Class Of Crewmembers Suing Cruise Line To Recover Wages, Overtime Wages, And Penalty Wages Under Collective Bargaining Agreements Certified.
LUIS BOLANOS, et al., Plaintiffs, -against- NORWEGIAN CRUISE LINES LIMITED, d/b/a NORWEGIAN CRUISE LINES, et al., Defendants.
01 Civ. 4182 (RMB) (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 13243
July 22, 2002, Decided
DISPOSITION:
Recommended that this court certify the proposed plaintiff class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.
PROCEDURAL POSTURE:
Seeking to recover wages, overtime wages, and penalty wages under collective bargaining agreements (CBAs) and 46 U.S.C.S. § 10313, of the Seaman’s Wage Act, plaintiff cruise ship workers moved to certify a class of 5,000 under Fed. R. Civ. P. 23. Defendant cruise line objected, arguing that department heads on each vessel made different decisions, making class certification inappropriate despite uniform wage requirements under the CBAs.
OVERVIEW:
Even if different ships and departments kept track of overtime using different methods, the magistrate found that differences in departments, duties, and factual variations would not defeat certification, where all the workers claimed a denial of overtime pay. The common factual and legal questions satisfied commonality and typicality under Fed. R. Civ. P. 23(a)(2), (3). The cruise line’s policy was the CBA. The workers asserted the same wrongful acts in the same manner against all class members, establishing typicality, which did not require that the representative claims be identical to those of the class. Differences in damages did not destroy typicality under Fed. R. Civ. P. 23(a)(3). Because the workers predominantly sought damages, and injunctive relief only secondarily, certification was inappropriate under Fed. R. Civ. P. 23(b)(2), but was proper under Fed. R. Civ. P. 23(b)(3). The workers claimed across-the-board deprivation of overtime wages; Rule 23(b)(3)’s predominance requirement was satisfied. Individual suits would not be economical, since many of the workers were foreign nationals. The court was familiar with the case from managing discovery and ruling on motions.
OUTCOME:
The magistrate judge recommended that the court certify the proposed class.
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Shipping Company Claiming Protection As An Agent Of The United States Under The Exclusivity Provision Of The Suits In Admiralty Act And Public Vessels Act Was Denied A Motion To Dismiss Because Agency Status Turns On Contractual Duties And Operational Control By The United States Which Could Not Be Evaluated In The Absence Of A Contract.
MICHAEL LEVENE VERSUS UNITED STATES, ET AL.
CIVIL ACTION NO. 02-0242 SECTION “A”(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 12925
July 3, 2002, Decided
July 8, 2002, Filed
July 8, 2002, Entered
DISPOSITION:
Defendants’ Motion to Dismiss DENIED.
PROCEDURAL POSTURE:
Defendant companies, including a vessel operator, moved to dismiss plaintiff tort claimant’s action seeking to recover damages for injuries allegedly sustained while employed by one company.
OVERVIEW:
The claimant sued the companies and defendant United States. The claimant alleged that he tripped as he was exiting an elevator located on a vessel owned by the United States and operated by one company, a division of the other company. The claimant alleged that he received his injury while performing his duties aboard another vessel owned by the United States and operated by the same company. The companies argued that the claimant failed to state a claim upon which relief could be granted. At issue was whether the relevant company was an agent of the United States, and thus entitled to protection under the exclusivity provision. However, agency status turned on the various contractual duties and operational control by the United States. The court could not evaluate that matter, however, because of the absence of a contract.
OUTCOME:
The motion to dismiss was denied.
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Forum Selection Clause In Seaman’s Contract, Requiring Suit In Federal Court Only, Is Held Not Enforceable By Alaska Supreme Court Pursuant To The Savings To Suitors Clause In 28 U.S.C. §1333 And The Seaman’s Right To Sue In Any Eligible Forum Under The Jones Act.
MIGUEL NUNEZ, Appellant, v. AMERICAN SEAFOODS, Appellee.
