statute of limitations was tolled while the worker received benefits under the Longshore and Harbor Workers’ Compensation Act. The court held that the three-year statute of limitations in 46 U.S.C.S. app. ¤ 763a was applicable because federal maritime law applied of its own force in this case. The court reasoned that the lifeboat, although jacked up and not under sail, was a vessel on navigable waters and that failing to provide a safe workplace aboard a vessel was a maritime tort. Because federal maritime law applied of its own force, the state tolling provision did not apply.

OUTCOME:

The court reversed the district court’s order and remanded the matter so that the district court could enter summary judgment for the corporation.

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APPELLATE COURTS DO NOT HAVE CERTIORARI JURISDICTION TO REVIEW A DECISION OF A TRIAL JUDGE GRANTING LEAVE TO AMEND A COMPLAINT TO INCLUDE A CLAIM FOR PUNITIVE DAMAGES WHEN THE TRIAL JUDGE HAS FOLLOWED THE PROCEDURAL REQUIREMENTS OF ¤ 768.72.

CARNIVAL CORPORATION, d/b/a CARNIVAL CRUISE LINES, Petitioner, vs. NELSON ISCOA, Respondent.

CASE NO. 3D05-2125
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
922 So. 2d 359; 2006 Fla. App. LEXIS 2737; 31 Fla. L. Weekly D 650
March 1, 2006, Opinion Filed

PROCEDURAL POSTURE:

Petitioner cruise line petitioned for a writ of certiorari to the Circuit Court for Miami-Dade County (Florida) that granted respondent passenger’s motion to amend his complaint to add a claim for punitive damages.

OVERVIEW:

The passenger sued the cruise line to recover for injuries he allegedly sustained when he fell down an open staircase while on board one of the cruise line’s ships. After the passenger learned that other passengers aboard the same vessel had been involved in similar falls, he sought to amend his complaint to state a claim for punitive damages. The cruise line opposed the motion, claiming that as a matter of maritime law, the passenger could not maintain a punitive damages claim and that the evidence did not support such a claim. Nevertheless, the trial court permitted the passenger to amend. The appellate court held that pursuant to Fla. Stat. ¤ 768.72, it lacked certiorari jurisdiction to review the trial court’s decision to permit the amendment. Although the court had serious doubts that the “very rare” exception recognized by the Eleventh Circuit was implicated, it was nonetheless bound to deny the cruise line’s petition for a writ of certiorari based on the analysis set out in the state supreme court’s judicial precedents.

OUTCOME:

The petition was denied.

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PLAINTIFF EMPLOYEE’S EXPERT OPINION RE HIS FUTURE SALARY WAS SUPPORTED BY THE RECORD AND NOTHING PREVENTED THE DEFENDANT EMPLOYER FROM PRESENTING PROOF OF FACTORS THAT THE JURY COULD HAVE CONSIDERED IN REDUCING AN AWARD OF LOST FUTURE INCOME.

RICK E. MILLER, Respondent-Cross-Appellant, v. PACIFIC TRAWLERS, INC., an Oregon corporation, Appellant-Cross Respondent, and F/V CAPE FOULWEATHER, a vessel, Defendant.

COURT OF APPEALS OF OREGON
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
204 Ore. App. 585; 131 P.3d 821; 2006 Ore. App. LEXIS 324
March 15, 2006, Filed

PROCEDURAL POSTURE:

Defendant former employer appealed a decision of the Circuit Court, Multnomah County (Oregon), which found in favor of plaintiff employee in his action under the federal Jones Act, 46 U.S.C.S. app. ¤ 688(a), alleging negligence regarding an accident in which the employee suffered serious permanent injury to his legs. The employee cross-appealed the trial court’s reduction of the jury’s award.

OVERVIEW:

The employee was captain of the employer’s fishing vessel. The employee was injured when a forklift driver caused a steel door to fall on the employee’s legs, causing the employee to undergo several surgeries and face possible future amputation. The trial court denied the employer’s motion for a change of venue, and the state Supreme Court denied a writ of mandamus on the issue. The court held that mandamus was the proper remedy and declined to consider the issue on appeal. The court also held that the employee’s expert’s opinion regarding the employee’s future annual salary was supported by the record. Nothing prevented the employer from presenting proof of factors that the jury could have considered in reducing an award of lost future income. Moreover, the employer requested, and the trial court gave, an instruction that advised the jury to award the employee only net future income, and the employee was not required to produce expert testimony of the present value of his lost future income. Also, pursuant to 29 U.S.C.S. ¤ 653(b)(4), the trial court did not err when it reduced the employee’s award by four percent, the amount that the jury found the employee was negligent.

