State Dram Shop Law Did Not Apply In Admiralty
LAWRENCE W. HALL, Appellant, vs. ROYAL CARIBBEAN CRUISES, LTD., Appellee.
CASE NO. 3D03-2132
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2004 Fla. App. LEXIS 10820; 2004 AMC 1913; 29 Fla. L. WeeklyD 1672
July 21, 2004, Opinion Filed
This is an appeal from an order dismissing an amended complaint which alleged that the plaintiff, a paying passenger on the defendant’s cruise ship was injured on the high seas when, after having been served alcohol by the vessel’s employees to and obviously past the point of intoxication, he staggered from a lounge, and while unable to look after himself fell down two flights of open stairways.
The order under review is erroneous and must be reversed because the complaint clearly stated a cause of action for breach of the defendant’s duty to exercise reasonable care for the safety of its passengers, as is established by the general maritime law applicable here.
Attorneys Fees Awarded On Maintenance Claim Where No Payment Made For Over One Year
GENEVA MCCARTHY, Plaintiff, v. The F/T SEAFREEZE ALASKA, et al., Defendants.
Case No. C03-1189L
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2004 U.S. Dist. LEXIS 20375; 2004 AMC 2107
August 9, 2004, Decided
Plaintiff seaman sought partial summary judgment in connection with her claim for maintenance from defendant corporations. The corporations sought to strike a declaration of the seaman’s attorney. The seaman requested $2,500 in attorneys fees for filing the motion.
On July 5, 2000, the seaman was injured on board a ship. On September 19, 2001, an orthopedic surgeon diagnosed her with a herniated nucleus pulposus with chronic neck, right shoulder, and arm pain. The seaman’s treating physician opined that her cervical disk herniation was related to the seaman’s injury. Between September 19, 2001, and April 30, 2003, the corporations paid for the costs for the seaman’s treatment, but the seaman’s requests for maintenance were denied. The corporations asserted that the seaman injured her back in an earlier car crash. A second surgeon concluded that it was not possible to state that her symptoms were attributable to the on-board injury. The court held that there was no fact issue that precluded a declaration of liability for maintenance. The second surgeon’s failure to make a statement as to causation did not create a factual dispute. If the corporations truly believed that the seaman’s symptoms after September 19, 2001, were not their responsibility, they presumably would have refused to pay cure. The seaman was entitled to attorney’s fees because they ignored the seaman’s request for maintenance for over a year without explanation.
The court denied the corporations’ motion to strike, granted the seaman’s motion for maintenance, and granted in part the seaman’s motion for attorney’s fees. The court excluded $500 in fees for which there was no evidence in support.
Medicare Eligibility Did Not Terminate Employers Maintenance And Cure Obligation
PETITION OF RJF INTERNATIONAL CORPORATION FOR EXONERATION FROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME
C.A. No. 01-588S
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
332 F. Supp. 2d 458; 2004 U.S. Dist. LEXIS 16146
August 10, 2004, Decided
Claimant was a young seaman who was injured on August 11, 2001 while working on petitioner vessel owner’s vessel when it was docked in Newport, Rhode Island. Before the court was the vessel owner’s motion to terminate maintenance and cure benefits. Intervenor-plaintiff was the United States.
The question presented was whether Medicare supplanted maintenance and cure as the payor of first resort when a seaman became Medicare eligible. The vessel owner contended that it no longer was obligated to provide the seaman with “cure” due to his entitlement to Medicare benefits. It attempted to bring Medicare under the umbrella of the general rule that, under the doctrine of maintenance and cure, a shipowner will not be required to pay for medical care that is furnished at no expense to the injured seaman. The dispute focused upon the period of time between the expiration of Medicare’s 25 month waiting period (the point at which a seaman became eligible for Medicare), and the seaman’s subsequent attainment of maximum medical recovery. This period of time would vary on a case-by-case basis, the court stated. The court concluded that, under the Medicare Secondary Payer (MSP) provisions and regulations promulgated thereunder, Medicare was barred from providing payments to eligible beneficiaries when a primary plan was obligated to cover the same medical expenses–in other words, Medicare had to be the secondary payor in those circumstances.
The vessel owner’s motion to terminate the seaman’s maintenance and cure benefits because of his eligibility for Medicare was denied.
