DESPITE GENERAL RULE THAT REMAND ORDERS ARE NOT REVIEWABLE, ELEVENTH CIRCUIT COURT OF APPEALS REVIEWS REMAND ORDER BASED ON EXCEPTION TO THE REMOVAL STATUTE 28 USC 1447(d).

St. Hugh WILLIAMS, Plaintiff–Appellee, v. NCL (BAHAMAS) LTD., d.b.a. NCL, Defendant–Appellant.

United States Court of Appeals, Eleventh Circuit., No. 11–12150

July 9, 2012

PROCEDURAL POSTURE:

Defendant ship owner appealed order remanding Jones Act claim case to Florida State Court.

OVERVIEW:

Seaman brought action in state court against his ship owner, alleging that he injured his left shoulder when he slipped on a wet and slippery steel step on a tender boat while carrying a box, and asserting claims for negligence under the Jones Act, unseaworthiness, failure to provide maintenance and cure, and failure to treat or provide adequate medical care. Following removal, the United States District Court for the Southern District of Florida, granted in part seaman’s motion to remand, and denied ship owner’s motion to dismiss and compel arbitration. Ship owner appealed.  Despite general rule that remand order are not reviewable, the Court reviewed the denial of the motion of NCL to compel arbitration under an exception to section 1447(d). In City of Waco v. U.S. Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934), the Supreme Court held that an appellate court may review a decision of the district court that “in logic and in fact … preceded that of remand” and that, “if not reversed or set aside, is conclusive upon” the appellant. Waco “allows [an appellate court] to review district court orders that lead to, but are separate from, orders of remand and have a conclusive effect upon the ensuing state court action.” Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279, 1286 (11th Cir.1999).

OUTCOME:

The Court of Appeals reversed, vacated, and remanded and held that it had jurisdiction to review district court’s order, and ship owner was entitled to compel seaman to arbitrate.

————————————–//—————————————-
 

SECOND CIRCUIT COURT OF APPEALS HOLD THAT SEAFARER WAS ENTITLED TO MAINTENANCE AND CURE FOR LYMPHOMA THAT WAS NOT KNOWN TO THE SHIPOWNER OR THE SEAFARER DURING THE PERIOD OF EMPLOYMENT.

Richard MESSIER, Plaintiff–Appellant, v. BOUCHARD TRANSPORTATION, Defendant–Appellee.

United States Court of Appeals, Second Circuit. Docket No. 10–5181–cv.

July 20, 2012.

PROCEDURAL POSTURE:

Seaman who suffered from B-cell lymphoma, a form of cancer, filed suit for maintenance and cure pursuant to general maritime law against owner of vessel on which he had served. The United States District Court for the Southern District of New York, granted summary judgment for defendant. Plaintiff appealed.

OVERVIEW:

Plaintiff–Appellant, a seaman, contracted lymphoma and sued his former employer, a tugboat operator, seeking inter alia maintenance and cure. Undisputed evidence establishes that the seaman had lymphoma during his maritime service. But it was also undisputed the disease did not present any symptoms at all until after his service. After concluding the disease did not “manifest” itself during the seaman’s service, the district court granted summary judgment for the tugboat operator.  Because the seaman’s illness indisputably occurred during his service, Appellate Court found that the seafarer is entitled to maintenance and cure regardless of when he began to show symptoms.

OUTCOME:

The Court reversed the district court’s grant of summary judgment for the tugboat operator and remanded the case with instructions to enter partial summary judgment for the seaman. The Court of Appeals held that seaman could obtain maintenance and cure for lymphoma that was not known to employer or employee during period of employment.