January-May 2005 Issue

Dredge Is A Vessel

WILLARD STEWART, Petitioner v. DUTRA CONSTRUCTION COMPANY

No. 03-814
SUPREME COURT OF THE UNITED STATES
125 S. Ct. 1118; 160 L. Ed. 2d 932; 2005 U.S. LEXIS 1397; 73U.S.L.W. 4130; 2005 AMC 609; 18 Fla. L. Weekly Fed. S 115
November 1, 2004, Argued
February 22, 2005, Decided

PROCEDURAL POSTURE:

Petitioner, a maritime engineer, sued respondent owner of a large dredge under the Longshore and Harbor Workers’ Compensation Act (LHWCA), alleging that the owner was liable for the engineer’s injuries from a collision between the dredge and scow on which the engineer was working. Upon the grant of a writ of certiorari, the engineer appealed the judgment of the U.S. Court of Appeals for the First Circuit which held that the LHWCA did not apply.

OVERVIEW:

The dredge was a floating platform used to remove silt from the ocean floor and dump the silt onto scows floating alongside, and the dredge navigated short distances by manipulating its anchors and cables. The dredge used its bucket to move the scow on which the engineer was working, which caused the scow to collide with the dredge causing the engineer’s severe injuries. The lower court found that the dredge was not a vessel, and thus the owner was not the owner of a vessel for purposes of the LHWCA, since the dredge did not have the primary purpose of navigation and was not in transit when the collision occurred. The U.S. Supreme Court unanimously held, however, that the definition of a vessel set out in 1 U.S.C.S. § 3 applied under the LHWCA, and thus the dredge was a vessel since it was a watercraft practically capable of maritime transportation. The definition did not require that the dredge be used primarily for navigation nor was the dredge required to be in motion at the time of the collision to qualify as a vessel, and the dredge was in fact used to transport equipment and workers over water.

OUTCOME:

The judgment holding that the dredge was not a vessel under the LHWCA was reversed, and the case was remanded for further proceedings.

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Whether Ada Applied To Foreign Flag Cruise Ships Put On Hold Pending Ruling In Another Case

DISABLED AMERICANS FOR EQUAL ACCESS, INC. Plaintiff, EDUARDOUMPIERRE, Plaintiff, Appellant, v. FERRIES DEL CARIBE, INC., Defendant, Appellee.

No. 04-2086
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2005 U.S. App. LEXIS 7091
April 26, 2005, Decided

PROCEDURAL POSTURE:

Plaintiff individual and organization sued defendant cruise vessel operator, seeking injunctive relief, attorney’s fees, and costs for violations of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12181 et seq., and its implementing regulations. The United States District Court for the District of Puerto Rico granted the operator’s motion to dismiss. The individual appealed.

OVERVIEW:

The individual had standing to raise the ADA claim because his allegations that he visited the operator’s vessel and that various barriers to accessibility endangered his safety were sufficient to show a real and immediate threat of discrimination by the operator. Moreover, the individual had stated a claim for relief by alleging that the operator’s land based facilities violated the ADA. Taking judicial note of a pending case addressing precise question of whether Title III applied to foreign-flagged ships, the appellate court instructed the district court to defer further proceedings until a decision in that case was available. If the legal or factual resolution of the foreign-flagged ship issue did not preclude application of Title III to the operator’s cruise vessel, the district court also was to consider on remand whether the individual’s vessel-based statutory and regulatory claims under Title III and 28 C.F.R. §§ 36.302-36.305 could proceed despite the absence of a separate category of regulations governing the new construction and alteration of cruise ships.

OUTCOME:

The district court’s decision was vacated and the case was remanded for further proceedings.

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Harbor Maintenance Tax Applied To Entire Cruise Line Passenger Ticket Without Regard To Just Transportation Component Of Ticket

CARNIVAL CRUISE LINES, INC., HAL ANTILLEN, N. V., HALLSHIPPING LTD., WIND SURF LIMITED, HOLLAND AMERICA LINE, N. V., and HAL CRUISESLIMITED, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Cross Appellant.

04-1110, 04-1219
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2005 U.S. App. LEXIS 5929
April 12, 2005, Decided

PROCEDURAL POSTURE:

Plaintiffs, a cruise ship operator and its subsidiaries, appealed a decision of the U.S. Court of International Trade, which affirmed the position of the U.S. Bureau of Customs and Border Protection that it was improper for the operator to deduct certain amounts from the price of the cruise tickets for the purpose of paying the Harbor Maintenance Tax (HMT) under the Harbor Maintenance Revenue Act of 1986, 26 U.S.C.S. §§ 4461, 4462.

OVERVIEW:

The operator was subject to the HMT, which was a tax imposed on any port use in an amount equal to a percentage of the value of the commercial cargo involved. Commercial cargo included passengers transported for compensation or hire. 26 U.S.C.S. § 4462(a)(5)(B) defined value to mean the actual charge paid for the transportation of passengers or the prevailing charge for comparable service if no actual charge was paid. Customs took the position that the “actual charge” for transportation paid by the passenger included all embarkation to disembarkation costs reflected on passenger tickets. The operator argued that it was improper for Customs to include, when calculating the value, charges for services, amenities, and other expenses not directly tied to the actual transportation of the passengers. In affirming the trial court’s decision, the court held that the tax was imposed on the actual charge for the transportation, not on the transportation component of a service that consisted largely of providing entertainment. The court held that Customs’ interpretation was a reasonable one that avoided the problems created by attempting to separate the entertainment charges.

OUTCOME:

The court affirmed the decision.

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Claim Letter To Vessel Owner Started Six Month Period To File Limitation Action

PARADISE DIVERS, INC., as Owner of the 30′ Island hopper M/VParadise Diver IV bearing hull identification number D929003, her engines, tackle, appurtenances, etc., Petitioner, in a cause for exoneration from limitation of liability, Plaintiff-Appellant, versus KEVIN R. UPMAL, Claimant-Appellee.

No. 04-12037
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
402 F.3d 1087; 2005 U.S. App. LEXIS 3938; 18 Fla. L. WeeklyFed. C 308
March 9, 2005, Decided
March 9, 2005, Filed

PROCEDURAL POSTURE:

Appellee claimant filed an action against appellant vessel owner for Jones Act negligence, unseaworthiness, and maintenance and cure. The owner filed a limitation of liability action under 46 U.S.C.S. app. § 185. The claimant moved the district court to dismiss the action as untimely. The United States District Court for the Southern District of Florida dismissed the limitation action as untimely and the vessel owner appealed.

OVERVIEW:

The sole issue in this admiralty appeal was whether correspondence from the claimant to the vessel owner in March and May of 2002 was sufficient written notice of a claim, under 46 U.S.C.S. app. § 185, to begin the running of the six-month limitation period during which the vessel owner had to file an action for limitation of liability. The instant court found that the letters from the claimant to the vessel owner, which referenced claims under the Jones Act and for unseaworthiness and maintenance and cure worth tens of thousands of dollars, were sufficient to begin the running of the limitation period. The court reasoned that the May 30, 2002, letter advised the vessel owner of a claim subject to limitation, because the claimant asserted a claim for Jones Act negligence, unseaworthiness, and maintenance and cure, and stated his intent to file a complaint. Additionally, the court reasoned that the May 2002 letter referenced the liability of the vessel owner in relation to the accident. Finally, the court found that the May 30, 2002, letter was unambiguous.

OUTCOME:

The judgment was affirmed.

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Summary Judgment Against Seaman Who Claimed Racial Discrimination Affirmed Since He Did Not Exhaust Administrative Remedies

MARC W. WEBSTER, Plaintiff – Appellant, versus HANSFORD T.JOHNSON, Acting Secretary of the Navy, Defendant – Appellee.

No. 04-1022
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2005 U.S. App. LEXIS 2965
December 3, 2004, Argued
February 18, 2005, Decided

PROCEDURAL POSTURE:

Plaintiff seaman sued defendant United States Secretary of the Navy (Navy), alleging that he was not promoted on a civilian operated vessel due to a racially hostile environment that produced performance evaluations motivated by racial animus and that the promotion board was racially biased. The United States District Court for the Eastern District of Virginia, at Alexandria, granted the Navy summary judgment. The seaman appealed.

OVERVIEW:

The seaman’s racially-motivated hostile work environment claim was barred because he failed to timely initiate administrative remedies. Specifically, he did not contact the Equal Employment Opportunity (EEO) counselor until 120 days after receiving the allegedly improper evaluations rather than the required 45 days. Equitable tolling of the limitations period was not available as the seaman was familiar with the EEO process and he offered no evidence that his superiors tricked him into sleeping on his rights. The seaman also presented no evidence of a racially hostile work environment as evidence that his superior officer was a strict supervisor did not demonstrate racial animus. As for the promotion board’s decision, the seaman failed to rebut the legitimate, nondiscriminatory reason for the decision not to promote, i.e., the seaman’s score in the board’s review process was substantially lower than that necessary to be rated “best qualified.” In fact, the seaman’s score was the lowest of all candidates, even under his own calculation method.

OUTCOME:

The district court’s judgment was affirmed.

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Harbor Maintenance Tax Could Not Be Applied Retroactively

PRINCESS CRUISES, INC., Plaintiff-Cross Appellant, v. UNITEDSTATES, Defendant-Appellant.