Summary Judgement Against Seaman Who Could Not Prove His Exposure To Chemicals Caused Cancer By Reliable Expert Opinion Was Affirmed
PATRICIA A. WILLS, individually and as personalrepresentative of the Estate of RICKY LEE WILLS, deceased, on behalf of RickyLee Wills and those persons similarly situated, Plaintiff-Appellant, v. AMERADAHESS CORP., SPENTONBUSH/RED STAR COMPANIES, INC., SHERIDAN TRANSPORTATION CORP.and HYGRADE OPERATORS INC., Defendants-Appellees.
Docket No. 02-7913
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
379 F.3d 32; 2004 U.S. App. LEXIS 16510; 64 Fed. R. Evid.Serv. (Callaghan) 1153; 2004 AMC 2082
August 7, 2003, Argued
August 11, 2004, Decided
Appellant spouse of a deceased seaman sued appellee vessel owners and operators under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime law, alleging that the seaman’s death from cancer was caused by exposure to hazardous chemicals while working aboard appellees’ vessels. The spouse appealed the order of the United States District Court for the Southern District of New York which granted summary judgment to appellees.
Appellees’ vessels transported petroleum-based fuels, but appellees asserted that, despite the unreliable conclusions of the spouse’s expert, there was no evidence that any fumes on the vessels could or did cause the seaman’s cancer. The spouse argued that appellees’ failure to comply with their duty to protect the seaman from exposure to toxins shifted the burden to appellees to show that such exposure could not cause the cancer. The spouse also argued that her expert established that such exposure was the likely cause of the seaman’s cancer and, in any event, the seaman was entitled to maintenance and cure. The appellate court held, however, that the spouse’s failure to establish causation precluded her claims. The rule shifting the causation burden did not apply since it could not be said with confidence that the seaman’s cancer resulted from appellees’ actions. Further, expert testimony was required to establish causation and, even with the relaxed burden of proof under the Jones Act, the theory of causation of the spouse’s expert was admittedly controversial, was contrary to generally accepted theory, and was not grounded in reliable scientific methods.
The order granting summary judgment to appellees was affirmed.
Discovery Of Prior Sexual Assaults Approved
“JANE DOE,” by and through her parents, Individually v. ROYAL CARIBBEAN CRUISES, LED, and PETER WALL
CIVIL ACTION NO. 02-2393
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2004 U.S. Dist. LEXIS 19166
September 14, 2004, Decided
September 14, 2004, Filed; September 15, 2004, Entered
Plaintiffs, a minor child and her parents, filed suit against defendants, a cruise ship company and one of its employees, alleging that the child was sexually molested by the employee. Plaintiffs subsequently filed a motion to compel the depositions of a corporate representative and certain employees. The company filed a cross-motion for a protective order.
The company objected to many of the areas upon which plaintiffs sought to question the corporate representative. The company also objected to the production for deposition of the captains of the vessel on which the alleged incident took place. The court held that plaintiffs could question the representative as to: (1) any meetings or publications in which sexual assaults of any sort, perpetrated by a crew member upon a passenger, were discussed; (2) any and all sexual assaults perpetrated by a crew member against a passenger during the past 10 years; and (3) any lawsuit involving sexual assaults of any sort, perpetrated by a crew member upon a passenger. However, the court held that plaintiffs could not question the corporate representative as to information regarding successor liability, claims handling policies, employee grievance policies, and insurance coverage and exclusions because those areas of inquiry did not appear to be relevant to any issue in the case. The court further held that plaintiffs could depose the captains because they might have information concerning the company’s history of failing to deal adequately with sexual assaults by crew members.
The court ordered that plaintiffs could not question the company’s corporate representative with respect to four areas of inquiry but could question the representative on all other areas of inquiry, with certain modifications. The court also ordered that plaintiffs could depose the captains of the vessel on which plaintiffs cruised at the time of the alleged incident.