OUTCOME:

The court affirmed on appeal and on cross-appeal.

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DISTRICT COURT ORDER VACATED WHEN IT CONCLUDED THAT THE EMPLOYER’S FAILURE TO COMPLY WITH THE U.S. COAST GUARD REGULATIONS DID NOT ESTABLISH NEGLIGENCE PER SE LIABILITY UNDER THE JONES ACT.

CHRISTOPHER MACDONALD, Plaintiff-Appellant, v. KAHIKOLU LTD., dba Frogman Charters, Defendant-Appellee.

No. 04-15979
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
442 F.3d 1199; 2006 U.S. App. LEXIS 7901
March 31, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff employee challenged the decision entered by the United States District Court for the District of Hawaii that found in favor of defendant employer in the employee’s action that alleged a violation of the Jones Act, 46 U.S.C.S. App. ¤ 688, by failing to provide him with a safe, proper, and suitable work environment. He also sought damages on the ground that the vessel was not seaworthy.

OVERVIEW:

The employer conducted whale watching, scuba, and snorkel tour boat cruises, and the employee worked as a deck hand on the employer’s boat. The employee was periodically required to do free dives to retrieve mooring lines that had sunk to the sea floor. During such a free dive, the employee sustained an injury to his left ear when he attempted to equalize the hyperbaric pressure on descent. The injury and subsequent treatment left the employee with permanently severe to profound hearing loss and related maladies. Following a bench trial, the employee sought reversal on the ground that the trial court erred in concluding that the employer’s failure to comply with the United States Coast Guard regulations did not establish negligence per se liability under the Jones Act. The appellate court ordered the judgment to be vacated and remanded for the limited purpose of having the district court make a finding as to whether the employer’s failure to provide an operations manual to the person-in-charge of the vessel, as required the Coast Guard’s scuba diving regulations, played any part in producing the injury, no matter how slight, to the employee.

OUTCOME:

The court vacated the district court’s order and remanded.

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DISTRICT COURT DECLINED TO DEPART FROM THE WELL ESTABLISHED RULE THAT A WARRANTY OF SEAWORTHINESS EXTENDED TO MARITIME WORKERS WHO OBTAINED “SEAMAN” STATUS UNDER THE JONES ACT.

DOUGLAS AND NANCY TURNER, PLAINTIFFS, VS. MIDLAND ENTERPRISES, INC. and THE OHIO RIVER CO., INC., DEFENDANTS

CIVIL ACTION NO. 03-208-DLB
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
2006 U.S. Dist. LEXIS 8434
March 3, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff, an injured worker and his wife, filed an action against defendant coal suppliers after the worker was injured while working on defendants’ coal barges. The worker asserted negligence and unseaworthiness claims under the Jones Act and general maritime law. The wife asserted loss of marital consortium claims. The parties filed cross-motions seeking summary judgment as to a seaworthiness claim.

OVERVIEW:

The worker’s employer used coal to generate electricity. Among other duties, the worker acted as a deckhand on his employer’s tugboat, transporting coal-laden barges to and from the employer’s unloading facility. The worker alleged that he was injured in two incidents. The summary judgment motions pertained to plaintiffs’ claims arising from the second incident. The worker claimed that wet coal on a barge’s working deck caused him to slip and fall and that the barge was unseaworthy. Defendants contended that pursuant to the United States Court of Appeals for the Fifth Circuit’s decision in Smith, the worker could not bring an unseaworthiness claim against them because he was not employed them. They also argued that the conditions on the barge did not cause the worker to fall. The court noted that it was not bound by the Smith decision. It declined to depart from the well-established rule that a warranty of seaworthiness extended to maritime workers who obtained “seaman” status under the Jones Act, 46 U.S.C.S. app. ¤ 688. Material factual disputes existed as to whether the worker qualified as a “seaman” under the Jones Act and as to whether the barge was, in fact, unseaworthy.

