Cruise Line’s Authority To Supervise And Correct A Port Authority’s Performance Does Not Defeat The Cruise Line’s Claim For Indemnity Against The Port Authority For Breach Of The Implied Warranty Of Workmanlike Performance
JOHN VIERLING, Plaintiff, versus CELEBRITY CRUISES, INC.,Defendants-Cross-Claimaints-Cross-Defendants-Appellants-Cross-Appellees, versus BROWARD COUNTY,Defendant-Cross-Claimant-Cross-Defendant-Appellee-Cross-Appellant, WOLLARDAIRPORT EQUIPMENT CO., INC., CRITON TECHNOLOGIES, f.k.a. Wollard AirportEquipment Co., Inc., Defendants-Cross-Defendants.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2003 U.S. App. LEXIS 15373; 16 Fla. L. Weekly Fed. C 941
July 31, 2003, Decided
July 31, 2003, Filed
Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 99-07059 CV-WDF. Wilkie D. Ferguson, Jr., Judge.
Vacated and remanded.
Appellant cruise ship owner sought review of a summary judgment from the United States District Court for the Southern District of Florida granted in favor of appellee port authority on the ship owner’s cross-claim for indemnification in a personal injury suit. The port authority cross-appealed the denial of its motion to dismiss based on the doctrine of sovereign immunity.
The ship owner and the port authority were both named as defendants in plaintiff passenger’s personal injury suit to recover damages for injuries he suffered when the gangway fell and slammed into the side of the cruise ship. The ship owner alleged in the cross-claim that the contractual relationship between the parties impliedly warranted a duty of workmanlike performance and that the port authority breached the implied warranty when it failed to properly position the passenger loading bridge and gangway. The court vacated the judgment and remanded the case. Because the ship owner’s negligence or non-negligence had no bearing on its right to indemnification under the Ryan doctrine, the court found that the district court erred in granting summary judgment in favor of the port authority on the grounds that the ship owner was actively negligent. The court rejected the port authority’s assertion that the Ryan doctrine was only applicable to injured seamen and not to injured passengers. The court affirmed the district court’s ruling that the port authority was not an arm of the state and, consequently, was not entitled to immunity under U.S. Const. amend. XI.
The court vacated the district court’s summary judgment in favor of the port authority and remanded the case for further proceedings. The court affirmed the district court’s ruling that the port authority was not entitled to immunity.
Owner Of A Salvor Vessel Which Was Not Put At Risk During A Salvage Operation Is Not Entitled To Part Of The Apportionment Of Salvage Award
LUTHER BARTHOLOMEW; ZELJKO BRCIC; JIMMIE HAITHCOCK; JAMESKRISTOVICH, Plaintiffs-Appellees, v. CROWLEY MARINE SERVICES INC., a Delawarecorporation; UNION OIL COMPANY OF CALIFORNIA, Defendants-Appellants.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
337 F.3d 1083; 2003 U.S. App. LEXIS 15062
Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-00-01670-WTM. Walter T. McGovern, Senior Judge, Presiding. Bartholomew v. Crowley Marine Servs., Inc., 2002 U.S. Dist. LEXIS 20480 (W.D. Wash., 2002).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Plaintiffs, who were employed by defendant vessel owner, assisted in the salvage of one of the vessel owner’s tugs. Plaintiffs sued the vessel owner for salvage. The United States District Court for the Western District of Washington found that plaintiffs were entitled to an award. The district court’s award allowed no compensation to the vessel owner as owner of the salving vessel. The vessel owner appealed.
Plaintiffs’ job descriptions made no reference to salvage work, and plaintiffs were not trained to perform such work. Their services were voluntary and they placed themselves at a risk not required by their contract. That the collective bargaining agreement mentioned the vessel owner’s willingness to perform “salvage work” did nothing to prevent the crew member salvors from receiving an award. Also, the vessel owner’s failure to bill for the salvage was not a waiver of a salvage claim. The district court’s conclusion that plaintiffs were due a salvage award, and that the vessel owner did not waive the award, was not in error. However, in apportioning the salvage award, the district court should have considered whether the vessel owner, as the owner of the salving vessel, was entitled to part of the award that was set as reasonable salvage by the district court; if the salving vessel was put at risk in any way, then its owner was due some share of the award. The mere fact that the owner had an interest in the ship in distress could not be a basis for denying the owner a share in the award.
The court affirmed in part the entitlement of the crew members to salvage, but because the vessel owner, in its capacity as salving vessel owner, was allotted no share of the salvage award, the court vacated the district court’s judgment on the award and remanded with instructions to determine what portion of the award, if any, the vessel owner should receive.