03-1330, 03-1345
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
397 F.3d 1358; 2005 U.S. App. LEXIS 1955; 26 Int’l TradeRep. (BNA) 2153
February 8, 2005, Decided

PROCEDURAL POSTURE:

Defendant United States sought review of a decision of the United States Court of International Trade, which determined that liability for harbor maintenance tax (HMT) payments on certain cruises before January 27, 1993, was barred by the retroactivity doctrine. Plaintiff cruise line filed a cross-appeal that awarded prejudgment interest to the government because the government was entitled to receive arriving passenger fee (APF) payments.

OVERVIEW:

After enactment of the Harbor Maintenance Revenue Act of 1986 (HMRA), 26 U.S.C.S. § 4461 et seq., the United States Customs Bureau determined that the cruise line was liable for further HMT and APF payments, and the cruise line challenged the determination in court. The trial court determined upon remand that the cruise line could not be subjected to HMT liability for cruises that occurred before January 1993 because an earlier application was improperly retroactive. The trial court further determined that the government was entitled to prejudgment interest for the APF payments. Affirming, the court concluded that the application of the January 1993 ruling to conduct occurring before the ruling was issued would have an impermissible retroactive effect. The imposition of the ruling worked a significant change in the law, and applying the evidentiary presumption to pre-1993 conduct would prejudice the cruise line. The court found that the imposition of prejudgment interest on the APF payments was appropriate because it provided full compensation to the government.

OUTCOME:

The court affirmed the decision of the trial court.

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Collective Bargaining Agreement Interpreted To Allow More Than $15 A Day For Maintenance

JOHN MARCIC, Plaintiff-Appellant, v. REINAUER TRANSPORTATIONCOMPANIES, REINAUER TRANSPORTATION CO., L.L.C., REINAUER MARITIME GROUP, STEPHENREINAUER, in rem, AUSTIN REINAUER, in rem, and BARGE RTC 501, in rem,Defendants-Appellees.

Docket No. 03-9273
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
397 F.3d 120; 2005 U.S. App. LEXIS 1735; 66 Fed. R. Evid.Serv. (Callaghan) 470; 2005 AMC 621

PROCEDURAL POSTURE:

A jury returned a verdict in favor of defendant ship owners on plaintiff seaman’s unseaworthiness and Jones Act claims but awarded the seaman $75,000 for maintenance. The United States District Court for the Eastern District of New York granted the owners’ motion to reduce the maintenance award under a collective bargaining agreement (CBA). The seaman appealed, seeking a new trial on the failed claims and restoration of the award.

OVERVIEW:

It was not improper for the owners’ counsel to invoke financial incentive in an impeachment attempt. There were only a handful of questions as to a previous injury and consultation with a lawyer. Asking the vocational expert if he had seen a document signed by a doctor releasing the seaman to full duty did not require a new trial; the document had stated that the seaman was able to return to work. While counsel suggested that the seaman and his witnesses were willing to lie to make money, counsel did not engage in personal attacks on opposing counsel, use epithets or slurs, or appeal to prejudices. There was an insufficient foundation to support admission of a deck hand’s alleged statement that the ship’s rail was painted without a non-skid additive. There was no evidence the deck hand painted the rail so that his statement related to a matter within the scope of his agency relationship with the owner. The ambiguous CBA provided a minimum of $15 per day for maintenance, but also stated that $15 per day was subject to a non fit for duty certificate. It allowed for a flexible-rate interpretation. The jury was free to exceed $15 per day minimum. The award was to be restored.

OUTCOME:

The jury’s finding for the owners was affirmed as to the unseaworthiness and Jones Act claims. The district court’s reduction of the maintenance award was vacated and the case was remanded for reentry of the jury’s $75,000 maintenance award.

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Arbitration Agreement In Philippine Seaman’s Contract Enforced

RIZALYN BAUTISTA, Individually and as PersonalRepresentative of the Estate of Mari-John Bautista, and all claiming by andthrough her, Plaintiff-Appellant, versus STAR CRUISES, NORWEGIAN CRUISE LINE,LTD., Defendants-Appellees. PAUL PERALTA, Plaintiff-Appellant, versus STARCRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. RAYMOND LOVINO,Plaintiff-Appellant, versus STAR CRUISES, NORWEGIAN CRUISE LINE, LTD.,Defendants-Appellees. RONALDO MARCELINO, Plaintiff-Appellant, versus STARCRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. ROLANDO TEJERO,Plaintiff-Appellant, versus STAR CRUISES, NORWEGIAN CRUISE LINE, LTD.,Defendants-Appellees. ABDI COMEDIA, Plaintiff-Appellant, versus STAR CRUISES,NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. CRISTINA L. VALENZUELA,Individually and as Personal Representative of the Estate of Candido S.Valenzuela, Jr. and all those claiming through her, Plaintiff-Appellant, versusSTAR CRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. MARILEN S.BERNAL, Individually and as Personal Representative of the Estate of Ramil G.Bernal, and all those claiming by and through her Plaintiff-Appellant, versusSTAR CRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. WILLY I.VILLANUEVA, Individually and as Personal Representative of the Estate of ReneVillanueva, and all those claiming through him, Plaintiff-Appellant, versus STARCRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees. MARIA GARCIA L.ROSAL, Individually and as Personal Representative of the Estate of Ricardo B.Rosal, III, and all those claiming by and through her, Plaintiff-Appellant,versus STAR CRUISES, NORWEGIAN CRUISE LINE, LTD., Defendants-Appellees.

No. 03-15884
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
396 F.3d 1289; 2005 U.S. App. LEXIS 889; 2005 AMC 372; 18Fla. L. Weekly Fed. C 177
January 18, 2005, Decided
January 18, 2005, Filed

PROCEDURAL POSTURE:

Appellants, crewmembers of a foreign vessel or their representatives (crewmembers), sued appellee vessel owners in state court, seeking recovery for injury or death caused by a boiler explosion on the vessel in a United States port. The action was removed to federal court, and the crewmembers appealed the order of the United States District Court for the Southern District of Florida which compelled arbitration of the dispute.

OVERVIEW:

The owners contended that the arbitration clause in the crewmembers’ employment contracts required arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), opened for signing June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3. The crewmembers argued that arbitration was not required under the seaman employment contract exemption of the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., and that the arbitration clause was otherwise unenforceable. The appellate court first held that, since the Convention broadly defined the commercial legal relationships subject to the Convention, the FAA’s narrow seaman exemption conflicted with such definition and thus did not apply to preclude arbitration under the Convention. Further, despite assertions that the crewmembers had insufficient time to review the contract terms, the crewmembers executed the contracts containing the arbitration clause, and there was no requirement that the owners prove the crewmembers knowingly agreed to arbitration. Also, there was no basis for finding that the arbitration provision was null and void as unconscionable, or could not otherwise be performed.

OUTCOME:

The order compelling arbitration was affirmed.

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Jury Verdict For Seaman Reversed For Failure To Disclose Prior Back Problems

RICKEY BROWN, Plaintiff-Appellee, versus PARKER DRILLINGOFFSHORE CORPORATION, Defendant-Appellant.

No. 03-30782
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
396 F.3d 619; 2005 U.S. App. LEXIS 125; 2005 AMC 827
January 5, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff seaman filed a suit against defendant employer seeking to recover damages under the Jones Act for an injury allegedly sustained aboard a vessel. The employer appealed after the United States District Court for the Eastern District of Louisiana accepted the jury’s verdict and awarded damages to the seaman and argued that the evidence did not support the jury’s finding that the employer unreasonably withheld benefits from the seaman.

OVERVIEW:

The seaman failed to disclose on his job application that he had suffered back injuries in the prior two years; he was fired from his previous job for failing to disclose his back trouble. The seaman claimed that he injured his back while working on one of the employer’s oil rigs. The employer refused to pay him benefits on the ground that the seaman’s complaints derived from his prior back injuries and that he had willfully concealed those injuries. The jury found that the seaman was injured due to the employer’s negligence, that he had not willfully concealed his medical condition, and that the employer had unreasonably withheld maintenance and cure benefits from him. The employer contended that the jury had clearly erred in finding no willful concealment and an unreasonable withholding of benefits. The court agreed. The record showed that the seaman had willfully failed to disclose his prior back injuries on his job application, that the information was material to the employer’s decision to hire him, and that the withheld information was causally related to the seaman’s claimed injuries; under the circumstances, it was reasonable for the employer to withhold benefits from him.

OUTCOME:

The court reversed the district court’s judgment, vacated the jury’s verdict, and dismissed the seaman’s suit with prejudice.

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Motion To Dismiss Seaman’s Claim As A Discretionary Function Was Denied

EDWARD A. CARNEY v. UNITED STATES OF AMERICA

CCB-03-3493
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
2005 U.S. Dist. LEXIS 7697
May 2, 2005, Decided

PROCEDURAL POSTURE:

Plaintiff, a seaman-engineer, suffered an injury to his hand while attempting to measure a shipboard fan unit to facilitate repairs. He brought claims for negligence and failure to provide prompt maintenance or cure, pursuant to the Suits in Admiralty Act, 46 U.S.C.S. app. §§ 741-752, and the Public Vessels Act, 46 U.S.C.S. app.§§ 781-790. Defendant United States moved to dismiss the claims as subject to the discretionary function exception.

OVERVIEW:

The engineer was employed by a private contractor, but was assigned to a vessel used by the government. He was injured when his superior officer failed to take certain safety precautions with the fan machinery, such as failing to stabilize it and replace protective covers as required by the machinery’s manual. The government asserted the claims should be dismissed for lack of subject matter jurisdiction under the discretionary function theory, and also moved for summary judgment on the maintenance and cure claims, asserting it had paid the benefits due to the engineer and did not presently owe maintenance and cure. The court agreed with the government that selecting a ship for public use was a discretionary act as to the government’s procurement of the vessel and crew, but rejected the argument that the negligent failure to warn and a negligent creation of unsafe working conditions or equipment were covered under discretionary function exception immunity. The government was current on maintenance and cure, but could be liable for compensatory damages for delay in payment. The engineer set forth no statutory basis for an award of attorney’s fees.

