IN MAINTENANCE AND CURE SUIT, SHIPOWNERS’ LIABILITY CONVENTION OF 1936 DID NOT PROHIBIT DISTRICT COURT FROM ENFORCING CLAUSE DESIGNATING HONDURAS AS FORUM FOR DISPUTES BETWEEN SEAMAN AND EMPLOYER, BUT DISTRICT COURT HAD TO CONSIDER WHETHER ENFORCEMENT OF CLAUSE WOULD DENY SEAMAN HIS DAY IN COURT, DEPRIVE HIM OF REMEDY, OR CONTRAVENE PUBLIC POLICY.
DILBERT IVAN CALIX-CHACON, Plaintiff-Appellee, v. GLOBAL INTERNATIONAL MARINE, INC., Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 17239
July 19, 2007, Filed
PROCEDURAL POSTURE:
Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which denied the employer’s motion to dismiss appellee seaman’s maintenance and cure suit. On public policy grounds, the district court refused to enforce a forum selection clause designating Honduras as the place for the settlement of any disputes between the parties.
OVERVIEW:
The seaman, a Honduras native, became ill while working on the employer’s vessel. The seaman underwent heart transplant surgery and sought maintenance and cure. The district court held that the forum selection clause was unenforceable under general maritime law and under the Shipowners’ Liability Convention of 1936. The seaman was then awarded maintenance and cure after a trial. On appeal, the court held that the Convention, which merely codified general maritime law in the U.S., did not prohibit a federal district court from refusing to entertain maintenance and cure claims brought by foreign seamen in a United States court, particularly where the seaman’s contract contained a clause designating a different forum. Instead, the district court needed to consider factors such as whether the selection clause was the product of fraud or overreaching; whether the seaman would for all practical purposes be deprived of his day in court because of the grave inconvenience or unfairness of the selected forum; whether fundamental unfairness of the chosen law would deprive the seaman of a remedy; and whether enforcement of the clause would contravene a strong public policy of the forum state.
OUTCOME:
The court reversed the district court’s judgment and remanded the case for the district court to consider whether the forum selection clause was enforceable under the factors outlined. In making its determination, the district court was to consider, among other things, the available medical care in Honduras and whether a remedy was available to the seaman under Honduran law.
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ALTHOUGH APPELLEE AGREED THAT, AS ROUSTABOUT, GENERAL DUTIES INCLUDED LIFTING, AND APPELLANT PRESENTED CONFLICTING EVIDENCE ON ISSUES OF WEIGHT AND CONFIGURATION OF LOAD AND REASONABLENESS AND SCOPE OF SUPERVISOR’S INSTRUCTION TO LIFT IT, APPELLEE PRESENTED EVIDENCE TO SUPPORT FINDING THAT APPELLANT FAILED TO PROVIDE REASONABLY SAFE PLACE TO WORK.
NOBLE DRILLING (US) INC., NOBLE DRILLING (PAUL ROMANO) INC., SHELL OFFSHORE, INC., AND SHELL DEEPWATER DEVELOPMENT, INC., Appellants v. KELLY FOUNTAIN, Appellee
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2007 Tex. App. LEXIS 5455
July 12, 2007, Opinion Issued
PROCEDURAL POSTURE:
Appellants challenged a judgment of the 151st District Court. Harris County, Texas, rendered after a jury verdict, awarding appellee $1,345,900 in appellee’s suit against appellants for negligence under the Jones Act and general maritime law.
OVERVIEW:
Appellants contended that there was no evidence or factually insufficient evidence of Jones Act negligence giving rise to one appellant’s alleged liability in connection with injuries suffered by appellee while performing a routine task and of general maritime negligence as to the second appellant’s conduct in regard to injuries sustained by appellee. As to the Jones Act claim, there was legally sufficient evidence to support the jury’s finding of negligence against the first appellant. Even though appellee agreed that, as a roustabout, his general duties included lifting, and appellants presented conflicting evidence on the controlling issues of the weight and configuration of the load and the reasonableness and scope of a supervisor’s instruction to lift it, appellee presented some evidence to support the jury’s finding under the Jones Act that appellant failed to provide him a reasonably safe place to work. As to general maritime negligence, the evidence at most would have permitted a finding that the second appellant was aware of a policy violation, not that it breached any duty that it owed to appellee or that any breach of a duty caused appellee’s injuries.