Passenger Case Against Cruise Line Dismissed Under Forum Selection Clause In The Passenger Ticket
LINDA REYNOLDS-NAUGHTON, Plaintiff, Appellant, v. NORWEGIANCRUISE LINE LIMITED, d/b/a/ NORWEGIAN CRUISE LINE, Defendant, Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
386 F.3d 1; 2004 U.S. App. LEXIS 19372; 2004 AMC 2370
September 14, 2004, Decided
Plaintiff passenger filed a negligence claim in admiralty against defendant cruise ship owner in the United States District Court for the District of Massachusetts. The owner filed suit in the Southern District of Florida, and filed a motion to dismiss the Massachusetts case pursuant to a forum selection clause in the parties’ contract. The Massachusetts court granted the motion to dismiss; the passenger appealed.
After a door closed on her hand, the passenger lost part of a middle finger. Her passenger -ticket contract contained a forum selection clause which she claimed was invalid under the Limitation of Vessel Owner’s Liability Act, former 46 U.S.C.S. app. § 183(c). The appellate court noted that U.S. Supreme Court had read the Act as allowing forum selection clauses that limited a passenger’s choice of venue, so long as a court of competent jurisdiction remained available to the passenger. Examining the legislative history of the Act, the appellate court held that later amendments to it had not legislatively overruled the Supreme Court’s reading of the Act.
The judgment was affirmed.
Ship Owners Motion For Summary Judgment Denied Where Piece Of Frozen Meat Fell On To Crew Members Foot
KENNETH LONG, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Action No: 2:04cv82
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFVIRGINIA, NORFOLK DIVISION
339 F. Supp. 2d 729; 2004 U.S. Dist. LEXIS 20881
October 6, 2004, Decided
Plaintiff former steward was injured while working in the walk-in freezer of a vessel and filed an action against defendant United States, alleging claims under the Jones Act, 46 U.S.C.S. § 688, and a claim that the vessel operated by the United States was unseaworthy. The United States filed a motion for summary judgment.
The steward was injured when he was in a walk-in freezer and a piece of frozen meat fell and landed on the steward’s foot. The steward claimed that the United States, as the owner of the vessel, was negligent under the Jones Act, 46 U.S.C.S. § 688, because the meat in the vessel was improperly stored, secured, and inspected. The steward alleged a claim that the vessel was unseaworthy for the same reasons. The court denied the United States’ motion for summary judgment. The court held that there was a genuine factual controversy relating to the Jones Act claim so that summary judgment was not appropriate. The parties disputed who was responsible for the negligence that caused the steward’s injury, particularly when the steward had been charged with securing items in the freezer. The court noted that the same factual disputes made summary judgment on the claim of unseaworthiness inappropriate. The steward provided evidence that other ships used for long voyages had larger freezers. The court rejected the United States’ assertion that the primary duty rule acted as a complete bar to the steward’s claims.
The court denied the United States’ motion for summary judgment.
Shipping Company Did Not Have To Treat Multiple Sclerosis After It Was Stabilized
MELODEE WHITMAN, Plaintiff, Appellant, v. RICK MILES, Defendant, Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
387 F.3d 68; 2004 U.S. App. LEXIS 22624
October 28, 2004, Decided
Appellant seaman challenged a decision from the United States District Court for the District of Maine, which entered judgment in favor of appellee employer in a claim for maintenance and cure.
The seaman was taken to the hospital after falling, suffering a burn, and experiencing other symptoms. Following testing, the seaman was diagnosed with relapsing-remitting multiple sclerosis (MS). Thereafter, she sought maintenance and cure payments. After summary judgment was granted in favor of the employer, the seaman sought review. In affirming, the court determined that the employer was only required to pay maintenance and cure until the condition had stabilized and further progress had ended. The court rejected the argument that the condition could have been improved through treatment. Although the symptoms could have been alleviated, there was no cure for MS. Further, there was no need for any physician to use the word “permanent” in the diagnosis. The seaman’s asymptomatic status did not mean that her overall condition had improved; therefore, the district court did not err by setting the date of maximum improvement shortly after the diagnosis. In addition, the seaman was unable to recover maintenance and cure for her depression. She was unable to show that it started while in the service of a ship or that it was a symptom of MS. Finally, attorney’s fees were not awarded.
The decision was affirmed.