OUTCOME:

To the extent that the delay in receipt of maintenance and cure exacerbated the engineer’s injury or pain and suffering, he could seek consequential or compensatory damages, not including attorney’s fees or punitive damages. Summary judgment was otherwise granted. The motion to dismiss was denied as to the failure to warn claim, and granted as to the arguments about the crew and the vessel, which were within the government’s discretion.

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Summary Judgment Denied Where Seaman Performed Work Aboard A Vessel, Granted With Respect To Work Aboard A Barge

DOYLE RUSSELL HART VERSUS FOREST OIL CORPORATION, ET AL

CIVIL ACTION NO. 03-2776 SECTION “C” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2005 U.S. Dist. LEXIS 8027
April 25, 2005, Decided
April 26, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff employee sued defendants, an employer, a barge owner, a vessel owner, and a compressor repair company, seeking compensation for injuries he received while on a production barge. Defendants filed several motions for summary judgment.

OVERVIEW:

While the employee contended that he was unable to ascertain how long the barge was located in its stationary position and that it qualified as a special purpose vessel, the depositions and discovery presented by defendants supported the conclusion that the barge was used strictly as a platform for storing and processing oil and gas. Thus, the employee did not qualify as a seaman based on work performed on the barge. Although the parties conceded that the vessel qualified as a vessel in navigation for purposes of the Jones Act, they disputed whether the employee’s affiliation with the vessel was merely incidental to his employment or whether he spent a substantial portion of his time on board the vessel. In light of the employee’s allegations that he spent a substantial portion of his day aboard the vessel or attending to its needs and acted as the vessel’s skipper and the evidence that the vessel was essential to the performance of the employee’s job duties, summary judgment was inappropriate on whether the employee was a seaman based on his work aboard the vessel. The compressor repair company was granted summary judgment as there was no evidence establishing fault on its part.

OUTCOME:

The motions for summary judgment were granted with respect to the employee’s status as a seaman based on his work aboard a barge and the compressor repair company’s liability but was denied as to the employee’s status as a seaman based on his work aboard a vessel.

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Forum Selection Clause Enforced In Passenger’s Claim Against Cruise Line

IRENE VALENTI and JOSEPH VALENTI, Plaintiffs, – against -NORWEGIAN CRUISE LINE, Defendant.

04 Civ. 8895 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2005 U.S. Dist. LEXIS 6811
April 21, 2005, Decided

PROCEDURAL POSTURE:

Plaintiff passengers filed an action against defendant cruiseline alleging that the passenger wife suffered personal injuries due to the negligence of the crew on a cruise ship. The cruiseline filed a motion to dismiss under Fed. R. Civ. P. 12(b) and 12(c), claiming that the forum selection clause contained on the ticket purchased by the passengers precluded the passengers from bring a lawsuit in the forum.

OVERVIEW:

The cruiseline maintained a principal place of business and corporate headquarters in Florida. The passengers purchased and used a ticket for a voyage with the cruiseline. The ticket, retained by the passengers, contained a contract of passage, including a forum selection clause that required all litigation to go forward in Florida. The passengers did not reject the ticket contract even though the had the tickets at their home for almost a month before the cruise. The passengers had an opportunity to cancel the contract without facing a penalty. The court held that the source of substantive law for the action was federal maritime law. Under federal maritime law, a forum selection clause in a maritime contract was prima facie valid unless there was some independent justification for refusing to enforce it. The passengers had not provided any grounds for justifying non-enforcement of the forum selection clause that was reasonably communicated to the passengers. Additionally the court found that the cruiseline’s requirement that litigation be initiated in a court in Florida was fair and reasonable.

OUTCOME:

The court granted the cruiseline’s motion to dismiss.

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Seaman Precluded From Refiling Suit In Federal Court After Voluntary Dismissal Based On Claimed Forum Shopping Even Though No Prejudice To Defendant

RICKY GROS, JR. versus L&L MARINE TRANSPORTATION, INC., etal.

CIVIL ACTION No. 04-2681 SECTION I/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 6932
April 19, 2005, Decided
April 19, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff seaman filed a motion, pursuant to Fed. R. Civ. P. 41(a)(2), for voluntary dismissal without prejudice of a personal injury claim against defendants, an employer and an insurer, asserting claims pursuant to the Jones Act and maritime law.

OVERVIEW:

The seaman alleged that he was injured while employed as a deckhand aboard a ship. The seaman originally filed a petition state court against the employer and an unnamed insurer asserting claims based on the same incident. After some discovery had been conducted, the state court granted the seaman’s motion to voluntarily dismiss his state court petition so he could pursue his federal lawsuit. The seaman later filed a second lawsuit in state court against defendants, and moved to voluntarily dismiss the instant action in order to pursue his remedies in state court. Defendants alleged that the seaman was forum shopping. The court held that defendants produced no evidence to support a finding that they would have been legally prejudiced by a dismissal at an early stage in the proceeding. However, because defendants identified some evidence of abuse by the seaman, he was prohibited from refiling the action in federal court.

OUTCOME:

The court granted the seaman’s motion for voluntary dismissal and dismissed his claims without prejudice with the condition that the seaman could not re-file the action in federal court.

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Summary Granted Against Seaman Status For Shoreside Mechanic

CHRISTOPHER SAIENNI versus CAPITAL MARINE SUPPLY, INC., ET AL

CIVIL ACTION No. 03-2509 SECTION I/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 6928
April 18, 2005, Decided
April 18, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff worker who repaired vessels sued defendant employers under the Jones Act, alleging that the employers were liable for injuries sustained by the worker on one of the employer’s vessels. The employers moved for summary judgment on the ground that the worker was not a seaman for purposes of the Jones Act.

OVERVIEW:

The worker’s job title was shoreside mechanic and the worker’s daily duties included performing preventive maintenance, coordinating repairs, and performing mechanical and electrical repairs aboard the employers’ vessels and at a land-based facility. The worker contended that he was a seaman under the Jones Act based on his contribution to the function of the employers’ fleet, but the employers asserted that the worker had an insufficient connection to the fleet to be considered a seaman. The court held that, while the worker spent a significant amount of time aboard the employers’ vessels, the nature of the worker’s function of performing land-based repairs of the vessels could not be deemed to confer seaman status. The worker was a shoreside mechanic operating out of a land-based fleeting facility, the worker’s repairs aboard the vessels generally occurred while the vessels were moored at stationary locations, and the worker did not sleep aboard the vessels when performing repairs which required an overnight stay. Moreover, the worker’s job was not of a seagoing nature and involved only sporadic exposure to the perils of the sea.

OUTCOME:

The employers’ motion for summary judgment was granted.

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Summary Judgment Granted Against Seaman Who Was Not In The Zone Of Danger

JEFFERY OWENS VERSUS GLOBAL SANTA FE DRILLING CO.

CIVIL ACTION NO. 04-702 SECTION “K” (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 6225
April 8, 2005, Decided
April 8, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff, an assistant derrickman, filed a Seaman’s Complaint pursuant to 28 U.S.C.S. § 1916, seeking damages for neurological problems that he allegedly sustained while working on a rig owned by defendant drilling company. The company filed a motion for summary judgment.

OVERVIEW:

The derrickman alleged that he was suffering from panic attacks, depression, and neurological problems due to repeated minor injuries he sustained on the rig, as well as due to witnessing coworkers sustain injuries. In granting the company’s motion for summary judgment, the court held that the facts alleged by the derrickman did not state a claim for damages for purely emotional injuries. Under the zone of danger theory, a claimant could cover for purely emotional harm if he was objectively within the zone of danger; he feared for his life at the time of the accident, and his emotional injuries were a reasonably foreseeable consequence of the defendant’s alleged negligence. Here, the derrickman did not allege that he feared for his life as a result of his own injuries or the injuries sustained by coworkers. Further, his minor injuries had all healed, and the derrickman had gone to work for eight months before claiming to be suffering from emotional distress. Thus, the emotional injuries were not foreseeable. The court opined that emotional injuries resulting from nothing more than the accumulation of years of common encounters with the hardships of the sea were not foreseeable.

OUTCOME:

The court granted the company’s motion for summary judgment.

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Daubert Hearing Required For Physician’s Causation Testimony In Seaman’s Claim With Respect To Dust From 911 Debris

THOMAS J. GREEN, Plaintiff, -against- McALLISTER BROTHERS,INC., Defendant. McALLISTER BROTHERS, TOWING OF NEW YORK, sued herein asMcALLISTER BROTHERS, INC., Third-Party Plaintiff, THE CITY OF NEW YORK,Third-Party Defendant. JACK SALTARELLA, et al., Plaintiffs, -against- THE CITYOF NEW YORK, Defendant.

02 Civ. 7588 (FM), 03 Civ. 1482 (FM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFNEW YORK
2005 U.S. Dist. LEXIS 4816
March 24, 2005, Decided
March 25, 2005, Filed

PROCEDURAL POSTURE:

In separate Jones Act actions arising from exposure to debris following the destruction of the World Trade Center, (1) plaintiff former employee sued defendant former employer, which brought a third-party negligence claim against third-party defendant city, and (2) plaintiff city workers sued defendant city. In the first action, the parties moved in limine to preclude expert testimony. Defendants in both actions moved for summary judgment.