OUTCOME:

The court denied the parties’ cross-motions for summary judgment and noted that a status conference had been scheduled to discuss the case.

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DEFENDANT COMPANY HAD TO INDEMNIFY CODEFENDANT LLC FOR 50% OF ITS SETTLEMENT COSTS BASED ON CONTRACTUAL AGREEMENT.

PHILLIP COMEAUX, II, ET AL., Plaintiffs, VERSUS COIL TUBING SERVICES, LLC, ET AL., Defendants, ELEVATING BOATS, LLC, Defendant-Counter Plaintiff-Appellee-Cross-Appellant, VERSUS ENERGY PARTNERS, LTD, Defendant-Counter Defendant-Appellant-Cross-Appellee.

05-30192
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 7273
March 22, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff employee sued cross-appellant limited liability company (LLC) and cross appellee company for injuries he sustained. The employee dismissed the company and settled his claims against the LLC for $ 150,000, to be paid by the LLC or the company. The United States District Court for the Eastern District of Louisiana ruled that the company had to indemnify the LLC for 50 percent of its settlement costs. Both parties appealed.

OVERVIEW:

The employee was injured when a flash fire occurred on the LLC’s jack-up vessel, which was involved with work on the company’s well pursuant to a Blanket Time Charter agreement between the LLC and the company. The district court found the employee’s injuries attributable to the LLC in the following manner: 50 percent by the absence of a working fire extinguisher and 50 percent by the collision with the drums. Thus, the company had to indemnify the LLC for 50 percent of its settlement costs. The appellate court found that because the LLC sought indemnity from the company, that claim was governed by paragraph (B) of the agreement, under which the company had to indemnify the LLC for all “Claims” that arose from injury to any of the company’s or any of its subcontractors’ personnel, representatives, agents, or invitees, and the employee’s claim fell under that provision because he was an employee of a subcontractor of the company. Moreover, under the express exclusion from its duty to indemnify, the company had no duty to indemnify the LLC for breach of the warranty of seaworthiness since “claims” was defined to exclude claims for breach of warranties made by the LLC in the charter.

OUTCOME:

The judgment of the district court was affirmed.

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CLAIMANTS AMENDED STIPULATIONS RESOLVED THE TENSION BETWEEN THE LIMITATION OF LIABILITY ACT AND THE SAVING TO SUITORS CLAUSE ALLOWING THE STATE COURT ACTION TO PROCEDE.

IN THE MATTER OF THE COMPLAINT OF INGRAM BARGE COMPANY, Plaintiff

CIVIL ACTION NO. 2:05-cv-00379
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA, CHARLESTON DIVISION
419 F. Supp. 2d 885; 2006 U.S. Dist. LEXIS 10550
March 13, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff vessel owners filed a complaint seeking exoneration or limitation of liability pursuant to the Limitation of Liability Act, 46 U.S.C.S. ¤¤ 181-196, in a state action arising from the drowning death of two teenage boys. Pending before the court were the joint motion of claimants, the administrators of the boys’ estates, to dissolve an injunction and stay the limitation of liability proceedings.

OUTCOME:

The court granted the motion, dissolved the injunction, and stayed the proceedings.

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EMPLOYEE WAS NOT CONTRIBUTORILY NEGLIGENT FOR NOT LETTING GO OF HEAVING LINE WHEN IT STARTED TO PULL HIM BECAUSE HE WAS GIVEN A SPECIFIC ORDER TO NOT LET GO OF THE LINE.

BRIAN FERGUSON, Plaintiff, v. OGLEBAY NORTON MARINE SERVICES COMPANY, LLC, Defendant.

Case No. 04-72743
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
March 31, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff employee sued defendant employer pursuant to the Jones Act, 46 U.S.C.S. app. ¤ 688, to recover damages for injuries he suffered while working on the employer’s vessel. Both sides moved for partial summary judgment on the issue of contributory negligence.