Supreme Court No. S-9875, No. 5593
SUPREME COURT OF ALASKA
2002 Alas. LEXIS 98
July 12, 2002, Decided
PRIOR HISTORY:
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Dillingham, Fred Torrisi, Judge. Superior Court No. 3DI-99-141 CI.
DISPOSITION:
Reversed.
PROCEDURAL POSTURE:
Appellant employee filed suit against appellee employer for injuries sustained while working on a fishing vessel. The employer moved to dismiss based a contract clause requiring the employee to file any suit in federal court. The Superior Court, Third Judicial District, Dillingham (Alaska), upheld the forum clause, and granted the employer’s motion to dismiss without prejudice to re-file in federal court. The employee appealed.
OVERVIEW:
On appeal, the employee challenged the judgment of the trial court, which held that a contractual forum selection clause required him to sue in federal court. The employee argued that the forum selection clause was void, as it violated federal law. The appellate court held that the employment contract’s forum selection clause was invalid, as it violated the employee’s right to sue under the Jones Act in any eligible forum. The saving to suitors clause in 28 U.S.C.S. § 1333 gave the employee a comparable right to select a state or federal forum. Under the Jones Act, the employee stood in a position perfectly analogous to that of a railroad worker under the Federal Employer’s Liability Act (FELA). Section 5 of FELA required that the employee’s right to bring suit in “any eligible forum” be deemed substantive and that any contractual provision purporting to limit it be deemed void.
OUTCOME:
The judgment was reversed.
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Construction Worker Injured While On A Barge In A Flood Control Channel Who Had Responsibilities Involved With Movement Of The Barge Two To Three Times Per Week For Three Months May Present Issue At Trial As To Whether He Is A Jones Act Seaman.
RUPERT GAULT, Plaintiff and Appellant, v. MODERN CONTINENTAL/ ROADWAY CONSTRUCTION COMPANY, INC. JOINT VENTURE, Defendant and Respondent.
B152722
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2002 Cal. App. LEXIS 4464
July 10, 2002, Filed
PRIOR HISTORY:
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. TC013629. Rose Hom, Judge.
DISPOSITION:
Reversed and remanded.
PROCEDURAL POSTURE:
In a suit brought by plaintiff employee under the Jones Act, specifically 46 U.S.C.S. § 688; the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 901 et seq.; and general maritime law, the Los Angeles County Superior Court, California, granted defendant employer’s motion for summary judgment, finding as a matter of law that the employee was not a “seaman” on a “vessel in navigation” in “navigable waters.” The employee appealed.
OVERVIEW:
The employee, who was employed as a construction worker in a project to build a bridge over a flood control channel, was injured when, as the barge he was working on was being separated into sections, a heavy load on the section on which the employee was standing shifted and the section flipped over, throwing him into the water and causing him to lose a finger. The employer argued that the employee was not a seaman, the barge was neither a vessel nor in navigation, the flood control channel was not a navigable waterway, and the employee was not a maritime worker. The instant court concluded that there was a triable issue of material fact as to the employee’s entitlement to a Jones Act remedy. The fact that the barge was in transit raised a material issue of fact regarding whether it was a “vessel in navigation.” There was also a triable issue whether the channel was a navigable waterway. The uncontradicted evidence that the employee had responsibilities involved with movement of the vessel, and that those responsibilities were exercised two to three times per week for three months, weighed in favor of finding his connection to the barge to be substantial in nature.
OUTCOME:
The judgment was reversed, and the case was remanded to the trial court for further proceedings. The employee was awarded costs on appeal.
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Supreme Court Of Iowa Affirms Jury Verdict Against Riverboat Casino Pursuant To Iowa’s Dram Shop Statute.
SHELLEY A. HORAK, Administrator of the Estate of Leticia B. Morales, and ANTONIA RAMONA HOLGUIN, FRANCISCO HOLGUIN MORALES, and MARC ANTHONY ABNEY, Appellees, vs. ARGOSY GAMING CO. d/b/a BELLE CASINO OF SIOUX CITY, IOWA, Appellant.