OUTCOME:
The instant court affirmed the judgment rendered against the first appellant, reversed the judgment rendered against the second appellant, and rendered judgment that appellee take nothing on its claim against the second appellant. The instant court remanded the case to the trial court for the entry of a new judgment.
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BECAUSE THE SURVIVING SPOUSES’ DOHSA CLAIMS WERE MARITIME CLAIMS, POST JUDGMENT INTEREST ON THEIR JUDGMENTS WAS TO BE CALCULATED PURSUANT TO FEDERAL LAW UNDER 28 U.S.C.S. § 1961; THEREFORE, THE TRIAL COURT PROPERLY APPLIED THE FEDERAL POST JUDGMENT INTEREST RATE INSTEAD OF THE STATE POST JUDGMENT INTEREST RATE.
DONNA CURCURU 1 vs. ROSE’S OIL SERVICE, INC. (and three companion cases 2 ).
APPEALS COURT OF MASSACHUSETTS
69 Mass. App. Ct. 510; 868 N.E.2d 1266; 2007 Mass. App. LEXIS 759
July 3, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff surviving spouses appealed judgments after rescript by the Suffolk Superior Court Department (Massachusetts) that applied the federal postjudgment interest rate of 2.07% instead of the Massachusetts postjudgment interest rate of 8.14% to judgments obtained under the Death on the High Seas Act (DOHSA), 46 U.S.C.S. § 761 et seq.
OVERVIEW:
After a fishing vessel sunk during bad weather on the high seas, the surviving spouses of the lost crew members sued defendant company for wrongful death pursuant to the DOHSA “savings” clause in 46 U.S.C.S. § 767. They claimed that the company negligently performed repairs on the vessel, which conduct was said to be a substantial cause of the accident. Ultimately, after extensive litigation, appeal, and a remand, judgments after rescript were entered in favor of the surviving spouses. The appellate court found that the surviving spouses’ DOHSA claims were maritime claims. Because the Supreme Judicial Court articulated a need for consistency with federal law in maritime cases where interest awards were at issue, postjudgment interest on the surviving spouses’ DOHSA judgments was properly calculated pursuant to federal law under 28 U.S.C.S. § 1961.
OUTCOME:
The judgments after rescript were affirmed.
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BECAUSE THE SEAMAN CHOSE TO MAKE A DELIVERY ALONE AT NIGHT, THEN KEPT WATCH OVERNIGHT AFTER RUNNING INTO A SAND BAR, AND NOTHING SHOWED THE EMPLOYER REQUESTED OR KNEW OF THE NIGHT RUN OR THE SAND BAR INCIDENT, THERE WAS NO VIOLATION OF 46 U.S.C.S. § 8104(B) AND THE SEAMAN’S JONES ACT CLAIM UNDER 46 U.S.C.S. § 30104(A) FAILED ON SUMMARY JUDGMENT.
JOHN E PARK, Plaintiff-Appellant, versus STOCKSTILL BOAT RENTALS INC, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16927
July 16, 2007, Filed
PROCEDURAL POSTURE:
Plaintiff seaman appealed the United States District Court For the Western District of Louisiana’s grant of summary judgment in favor of defendant employer on the seaman’s action under 46 U.S.C.S. § 30104(a) of the Jones Act and general maritime law to recover for injuries suffered while working aboard the employer’s vessel. The seaman argued violations of 46 U.S.C.S. §§ 3313(a), 8101(d), 8104(b), and that the vessel was unseaworthy.
OVERVIEW:
There was no evidence the employer “required” the seaman to work more than 12 hours in violation of 46 U.S.C.S. § 8104(b). The seaman chose to make a delivery, alone and in the dark, then kept watch overnight after running into a sand bar. Nothing indicated the employer even requested the delivery be made at night or that it knew of the night run or the sand bar incident. There was no evidence the employer knew of a violation of the Certificate of Inspection’s manning requirements for purposes of 46 U.S.C.S. § 8101(d), (e). The Certificate was not violated, two days before the seaman’s fall, by transiting on the Intercoastal Waterway and a river, because the vessel was operating a “route of less severity” under 46 C.F.R. § 176.110(b) than specified in the Certificate. The seaman testified to only two reasons for his fall: fatigue due to the overnight watch, and faded, old deck paint on the deck. Thus, any violation of the 30-minute run limit in the Certificate had not caused the fall. As to the vessel being unseaworthy, there was no evidence the vessel was not reasonably suited its intended purpose, or that the deck paint was unsafe or not reasonably suited for the deck’s purpose.