OVERVIEW:

The employee worked as a deckhand. He was injured while using a heaving line to attach the bow mooring cable to the dock. The employee had the eye of the mooring cable just within reach and grabbed it with his left hand. As he reached for the eye he slipped backwards due to debris on the dock. His right arm, still holding the heaving line, jerked forward and he heard a loud pop in his shoulder. The employee also claimed that he dropped the heaving line but because it was attached to the eye of the cable, it spun and wrapped around his glove and his arm was pulled by the heaving line. The court found that the employee could not be held contributorily negligent for not letting go of the line when it started to pull him because he was given a specific order to not let go of the line. Although the employer established an inference through deposition testimony that there was a way to handle the heaving line so one was not in the bight of the line, the employer had not provided any evidence that it was an available alternative to the employee.

OUTCOME:

The employee’s motion for partial summary judgment was granted. The employer’s motion for partial summary judgment was denied.

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PLAINTIFF EMPLOYEE SATISFIED THE “FEATHERWEIGHT” BURDEN OF PROOF OF CAUSATION UNDER THE JONES ACT AND THE FEDERAL EMPLOYERS’ LIABILITY ACT.

DIAMOND OFFSHORE MANAGEMENT COMPANY, Appellant v. LAMAR HORTON, Appellee

NO. 01-04-00438-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2006 Tex. App. LEXIS 1621
March 2, 2006, Opinion Issued

PROCEDURAL POSTURE:

A jury awarded damages to appellee employee in a personal injury suit for negligence, unseaworthiness, and maintenance and cure under the Jones Act, 46 U.S.C.S. ¤ 688. The 190th District Court, Harris County, Texas, denied appellant employer’s motion for new trial, and the employer sought review.

OVERVIEW:

The employee, a deck coordinator on an offshore drilling vessel, was injured when a pipe struck his arm. He initially complained of an arm injury, but a few months after the accident, he consulted a doctor, who testified that the accident also caused a herniated disc. In affirming the verdict, the court found that under the “featherweight” burden of proof of the Jones Act and the Federal Employers’ Liability Act (FELA), the evidence was factually sufficient as to the causal connection between the accident and the back injury. The jury heard evidence that the employee was pinned by a pipe that weighed approximately 200 pounds, that the employee had passed a physical examination of his back before starting work, and that an MRI after the accident showed that his injury appeared to have been caused by some type of trauma. The court also found that the evidence was sufficient to support the jury’s attribution of 10 percent of negligence to the employee, with the remaining 90 percent to the employer, even though the employee was experienced and the employer stressed that employees should avoid getting in positions where they could get trapped between two objects.

OUTCOME:

The court affirmed the judgment of the trial court.

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$3.3 MILLION JURY AWARD DIDN’T JUSTIFY PARSIMONIOUSNESS CLAIM.

BRUCE FALCONER, Plaintiff, v. PENN MARITIME, INC., Defendant.

Civil No. 05-42-B-W
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
421 F. Supp. 2d 190; 2006 U.S. Dist. LEXIS 10073
March 10, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff employee, a seaman, filed a motion pursuant to Fed. R. Civ. P. 59 for a new trial on liability and a new trial on damages in his Jones Act and unseaworthiness action against defendant employer, alleging that the court erred in certain evidentiary and other rulings and that the jury was too parsimonious in awarding $ 100,000 in pain and suffering damages out of a total award of $ 3.3 million.

OVERVIEW:

The employee fell into an open hatch, sustaining injuries that rendered him paralyzed below his mid-chest. The jury returned a verdict for the employee, assessing a total damage award of over $ 5 million, reduced by 35 percent due to the employee’s own negligence, for a final verdict of $ 3.3 million, including $ 100,000 for past and future pain and suffering. In denying the employee’s motion for a new trial as to damages, the court held that viewed in isolation the pain and suffering award stood at the edge of reasonableness. The court, however, held that his argument that the jury was unduly miserly was undercut by his concession that, in other respects, it was overly generous. The court also held that the verdict did not include certain amounts the employer had advanced to the employee prior to trial, including a new, wheelchair-accessible, mortgage-free home, a wheelchair-accessible van, and home-exercise equipment, which mitigated some pain and suffering that would have otherwise occurred. In denying the employee’s motion for a new trial as to liability, the court held that none of the evidentiary errors allegedly committed by the court presented grounds for a new trial.

OUTCOME:

The court denied the employee’s motion.