OVERVIEW:

The employee claimed that he developed asthma and other medical problems while working on the employer’s tugboat transporting barges that contained Trade Center debris. The city workers had worked aboard boats at a landfill where the debris was taken; they claimed that they had medical problems attributable to their handling of the debris. The parties consented to a magistrate’s jurisdiction. In the first action, with respect to the admissibility of testimony by the employee’s treating physician that the employee’s illness was caused by his exposure to Trade Center dust while working for the employer, there was an adequate showing of general causation; however, a Daubert hearing was necessary to determine why the physician ruled out as a cause any earlier exposure the employee may have had to Trade Center debris. Medical testimony offered by the employer and the city was admissible. In the second action, the workers had failed to designate any expert witnesses and therefore could not show causation as required for their toxic tort claim, and they could not recover for fear of future illness absent any physical manifestation of their exposure to asbestos or carcinogens.

OUTCOME:

In the first action, the magistrate ordered a Daubert hearing prior to ruling on the admissibility of certain of the physician’s proposed testimony; the motions in limine by all parties and the motion for summary judgment were otherwise denied, except to the extent that they might be affected by the Daubert ruling. The city’s summary judgment motion in the second action was granted.

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Summary Judgment Affirmed Against Longshoreman With Respect To Gap Between Cargo That Caused Injury

SANDERS COLEMAN, III VERSUS M/V ORHAN EKINCI, VAKIF DENIZFINANSAL, HYUNDAI MERCHANT MARINE (AMERICA), INC., AND ABC INSURANCE COMPANY

CIVIL ACTION NO. 02-3599 SECTION “T” (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 5513
March 22, 2005, Decided
March 22, 2005, Filed

PROCEDURAL POSTURE:

Plaintiffs, a longshoreman and, apparently, his wife, sued defendants, a vessel owner and a time charterer, under § 905(b) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) to recover for losses that resulted when the longshoreman was injured while assisting with the discharge of cargo from the owner’s vessel. Defendants moved for summary judgment.

OVERVIEW:

The longshoreman was injured when he fell through material know as doorskin that covered a gap between stacks of cargo, apparently after it had been torn loose from some cargo. Plaintiffs argued that defendants were liable for plaintiff’s losses under § 905(b) of the LHWCA because defendants failed to fulfill their Scindia duties with respect to the vessel and cargo. Defendants were entitled to summary judgment. The Scindia duties applied not only to the vessel owner but also to the time charterer because the condition of the cargo caused the accident. However, defendants did not violate any of those duties. Defendants turned over a safe ship, as the stevedores inspected the vessel before taking control of it and unloading operations had been going on for two days before the accident occurred. Defendants were not in active control of the ship when the accident occurred. And, there was no evidence that defendants should or even could have known of the hazard posed by the torn doorskin. Plaintiffs offered only speculation about how the hazard was created and that defendants knew or should have know about it.

OUTCOME:

The court granted defendants summary judgment.

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Philippine Seaman Required To Arbitrate Claim Of Rape In Suit Against Cruise Line

JANE DOE, Plaintiff, vs. ROYAL CARIBBEAN CRUISES, LTD.,Defendant.

CASE NO. 04-21627-CIV-HOEVELER
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA
2005 U.S. Dist. LEXIS 6582
March 18, 2005, Decided
March 18, 2005, Filed

PROCEDURAL POSTURE:

Defendant employer moved to compel arbitration in plaintiff employee’s action, which resulted from a rape experienced while she was working on one of the employer’s vessels. The employee moved for remand.

OVERVIEW:

The employee brought an action against the employer, a cruise ship line, relating to her employment on one of the employer’s vessels. The employee’s claims arose from a rape experienced while she was working on one of the employer’s vessels and from the employer’s subsequent actions toward her. The employer removed the action to federal court pursuant to the United States Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), 9 U.S.C.S. § 201 et seq., and asked the court to compel arbitration. The employee filed a motion for remand. The court found that the employee was employed pursuant to an agreement that required that her dispute be brought either before the National Labor Relations Commission of the Philippines, or an arbitrator. While it was plausible that economic hardship might make a prospective Filipino seaman susceptible to a hard bargain during the hiring process, the employee failed to explain how that made for a defense under the Convention. Thus, the court sent the employee’s claims to arbitration.

OUTCOME:

The court denied the employee’s motion for remand. The court granted the employer’s motion to compel arbitration.

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Forum Selection Clause In Cruise Line Ticket Enforced Against Minors, Case Transferred To Southern District Of Florida

VEGA-PEREZ, et al., Plaintiff(s) v. CARNIVAL CRUISE LINES, et al., Defendant(s)

CIVIL NO. 04-2358(JAG)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
361 F. Supp. 2d 1; 2005 U.S. Dist. LEXIS 4156
March 16, 2005, Decided

PROCEDURAL POSTURE:

Defendants, a cruise line and others, filed a motion, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss plaintiff parents’ action for personal injuries based on improper venue.

OVERVIEW:

The parents authorized their sons to take a cruise trip with their grandparents and other relatives. While playing at a close distance from their relatives, one of the sons tripped on the rug and slit his left cheek with an air hockey machine that had a protruding piece of metal at the bottom part of the machine. Defendants moved to dismiss the action because the passage contract contained a forum selection clause that designated Miami, Florida, as the exclusive forum for resolution of disputes arising from the contract of passage. Defendants claimed that the ticket contract, as well as the travel brochure, reasonably communicated the forum selection clause to the passengers. The court held that, given the fact that the parents presumably became aware of the forum selection clause at the moment they received the travel tickets, they were reasonably communicated the terms and conditions of the passage contract. Further, the court found that the clause was fair and reasonable. The court also found that the enforcement of the forum selection clause would not have gravely inconvenienced the parents since Miami was a relatively close litigation forum to Puerto Rico.

OUTCOME:

The court denied defendants’ motion to dismiss for improper venue, but transferred the case to the United States District Court of Southern District of Florida.

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Cruise Line Motion To Dismiss On Venue Denied Since Tickets To Board Ship Not Received Until Passenger Arrived At Dock To Board The Vessel After Flying From The Netherlands

HOEKSTRA, et al., Plaintiff(s) v. CARIBBEAN CRUISES, LTD.,et al, Defendant(s)

CIVIL NO. 04-1044(JAG)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
360 F. Supp. 2d 362; 2005 U.S. Dist. LEXIS 4153
March 9, 2005, Decided

PROCEDURAL POSTURE:

Plaintiffs vacationers filed a breach of contract and constitutional-tort action seeking compensatory and punitive redress for the losses of their failed vacation against defendant cruise line. The cruise line filed a motion to dismiss for failure to state a claim and for improper venue.

OVERVIEW:

The vacationers made a booking with the cruise line’s subsidiary and were aware that the subsidiary had a policy not allowing women who were in an advanced stage of pregnancy on board. Three days before the departure date, the vacationers sought clarification regarding the aforementioned policy, and the vacationers were assured that the wife could board the ship because at the time of the scheduled boarding she would be only twenty-five weeks pregnant. Relying on this information, the vacationers boarded a transatlantic flight to Miami from their home in The Netherlands. However, upon arriving at the pier where the cruise ship was docked, the vacationers were not allowed to board. The court would not dismiss the action because the vacationers were raising the possibility that the cruise line, as a parent company, developed policies for the subsidiary and had the duty to train the subsidiary’s employees. As to venue, the vacationers could not have had prior knowledge of the forum selection clause because they were supposed to pick up the relevant documents at the pier. Thus, the court could not impute to the vacationers the required knowledge to enforce the forum selection clause.

OUTCOME:

The court denied the cruise line’s motion to dismiss.

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Libya’s Motion To Dismiss Denied Where Plaintiff’s Were Removed From A Vessel To Be Used As Human Shields To Prevent American Air Attacks

SANDRA JEAN SIMPSON, and ALEXANDER J. SIMPSON, PersonalRepresentative for the Estate of DR. MOSTAFA KARIM Plaintiffs, v. THE SOCIALISTPEOPLE’S LIBYAN ARAB JAMAHIRIYA, Defendant.

Civil Action No. 00-1722 (RMU), Document No.: 45
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
2005 U.S. Dist. LEXIS 3292
March 7, 2005, Decided

PROCEDURAL POSTURE:

Plaintiffs, spouse of deceased husband and his estate, sued defendant Libya under international law, federal law, and state law, seeking compensatory damages for an act of hostage taking that Libya allegedly committed in 1987. Libya sought dismissal for lack of jurisdiction, inter alia, which implicated the state sponsored terrorism exception to Foreign Sovereign Immunities Act, specifically 28 U.S.C.S. § 1605(a)(7).

OVERVIEW: In 1987, Libyan authorities boarded the boat the spouse and deceased were traveling on, forcibly removed all passengers, and detained the spouse and deceased. Eventually, the spouse was forcibly separated from her husband and allowed to leave, but her husband was detained for the next seven months. The exception to foreign sovereign immunity at issue in the present case was the state-sponsored terrorism exception, codified at 28 U.S.C.S. § 1605(a)(7). The court held that in light of the political situation at the time and evidence produced by the plaintiffs, the allegations used to support the hostage-taking claim including use of the plaintiffs as human shields to prevent American air attacks; revenge and compensation for American air attacks; exchange for Egyptian military hardware; and Libya’s pattern of terrorist activity, were sufficient for the court to exercise subject matter jurisdiction. Competent evidence demonstrated that Libya’s purpose in the alleged hostage taking was to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the hostages’ release. Thus, the court had jurisdiction under the state sponsored terrorism exception.