Summary Judgment For Shipping Company Reversed Where Vessel Captain Allowed Intoxicated Seaman On Board Which Caused Injury To Seaman Trying To Break Up A Fight
ROBERT HASTY, Plaintiff-Appellant, versus TRANS ATLAS BOATSINC; GREATER LAFOURCHE PORT COMMISSION, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
389 F.3d 510; 2004 U.S. App. LEXIS 22768
November 2, 2004, Filed
Appellant seaman sought judicial review of a decision by the United States District Court For the Eastern District of Louisiana that granted summary judgment in favor of appellees, a port commission and ship owner, on negligence, unseaworthiness, and vicarious liability claims. The seaman’s injuries arose when he intervened in a fight between two other seamen.
The seaman contended that the captain was negligent by allowing: (1) the other seaman to come onto the vessel and remain aboard despite being aware that he was intoxicated, and (2) the intoxicated seaman to sneak away from the harbor police and the captain and re-board the vessel. A reasonable could conclude that the seaman’s injury was a foreseeable consequence of permitting the intoxicated seaman on board because of the risk he posed to his shipmates. A reasonable jury might also find the captain was negligent in allowing the intoxicated seaman to re-board the vessel after being terminated. The harbor police testified that the owner possessed a duty to remove the terminated employee safely from both the vessel and the surrounding port area. The seaman offered no evidence that the intoxicated seaman possessed the characteristics needed to make the ship unseaworthy. The owners were not vicariously liable for the acts of the harbor police. Since the conduct and activities of the harbor police were insufficiently related to traditional maritime activity, admiralty jurisdiction does not exist over the seaman’s claims against the harbor police.
The district court’s summary judgment dismissal of the seaman’s negligence claim against the owner was reversed, and the case was remanded. The district court’s grant of summary judgment as to the seaman’s other claims was affirmed.
Jury Issue On Maintenance And Cure Where Seaman Does Not Reveal Prior Back Condition During Pre-employment Physical
WEEKS MARINE, INC. v. MICHAEL MCDEVITT
CIVIL ACTION NO. 01-CV-5609
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2004 U.S. Dist. LEXIS 23708
November 19, 2004, Decided
Plaintiff, a dredging and marine construction company that owned and operated a fleet of tugboats and other marine equipment (company), sued defendant employee seeking a declaratory judgment and reimbursement of maintenance and cure. The company moved for partial summary judgment.
The employee injured his back four times while working for the company. He conceded that he had suffered from a pre-existing back condition when he began his employment. The pre-existing condition was not disclosed during a post-offer employment physical examination. The employee asserted that his pre-existing condition involved his cervical spine, in contrast to the lumbar spine condition that afflicted him during his employment with the company. The company argued that the employee’s concealment of his back condition constituted willful misconduct, and that he consequently was not entitled to maintenance and cure. The employee explained that he checked off the box indicating that he did not have a head or spine injury, because he understood a head or spine injury to be a traumatic accident of some kind. His problem, in contrast, was a treatable condition that he believed would not interfere with his work. The employee was entitled to have a jury determine whether he filled out the medical history form in good faith.
The company’s motion for partial summary judgment was denied.
Choice Of Forum Clause In Seaman’s Contract Was Unenforceable In Jones Act Claims
ERIC BOUTTE, Plaintiff, v. CENAC TOWING, INC., Defendant
CIVIL ACTION NO. G-03-1054
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2004 U.S. Dist. LEXIS 24726
November 15, 2004, Decided
Plaintiff employee sued defendant employer pursuant to admiralty jurisdiction under the Jones Act, 46 U.S.C.S. § 688, seeking recovery for injuries sustained while working aboard the employer’s vessel. The court previously issued an order denying the employer’s motion to dismiss or, in the alternative, to transfer venue. The employer moved for reconsideration of that order. The employee contested the motion.
As a condition of employment, the employee executed a choice of forum agreement designating Louisiana as the appropriate forum. The employee sustained injuries while aboard a vessel in Texas, where he filed suit. In denying the employer’s motion to transfer venue to Louisiana, the court found that the choice of forum agreement was enforceable, but that the location of the alleged wrong and delay from a transfer favored retention. The court denied the motion for reconsideration. In admiralty, venue was proper in any court with personal jurisdiction over the defendant. However, the court held that choice of forum agreements in employment contracts between American seamen and American companies were unenforceable in Jones Act claims. Further, discretionary transfer under 28 U.S.C.S. § 1404(a) was properly denied. The location of the alleged wrong was of primary importance. The citizens of Texas had a legitimate interest in the safety conditions and seaworthiness of vessels doing business in the state. The employee’s choice of forum was entitled to deference. The convenience of the employer’s witnesses was not entitled to much weight as the employer could compel their testimony.