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SHIP COMPANY HAD NO DUTY UNDER TEXAS LAW TO MAKE THE SHIP’S DOCTOR AND NURSE AVAILABLE FOR DEPOSITION BECAUSE THEY WERE NOT EMPLOYEES.

IN RE CARNIVAL CORPORATION, Relator

NO. 01-05-01154-CV
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2006 Tex. App. LEXIS 2751
April 6, 2006, Opinion Issued

PROCEDURAL POSTURE:

Relator, a cruise ship company, sought mandamus relief from a “death penalty” sanction imposed by respondent, the judge of the 56th District Court of Galveston County (Texas), in an action brought by real party in interest passenger for negligence, breach of contract, breach of warranty, deceptive trade practices, and fraud.

OVERVIEW:

The passenger alleged that the ship company failed to provide medical care to her mother during a cruise and misrepresented the care that would be available. The ship company provided the addresses of medical personnel who were aboard the cruise ship. The passenger unsuccessfully attempted service on a doctor and a nurse who were foreign nationals and independent contractors. The trial court granted a motion for substituted service pursuant to the Hague Convention, Letters Rogatory, or private process service. The passenger never attempted such service but instead noticed the doctor and nurse for deposition through the ship company, which filed a motion to quash. The record did not reflect a ruling on the passenger’s motion to compel. The court held that the imposition of a death penalty sanction under Tex. R. Civ. P. 215.3 was not just, within the meaning of Tex. R. Civ. P. 215.2(b). The ship company had no duty under Tex. R. Civ. P. 199.3 to make the doctor and nurse available for deposition because they were not employees. The evidence did not establish that the ship company provided false addresses in violation of the disclosure requirements of Tex. R. Civ. P. 193.1, 193.5.

OUTCOME:

The court conditionally granted the petition for writ of mandamus and directed the trial court to vacate the challenged order.

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A RIVERBOAT CASINO CAN BE CONSIDERED A “VESSEL IN NAVIGATION” EVEN THOUGH IT’S PRIMARILY NOT MOVING.

ANGELA L. BOOTEN and CRAIG L. WILLEFORD, Plaintiffs-Appellants, v. ARGOSY GAMING COMPANY, d/b/a ALTON BELLE CASINO, Defendant-Appellee.

NO. 5-04-0423
APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
2006 Ill. App. LEXIS 331
April 18, 2006, Opinion Filed

PROCEDURAL POSTURE:

Plaintiff employees filed separate cases against defendant employer, each alleging personal injury claims under the Jones Act, 46 U.S.C.S. ¤ 688 (2000). In both cases, summary judgments were entered by the Circuit Court of Madison County (Illinois) in favor of the employer on the issue of the employees’ seaman status under the Jones Act. The employees’ separate appeals were consolidated.

OVERVIEW:

The employees were injured in separate accidents while performing their respective jobs on the employer’s riverboat casino. They filed separate cases under the Jones Act, 46 U.S.C.S. ¤ 688 (2000). The employer was granted summary judgment in both cases on its claim that the employees were not seaman to allow their Jones Act claims. The employees’ appeals were consolidated. The employees claimed that a genuine issue of material fact existed on whether the riverboat casino was a “vessel in navigation” under the Jones Act, ¤ 688(a). The employer argued that its indefinitely moored casino could not be a vessel in navigation. The court found that the term “vessel in navigation” referred to any watercraft practically capable of maritime transportation, regardless of its primary purpose or its state of transit at a particular moment. The riverboat casino’s ability to cruise was a practical possibility. It actually navigated the river approximately five times per year when it was released from its mooring to remove accumulated drift materials. Moreover, the riverboat could be ready to cruise in five to seven minutes if an emergency situation arose.

OUTCOME:

The court reversed the summary judgments in both cases and remanded for further proceedings.

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PLAINTIFF OWN NEGLIGENCE DID NOT CREATE BASIS FOR SUMMARY JUDGMENT.

GLENDA CHURCHWELL, Plaintiff-Appellant, v. BLUEGRASS MARINE, INC., MARQUETTE TRANSPORTATION CO., INC., and MOTOR VESSEL MARIE HENDRICK, Defendants-Appellees.