OUTCOME:

The court denied Libya’s motion to dismiss and granted the spouse and estate leave to amend their complaint to state with specificity their causes of action.

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Summary Judgment For Vessel Where No Medical Causation Testimony Except On Maintenance And Cure Claim

UNITED STATES DISTRICT COURT FOR THE DISTRICT OFMASSACHUSETTS
360 F. Supp. 2d 195; 2005 U.S. Dist. LEXIS 3121
March 3, 2005, Decided

PROCEDURAL POSTURE:

Plaintiff seaman, who sustained injuries when he was stuck with a fish hook while working on board a vessel, sued defendant owner of the vessel for a claim under the Jones Act, 46 U.S.C.S. § 688, for a claim of unseaworthiness, and for a claim of maintenance and cure. Defendant owner moved for summary judgment.

OVERVIEW:

The captain of the vessel removed the hook and cleaned and bandaged the wound. Two weeks later when the vessel docked, the seaman was diagnosed as having an infection and was prescribed antibiotics. He was also treated for gastrointestinal bleeding. Tests revealed that he had used cocaine and opiates, and the seaman reported using drugs intravenously. The issue in the case was whether the fish hook incident was causally related to two surgeries for the seaman’s ulcers. The seaman could not rely on his doctor’s opinion to establish causation because there was no evidence to support the opinion that the seaman had taken aspirin and Motrin for pain after the fish hook incident which caused the ulcers. Without evidence of causation, his Jones Act and unseaworthiness claims failed as a matter of law. However, because the seaman denied in deposition that he had ever used, or reported using, cocaine or other drugs intravenously, a question of material fact was raised as to whether his own willful misconduct foreclosed an award for maintenance and cure.

OUTCOME:

The court granted in part and denied in part the owner’s motion for summary judgment. The motion was granted as to the Jones Act and unseaworthiness claims and denied as to the claim for maintenance and cure.

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Summary Judgment Granted Against Tankerman Due To Lack Of Evidence

JAMES BAILEY, Plaintiff, -against- SEABOARD BARGECORPORATION, PETROLEUM TRANSPORT CORPORATION, MORAN TOWING CORPORATION, CLEANWATER OF NEW YORK, INC., MARINERS HARBOR MARINE CORP., and EGRET REALTY CORP., Defendants.

03 CV 0267 (GBD)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2005 U.S. Dist. LEXIS 2860
February 25, 2005, Decided
February 25, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff, a tankerman, brought claims under the Jones Act, 46 U.S.C.S. app. § 688, against his employer, a barge owner, and their parent corporation, and brought common law negligence claims against a barge docking facility owner and its operator, following injuries he sustained while attempting to board his employer’s barge. The employer, owners, and operator moved for summary judgment under Fed. R. Civ. P. 56.

OVERVIEW:

The tankerman claimed that the facility owner and its operator failed to provide a safe means for him to access the barge he was assigned to work on. The court held that the tankerman’s negligence claims failed because there was no evidence that the facility owner or its operator breached their duty of reasonable care or that any such breach was the proximate cause of the tankerman’s injuries. The court found that there was no evidence that the barge docking facility was inherently unsafe or that the tankerman was not warned of any hidden dangers, and that the tankerman’s injuries occurred on mothballed barges adjacent to the docking facility’s property which he chose, of his own volition, to walk through. The court further held that the tankerman’s Jones Act, 46 U.S.C.S. app. § 688, claims failed because there was no evidence that the employer or barge owner failed to provide a safe and available way to get from the shore to the barge. The court found that a safe route was available to the barge, and that the tankerman was injured as a result of his decision to board the barge through mothballed barges, which were not owned, operated, or controlled by the employer or barge owner.

OUTCOME:

The motions for summary judgment were granted. The tankerman’s claims against the employer, owners, and operator were dismissed.

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Summary Judgment Granted Against Maritime Construction Worker Because He Was Wedge Plates To Seawall At Time Of Injury Which Was A New Land Based Assignment That Did Not Involve Service To A Vessel

RICHARD T. ARNOLD, Plaintiff, v. LUEDTKE ENGINEERING, CO.,Defendant.

File No. 1:04-CV-69
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
357 F. Supp. 2d 1019; 2005 U.S. Dist. LEXIS 3107
February 24, 2005, Decided

PROCEDURAL POSTURE:

Plaintiff employee filed suit against defendant employer, seeking damages for negligence and vessel unseaworthiness pursuant to the Jones Act (Jones Act or Act), 46 U.S.C.S. app. § 688. The employer filed a motion for summary judgment on the ground that the employee was not a ” seaman ” under the Act.

OVERVIEW:

The employer was a maritime construction company. During his 23 years of employment, the employee worked in various capacities, including as a runner, deckhand, tugboat pilot, and project foreman. At the time of the events in question, the employee was assigned as project foreman to a seawall construction project. The employee was injured during the wedge plate phase of the project. The court held that the employer was entitled to summary judgment on the employee’s Jones Act claim because the employee’s job assignment at the time of his injury–attaching wedge plates to a seawall–was a new, land-based assignment that did not involve any service to a vessel; thus, the employee did not have a substantial connection to a vessel as required for ” seaman ” status under the Act. The court found: (1) the employee’s prior work history with the employer was not relevant to the seaman inquiry; (2) the employee’s service as a tug boat pilot during the wedge plate phase of the project did not satisfy the substantial connection requirement; and (3) the employee’s membership in a seafarers union and receipt of maintenance and cure pursuant to a union contract did not establish his seaman status.

OUTCOME:

The court granted the employer’s motion for summary judgment.

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Summary Judgment Granted Against Seaman Who Slipped On Wet Deck In Favor Of Charterer And The Employer With Respect To Jones Act. Denied As To Maintenance And Cure

ANTHONY ALFRED VERSUS HORNBECK OFFSHORE SERVICES, ET AL.

CIVIL ACTION NO. 04-2243 SECTION “L” (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 3325
February 22, 2005, Decided
February 22, 2005, Filed; February 24, 2005, Entered

PROCEDURAL POSTURE:

Plaintiff seaman filed suit against defendants, his employer, a vessel owner, and a charterer, alleging claims against the owner and charterer for negligence and unseaworthiness. The seaman also alleged claims against his employer for negligence and unseaworthiness under the Jones Act and for maintenance and cure. The charterer and the employer filed motions for summary judgment.

OVERVIEW:

The seaman, who was working as a cook aboard a vessel, claimed that he was injured when he slipped on a wet floor while walking down a hallway from his bedroom to the bathroom. The seaman further contended that he did not know that the floor had just been mopped and was wet. The charterer and the employer sought summary judgment on the seaman’s negligence claim. The court held that the charterer was entitled to summary judgment because the seaman’s injuries did not occur within the traditional spheres of activity over which a time charterer might exercise control, the charterer had no employees aboard the vessel, and the charterer had no responsibility for controlling tasks like mopping. Thus, the charterer did not owe the seaman a “hybrid duty” to instruct the captain to maintain a safe work place and keep the floors from being slippery and dangerous. The court further held that the employer was entitled to summary judgment on the issue of liability under the Jones Act because the evidence established that the employer had no way of knowing that the floor was wet at the time of the accident. Thus, the employer did not have notice and an opportunity to correct the unsafe condition.

OUTCOME:

The court granted the charterer’s motion for summary judgment, granted the employer’s motion for summary judgment with respect to the employer’s liability under the Jones Act, and denied the employer’s motion for summary judgment with respect to the seaman’s claim for maintenance and cure.

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Gambling Boat Crew Members Were Exempt From Overtime Provisions Of The Fail Labor Standards Act Since They Were Seaman. Summary Judgment Granted For Owner

GLEN TATE, et al., Plaintiffs, v. SHOWBOAT MARINA CASINOPARTERNSHIP, et al., Defendants.

No. 02 C 3432
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
357 F. Supp. 2d 1075; 2005 U.S. Dist. LEXIS 6245

PROCEDURAL POSTURE:

Plaintiff employees filed suit against defendant vessel owners, seeking overtime pay and damages for delay in payment pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The owners filed a motion for summary judgment.

OVERVIEW:

The employees, who worked as crew members on a gambling boat, claimed that they were entitled to overtime pay under the FLSA. The owners contended that the employees were exempt from the overtime provisions of the FLSA under 29 U.S.C.S. § 213(b)(6) because they were employed as “seamen” on a vessel. The court held that the owners were entitled to summary judgment on the employees’ claims because: (1) the employees were considered seaman for purposes of the Jones Act, 46 U.S.C.S. app. § 688, and, thus, a presumption arose that they were seaman under the FLSA as well; and (2) there was no genuine issue of material fact such that the employees could rebut the presumption that they were seaman. The court found that the activities relied upon by the employees in support of their assertion that they spent over 20 percent of their time on non-maritime services–acting as security guards, greeting guests while they stood watch on the rampway, changing and cleaning ceiling tiles, performing general housekeeping duties, moving slot machines and furniture, and answering telephones–were in fact maritime services because they were related to the safety of the boat as a ship and not a casino.

OUTCOME:

The court granted the owners’ motion for summary judgment.

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Summary Judgment In Favor Of Owner On Unseaworthiness Granted Where Cook Fell When Seas Had 5 Foot Waves. Summary Judgment Denied On Jones Act And Maintenance And Cure Claims

CAROLYN SIMMS VERSUS OCEANEERING INTERNATIONAL, INC.