The court denied the employer’s motion for reconsideration of its order denying its motion to dismiss and its alternative motion to transfer venue.
Summary Judgment Granted For Passenger That He Was Injured By Getting Shoes Wet Walking Across Wet Mat And Then Slipping
FLOYD RESNICK, Plaintiff, -against- VANTAGE DELUXE WORLDTRAVEL, INC., Defendant.
03 Civ. 1114 (LAK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22904
November 12, 2004, Decided
Plaintiff passenger was injured in a slip and fall aboard a ship. The passenger alleged that defendant owner owned, operated, maintained and controlled the ship, and that the passenger was injured in consequence of unspecified negligence. The passenger motioned for partial summary judgment of liability and for other relief and the owner’s motion for summary judgment dismissing the complaint.
The passenger contended that the owner waived its ticket limitations by failing to plead them as affirmative defenses. The court noted that even assuming that a plaintiff’s allegation of compliance with contractual conditions could overcome a defendant’s failure to plead the defense affirmatively, the passenger never alleged timely institution of the action. The owner’s failure to plead that the action was not timely commenced therefore waived any such defense. There was a genuine issue of material fact as to what documents were given to the passenger and as to their contents. It was impossible to determine on motion what if any notice was required, let alone whether legal standards determining the sufficiency of limitation in passenger tickets were satisfied. There was ample evidence to go to the jury on the issue whether the owner had constructive notice of a dangerous condition that was a proximate cause of the accident. The passenger was entitled to partial summary judgment to the extent that he fell as a proximate consequence of getting his shoes wet by walking across the mat and then slipping. There was no competent evidence as to the extent of his injuries.
The passenger’s motion for partial summary judgment was granted to the extent that the passenger was injured in a fall caused in part by a wet mat and the owner was estopped to deny that, at the time of the accident, it was the owner of the vessel; the motion was denied in all other respects.
Sieracki Seaman Status Claim Approved For Independent Contractor
WALTER RADUT and DOROTHY RADUT, Plaintiffs, – against -STATE STREET BANK & TRUST CO. as Owner Trustee, HURON LEASING, LLC, U.S. SHIP MANAGEMENT, INC., MAERSK, INC., MAERSK LINE LIMITED d/b/a Maersk Sealand, and the MV SEA-LAND ACHIEVER, her engines, tackle, gear, appurtenances, etc., Defendants.
03 Civ. 7663 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2004 U.S. Dist. LEXIS 22318
November 3, 2004, Decided
November 4, 2004, Filed
Plaintiffs, an independent contractor and his wife, sued defendant corporation on various claims arising out of injuries sustained by the contractor while working on the corporation’s vessel. The corporation moved for summary judgment on plaintiffs’ claim for unseaworthiness. The corporation also moved to dismiss plaintiffs’ claims alleging non-pecuniary damages and the wife’s claim for loss of consortium.
The corporation argued that because the contractor was not a seaman he was not entitled to pursue an unseaworthiness claim under the Jones Act, 46 U.S.C.S. app. § 688. The court found that the undisputed facts established the contractor’s status as a Sieracki seaman where the contractor worked, slept, and ate alongside the crew; he went to sea with the ship; he was exposed to the same hazards as the crew; and, most importantly, he was performing the ship’s service, at the owner’s request. Therefore, because the contractor was a Sieracki seaman, he was entitled to bring an action for unseaworthiness against the corporation, and the corporation’s motion for summary judgment was denied. The Jones Act, 46 U.S.C.S. app. § 688 and the Death on the High Seas Act, 46 U.S.C.S. app. § 761 did not permit recovery for non-pecuniary damages. Therefore, because the contractor and his wife had availed themselves of a cause of action available only to seamen–their unseaworthiness claim under the Jones Act–they could not recover non-pecuniary damages from the corporation, and the corporation’s motion to dismiss the claims for punitive damages and loss of consortium was granted.