Claims Brought By An Injured Land Based Worker Against Vessel And Land Based Crane Owner And Operator For Being Struck By A Life Raft Being Lifted Out Of The Vessel By A Crane Are Dismissed For Lack Of Subject Matter Jurisdiction Because They Did Not Involve Admiralty Jurisdiction; Summary Judgment Granted Against Injured Worker On Claim Against Vessel
RUSSELL A. SCOTT and LAUREN SCOTT, Plaintiffs-Appellants, v.TRUMP INDIANA, INC., a corporation; LOLA CRANE RENTAL COMPANY, a corporation;and MARK NICHOLS, Defendants-Appellees, and MGI AMERICA, INC., a corporation,d/b/a TOTAL MARINE SAFETY CENTER, Defendant.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
337 F.3d 939; 2003 U.S. App. LEXIS 14958
February 21, 2002, Argued
July 28, 2003, Decided
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 2001. John A. Nordberg, Judge. Scott v. MGI Am., Inc., 2001 U.S. Dist. LEXIS 2073 (N.D. Ill., Feb. 22, 2001)
Vacated in part and affirmed in part. Dismissed as to defendants Lola Crane and Nichols for lack of subject matter jurisdiction.
Plaintiff injured worker (worker) appealed the judgment of the United States District Court for the Northern District of Illinois, Eastern Division, granting defendants crane owner and crane operator summary judgment, and granting defendant vessel’s motion to dismiss in the worker’s personal injury action filed under the Jones Act, 46 U.S.C.S. § 688 et seq., and the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 905.
The employer ceased making maintenance payments to plaintiff after its medical expert examined plaintiff and concluded that he was no longer injured. However, plaintiff asserted that his treating physician had recommended arthroscopic surgery for his knee injury. With such conflicting medical opinions, it could not be concluded that plaintiff had reached the point of maximum cure and that the employer was relieved of the burden of maintenance payments. Such a determination was to be made by the finder of fact. The point of maximum cure was a medical determination, not a legal one, and all doubts were to be resolved in favor of the plaintiff. The employer ordered to resume daily maintenance payments to plaintiff at the rate of $15 per day. However, with respect to the issue of whether the employer had to pay for plaintiff’s proposed knee surgery or whether he had reached the point of maximum cure, such issues had to be decided by the jury at trial.
The employer was ordered to resume daily maintenance payments.
“Captain” Of Riverboat Casino Denied Jones Act Seaman Status Because Although The Riverboat Was Capable Of Navigating The Lake In Which It Was Docked, It Could Not Do So Legally While Operating As A Casino, As Such It Was Not A “Vessel In Navigation” At The Time Of The Captain’s Injury
LLOYD W. HERTZ, III VERSUS TREASURE CHEST CASINO, L.L.C., ETAL.
CIVIL ACTION NUMBER 03-73 SECTION “L” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2003 U.S. Dist. LEXIS 12907
July 25, 2003, Decided
July 25, 2003, Filed, Entered
Hertz v. Treasure Chest Casino, L.L.C., 2003 U.S. Dist. LEXIS 8297 (E.D. La., May 9, 2003)
Plaintiff’s motion for partial summary judgment was denied, defendant’s motion for summary judgment was granted. Plaintiff’s claims were dismissed with prejudice.
Plaintiff captain sued defendant riverboat casino for damages under the Jones Act, 46 U.S.C.S. app. § 688, due to injuries he received when he injured his back removing carpet from the deck of a vessel used as a casino. The captain moved for partial summary judgment on the issue of Jones Act seaman status. The riverboat casino moved for summary judgment that the vessel was not a vessel in navigation as a matter of law.
The captain alleged that at the time of his injury the riverboat was a vessel in navigation and he was a member of the crew, entitling him to remedies under the Jones Act and the general maritime law. The casino claimed the riverboat was not a vessel in navigation at the time of the captain’s injury, which precluded recovery under the Jones Act. The court found that the mere fact that the riverboat had the capacity to resume navigation or was required to maintain Coast Guard inspection certificates did not change the fact that the riverboat was legally prohibited from navigating the waters of Lake Pontchartrain while engaged in the very business for which it was constructed. In order to perform its designed function as a casino, the riverboat was required by law to remain dockside. It moved neither cargo nor crew across navigable waters to accomplish its mission. At the time of the captain’s injuries he was removing carpet, and while he had the title of captain of the riverboat, he was a captain in name only. His vessel had been beached and he had no “captain duties” while the riverboat was used as a casino. As such the matter was not within the court’s admiralty jurisdiction.
