Ada Does Not Apply To Foreign Flag Vessels

DOUGLAS SPECTOR, ET AL., Plaintiffs-Appellants, versus NORWEGIAN CRUISE LINE LTD., doing business as Norwegian Cruise Line,Defendant-Appellee. DOUGLAS SPECTOR, ET AL., Plaintiffs-Appellees, versusNORWEGIAN CRUISE LINE LTD., doing business as Norwegian Cruise Line,Defendant-Appellant.

No. 02-21154, 03-20056
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
356 F.3d 641; 2004 U.S. App. LEXIS 340
January 12, 2004, Filed

PROCEDURAL POSTURE:

Appellants, disabled travelers and their companions, sued appellee cruise line and alleged that they were discriminated against in violation of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12181 et seq. The United States District Court for the Southern District of Texas dismissed the travelers’ claim concerning removal of physical barriers, and certified the matter for interlocutory appeal.

OVERVIEW:

The question presented on appeal was whether Title III of the ADA, 42 U.S.C.S. § 12181 et seq., applied to foreign-flagged cruise ships. The cruise line challenged the district court’s conclusion that Title III of the ADA applied to foreign-flagged cruise ships, and asserted that there was no evidence that Congress intended Title III to apply to foreign-flagged vessels or that it even considered the issue. The court found that there was no indication, either in the statutory text or in the ADA’s extensive legislative history, that Congress intended Title III to apply to foreign-flagged cruise ships. If Congress had so intended, it would have addressed the subject of conflicts with foreign laws and procedures. Congress’s silence could not be read to express an intent to legislate where issues touching on other nations’ sovereignty are involved. Extraterritorial application of any statute was impermissible absent the affirmative intention of the Congress clearly expressed. Congress, in enacting Title III of the ADA, failed to express any intention to subject foreign-flagged cruise ships to its dictates. Thus, application of Title III to foreign-flagged cruise ships was impermissible.

OUTCOME:

The district court’s dismissal of the travelers’ barrier removal claims was sustained. However, the judgment of the district court was reversed to the extent that any Title III ADA claims remained, including those of the non-disabled travelers, and the case was remanded for further proceedings.

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5 Billion Dollar Punitive Damage Award For Oil Pollution Reduced By 500 Million Dollars

In re the EXXON VALDEZ. This Order Relates to ALL CASES

No. A89-0095-CV (HRH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
296 F. Supp. 2d 1071; 2004 U.S. Dist. LEXIS 1514
January 28, 2004, Decided
January 28, 2004, Filed

PROCEDURAL POSTURE:

Thousands of plaintiffs’ oil spill claims were consolidated against defendants, oil and shipping companies, and captain. The case was pending proceedings on remand from the U.S. Court of Appeals for the Ninth Circuit. The oil and shipping companies submitted a second renewed motion for reduction or remittitur of punitive damages.

OVERVIEW:

The appellate court had earlier vacated a $4 billion punitive damages judgment and remanded the case, this time to reconsider the punitive damages award in light of the U.S. Supreme Court’s State Farm decision. The question was whether the jury’s $5 billion punitive damages award offended the Due Process Clause. The court again concluded that a $5 billion award was justified by the facts and was not grossly excessive so as to deprive defendants of fair notice–their right to due process. This conclusion was based on the court’s findings that (1) defendants’ conduct was highly reprehensible, (2) the ratio of punitive damages to actual harm was a permissible 9.74-to-1, and (3) comparable criminal and civil penalties could have exceeded $5 billion. However, the appellate court instructed the court to reduce the punitive damages award. In light of State Farm, which instructed that single-digit multipliers passed constitutional muster for highly reprehensible conduct, which was what was before the court, and in light of Zhang, in which the appellate court approved a 7-to-1 ratio for conduct that was also highly reprehensible, the court reduced the award to $4.5 billion.

OUTCOME:

The motion for reduction or remittitur of the punitive damages award was granted. $500 million of the $5 billion jury award was remitted, and therefore, the punitive damages award was reduced to $4.5 billion. The clerk was directed to enter an amended partial judgment accordingly.