The corporation’s motion for summary judgment was denied. The corporation’s motion to dismiss the non-pecuniary claims was granted.
Indefinite Stay Denied While State Court Litigation Dealing With Forum Selection Clause Specifying U.S. District Court Was Pending
JUDITH LIPFORD, Plaintiff, vs. CARNIVAL CORPORATION, a foreign corporation, d/b/a CARNIVAL CRUISE LINES, Defendant.
Case No. 04-21120-CIV-GRAHAM
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2004 U.S. Dist. LEXIS 24530
November 23, 2004, Decided
November 24, 2004, Filed
Plaintiff passenger filed a motion to stay her action for personal injuries suffered in the high seas against defendant cruise line pending the resolution of a pending, identical state court case.
The passenger alleged that she was injured on an excursion while on a cruise. Pursuant to a forum selection clause, all disputes had to be instituted in the United States District Court for the Southern District of Florida within one year. The passenger filed suit in state court, and simultaneously filed a “cautionary complaint” with the court. The state court held that the forum selection clause was invalid. The passenger sought a stay because of the expiration of the one year limitations period and the possibility that the state court’s ruling invalidating the forum selection clause might have been overturned. The court held that because the stay would have remained in place until the completion of the trial and appeals in the state court case, the requested period of the stay was indefinite and therefore unwarranted. The passenger’s ability to sue the cruise line within the one year period was not dependent upon the court’s granting of a stay, but rather on the passenger’s decision to sue in state court. Having made the decision to avail herself of the benefits of the state forum, the passenger was not justified in delaying an identical case in federal court indefinitely.
The court denied the passenger’s motion to stay the case and dismissed the action without prejudice.
Fnc Motion Granted In Favor Of Costa Cruise Lines
PABLO MEMBRENO, Plaintiff, vs. COSTA CROCIERE, S.p.A., aforeign corp., and CSCS INTERNATIONAL N.V., a foreign corp., Defendants.
CASE NO. 03-61180-CIV-HUCK/TURNOFF
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2004 U.S. Dist. LEXIS 25116
November 23, 2004, Decided
November 23, 2004, Filed
Plaintiff filed a complaint, alleging five-counts under the Jones Act and general maritime law against four defendants related to a personal injury that he alleged occurred while he was working on a cruise ship. Defendants moved to dismiss based upon forum non conveniens.
The Jones Act and the general maritime law of the United States did not apply and the private and public factors weighed in favor of the case being tried in one of the three countries, Italy, Honduras, or the Netherlands Antilles, with a greater interest in the action and where there were available and adequate fora. There appeared to be no real disagreement that six of the eight choice of law factors weighed in favor of defendants’ contention that the Jones Act and U.S. maritime law did not apply. As to the place of the accident, the accident did not occur within the U.S. or U.S. territorial waters. The remaining question was whether defendants’ base of operations was in the U.S. or whether defendants otherwise had sufficient contacts with the U.S. to warrant the application of U.S. law. Defendants’ limited commercial activities in the U.S. and its business affiliation with two U.S. companies for purposes that were ancillary to plaintiff’s employment were not sufficiently substantial connections to justify application of U.S. law. All of the forum non conveniens factors weighed in favor of dismissal and allowing the case to be heard in a more convenient and appropriate forum.
Defendants’ motion to dismiss based upon forum non conveniens was granted, and the case was dismissed without prejudice to plaintiff’s ability to re-file the action in an alternative forum or to reinstate his action in the instant court if no alternative fora accepted his case.
Seaman Can Sue U.S. Government In District Where He Resides Instead Of His Domicile
GEORGE LEWIS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
No. C 04-1834 PJH
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 25283
December 2, 2004, Decided
The seaman alleged that he was injured while working on board a United States Navy vessel in June 2003. The seaman moved to California around February 2004. In May 2004, after the vessel set sail, the seaman filed suit in the Northern District of California, on the grounds that the PVA permitted suit in the residence of the seaman if the vessel was at sea. The Government argued that the seaman had to establish domicile, not mere residence in the district, and that he did not truly reside in the district. The court determined that, under the PVA, the seaman was required only to prove that he established “residence” in the district and not “domicile.” The court also determined that the seaman established his residence in the district by his physical presence.