CIVIL ACTION NO. 04-1298 SECTION “R” (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 1562
February 1, 2005, Decided
February 1, 2005, Filed; February 2, 2005, Entered

PROCEDURAL POSTURE:

Plaintiff seaman brought a claim against defendant vessel owner alleging negligence under the Jones Act, 46 U.S.C.S. § 688, a general maritime claim of unseaworthiness, and a claim for maintenance and cure after she was injured while preparing a meal on board the vessel. Before the United States District Court for the Eastern District of Louisiana was the vessel owner’s motion for summary judgment, which the seaman opposed.

OVERVIEW:

Inter alia, the issue was whether the owner exercised ordinary prudence under the circumstances. The owner argued that the seaman was solely responsible for her fall and that it was not responsible as a matter of law because it had every reason to expect the seaman to perform her duty as a cook and prepare meals in seas with waves of five feet. The court rejected the owner’s contention that it could not be found negligent if the seaman was partly responsible for her fall. Second, the court found that the seaman provided evidence from which a reasonable jury could find that the owner, by not suspending meal preparation, failed to meet the standard of ordinary prudence under the circumstances required by law and that its failure contributed to her injury. Her expert concluded that the owner did not demonstrate proper seamanship and marine safety by requiring the seaman to prepare breakfast under the sea conditions of the day. The conflicting expert opinions as to whether the owner’s failure to suspend meal preparation constituted negligence, as well as the conflicting information on the sea conditions, raised genuine issues of material fact that had to be determined by a fact-finder.

OUTCOME:

The motion was denied as to the seaman’s claim for Jones Act negligence. The motion was granted as to the seaman’s claim for general maritime law unseaworthiness. The claim for maintenance and cure remained for trial.

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Longshoreman On Board A Crew Boat Awarded Damages For Injuries Sustained When A Slow Moving Barge Was Struck

IN THE MATTER OF CRESCENT SHIP SERVICE, INC., as owner andowner pro-hac-vice, of the M/V MR. FREDDIE, her engines, tackle, appurtenances,etc. in a cause of EXONERATION FROM OR LIMITATION OF LIABILITY

CIVIL ACTION NO. 03-2107, c/w 03-2163, C/w 04-0340, c/w04-0397 SECTION “C” (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 1294
January 26, 2005, Decided
January 27, 2005, Filed; January 28, 2005, Entered

PROCEDURAL POSTURE:

In an action that arose out of an accident involving a crew boat and a barge, the matter was before the court to determine whether claimant longshoremen suffered injury and damages as a result of the collision.

OVERVIEW:

The 22 longshoremen alleged they were on board a crew boat when, at approximately 8:00 p.m., the vessel struck a slow-moving barge. The crew boat was ferrying the longshoremen back to shore from a mid-river work site. The owner of the crew boat and the owner of the barge stipulated that they were jointly and severally liable for causing the accident that was the basis of the suit. The court first found that the collision was strong enough to cause injury to passengers on the crew boat. The court reasoned that virtually all of the longshoremen testified that the collision provided a strong jolt to the crew boat, and the impact itself was exacerbated by the sharp acceleration and turn of the crew boat immediately prior to contact, a result of the captain’s attempt to maneuver the boat out of harm’s way. Next, the court stated that it would consider each longshoremen’s allegations of injury without regard to their failure to report injury or their reasons for not doing so. Finally, the court addressed each of the longshoremen individually. In doing so, most of the longshoremen were awarded medical specials and general damages.

OUTCOME:

The court awarded medical specials and general damages to most of the longshoremen. Two of the longshoremen were awarded nothing.

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Seaman On Fishing Boat Awarded Damages For Injuries Suffered When Struck In The Back By A Block

LUCKY STEVENS VERSUS OMEGA PROTEIN, INC.

CIVIL ACTION No: 00-3326 SECTION “T” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFLOUISIANA
2005 U.S. Dist. LEXIS 537
January 11, 2005, Decided
January 13, 2005, Filed; January 13, 2005, Entered

PROCEDURAL POSTURE:

Plaintiff seaman was injured while working aboard a vessel owned by defendant employer. The seaman filed an action pursuant to the Jones Act, 26 U.S.C.S. app. § 688, and general maritime law seeking compensation for his injuries. The court conducted a bench trial, in admiralty, and entered its findings and judgment.

OVERVIEW:

While working on a fishing boat, the seaman was struck in the back by a hydraulically operated galvanized steel block. His last treating physician reported that he suffered a 15 to 20 percent permanent partial total body medical impairment, which would limit his ability to work. The seaman’s economic expert concluded that he would lose between $203,435 and $267,254 in wages, as a result of his physical impairments. The court found that the employee who operated the block was negligent, as was the rest of the crew for failing to warn the seaman of the impending danger created by the block operator. The employer could be held liable and was negligent through the actions of its boat crew; their incompetence also rendered the boat unseaworthy. The court found no contributory fault on the seaman’s part. The seaman was entitled to recover unpaid maintenance and cure benefits and was also entitled to recover damages for pain and suffering and for past and future lost wages. He was not entitled to attorney’s fees because he failed to show that the employer’s denial of maintenance and cure benefits was egregious.

OUTCOME:

The court entered a judgment for the seaman and ordered the employer to pay him $629,656.64, together with interest from the date of the judgment. It held that the seaman was not entitled to attorney’s fees. The court declined to award prejudgment interest.

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Penalty Wages Denied Where Failure To Pay Was Due To An Accounting Error

JAMES WHITE, Plaintiff, v. WATERMAN STEAMSHIP CORP.,Defendant.

CIVIL ACTION NO. G-03-1026
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, GALVESTON DIVISION
2005 U.S. Dist. LEXIS 7246
January 7, 2005, Decided

PROCEDURAL POSTURE:

Following an injury while working aboard a vessel, plaintiff seaman sued defendant, the vessel’s owner, alleging causes of action under the Jones Act, 46 U.S.C.S. § 588, unseaworthiness, maintenance and cure, and penalty wages under 46 U.S.C.S. § 10313. Defendant filed a motion for partial summary judgment only as to the claim for penalty wages.

OVERVIEW:

There was no evidence that defendant intentionally withheld plaintiff’s wages for his work on the first day he was on the vessel or arbitrarily or willfully refused to pay him those wages. A simple accounting error in the calculation of a seaman’s wages did not qualify as arbitrary or willful so as to invoke the draconian penalties under 46 U.S.C.S. § 10313. Moreover, plaintiff was not entitled to penalty wages for any lost past and future wages, unpaid maintenance and cure benefits, and lost union benefit plan contributions. Lost union benefit plan contributions and unpaid maintenance and cure benefits were outside the scope of the wage penalty statute. Lost union benefit contributions were paid to the seaman’s union and not directly to the seaman. Lost wages were those that a seaman could have earned but did not because of his incapacity, thus, they did not accrue until after he was discharged.

OUTCOME:

The court granted defendant’s motion for partial summary judgment for penalty wages.

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Captain Of Vessel Who Was A Joint Venturer In The Vessel Did Not Have A Maritime Lien Against The Vessel

DONALD J. LEBLANC v. M/V NAUMACHIA (O.N. 672110), herengines, tackle and appurtenances, inrem

CA No. 04-009 ML
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODEISLAND
2005 U.S. Dist. LEXIS 5152; 2005 AMC 506
January 4, 2005, Decided

PROCEDURAL POSTURE:

In an in rem action, pro se plaintiff former captain asserted maritime liens against a vessel. After the vessel was arrested, claimant bank intervened asserting that it held a preferred ship mortgage against vessel superior to any lien asserted by the captain.

OVERVIEW:

It was undisputed that the bank’s mortgage was a preferred mortgage under the Commercial Instruments and Maritime Liens Act, 46 U.S.C.S. § 31301 et seq. The bank disputed the very existence of the liens asserted by the captain and argued instead that the captain was a joint venturer who was legally incapable of asserting a maritime lien against the vessel. The court engaged in a five-part analysis and determined that a joint venture existed. The captain and his former fiancee intended to purchase the vessel together, but could not because of the captain’s poor credit. The captain controlled nearly all of the operational activities of the vessel. While his former fiancee was legal owner of the vessel, the captain nonetheless managed the operations of the vessel and, as such, had a proprietary interest in the vessel and its success. The final two factors considered the share of the venture’s profits and losses. The captain and his former fiancee agreed to equally share all profits. The fact that they never discussed who would bear the enterprise’s losses did not necessarily foreclose a determination that the captain was a joint venturer.

OUTCOME:

The bank had a preferred ship mortgage against the vessel, but the captain had no valid maritime liens. The vessel was ordered sold, and the resulting proceeds would first be allocated to any expenses that had accumulated while the vessel was detained in custodia legis. The remainder would then be paid into the registry of court for disbursement on any claims made.

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Cruise Lines Motion For Summary Judgment Denied Where Performer On Vessel Stepped On Passenger’s Foot During A Show

Audre Capaldo v. Camelot Cruises, Inc. et al.

CV030179618S
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OFWATERBURY, AT WATERBURY
2005 Conn. Super. LEXIS 551
February 18, 2005, Decided
February 18, 2005, Filed

PROCEDURAL POSTURE:

Plaintiff injured party filed a negligence action against defendants, a cruise line and performing theatre company (company), for injuries she sustained during one of the company’s on- ship performances. The cruise line moved for summary judgment on the ground that it had no duty to the injured party, no issues of material fact existed, and thus, it was entitled to judgment as a matter of law. This proceeding followed.

