LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. SUCCESSFULLY DEFENDED AGAINST A MOTION TO DISMISS FOR FORUM NON CONVENIENS, BASED ON THE WRONGFUL DEATH OF A COSTA RICAN LONGSHOREMEN WHILE LOADING A VESSEL IN COSTA RICA.
Sylvia Nelson Johnson, as personal representative of the estate of decedent, Edwin Cook v. Del Monte Fresh Produce et. al, Defendants.
Case No. 09-22425-Civ-Ungaro
Entered on July 29, 2010
Mother of deceased Costa Rican Longshoremen who died in an elevator accident in Costa Rica, brought suit as personal representative against four defendants. The four defendants were the shipowner and operator and the time charterer. All four defendants moved to dismiss for forum non conveniens, and the foreign shipowner and operator also moved to dismiss for lack of personal jurisdiction.
Decedent Edwin Cook was a Costa Rican Longshoremen working in Port Limon in Costa Rica. Cook died from injuries suffered while loading cargo on the M/V Luzon Strait. Plaintiff alleged four defendants owned, operated, controlled and/or managed the vessel and are liable for Cook’s death. Plaintiff filed suit as a Sieracki Seamen seeking damages under the Jones Act, unseaworthiness and the Death on the High Seas Act. All four defendants moved to dismiss for forum non conveniens, and the shipowner and operator also moved to dismiss for lack of personal jurisdiction. Defendant Shipowner Luzon Strait is a German based company. Defendant ship operator Seatrade is a Netherlands Antillean Company. At the time of Cook’s death, the vessel was under a time charter to Defendant Network Shipping, a Florida Corporation within the Del Monte family of corporations. Defendant Del Monte Fresh is a Florida based Corporation also within the Del Monte family of corporations, which provides administrative services. Pursuant to the time charter, the vessel goes back and forth between Camden, New Jersey and ports in Central America, roughly every two weeks, on a continuous basis for at least the last three years. The District Court granted Defendants’ Luzon Strait and Seatrade’s Motion to Dismiss for lack of personal jurisdiction and found that the fact that the vessel called at a US port twice per month for the last three years was not sufficient minimum contacts because the foreign defendants did not choose and/or control which ports of calls the chartered vessel visited. As to Defendants Del Monte and Network Shipping’s Motion to Dismiss for forum non conveniens, the district court denied the motion because, inter alia, Defendants failed to show that Costa Rica was an adequate alternative forum.
The district court granted Defendants Luzon Strait and Seatrade’s Motion to Dismiss for lack of personal jurisdiction, and denied Defendants Network Shipping and Del Monte Motion to Dismiss for forum non conveniens.
THE UNITED STATES WAS PROPERLY DISMISSED AS A DEFENDANT UNDER THE DISCRETIONARY FUNCTION EXCEPTION TO THE FEDERAL TORT CLAIMS ACT, 28 U.S.C.S. § 1346 ET SEQ., FROM A VESSEL OWNER’S CLAIMS THAT THE U.S. PUBLISHED INCORRECT CHARTS AND FAILED TO ENFORCE PERMIT REQUIREMENTS FOR A SUBMARINE LAUNCHWAY BECAUSE BOTH OF THOSE FUNCTIONS WERE DISCRETIONARY.
OSPREY SHIP MANAGEMENT INC; CORMORANT SHIPHOLDING CORP., Plaintiffs – Appellants – Cross-Appellees v. DON FOSTER; PASCAGOULA BAR PILOTS ASSOCIATION, Defendants – Appellees – Cross-Appellants v. UNITED STATES OF AMERICA, Defendant – Appellee v. NORTHROP GRUMMAN SHIP SYSTEMS INC, Defendant – Appellee – Cross-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2010 U.S. App. LEXIS 13540
July 1, 2010, Filed
In a case arising from an allision between a commercial vessel and a submerged submarine launchway in the Pascagoula River in Mississippi, the United States District Court for the Southern District of Mississippi found defendant compulsory pilot of the vessel 50% liable and the vessel’s master 50% liable, and denied all other claims. The compulsory pilot and plaintiff vessel owner, who was responsible for the vessel’s master, appealed.
The United States was properly dismissed as a defendant under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.S. § 1346 et seq., from the vessel owner’s claims that the U.S. published incorrect charts and failed to enforce permit requirements for the submarine launchway. The final decision as to what kinds of nautical information to include on a chart was firmly within the discretionary function exception. The monitoring of compliance with launchway permits was also discretionary. The district court did not err in dismissing defendant pilots’ association on the basis that pilots’ associations were exempt from liability for negligence of their members in performing their duties as pilots. It was not clearly erroneous for the district court to find that the pilot was negligent to bring the vessel out of the improved channel and so close to a buoy which marked the launchway and the vessel master was 50% liable because he relied solely on the pilot, failed to familiarize himself with the conditions of the river, failed to consult any of the charts or instruments on board, and failed to fix the position of the vessel as it moved up the river.
The pilot’s appeal of the adverse summary judgment ruling against him was dismissed, and the judgment was affirmed in all other respects.