TRIAL COURTS USE OF STATE CONTRIBUTORY NEGLIGENCE INSTEAD OF ADMIRALTY COMPARITIVE NEGLIGENCE HARMLESS IN LIGHT OF TRIAL COURT’S FINDING THAT SEAMAN’S INABILITY TO CLIMB OR HOLD ONTO A ROPE LADDER WAS THE SOLE CAUSE OF THE ACCIDENT.
ELGIN THOMPSON, Plaintiff-Appellant, v. VANE LINESBUNKERING; UNITED STATES OF AMERICA, Defendants-Appellees. ELGIN THOMPSON, Plaintiff-Appellee, v. VANE LINES BUNKERING, Defendant-Appellant, and UNITED STATES OF AMERICA, Defendant-Appellee.
No. 00-1997, No. 00-1998
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2001 U.S. App. LEXIS 16612
June 5, 2001, Argued
July 23, 2001, Decided
After a bench trial, the United States District Court for the Eastern District of Virginia entered judgment for defendants in plaintiff seaman’s action under the Jones Act, 46 U.S.C.S. § 688 et seq., the Public Vessels Act, 46 U.S.C.S. § 781 et seq., the Suits in Admiralty Act, 46 U.S.C.S. § 741 et seq., and general maritime law against employer and United States for injuries from a fall from a rope ladder. Seaman appealed.
While offloading fuel oil from a United States Navy ship into the employer’s tank barge at a naval base, the seaman had to use a rope ladder to exit the barge via the navy ship. The district court had found that the seaman’s weight, fatigue, extra clothing, back brace, and sea bag, combined with dizziness because of prescribed drugs taken for osteoarthritis and degenerative disc disease, caused the accident. It was not the United States’ negligence in the arrangement of the ladder. The appellate court noted that maritime law, with its comparative negligence standard, rather than Virginia law, with its contributory negligence standard, governed the case. Thus, the district court erred in finding that the seaman was contributorily negligent. The error, however, was harmless in view of the district court’s express finding that the sole proximate cause of the fall was plaintiff’s physical inability to climb or hold on to the ladder. Although a trier of fact could have resolved the issue differently, the appellate court could not hold that the district court clearly erred.
The judgment of the district court was affirmed, although the district court erred in finding that the plaintiff seaman was contributorily negligent.
MAINTENANCE INCREASED TO AN AMOUNT IN EXCESS OF AMOUNT SET OUT IN COLLECTIVE BARGAINING AGREEMENT.
ROBERT J. DURFOR, Plaintiff, -against- K-SEA TRANSPORTATIONCORP., E.W. HOLDING CORP., WALLIN MARINE CORP., and EKLOF MARINE CORP.,Defendants.
00 Civ. 6782 (AGS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10703
July 27, 2001, Decided
July 30, 2001, Filed
Plaintiff sued defendants for damages under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law for injuries he allegedly sustained while working on a boat. Plaintiff moved for an increase in his maintenance.
Plaintiff sued defendants alleging negligence, and for cure, maintenance, and medical expenses. During discovery and after the defendants declined to increase his maintenance, plaintiff moved for partial summary judgment for increased maintenance. The plaintiff’s motion was granted. The court determined that the plaintiff was not bound by the maintenance limits set forth in a collective bargaining agreement when those amounts were insufficient. The plaintiff had submitted evidence that the amount of maintenance was insufficient. In granting plaintiff’s motion for an increase, the court noted that the right to maintenance was not preempted by federal labor statutes and the right to maintenance was to be construed liberally. The court rejected defendants’ Fed. R. Civ. P. 56(f) motion to conduct further discovery because they failed to indicate what they believe the possible documentary evidence and deposition of plaintiff would establish. They also failed to indicate how the discovery would create a genuine issue of material fact.
Plaintiff’s motion for an increase in his rate of maintenance was granted.
JACKED-UP OIL RIG TEMPORARILY ATTACHED TO SEABED WAS STILL A VESSEL SO AS TO REQUIRE THE APPLICATION OF FEDERAL MARITIME LAW.
MARK WHITSTINE versus BASIN EXPLORATION, INC., and DIAMONDOFFSHORE DRILLING, INC.
CIVIL ACTION NO. 00-1405 SECTION “C” (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 10489
July 17, 2001, Decided
July 17, 2001, Filed; July 18, 2001, Entered
Defendants held jointly and severally liable for any damages suffered by the Plaintiff that not attributable to Plaintiff’s own negligence, and they not entitled to contribution from Plaintiff’s employer.
Defendant filed a motion for partial summary judgment, asking the court to determine the relevance of a recent judicial opinion to the present dispute in regards to whether state law or federal maritime law applied to this case which, according to plaintiff, fell under the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C.S. § 1331 et seq.