OVERVIEW:

The injured party alleged that the cruise line was negligent in allowing the company to have personal contact with the ship’s passengers, allowing the performance to take place in their proximity, failing to provide a warning that performers would have contact with passengers, not properly supervising the performers, and not providing reasonable assistance to her once she was injured. The court first held that it appeared that the company was an independent contractor. Second, the cruise line retained some degree of control over the equipment used in the performances, such as the cordless microphones used for the actors. It also had the sole responsibility to promote and advertise the performance and had the right to control the content and format of all written and printed materials that came in contact with passengers. These contract provisions, coupled with the fact that the performances took place on the ship, raised material fact issues regarding the cruise lines’s retention of control over the premises where the performances took place. Further, given the interaction between the company and the audience, it was foreseeable that an actor would step on a passenger’s foot.

OUTCOME:

The motion was denied.

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Seaman’s Case Dismissed On Forum Non Conveniens. Court Has Inherent Power To Raise Motion On It’s Own Without Regard To 60 Day Time Limit Under Rules Of Civil Procedure

MARLON VALDIVIA, Appellant, v. PRESTIGE CRUISES, N.V. andCSCS INTERNATIONAL, N.V., Appellees.

No. 4D04-1942
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2005 Fla. App. LEXIS 4653; 30 Fla. L. Weekly D 905
April 6, 2005, Decided

OPINION:

Per Curiam.

We affirm the trial court’s dismissal of this seaman’s personal injury suit on forum non conveniens grounds. In dismissing this case, the trial court properly applied the analysis required by Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and rule 1.061(a) of the Florida Rules of Civil Procedure. The Kinney factors provide the proper analysis for maritime cases filed in state court. See Tananta v. Cruise Ships Catering & Svcs. Int’l, 2004 Fla. App. LEXIS 19661, 2004 WL 2955023, 30 Fla. L. Weekly D18 (Fla. 3d DCA Dec. 22, 2004) (clarifying that[*2] where dismissal of a Jones Act action filed in state court is sought on the grounds of forum non conveniens, Kinney standards apply, rather than a federal choice of law venue analysis).

Further, the time limitation in rule 1.061(g) does not affect the trial court’s ability to raise the forum non conveniens issue sua sponte at any time. See Verysell-Holding LLC v. Tsukanov, 866 So. 2d 114 (Fla. 3rd DCA), rev. denied, 874 So. 2d 1194 (2004) (holding that the sixty-day time limit imposed by rule of civil procedure governing service of a party’s motion to dismiss based on forum non conveniens does not apply to a trial court’s inherent power to raise the issue of forum non conveniens sua sponte.).

Affirmed.

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Loss Of Consortium Claim For Passenger’s Spouse Not Available In Admiralty

IRIS FRANGO and JOSEPH FRANGO, Appellants, v. ROYALCARIBBEAN CRUISES, LTD., Appellee.

CASE NO. 3D03-3261
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
891 So. 2d 1208; 2005 Fla. App. LEXIS 954; 2005 AMC 804; 30Fla. L. Weekly D 320
February 2, 2005, Opinion Filed

DISPOSITION:

Affirmed in part; reversed in part and remanded.

PROCEDURAL POSTURE:

Appellants, a wife and a husband, brought suit against defendant cruise company to recover for injuries sustained by the wife on one of the company’s ships and for loss of consortium. Appellants sought review of the judgment of the Circuit Court for Miami-Dade County (Florida), which granted the company’s motion for summary judgment on both of the claims.

OVERVIEW:

While appellants were passengers on one of the company’s ships, the automatic sliding doors that led into the ship’s lounge closed on the wife’s face and caused her injuries. The incident occurred as the wife entered the lounge and turned her head around to find her husband, who was walking behind her. In appellants’ suit against the company, the trial court granted summary judgment against appellants on both the wife’s negligence claim and the husband’s claim for loss of consortium. On appeal, the court found that the trial court erred in granting summary judgment against the wife on her negligence claim because the court could not agree that by briefly stopping to look back at her husband, the wife was entirely responsible for the accident. However, the court determined that the trial court properly granted summary judgment against the husband on his loss of consortium claim because maritime law did not recognize a claim for loss of consortium to non-seamen.

OUTCOME:

The court reversed the judgment granting summary judgment for the company on the wife’s claim for injuries but affirmed the judgment granting summary judgment for the company on the husband’s claim for loss of consortium. The court remanded the cause to the trial court.

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Forum Selection Clause Enforced In Passenger’s Claim Against Cruise Line

BETTY FISK, Plaintiff-Respondent, v. ROYAL CARIBBEANCRUISES, LTD., a Liberian corporation, Defendant-Appellant.

Docket No. 30041, 2005 Opinion No. 39
SUPREME COURT OF IDAHO
108 P.3d 990; 2005 Ida. LEXIS 44
March 4, 2005, Filed

PROCEDURAL POSTURE:

The District Court of the Fourth Judicial District, Ada County, Idaho, denied appellant cruise line’s Idaho R. Civ. P. 12(b) motion to dismiss an action brought against it by respondent passenger for having been filed in an improper forum. The cruise line appealed.

OVERVIEW:

Under principles of federal maritime law, the cruise line sought enforcement of a forum selection clause in the cruise ticket contract signed by the passenger. The appellate court noted that the suit arose from a tort occurring on the high seas and involved the interpretation of a maritime contract. As such, both the tort and the contract were subject to federal maritime law. Although the passenger argued that Idaho law applied, any public policy exceptions were not controlling in an international commercial agreement outside of American waters. The maritime contract at issue was international in nature as it involved a cruise to Mexico. There was no authority permitting the appellate court to apply Idaho law in place of federal maritime law. The forum selection clause in the non-negotiated cruise ticket contract established Florida as the sole appropriate forum for litigation. The passenger did not raise fairness issues such as inconvenience, fraud, or overreaching. Therefore, the forum selection clause in the cruise ticket contract had to be enforced. The passenger was not the prevailing party on appeal; therefore, no award of attorney fees was warranted.

OUTCOME:

The judgment was reversed and remanded.

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Not Error To Reinstate Claims Previously Dismissed Based On Forum Non Conveniens

SIVIRINO CARREON, BULIG-BULIG KITA KAMAGANAK ASSOCIATION,RENATO ASISTORGA, PEDRO B. SORIMA, ARNEL N. GALANG, ELSA MONTIAGODO, ERASTOMAGHACUT, ISABEL MAGNO, LORITA ACOSTA, ACEBEDO VIOLETA, SABULAO FAIYAZ, JULIETABENASO, ESCOLASTICA BALDO, JOSE BAGUHIN VERSUS CAL-TEX PHILIPPINES, INC.,CAL-TEX PETROLEUM, CORP., CAL-TEX ASIA, LTD., CAL-TEX OIL CORP., CALIFORNIATEXAS OIL CORP., CAL- TEX PHILIPPINES PETROLEUM COMPANY, INC., CAL–TEX TRADINGAND TRANSPORT CORP., STEAMSHIP MUTUAL, ET AL.

NO. 2004-CA-0809
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2004-0809 (La.App. 4 Cir. 03/23/05);
2005 La. App. LEXIS 1010
March 23, 2005, Decided

PROCEDURAL POSTURE:

After two vessels collided off of the coast of the Philippines, appellee petitioners brought a suit in the Civil District Court, Orleans Parish, Division “G-11” (Louisiana). The court initially conditionally dismissed the suit based on forum non conveniens pursuant to La. Code Civ. Proc. Ann. art. 123, but the court subsequently reinstated the suit because no foreign forum would provide an adequate remedy. Appellant ship owner appealed.

OVERVIEW:

The issue was whether the district court erred in reinstating the claim. The ship owner argued, inter alia, that the petitioners sabotaged their own motion to intervene in the Manila court by failing to provide support for the motion and failing to advise the Manila court of the previous dismissal in Catabalogan. The appellate court found that the record reflected that the petitioners accurately filed their motion in accordance with the appropriate law and that there was no harm in the petitioner’s efforts to seek another forum to litigate. The record did not reveal any wrongdoing or ill filings on the part of the petitioners that warranted the label of “sabotage” or deceit. Twice the district court ordered the conditional dismissal of the case. The petitioners complied with the order of the district court by filing their claims in Manila and Catabalogan. Each judgment provided for the reinstatement of the case in the Civil District Court for the Parish of Orleans should the Philippine courts choose not to accept jurisdiction. The district court had not abused its discretion by reinstating the claims, especially when it clearly rendered its judgments with that possibility in mind.

OUTCOME:

The judgment of the trial court reinstating the claims of the petitioners was affirmed.

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Damages Affirmed In Action For Violation Of The Duty To Rescue Along With A Reduction Of 70% Based On Comparitive Fault

STEPHEN C. SMITH VERSUS TIDEWATER INC.

NO. 2004-CA-0195
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
04-0195 (La.App. 4 Cir. 3/02/05);
2005 La. App. LEXIS 905
March 2, 2005, Judgment Released

PROCEDURAL POSTURE:

Defendant employer, a marine company, appealed a decision of the Civil District Court, Orleans Parish (Louisiana), which awarded damages to plaintiff employee in finding that the defendant violated the duty to rescue plaintiff after he fell overboard. Plaintiff was also awarded damages for wrongful termination.