OUTCOME:
The grant of summary judgment was affirmed.
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DISTRICT COURT ERRED IN FINDING THAT PLAINTIFF’S CONTAINER SHIP WAS THE SOLE CAUSE OF THE COLLISION IN THE ENGLISH CHANNEL; ALL THREE VESSELS COMMITTED VIOLATIONS OF THE CONVENTION ON THE INT’L REG. FOR PREVENTING COLLISION AT SEA, OCT. 20, 1972, 28 U.S.T. 3459, T.I.A.S. NO. 8587, CODIFIED AT 33 U.S.C.S. § 1602 ET SEQ., THAT CAUSED THE COLLISION.
OTAL INVESTMENTS LIMITED, as Owner of the M/V Kariba, for Exoneration from or Limitation of Liability, Plaintiff-Third-Party-Plaintiff-Appellant, UNITED SERVICES AUTOMOBILE ASSOCIATION, ASI AUTO SHIPMENT GmbH, TED L. RAUSCH CO., CHARLES BROOMFIELD, MORGAN MOON, PATRICIA YORK, AUGUSTA ASSICURAZIONI S.p.A., CHN ITALIA S.p.A., CNH TRADE N.V., NEW HOLLAND NORTH, INC., FEDEX TRADE NETWORKS TRANSPORT AND BROKERAGE, INC., O & K ORENSTEIN & KOPPEL A.G., CASE CORPORATION AND TOWER GROUP INTERNATIONAL, ZURICH INSURANCE CO., ALPINA INSURANCE CO., GERLING INSURANCE CO., as subrogee and/or assignee of Schempp-Hirth Flugzeug-Vertriebs-GmbH, DAVID GREEN HILL, LIEBHERR-WERK NENZIG GmbH, LIEBHERR-MISCHTEKNIK, LCT LIEBHERR CONCRETE TECHNOLOGIE, LIEBHERR AMERICA, INC., E.H. HARMS GmbH & CO., BMW OF NORTH AMERICA LLC, Claimants-Appellants, -v.- M/V CLARY, MINERAL SHIPPING CO. PRIVATE LTD., MST MINERALIEN SCHIFFAHRT SPEDITION UND TRANSPORT, CLARY SHIPPING PTE LTD., WALLENIUS WILHEMSEN LINES AS, WILH. WILHEMSEN ASA, ACTINOR CAR CARRIER I AS CAPITAL BANK PUBLIC LIMITED COMPANY, Third-Party-Defendants-Appellees, M/V TRICOLOR, Consolidated Defendant, N.V. FORTIS CORPORATE INSURANCE, Claimants.
Docket Nos. 06-0591-cv(L), 06-0675-cv(con), 06-0789-cv(con), 06-0790-cv(con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 16021
July 6, 2007, Decided
PROCEDURAL POSTURE:
In the early morning hours of December 14, 2002, off the coast of Dunkerque, France, plaintiff’s container ship collided with a Norwegian carrier (third-party defendant one) after avoiding a collision with a Singaporean carrier (third-party defendant two). Plaintiff sued for exoneration from liability. The U.S. District Court for the Southern District of New York found plaintiff’s ship solely liable for the collision. Plaintiff appealed.
OVERVIEW:
The relevant navigational duties were contained in the Convention on the Int’l Reg. for Preventing Collisions at Sea (COLREGS), Oct. 20, 1972, 28 U.S.T. 3459, T.I.A.S. No. 8587, codified at 33 U.S.C.S. § 1602 et seq. The district court correctly held that violations of the COLREGS by plaintiff’s ship were a cause of the collision. The district court erred, however, in determining that the COLREGS violations by the third-party defendants did not cause the collision. The appellate court concluded that all three vessels committed violations of the COLREGS that caused the collision. The appellate court found, inter alia, that if third-party defendant one had not chosen to overtake in an unsafe place and in an unsafe manner, the collision would not have occurred; plaintiff’s ship would have passed across the third-party defendant one’s bow. Thus, the decision by third-party defendant one to overtake and the manner of overtaking was a factual cause of the collision. As for third-party defendant two, if it had not understaffed its bridge and failed promptly to take avoiding action, the collision would not have occurred.
OUTCOME:
The appellate court reversed the district court’s judgment and remanded for further proceedings. On remand, the district court would have to consider the relative culpability of each vessel and the relative extent to which the culpability of each caused the collision.