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Passenger Claim Dismissed For Failure To File Suit Within 30 Days After Bankruptcy Plan Of Reorganization Approved

ANTHONY CALDERON, Plaintiff, – against COMMODORE HOLDINGSLIMITED et al., Defendants.

02 Civ. 8273 (DC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 3122
February 26, 2004, Decided
March 1, 2004, Filed

Calderon was a passenger on a Commodore cruise ship when he was injured on August 30, 2000. (Calderon[*2] Aff., P 1). As the parties agree, his ticket contained a one-year limitation for bringing suit. Suit also had to be brought in the United States District Court for the Southern District of New York. (See Def. Rule 56.1 Statement, P 4; Pl. Rule 56.1 Statement). Hence, absent a stay or tolling, Calderon was required to file suit by August 30, 2001.

On December 27, 2000, Commodore filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Florida. As a result, pursuant to 11 U.S.C. § 362, an automatic stay came into effect preventing Calderon from commencing suit against Commodore.

On March 15, 2002, a plan of reorganization was confirmed by the bankruptcy court. (Harwood Aff., Ex. H at Ex. 6). As discussed below, by operation of law, the automatic stay was lifted and Calderon had thirty days from receipt of notice of the termination of the automatic stay to file suit.

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Forum Selection Clause In Passenger Ticket Enforced And Action Transferred To Florida

BETH LURIE and MARK LURIE, Plaintiffs, – against – NORWEGIANCRUISE LINES, LTD. and M/V NORWEGIAN STAR, Defendants.

03 Civ. 5033 (PKL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 2873
February 25, 2004, Decided
February 26, 2004, Filed

Plaintiffs Beth and Mark Lurie, residents of New York, brought this action under the Court’s diversity jurisdiction seeking damages for unlawful imprisonment and breach of contract. Plaintiffs’ claims arise from their alleged mistreatment at the hands of defendant Norwegian Cruise Lines, Ltd. (“NCL”), a Florida corporation with its principle place of business in Miami, Florida, while on board NCL’s cruise ship, Norwegian Star. NCL now moves to dismiss this case based on a forum selection clause contained in the passenger ticket contract issued to plaintiffs for their cruise that requires claims against NCL to be brought in Dade County, [*2] Florida. Plaintiffs oppose this motion and, as an alternative to dismissal, request that the Court transfer the action to the United States District Court for the Southern District of Florida. For the reasons stated below, the Court finds that the forum selection clause is valid and enforceable and orders transfer rather than dismissal.

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Passenger Claim Dismissed For Failure To Refile Suit Within 30 Days After Bankruptcy Plan Of Reorganization Approved

JACKIE DALTON, Plaintiff, -v- NEW COMMODORE CRUISE LINESLIMITED, Defendant.

02 Civ. 8025 (DLC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 2590
February 24, 2004, Decided
February 27, 2004, Filed

PROCEDURAL POSTURE:

In a personal injury case, plaintiff passenger sued defendant cruise line in Louisiana. The cruise line’s motion to transfer was granted. Pursuant to Fed. R. Civ. P. 56, the cruise line moved for summary judgment. The passenger moved to amend the complaint. After the accident, but prior to the present suit being filed, the cruise line filed for bankruptcy.

OVERVIEW:

The passenger’s lawsuit was filed in derogation of the automatic stay imposed by the bankruptcy court, and she did not petition the bankruptcy court for leave to file her suit. Her lack of notice that the cruise line had filed for bankruptcy was immaterial. Since the passenger’s contractual one year statute of limitations expired during the pendency of the automatic stay, she had 30 days from the time she received notice that the stay had been lifted to re-file her lawsuit. She was aware that the automatic stay had been lifted since at least June 20, 2002. Rather than re-file her lawsuit, the passenger chose to pursue the lawsuit, which was void, in the Louisiana. The passenger was now time-barred from re-filing the lawsuit in the present district. Allowing the passenger to amend her pleading now would be both prejudicial and futile. There was no timely filed complaint to which this amendment may relate back. There was also no reasonable explanation as to why she waited until such a late stage in the litigation to file an amended complaint. She did not show that her failure to name the cruise line’s insurer was due to either a mistake of law or fact.