Defendant filed a motion for partial summary judgment to determine how a ruling of the United States Court of Appeals for the Fifth Circuit regarding OCSLA impacted this case. Defendant argued Louisiana law would control, meaning any liability would be joint and divisible, and defendant could not be held responsible for the portion of plaintiff’s damages attributable to his employer. Plaintiff argued maritime law controlled and defendants’ liability was joint and several, meaning plaintiff could recover his full amount of damages from defendants, even if their liability was minor relative to plaintiff’s employer’s liability. The court agreed with plaintiff that, even though a jacked-up oil rig temporarily attached to the seabed satisfied the OCSLA situs requirement, the rig did not cease to be a vessel for purposes of interpreting the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq. Because Louisiana law was inconsistent with LHWCA, federal maritime law principles controlled. Defendant was jointly and severally liable for plaintiff’s injuries, minus his own contributory negligence.
The court made a ruling that federal maritime law applied.
SEAMAN’S CLAIM OF RACIAL DISCRIMINATION LEADING TO HIS TERMINATION DISMISSED SINCE PERSON TERMINATING PLAINTIFF NOT SHOWN TO HAVE ACTED IN VIOLATION OF STATUTE EVEN THOUGH CAPTAIN HAD USED A RACIAL SLUR.
ALBERT LEE DAVIS, SR. VERSUS TIDEWATER MARINE, INC.
CIVIL ACTION NO. 00-2480 SECTION “C’ (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 9795
July 2, 2001, Decided
July 2, 2001, Filed; July 3, 2001, Entered
Judgment entered against plaintiff, Albert Lee Davis, Sr., and in favor of the defendant, Tidewater Marine, Inc., dismissed with prejudice.
Plaintiff employee filed an employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., seeking damages for discriminatory termination by defendant employer.
The court found that the employee established a prima facie case of racial discrimination. The court found that the captain of the vessel on which the employee worked did make a racial slur. The court also found that the captain did not offer cleaning the mat at the dock as an option to the employee. Such an insult explained the employee’s desire to get off the vessel and out of the captain’s employ. However, the captain did not terminate the employee, the information technologist did. The employee admitted that he never told anyone at the employer about the captain’s use of the racial slur at any relevant time, nor had he produced evidence of racial animus on the technologist’s part. The cleaning task was not unduly dangerous and the technologist was reasonable in concluding that the employee should have obeyed the order. The employee’s refusal to complete the task, coupled with his stated desire to get off the vessel, was sufficient “legitimate” cause to terminate him. The employee had not established by a preponderance of the evidence that the reasons for termination were pretextual, false or discriminatory.
Judgment was entered in favor of the employer. The employee’s action was dismissed with prejudice.
PRIMARY DUTY INSTRUCTION NOT PREJUDICIAL SINCE JURY FOUND VESSEL SEAWORTHY
EDWARD MULCAHY and FRANCIS MULCAHY, Appellants, v. STATE OFWASHINGTON, DEPARTMENT OF TRANSPORTATION, MARINE DIVISION, Respondents.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2001 Wash. App. LEXIS 1530
July 16, 2001, Filed
Edward and Francis Mulcahy are brothers and Chief Engineers on ferries operated by the Washington State Department of Transportation. Ed Mulcahy worked as an oiler until 1983 when he became an assistant engineer. He earned his chief’s license in 1988 or 1989 and became a chief engineer in 1992. Francis Mulcahy started working as an assistant engineer in 1977 and became a chief engineer in 1980. Oilers, assistant engineers, and chief engineers are all engine room personnel.
In May, 1994, the Mulcahys discovered they both had hearing loss after a hearing test performed by an audiologist for the ferry system.
At trial, the experts for both parties agreed that noise levels above 85 dB cause hearing loss. The plaintiffs submitted evidence that the noise level in the engine room of every Washington State ferry far exceeds 85 dB. See Ex. 26 (showing a range from 99 to 114 dB). The plaintiffs also presented[*3] evidence that seventy-five percent of WSDOT engine room employees suffered from noise induced hearing loss.
After the close of testimony, the trial court charged the jury. Over the plaintiffs’ objections, the judge charged the jury with Instruction No. 17, which was submitted by WSDOT and which embodied the primary duty doctrine:
Generally, a seaman employee is barred from recovering damages from his employer for injuries caused by the employee’s failure to perform a duty imposed upon him by his employment. In order for plaintiffs’ claims to be barred in this case, the defendant must prove each of the following by a preponderance of the evidence:
Plaintiffs consciously assumed a specific duty as a term of their employment;
Plaintiffs knowingly failed to perform the consciously assumed duty;
Any injuries sustained by plaintiffs were caused by plaintiffs’ failure to perform the specific duty; and
Plaintiffs were not injured by a dangerous condition which they could not have controlled or eliminated in the proper exercise of their employment duties.