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MARINE TRANSPORTATION COMPANY WAS PROPERLY GRANTED SUMMARY JUDGMENT IN AN ACTION FOR INJURIES UNDER JONES ACT AND LHWCA BECAUSE CLAIMANT WAS NOT A JONES ACT SEAMAN AND WAS INDEPENDENT CONTRACTOR FOR “ONE-SHOT” JOB AT TIME OF INJURY. COMPANY WAS NOT LIABLE FOR VESSEL NEGLIGENCE UNDER 33 U.S.C.S. § 905 FOR NOT PROVIDING A FULLY ENGLISH-SPEAKING CREW.
ARTHUR J PRESTENBACH, Plaintiff-Appellant v. GLOBAL INTERNATIONAL MARINE INC, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16649
July 12, 2007, Filed
PROCEDURAL POSTURE:
Plaintiff claimant appealed a decision of the United States District Court for the Eastern District of Louisiana, which granted summary judgment to defendant, a marine transportation company, in the claimant’s action seeking compensation for injuries under the Jones Act for negligence and vessel owner negligence and for employee benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq.
OVERVIEW:
The claimant was hired as a contractor to raise a sunken barge for the company as a “one-shot” job. The claimant alleged that the company’s failure to provide him with a fully English-speaking crew was negligence and caused his injury pursuant to 33 U.S.C.S. § 905(b). On review, the court upheld the grant of summary judgment because the claimant was clearly not a Jones Act seaman at the time of his injury and he was not an employee entitled to compensation benefits under the LHWCA. The court agreed that the claimant was an independent contractor and not an employee under the LHWCA in that he billed the company for his work using an invoice and classified himself as a consultant, crane operator, and welder. Further, the barge-raising project was not part of the regular work of the company. The company was also not liable for vessel negligence under § 905(b) because of an allegedly inadequate crew. The company did not breach any of its duties owed to the claimant as an independent contractor in that there were no unseaworthy or negligent conditions on the barge, the tug, the pump, or the sunken barge that contributed to or caused the claimant’s injury.
OUTCOME:
The court affirmed the district court’s grant of summary judgment.
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THE WORKERS’ COMPENSATION REVIEW BOARD ERRED BY AFFIRMING THE DISMISSAL OF A HARBOR WORKER’S CLAIM FOR BENEFITS UNDER THE WORKERS’ COMPENSATION ACT, CONN. GEN. STAT. § 31-275 ET SEQ., AS THE STATE HAD CONCURRENT JURISDICTION WITH THE FEDERAL GOVERNMENT UNDER THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT.
MICHAEL COPPOLA v. LOGISTEC CONNECTICUT, INC., ET AL.
SUPREME COURT OF CONNECTICUT
283 Conn. 1; 2007 Conn. LEXIS 265
July 3, 2007, Officially Released
PROCEDURAL POSTURE:
Plaintiff claimant appealed from the decision of the compensation review board (Connecticut), which affirmed the decision of appellee, the workers’ compensation commissioner for the third district, that dismissed plaintiff’s claim for benefits under the Workers’ Compensation Act (the state act), Conn. Gen. Stat. § 31-275 et seq., which arose from an injury while working for defendant employer.
OVERVIEW:
Plaintiff was in the business of unloading ships in a harbor and was injured while descending a ship’s hold after a step broke beneath him. Plaintiff filed a claim under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 901 et seq., and was awarded compensation. Plaintiff subsequently filed his claim under the state act, which the commissioner dismissed for lack of jurisdiction. On appeal, plaintiff claimed that the board improperly concluded that the commissioner lacked jurisdiction over his claim because the injury occurred on the navigable waters of the United States and, therefore, the federal government had exclusive jurisdiction over the claim under U.S. Const. art. III, § 2 and the longshore act. The court agreed with plaintiff and held that the state has concurrent jurisdiction with the federal government over claims involving injuries incurred on navigable waters when the employer and the employee are locally based, the employment contract is performed within the state and partly on land, the injury took place on the state’s territorial waters and the employer was required under the state act to secure compensation for any land based injuries.
OUTCOME:
The court concluded that plaintiff’s claim was governed by federal case law and fell squarely within the twilight zone doctrine as adopted by the United States Supreme Court in those cases. As such, the court held that the board improperly determined that the claim was not within the jurisdiction of the commissioner. The court reversed the judgment and remanded the case to the board with direction to sustain plaintiff’s appeal.