No. 05-5185
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
06a0142p.06;
444 F.3d 898; 2006 U.S. App. LEXIS 10026; 2006 FED App. 0142P (6th Cir.)
April 21, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff, a ship cook, appealed the order of the United States District Court for the Western District of Kentucky that granted summary judgment in favor of Defendant vessel owners, and dismissed the cook’s claims of 1) unseaworthiness in violation of general maritime law, and 2) negligence in violation of the Jones Act.

OVERVIEW:

The cook’s personal injury claims arose out of an accident that occurred aboard the owners’ vessel. The cook sustained back injuries from a fall while cleaning up the kitchen after serving breakfast to the crew. The appellate court held that the district court erred in granting the owners’ motion for summary judgment on Plaintiff’s unseaworthiness and Jones Act claims. The cook presented sufficient evidence such that she could prevail on both claims at trial. Moreover, contrary to the owners’ assertions, the cook’s own negligence did not provide an adequate basis on which to grant summary judgment. Maritime law espoused a system of comparative negligence, in which a plaintiff’s own negligence did not bar recovery. The only exception to this rule was the primary duty doctrine, under which the employee responsible for maintaining safe conditions could not sue his employer for his own failure to maintain safe conditions. As the primary duty doctrine had no application, the cook’s alleged negligence was not grounds for summary judgment.

OUTCOME:

The court reversed the district court’s grant of summary judgment in favor of the vessel owners on the ship cook’s unseaworthiness and Jones Act claims and remanded for trial.

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ARBITRATION AGREEMENT NOT ENFORCED BECAUSE THE CLAUSE WAS NOT INCORPORATED INTO THE PLAINTIFF’S EMPLOYMENT CONTRACT.

GHEROGHE TUCA VERSUS OCEAN FREIGHTERS, LTD., ET AL.

CIVIL ACTION NO. 05-5019 SECTION “L” (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 16174
April 4, 2006, Decided

PROCEDURAL POSTURE:

Plaintiff seaman sued defendants, his employer and the owner of the vessel on which he was working when he allegedly sustained severe and permanent injuries, for negligence and unseaworthiness. Defendants removed the case pursuant to general maritime law and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C.S. ¤ 201 et seq. Plaintiff moved to remand.

OVERVIEW:

In support of his motion, plaintiff argued that his claim fell under the Jones Act and therefore was not removable without another basis for jurisdiction. Plaintiff argued that defendants’ use of the arbitration clause in an employment agreement was an impermissible attempt to invoke the court’s jurisdiction using a federal defense. Plaintiff argued that his employment agreement only incorporated the terms and conditions governing employment and that the arbitration clause in question provided for arbitration between other parties, rather than to a seafarer whose employment contract incorporated provisions of the agreement. Although the arbitration “related to” plaintiff’s claim and met other requirements of the Convention, the court agreed with plaintiff that the arbitration clause did not fall under the Convention and that defendant failed to satisfy the four-part Lim test. The arbitration clause was not incorporated into plaintiff’s employment contract, and, accordingly, there was no agreement in writing to arbitrate the dispute. Thus, there was no basis of federal jurisdiction other than the Jones Act.

OUTCOME:

The court granted plaintiff’s motion to remand.

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SUMMARY JUDGMENT AFFIRMED WHERE SHIP OWNER HAD NO DUTY TO SUPERVISE THE STEVEDORE OPERATIONS AND TERMINAL OPERATOR DID NOT BREACH ANY DUTY OF CARE.

NATHANIEL GOLDSMITH, Appellant v. SWAN REEFER A.S. and DEL MONTE FRESH PRODUCE N.A., INC.

No. 05-2023
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2006 U.S. App. LEXIS 8577
April 6, 2006, Filed

PROCEDURAL POSTURE:

Plaintiff longshoreman appealed from an order of the United States District Court for the District of New Jersey granting summary judgment in favor of defendant ship owner with respect to the longshoreman’s negligence claim under the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C.S. ¤ 901 et seq., and also granting summary judgment in favor of defendant terminal operator with respect to a general maritime negligence claim.