No. 199 / 99-1941
SUPREME COURT OF IOWA
2002 Iowa Sup. LEXIS 147
July 17, 2002, Filed
PRIOR HISTORY:
Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge. Riverboat casino challenges adverse rulings concerning admiralty law, evidentiary objections and sufficiency of evidence to support jury’s verdict in action brought under Iowa’s dram shop statute.
DISPOSITION:
Affirmed.
PROCEDURAL POSTURE:
Plaintiff administrator and children sued defendant riverboat casino under the Dram Shop Act, specifically Iowa Code § 123.92 (1999), for the death of their decedent. The casino answered with a general denial and an affirmative defense denying proximate cause. The Iowa District Court for Woodbury County, after a jury trial, awarded the children consortium damages of $1,250,000. The casino appealed.
OVERVIEW:
A mother dropped her daughter off at a birthday party and went with two men to the casino. After some hours, the casino kicked her out for drunkenness. The men said they would drive her home but that did not happen. The car missed a turn and flipped over. An off-duty officer witnessed the crash and found her body thrown from the car, topless and wrapped in a blanket similar to those from a nearby hotel. The district court refused to apply federal admiralty law. The Supreme Court found that because there was no federal maritime dram shop law, federal preemption principles did not apply. Although the administrator and children did not produce the actual drink servers at trial, the evidence was sufficient. The decedent’s blood alcohol count had been 0.250. The trial court’s limine ruling against the evidence of undress was proper given the speculativeness of any sexual assault theory and prejudice to the administrator and children. As to the damage awards, the decedent’s excessive partying on the night in question did not accurately reflect her usual devotion as a parent.
OUTCOME:
The judgment was affirmed.
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Louisiana Trial Court Finds That Seaman Who Slipped And Fell While Walking Down A Ship’s Stairwell While Carrying Items In Each Hand Against The Employer’s Written Policy Was The Sole Cause Of His Accident And Denies His Claims For Jones Act Negligence And Unseaworthiness.
SADAT MUHAMMAD VERSUS DIAMOND OFFSHORE COMPANY
2002-0172
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
2002-0172 (La.App. 3 Cir, 07/10/02); 2002 La. App. LEXIS 2340
July 10, 2002, Rendered
PRIOR HISTORY:
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT. PARISH OF IBERIA, NUMBER 86,273. HONORABLE WILLIAM D. HUNTER.
DISPOSITION:
Affirmed in part and reversed in part.
PROCEDURAL POSTURE:
Plaintiff seaman filed suit against defendant employer, seeking damages for injuries he sustained, pursuant to the Jones Act, 46 U.S.C.S. § 688, and the general maritime law claim of unseaworthiness. The Sixteenth Judicial District Court, Iberia Parish, Louisiana, found that the seaman failed to prove the employer was negligent and denied his claim of unseaworthiness. The seaman appealed.
OVERVIEW:
On review, the appellate court found that the seamen slipped and fell while walking down a ship’s stairwell while carrying items in each hand, against the employer’s written policy. The trial court did not err in finding the employee was the sole cause of his accident; thus, denial of his Jones Act claim was proper. As the trial court was presented with contradictory evidence, the appellate court could not say that the trial court erred in denying the employee damages based on his general maritime law claim of unseaworthiness. Although the seaman testified that the employees were instructed to clean the rig, because personnel were arriving for a visit, the appellate court did not find that this was the type of diverting circumstance that would absolve the seaman under the momentary forgetfulness doctrine. The future cure award was improper, and the trial court erred in awarding attorney fees based on its finding that the employer improperly withheld maintenance and cure benefits, as the record revealed no instance in which the employer acted in a willful, callous, or persistent manner.
OUTCOME:
The awards of future cure and attorney fees were reversed; the remainder of the judgment was affirmed.