The captain’s motion for partial summary judgment was denied. The riverboat casino’s motion for summary judgment was granted and the captain’s claims were dismissed with prejudice.
Motion To Dismiss For Forum Non Conveniens Granted Where The Only Connection To The Subject Forum Was That The Ship Owner’s Manager Maintained Offices And A Place Of Business In The Forum And It Was Established That The Plaintiff Could Make A Recovery In The Alternative Forum Of Russia Which Would Not Be Akin To No Remedy At All
SERGEY TARASEVICH, Plaintiff, -against- EASTWIND TRANSPORTLTD., ERATIRA NAVIGATION CO. LTD., and MAYFLOWER SHIPMANAGEMENT CORP.,Defendants.
02 Civ. 1806 (JSM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2003 U.S. Dist. LEXIS 12452
July 18, 2003, Decided
July 21, 2003, Filed
Defendants’ motion to dismiss granted without prejudice.
In a personal injury action, where plaintiff Russian seaman was injured when the boiler of the vessel on which he was serving exploded, against defendants, the ship’s owner, the ship’s manager, and the owner’s manager, defendants moved to dismiss on forum non conveniens grounds, arguing that Russia would be a more appropriate forum in which to litigate the matter.
The only connection to the forum was that the owner’s manager, a Liberian corporation, maintained offices and a place of business in New York City. The court granted defendants’ motion. There were few reasons for choosing New York, aside from the possibility of a more favorable outcome. Except for the ability to sue the owner’s manager in a forum where it did business, any conveniences associated with a New York forum were absent. The seaman was seriously injured and lived far from his chosen forum. Most of the crew and the doctors that treated the seaman lived in Russia. Thus, deference to the seaman’s choice of forum fell on the lesser end of the sliding scale. Russia was an adequate alternative forum, if defendants voluntarily appeared and stayed present at all stages of proceedings–which defendants agreed to do. Though a Russian court would likely grant a lesser recovery than a U.S. court, it was not shown that a Russian remedy would be akin to no remedy at all. Because the bulk of the evidence was in Russia and defendants conceded their availability in Russian courts, the private interest factors clearly pointed to Russia as the appropriate forum.
The district court granted defendants’ motion to dismiss the case for forum non conveniens, and dismissed the case without prejudice to reinstatement were defendants to fail to submit to jurisdiction in Russia or fail to waive a statute of limitations defense.
Injured Seaman Granted A New Trial After Jury Found Seaman 90% Contributorily Negligent For Attempting To Close A Hatch Door In The Rain To Prevent A Safety Hazzard Where The Door Was Established As Being Difficult And Awkward And There Were No Hand Rails In The Immediate Area
THEODORE STOMA, Plaintiff, -against- MILLER MARINE SERVICES,INC., Defendant.
CV 01-1843 (ADS) (ARL)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2003 U.S. Dist. LEXIS 12331
July 18, 2003, Decided
Plaintiff’s motion for judgment as matter of law denied. Plaintiff’s motion for new trial granted.
Plaintiff seaman obtained a jury verdict against defendant ship owner for his claims pursuant to the Jones Act, 46 U.S.C.S. app. § 688. However, the jury determined that the seaman was 90 percent contributorily negligent in causing his own injuries. The seaman moved pursuant to Fed. R. Civ. P. 50(b) for judgment as a matter of law, or in the alternative, for a new trial on the issue of contributory negligence under Fed. R. Civ. P. 59.
The seaman’s motion under Fed. R. Civ. P. 50(b) was barred because he failed to move for judgment as a matter of law at the close of the evidence. However, the district court determined that that the jury’s finding that the seaman was 90 percent contributorily negligent was clearly against the weight of the evidence. The seaman’s injury occurred while he attempted to close a hatch door to prevent rain from collecting inside. Based on the angle of the hatch door, rain would get inside and fall on the steps if the hatch was open, causing a safety hazard. There were no handrails in the area of the hatchway. This was an awkward and difficult hatch door to handle and use. A person entering from the aft deck had to hold onto the dog latches or the edge of the door, swing the door open behind the person, and hold it open when descending the steps which were distanced from the edge of the hatch door. Not only was the door cumbersome to use, but in the rain, when the aluminum steps were wet and slippery, it created a hazardous entranceway. The seaman stated that he did not clean the water before closing the hatch because it would continue to get wet due to the rain in the open hatch door.
The district court denied the seaman’s motion for judgment as a matter of law and granted the seaman’s motion for a new trial on the issue of the apportionment of liability between the parties. As an alternative to a new trial, the district court allowed the parties to consent to a reapportionment that would have reduced the seaman’s contributory negligence apportionment to 50 percent.