If you find by a preponderance of the evidence that each of these propositions has been proved, then plaintiffs’ [*4] claim[s] are barred and you should find for the defendants. On the other hand, if you should find that any one of these propositions has not been proved, then you must decide plaintiffs’ claims in accordance with the court’s other instructions.
The jury returned a verdict for WSDOT. Plaintiffs moved for judgment as a matter of law and a new trial, which was denied. This appeal followed.
The State’s expert testified that the hearing protection provided was adequate to prevent hearing loss. RP 222-223. In addition, duration of exposure is a factor. Thus, we cannot say that no evidence or reasonable inference exists which would be sufficient to sustain a verdict for the WSDOT on the issue of unseaworthiness.
Furthermore, the Mulcahys argue that the primary duty instruction was not supported by the evidence. But even if this was true, Instruction No. 17 was not prejudicial because it had no effect on the outcome of the trial. Because the jury found the vessels seaworthy, the jury did not reach the question of the primary duty doctrine.
ON POST TRIAL MOTIONS VERDICT OF $350,000 FOR PAST PAIN AND SUFFERING FOR LEGIONNAIRES DISEASE UPHELD BUT $100,000 AWARD TO SPOUSE REMITTED TO $25,000. ISSUE OF AVAILABILITY OF LOSS OF SOCIETY IN ADMIRALTY NOT DECIDED.
RAYMOND HAGUE and MARY RUTH HAGUE, Plaintiffs, – against -CELEBRITY CRUISES, INC., FANTASIA CRUISING, INC., ESSEF CORPORATION, PAC-FAB,INC., ESSEF MANUFACTURING FSC, INC., and SFG, Defendants.
95 Civ. 4648 (BSJ) (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 10824
August 1, 2001, Decided
August 1, 2001, Filed
Raymond W. Hague contracted Legionnaires’ Disease from the whirlpool/spa aboard the cruise ship M/V Horizon. Following a trial on damages, the jury awarded Mr. Hague $350,000 for past pain and suffering and $15,000 for future pain and suffering. It also awarded his wife, Mary Ruth Hague, $100,000 for past loss of society and $15,000 for future loss of society. The defendants now move pursuant[*2] to Rule 50(b) of the Federal Rules of Civil Procedure for judgment as a matter of law striking the awards for loss of society. In addition, they move under Rule 59 for a new trial on damages or a remittitur.
The issue of whether damages for loss of society are available in admiralty is being considered in connection with the posttrial motions in Silivanch v. Celebrity Cruises, Inc., 95 Civ. 0374 (BSJ) (JCF), the action tried as the bellwether case on liability. Therefore, the defendants’ Rule 50 motion in the instant case shall be denied without prejudice to modification of the judgment based on the determination in Silivanch.
The defendants’ motion for a new trial is denied insofar as it challenges the award to Mr. Hague for past pain and suffering. Legionnaires’ Disease rendered Mr. Hague so critically ill that his physician believed that he might die. An award of $350,000 for so serious a condition does not shock the conscience even if the illness was acute rather than chronic and had no demonstrable permanent effects.
Finally, the award of $100,000 to Mary Ruth Hague for loss of society up to the date of trial is excessive. Given the limited period of time during which Mr. Hague was incapacitated, the maximum award that could be justified by the evidence is $25,000. This is the amount awarded by the jury in DeFrancesco v. Celebrity Cruises, Inc. [*4] , 94 Civ. 6147 (BSJ) (JCF), where similar evidence was presented with respect to loss of society.
SERVICE OF PROCESS ON COSTA CRUISE LINES RELATED ENTITIES INSUFFICIENT.
VICTOR VARGAS, Appellant, vs. CRUISE SHIP CATERING ANDSERVICE CARIBBEAN N.V. “CSCS”, CRUISE SHIP CATERING AND SERVICE INTERNATIONALN.V., and COSTA CROCIERE, Appellees.
CASE NO. 3D00-2783
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 10303
July 25, 2001, Opinion Filed
We find no error in the conclusion below that the defendants Cruise Ship Catering and Service International N.V. and Costa Crociere did not waive their now-admittedly valid insufficiency of process claims, see Fla.R.Civ.P. 1.140(h)(1), and therefore affirm the judgment entered in their behalf below.
However, the summary judgment for Cruise Ship Catering and Service Caribbean N.V. is reversed for trial because the record raises a genuine issue as to whether that corporation was the plaintiff’s employer at the pertinent times and was therefore subject to his claims under the Jones Act and other aspects of the maritime law. See Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d Cir. 1991), cert. denied, 502 U.S. 919 (1991); Volyrakis v. M/V Isabelle, 668 F.2d 863 (5th Cir. 1982);[*2] Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).
Affirmed in part, reversed in part.