OUTCOME:

The cruise line’s motion for summary judgment was granted, and the passenger’s motion to amend was denied.

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Court Had Jurisdiction Over Manufacturer Of Smoke Detection Device That Exploded And Caused Injury

JOSEPH JOHNSON VERSUS GALLIANO MARINE SERVICE, INC., ET AL

CIVIL ACTION NO: 03-2075 SECTION: “J” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 2046
February 10, 2004, Decided
February 11, 2004, Filed
February 12, 2004, Entered

PROCEDURAL POSTURE:

Plaintiff seaman filed an action against defendants, two limited liability companies (LLCs), a corporation and an individual, after the seaman sustained injury when a smoke detector device on the ship exploded. The LLCs filed a third party complaint against third party defendant manufacturer. The manufacturer filed a motion to dismiss asserting immunity and lack of personal jurisdiction.

OVERVIEW:

The seaman was injured while working on a ship, docked in Louisiana waters, when a smoke detector device exploded. The seaman filed an action against four defendants and the two defendant LLCs filed a third party action against the manufacturer. The manufacturer asserted that it was entitled to immunity under 28 U.S.C.S. § 1603 of the Federal Sovereign Immunities Act (FSIA), 28 U.S.C.S. §§ 1602-1605, because two foreign countries had an ownership interest in the manufacturer. The court held that the manufacturer was not entitled to immunity because the manufacturer was not acting as a regulator of the market, which could potentially invoke sovereign immunity protection, but as a participant in the market engaged in commercial activity. Even if the manufacturer qualified as an instrumentality of a foreign sovereign, the exception to immunity set forth in 28 U.S.C.S. § 1605(a)(2) applied. The court had personal jurisdiction over the manufacturer. Minimum contacts with the forum were established because the manufacturer clearly intended to sell its products within the United States and within the forum. Additionally, imposition of jurisdiction was fair and reasonable.

OUTCOME:

The court denied the manufacturer’s motion to dismiss.

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Exculpatory Clause In Boat Club Contract Held To Be Valid

RUBY HOPKINS and RONALD HOPKINS, Appellants, v. THE BOATCLUB, INC., a FLORIDA CORPORATION d/b/a EMBARK BOAT CLUB and BILLY R. BRAWNER,Appellees.

CASE NO. 1D02-3385
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
2004 Fla. App. LEXIS 1299; 29 Fla. L. Weekly D 415
February 10, 2004, Opinion Filed

PROCEDURAL POSTURE:

Appellant injured parties, a husband and wife, sought review of the grant of summary judgment by the Circuit Court for Duval County (Florida) in favor of appellee boat club in a personal injury action. The trial court determined that the injured parties’ action was barred based on an exculpatory clause in the parties’ contract.

OVERVIEW:

The injured parties were using a watercraft under the terms of the parties’ agreement. While operating the craft under the supervision of one of the boat club’s employees, the husband crossed a large boat wake at a high rate of speed resulting in his wife being thrown from the boat and sustaining serious injuries. The appellate court held the exculpatory clause was legally sufficient under the federal maritime law. There was no indication the boat club was operating a commercial carrier or that transportation was occurring port to port. Thus, 46 U.S.C.S. § 83c was not applicable. There was no indication that the parties were in unequal bargaining positions, the contract referred to specific risks, and it covered all employees. Thus, the language was sufficient to inform a reasonable person that the boat club was released from liability.

OUTCOME:

The judgment of the trial court was affirmed

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Court Certifies Question Of Whether Cruise Lines Liable For Negligence Of Ship Board Doctors

DARCE CARLISLE, Appellant, vs. CARNIVAL CORPORATION, et al.,Appellees.

CASE NO. 3D01-1518
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2004 Fla. App. LEXIS 895; 29 Fla. L. Weekly D 328
February 4, 2004, Opinion Filed

We certify that we have passed on a question of great public importance:

WHETHER A CRUISE LINE IS VICARIOUSLY LIABLE FOR THE MEDICAL MALPRACTICE OF THE SHIPBOARD DOCTOR, COMMITTED ON A SHIP’S PASSENGER?

The motion for rehearing is denied.