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Verdict For Son Of Deceased Seaman Who Was Killed In A Motor Vehicle Returning From Going To See An Oil Rig For Loss Of Nurture And Services; Employer Of Seaman Found Vicariously Liable For Driver Of Vehicle.
DIAMOND OFFSHORE MANAGEMENT COMPANY, Appellant v. LELA GUIDRY, individually and as next friend of HUNTER GUIDRY and as Independent Administratix of THE ESTATE OF CRAIG GUIDRY, Appellees
NO. 09-01-367 CV
COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT
2002 Tex. App. LEXIS 5219
April 4, 2002, Submitted
July 25, 2002, Opinion Delivered
PRIOR HISTORY:
On Appeal from the 136th District Court. Jefferson County, Texas. Trial Case No. D-159, 548.
DISPOSITION:
Affirmed.
PROCEDURAL POSTURE:
Appellant employer appealed an unfavorable jury verdict and judgment in the 136th District Court of Jefferson County, Texas, in a Jones Act death case that arose from an automobile accident in which an employee was killed. The action was brought Appellees, survivors of the deceased employee, one of whom acted in the capacity of the independent administratrix of the deceased employee’s estate.
OVERVIEW:
The decedent’s employer was a company that provided work crews for offshore oilrigs. The decedent was killed when another employee lost control of his vehicle. The appellate court rejected the employer’s argument that the trial court erred as a matter of law in denying its motion for partial remittitur and entering judgment based on the jury’s award of $400,000 for decedent’s son’s loss of nurture and services. The award was not so large as to shock the judicial conscience. The appellate court also rejected the employer’s argument that there was insufficient evidence the decedent was “on ship’s business” at the time of his death. The appellate court concluded that if the crews’ going to see another oil rig was “business related,” then the return trip also was business related. Finally, the jury instructions clearly informed the jury of the requirement that the driver must have been acting in the course of his employment (or in the service of the vessel) for the employer to be vicariously and of the requirement that the decedent must have been acting in the course of his employment (or in the service of the vessel) in order to recover under the Jones Act.
OUTCOME:
The judgment of the trial court was affirmed.
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Summary Judgment Granted Against Cruise Director Who Claimed Defamation And Tortuous Interference Against Another Cruise Employee Who Reported The Cruise Director’s Sexual Advances And Harassment Towards Her To Her Supervisor Resulting In The Cruise Director Being Fired From His Employment With The Cruise Ship.
RAYMOND CARR, Appellant, v. SUSAN MICHELSON and ANNE McALPIN, Respondents.
No. 47668-8-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2002 Wash. App. LEXIS 1715
July 22, 2002, Filed
PRIOR HISTORY:
Appeal from Superior Court of King County. Docket No: 98-2-23919-1. Date filed: 11/03/2000.
DISPOSITION:
Affirmed.
PROCEDURAL POSTURE:
Appellant cruise director filed suit in the King County Superior Court (Washington) against appellees, an employee and a supervisor, for, inter alia, defamation and tortuous interference. The court granted summary judgment to the employee and the supervisor. The cruise director appealed.
OVERVIEW:
The cruise director contended that the employee and the supervisor defamed him by falsely accusing him of sexual harassment, causing him to be fired from his employment with a cruise ship. The cruise director argued, inter alia, that the trial court erred by granting the appellees’ motion for summary judgment on his defamation claim against the employee. The court of appeals disagreed. All that the employee did was to report to her supervisor what actually took place, that was, the cruise director indisputably entered her bedroom and crawled into her bed as she slept, without having been invited there, and he indisputably participated in placing an ice sculpture of a giant penis in her shower. Although a rational trier of fact could have determined that the employee actually thought the ice sculpture was hilarious and that she only pretended to be offended after she became angry about the poor performance review, that was not a material issue in the case. Therefore, the trial court did not err by granting the motion for summary judgment.
OUTCOME:
The judgment was affirmed.