OVERVIEW:

The longshoreman was injured when a crane that was unloading cargo from a ship caused a container to hit the longshoreman and knock him overboard. The longshoreman, who was employed by the stevedore company that was hired to do the unloading, sued both the ship owner and the terminal operator. As to the ship owner, the longshoreman contended that it breached its duty to intervene under 33 U.S.C.S. ¤ 905(b) because it knew or should have known that the stevedore’s practice of unloading with two cranes was dangerous. The court affirmed the district court’s holding that the ship owner did not have a general duty under ¤ 905(b) to supervise the stevedore operations. Nor did the ship owner’s contract with the stevedore impose a duty to safeguard the longshoremen in the performance of their duties. As to the terminal operator, the court also found that there was no breach of any duty of care. The accident in this case appeared to have been caused by listing that resulted from improper timing of the cranes, something within the stevedore’s control, not the terminal operator’s. There was simply no evidence that the terminal operator failed to exercise reasonable care.

OUTCOME:

The court affirmed the order granting summary judgment in favor of both the ship owner and the terminal operator.

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HEARING REQUIRED TO DETERMINE WHETHER ARBITRATION AGREEMENT WAS ENFORCEABLE.

In re Nicholas Schreiber, Petitioner-Respondent, v K-Sea Transportation Corp., et al., Respondents-Appellants.

5410N, Index 104992/04, 107571/04
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2006 NY Slip Op 3033; 2006 N.Y. App. Div. LEXIS 4732
April 25, 2006, Entered

OVERVIEW:

When the seaman was injured in an accident, a claims manager for the employers extended an offer to pay the seaman his average two-thirds net weekly wage as an advance against settlement if the seaman agreed to participate in the employers’ claims arbitration program and pursue legal claims against the employers in arbitration rather than in court. The seaman signed an agreement which provided for the arbitration of his claims. The employers contended that the seaman was thus required to arbitrate his claims pursuant to the agreement. On appeal, the court found that the arbitration agreement was not a release under N.Y. Gen. Oblig. Law ¤ 15-108. Additionally, the seaman failed to show that Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue. Finally, a question remained as to whether the seaman was sufficiently apprised of the consequences of his agreement to arbitrate so that his decision to waive the right to jury trial could have been deemed an informed one. Thus, a trial was necessary to decide if the contract entered into between the parties was equitable and was to be enforced under N.Y. C.P.L.R. 410 and 7503(a).

OUTCOME:

The order was reversed to the extent of vacating the permanent stay and preliminarily enjoining arbitration of the dispute. The matter was remanded to the trial court for a hearing as to whether the subject arbitration agreement was enforceable.

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A BREACH OF CONTRACT CLAIM INVOLVING PLACEMENT OF VESSELS, IN WHICH THE BROKER CLAIMED A BROKERAGE FEE DID NOT “AFFECT MARITIME COMMERCE” AND THEREFORE WAS NOT SUBJECT TO ADMIRALTY JURISDICTION.

Tankship International, LLC, Plaintiff, v. El Paso Merchant Energy-Petroleum Co. and El Paso Corp., Defendants

5410N, Index 104992/04, 107571/04
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2006 NY Slip Op 3033; 2006 N.Y. App. Div. LEXIS 4732
April 25, 2006, Entered

PROCEDURAL POSTURE:

In a case arising from an alleged breach of a maritime brokerage contract, defendant charter companies moved to dismiss the complaint of plaintiff broker pursuant to Fed. R. Civ. P. 12 for lack of subject matter jurisdiction under 28 U.S.C.S. ¤ 1333.

OVERVIEW:

The complaint alleged that the broker offered to secure the placement of seven vessels into vessel pools and also stated that it would be willing to offer its services as an operational liaison between all the parties to facilitate communication and distribution of information relating to the operation of the vessels during the period the vessels operated in the pool. In granting the motion to dismiss, the court found that the broker’s written proposal concerning the vessel pool did not address the issue of operational liaison services but merely suggested a brokerage commission to the broker. The complaint and supplementary evidence could not be fairly read to assert or support the existence of any agreement between the broker and the charter companies for ongoing provision of operational liaison services beyond facilitating communication and distribution of information relating to the operation of the vessels while they operated in the pool. In substance, the case was one for breach of contract in which the broker claimed a brokerage fee. Such a case did not “affect maritime commerce,” and, therefore, was not subject to admiralty jurisdiction under ¤ 1333.

OUTCOME:

The court granted the motion to dismiss.