OVERVIEW:

Plaintiff was working for defendant when he allegedly fell overboard off the coast of Puerto Rico. Plaintiff swam for nearly 20 hours to shore. The court held that defendant complied with 46 C.F.R. § 26.03-2(b). However, once the Coast Guard began searching for plaintiff, defendant brought its tow into port claiming that it created a burden in the search efforts. The court held that even if that were so, defendant’s action of spending over three hours in port while its seaman was lost at sea was not diligent. Further, while 46 C.F.R. § 4.06 required chemical testing on those directly involved, the testing could have been done later. But for the vessel returning the barge to port so that it could remain on schedule, plaintiff may have been rescued and his post-traumatic stress disorder lessened. However, the trial court erred in not assessing plaintiff a percentage of contributory negligence. Therefore, because defendant was not negligent in plaintiff’s actual fall, it assigned plaintiff 70 percent fault. Finally, the court held that the retaliatory discharge award was proper because there was evidence that plaintiff was fired in because he was considering filing a claim.

OUTCOME:

The court amended the judgment to cast plaintiff 70 percent comparatively at fault. The award for retaliatory discharge was amended to reflect the intention to include an award for lost wages and loss of future income.

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Dismissal Of Honduran Seaman’s Claim For Maintenance And Cure Due To Inappropriate Forum Confirmed

ARMONDO MARTINEZ VERSUS MARLOW TRADING, S.A. AND FOREIGNCREW EMPLOYMENT SERVICES, INC.

No. 2004-CA-0538
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2004-0538 (La.App. 4 Cir. 02/02/05);
894 So. 2d 1222; 2005 La. App. LEXIS 283; 2005 AMC 778
February 2, 2005, Decided

PROCEDURAL POSTURE:

Appellant injured Honduran seaman brought a suit for maintenance and cure against appellees, a Greek vessel owner and its Louisiana agent. Both filed, inter alia, a motion to dismiss pursuant La. Code Civ. Proc. Ann. art. 123(B), stating that Orleans Parish was not an appropriate forum and that Panama or Honduras were more appropriate. The Civil District Court, Orleans Parish, Division “G-11” (Louisiana) granted the motion. The seaman appealed.

OVERVIEW:

Panama and Honduras were both adequate and available forums for the proceedings to be conducted and therefore, they fulfilled the requirements for transfer to a more convenient forum. Panama was available because it was the chosen forum of both parties based upon the contractual agreement, and the vessel was also registered in Panama. Honduras was available because the seaman was domiciled there and it was where key witnesses, including his doctors, were located. Based upon the affidavits of a Panamanian attorney, the seaman’s claims would be recognized in Panama and he would receive an adequate remedy. The seaman was domiciled and had received the remainder of his medical treatment in Honduras; therefore Honduras was also the location of his treating physicians who would be required to testify at trial. In the interest of fostering greater access to sources of proof and minimizing the costs of obtaining witnesses the trial should be held in either Panama or Honduras; especially because the witnesses were not located in Orleans Parish nor was the vessel registered in that parish. Therefore the appellate court held that both countries provided adequate forums for the trial.

OUTCOME:

The judgment of the trial court was affirmed.

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Summary Judgment Against Seaman Reversed In Maintenance And Cure Claim

HAROLD YOUNCE VERSUS PACIFIC GULF MARINE, INC. AND ABCINSURANCE COMPANY

No. 04-CA-839
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
04-839 (La.App. 5 Cir. 01/25/05);
893 So. 2d 909; 2005 La. App. LEXIS 57
January 25, 2005, Decided

PROCEDURAL POSTURE:

Appellant claimant challenged the judgment of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Division I, Louisiana, granting summary judgment in favor of appellee employer denying the claimant maintenance and cure benefits for his injury suffered aboard a ship.

OVERVIEW:

The claimant was involved in an accident aboard a ship in December 1995 while employed by the employer. The evidence presented showed that the claimant was injured aboard another ship in April 1995. The employer argued that the claimant intentionally concealed his injury and treatment for the prior accident in April 1995, thereby forfeiting his right to maintenance and cure. The appellate court ruled that whether the claimant intentionally misrepresented his medical condition or fraudulently concealed material information regarding his medical condition when he presented to get his clinic card was a disputed question of fact. Since the claimant admitted to having a prior neck injury and that the prior injury occurred on a ship, there was a material issue of fact as to whether the claimant fraudulently concealed his medical condition and should be deprived of maintenance and cure. Also, it was not clear from the evidence submitted whether the prior injury and medical treatment even if disclosed would have prevented the claimant from receiving a clinic card.

OUTCOME:

The judgment was reversed and the matter was remanded.

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Attachment Order Entered Against Attorney In Multi Million Dollar Dispute Involving Seaman’s Claim For Maintenance And Cure Which Resulted In $8,329,720.65 Judgment

[*1] S.M. Pires and VIRGINIA PIRES, his wife, Plaintiff,v. Frota Oceanica Brasileira, S.A., BOARD OF TRUSTEES OF GALVESTON WHARVES d/b/aPORT of GALVESTON & CITY OF GALVESTON d/b/a PORT OF GALVESTON, Defendants. S.M.PIRES and SAUL RUDES, Plaintiffs, KENNETH HELLER, Defendant KENNETH HELLER,Third-party Defendant, SUSAN HARMON, Third-party Defendant. S.M. PIRES and SAULRUDES, Plaintiffs, v. KENNETH HELLER, Defendant

23829/76
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2005 NY Slip Op 50315U; 6 Misc. 3d 1036A; 2005 N.Y. Misc.LEXIS 434
January 14, 2005, Decided

According to the verified complaint in Pires and Rudes v Heller, plaintiff S.M. Pires retained defendant Kenneth Heller to represent him in[**5] the an action commenced in 1976 against Frota Oceanica Brasileira, S.A. et al, for personal injuries Mr. Pires sustained while employed as[*3] a seaman on Frota’s ship. That action for maintenance and cure resulted in a judgment in Mr. Pires’ favor in a sum exceeding $4,000,000 plus interest. The complaint further avers that Mr. Heller retained plaintiff Saul Rudes as appellate counsel to handle appeals resulting from the judgment and agreed that Mr. Rudes’ fee would be 10% of Heller’s net fee in Mr. Pires’ personal injury action. After several appeals, the total judgment with interest awarded to Mr. Pires was $8,329,720.65. Defendant Frota issued a check in that amount made payable to “Starkheiser Pires and Kenneth Heller and Saul Rudes, his attorneys.”

According to the supporting affidavit of Mr. Pires’, Mr. Heller represented him in the personal injury action S.M. Pires v Frota Oceanica Brasileira, Index No. 23829/76. Mr. Pires states that (1) Mr. Heller showed him the June 24, 1997 Appellate Division decision which held that Mr. Pires was entitled to a $4,000,000 damage award, (2) after further appeals, defendant Frota was ordered to pay that amount with interest which amount totaled $8,239,720.65 and that Mr. Heller never informed him of this accrued additional interest and Mr. Heller kept that amount for himself, (3) at the time that Mr. Pires went to the bank with Mr. Heller to receive the $4,000,000 amount, Mr. Heller asked Mr. Pires to sign blank sheets of paper and Mr. Pires has no knowledge of the contents of those documents now, (4) after learning of the higher award, Mr. Pires confronted Mr. Heller who stated he took the other 50% as his fee, (5) Mr. Pires protested to Mr. Heller as he was never told of the higher award and never agreed to the 50% fee, (6) Mr. Pires never signed a retainer[**8] agreement, (7) Mr. Pires filed a complaint with the Disciplinary Committee of the Appellate Division, First Department, Mr. Heller promised that he would pay the money back because the Court would award an additional $4,000,000 as attorneys’ fees against defendant Frota’s insurance company, (8) Mr. Pires withdrew the complaint under duress as Mr. Heller said he would not get the money back if Mr. Heller was disbarred as Mr. Pires had no[*4] other attorney at the time, (9) Mr. Heller came to Brazil and Mr. Pires signed an affidavit which he did not read and gave a deposition recorded on videotape, a copy of which Mr. Pires does not have and which is invalid according to Brazilian law, (10) Mr. Heller has told Mr. Pires that he has no money to repay him and Mr. Heller has previously told him that he keeps money in bank accounts in Switzerland, Leichtenstein and Germany, and (11) Mr. Heller has threatened to leave the state and live in Brazil as Brazil has no extradition policy with the United States specifically for the purpose of defeating the collection of any judgment Mr. Pires would obtain against him.

Mr. Pires has taken contradictory positions regarding his former attorney Kenneth Heller and the[**9] submissions on these motions reflect those differing positions. However, the explanations given, that he signed blank sheets of paper for Mr. Heller and that Mr. Heller told him that he would not see the money owed to him unless he withdrew his complaints, are plausible.

The affirmation of plaintiff Saul Rudes n2 avers that Mr. Rudes has been co-counsel with Kenneth Heller in the Pires v Frota Oceanica Brasileira personal injury action since 1996, having been retained by Mr. Heller to handle several post-judgment appeals. Mr. Rudes states that (a) his status as an attorney of record was confirmed in a Supreme Court order dated July 29, 1999, (b) his fee agreement with Mr. Heller in this action as well as other actions for which he was retained is that he would receive 10% of Mr. Heller’s net fee, and, thus, he has a 10% interest in the attorneys’ fee against the judgment of $8,329,720.65, (c) Mr. Heller committed a fraud against Mr. Pires and Mr. Rudes when Mr. Heller took half of the full judgment amount, (d) Mr. Heller duped Mr. Rudes into waiving an attorneys’ fee lien by falsely stating to Mr. Rudes, and to the Court, that the $8,329,720 was to be paid directly to the client, Mr. Pires [**10]and that attorneys’ fees were to be awarded separately, (e) Mr. Heller moved to have defendant Frota issue a new check without Mr. Rudes name on it and as a result Frota issued a new check which was issued payable solely to Heller as attorney.

DISPOSITION:

Plaintiffs’ motion for an order of attachment granted; cross-motion to dismiss denied.