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Seaman Did Not Forfeit Right To Maintenance And Cure By Failing To Disclose Preexisting Diabetes

DAVE P. FOLSE, JR. VERSUS GULF TRAN, INC.

2003 CA 0758
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2003 0758 (La. App. 1 Cir, 2/23/04); 2004 La. App. LEXIS 333
February 23, 2004, Rendered

PROCEDURAL POSTURE:

Plaintiff claimant filed this action against respondent employer in the Seventeenth Judicial District Court, Parish of Lafourche (Louisiana), pursuant to the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law. Judgment was rendered in favor of the claimant, and the employer appealed.

OVERVIEW:

The claimant advised the employer, that he was injured while working on a vessel. The employer began paying him maintenance and cure. After further investigation, the employer discontinued those benefits. The claimant sued seeking recovery under the Jones Act and general maritime law. The trial court rendered judgment for the claimant. The employer appealed asserting the trial court erred in failing to conclude that the claimant forfeited his claim for maintenance and cure by failing to disclose to his employer that he suffered from Type II Diabetes. The appellate court disagreed. The claimant agreed to have any medical examinations desired by the employer and gave the employer access to his medical records. The employer did not require that he submit to examination by a physician before or after he began working for the employer and did not examine his medical records. The record supported the factual conclusion that he did not intentionally misrepresent or conceal his diabetes. There was no manifest error on behalf of the trial court’s determination that the claimant did not forfeit his right to maintenance and cure.

OUTCOME:

The judgment was affirmed.

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Harmless Error To Allow Osha Violation Into Evidence In A Seaman’s Action And Jury’s Discussion Of Contingency Fee Did Not Require New Trial

OPINION:

Appellants and defendants Nicholas Bachko Company and First American Bulk Carrier Corporation appeal the judgment on jury verdict in favor of plaintiff and respondent Richard Andrews in Andrews’s action for personal injuries that occurred while he was serving as a crew member aboard a merchant ship. Appellants contend the trial court erred in instructing that a regulation promulgated under the Occupational Safety and Health Act could be used to establish their duty of care to a merchant seaman. They also contend the jury committed[*2] misconduct by including the contingency fee Andrews would owe his attorney in the damage award.

The jury specifically found not only that the Chesapeake Bay was unseaworthy, but also that its unseaworthiness was a “substantial” factor in Andrews’s injuries. Thus, the erroneous instruction regarding the OSHA crane regulation was superfluous as to Andrews’s theory of entitlement to damages from the Chesapeake Bay’s owner, i.e., First American Bulk Carrier, and operator, i.e., Bachko, on the grounds of unseaworthiness. Even without resort to the erroneous instruction, the jury was given ample instructions to determine whether the ship was unseaworthy for lack of ladders, etc., on the crane, and, if so, to determine whether that particular basis of unseaworthiness caused/contributed to Andrews’s injury. (See Da Silva v. Pacific King, Inc. (1987) 195 Cal. App. 3d 1, 6, 240 Cal. Rptr. 395.)[*25]

On this record we cannot say that the erroneous instruction misled the jury to believe Andrews was entitled to recover damages simply if it found that Bachko violated the OSHA crane regulation. Consequently, it is not reasonably probable the jury would have reached a different result absent the instruction. (Lundquist v. Reusser, supra, 7 Cal.4th at p. 1213; Kaljian v. Menezes, supra, 36 Cal.App.4th at pp. 589-590.)

The court did not abuse its discretion in denying the motion for new trial on grounds of juror misconduct. First, the jurors’ declarations conflict as to whether the jury had “extensive” discussions regarding attorney fees. A trial court’s determination on a motion for new trial that is submitted on affidavits containing conflicting facts is a determination of those facts in favor of the prevailing party. (Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1350-1351, 232 Cal. Rptr. 588.) We therefore accept the trial court’s implied finding that the discussion regarding Andrews’s attorney’s potential fee was brief and did not dominate the deliberations.

DISPOSITION:

The judgment is reversed and remanded with directions to reduce the amount of the jury’s award of damages by the percentage by which the jury found Andrews contributorily negligent. Parties to bear their own costs. In all other respects the judgment is affirmed.