The court denied the Government’s motion to dismiss and denied as moot the Government’s motion to transfer for improper venue.
Summary Judgment Against Seafarer In Heavy Lifting Case Reversed
APRIL FASOLD, Appellant v. DELAWARE RIVER & BAY AUTHORITY
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2004 U.S. App. LEXIS 26709
December 6, 2004, Argued
December 21, 2004, Filed
Plaintiff, a supervisor for the food service crew on a passenger ferry, appealed from a judgment of the United States District Court for the District of New Jersey, granting summary judgment to defendant precluding the supervisor’s pursuit of her claims under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law.
The supervisor supervised the food service crew on a passenger ferry traveling between Lewes, Delaware and Cape May, New Jersey. Among her responsibilities was keeping clean the kitchen and galley area. While cleaning the walk-in refrigerator located in the ferry’s galley, the supervisor injured her back moving a keg of beer stored there. The supervisor claimed that the refrigerator was “filthy” and that, in order for her to do her job, the keg had to be moved so food and debris behind it could be picked up. The supervisor alleged that defendant failed to, inter alia, provide a safe place to work, properly stow the keg, provide the proper equipment to move the keg, and provide a sufficient number of able-bodied crew. The instant court found that the record demonstrated that there had been problems in the past with women having to lift heavy objects, the unsuitability of hand trucks and the size of the crew being insufficient to handle all the work aboard the ship. While a jury might determine that the supervisor’s actions contributed to her injury and apportion liability accordingly, that did not foreclose her claims.
The judgment was reversed.
Ship Owners Motion To Limit Expert’s Testimony Denied Without Prejudice To Making Objections At Trial
JOSEPH THIBODAUX VERSUS C & G BOATS INC.
CIVIL ACTION NO. 03-3617 SECTION “J” (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 25638
December 15, 2004, Decided
December 15, 2004, Filed
December 15, 2004, Entered
Defendant ship owner filed a motion to limit the testimony of plaintiff seaman’s marine safety expert in connection with an action for negligence under the Jones Act, 46 U.S.C.S. § 688.
The seaman was removing P-tank covers to inspect the water tight integrity of the void around the hold. While he was removing one of the covers, he was allegedly injured as a result of the negligence of the ship owner. The ship owner argued that the report and testimony of the seaman’s expert should have been limited because: (1) he was not qualified to testify as an ergo dynamics expert; (2) his report was replete with references to OSHA and NIOSH regulations; and, (3) his opinions regarding the ship owner’s duty to supervise the seaman’s work were within the common understanding of lay jurors. Exercising its gatekeeping function under Fed. R. Evid. 702, the court held that, because the case was to have a non-jury trial, the danger of confusion that might have existed in a jury trial did not exist. The court would consider the report, along with all of the evidence presented at trial, in deciding the merits of the case. At trial, the court would properly limit or disregard any expert testimony that was neither helpful nor within the scope of the witness’s expertise.
The court denied the ship owner’s motion to limit expert testimony and report without prejudice to urge any objections to specific testimony at trial.
Cruise Line Strictly Liable For Crewmember Assaults Against Passengers Off The Vessel
JANE DOE, Plaintiff-Appellant-Cross Appellee, versusCELEBRITY CRUISES, INC., in personam, ZENITH SHIPPING CORPORATION, in personam,APOLLO SHIP CHANDLERS, INC., in personam, CELEBRITY CATERING SERVICESPARTNERSHIP, in personam, Defendants-Appellees-Cross-Appellants, BARIS AYDIN, inpersonam, M/V ZENITH, her engines, boilers, tackle, etc., in rem,Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2004 U.S. App. LEXIS 26743
December 22, 2004, Decided
December 22, 2004, Filed
Plaintiff cruise line passenger sued defendant cruise line, vessel owner, and two other service providers after she was allegedly raped by a cruise crew member. The U.S. District Court for the Southern District of Florida, after a verdict favoring the passenger, granted a Fed. R. Civ. P. 50(b) judgment to all defendants concluding it had not been proven that any single defendant was both a common carrier and the employer. The passenger appealed.
The alleged rape occurred off the ship at a port of call in a park near a disco that the crew member, as the passenger’s waiter, had recommended to the passenger and her friends. The court held that: (1) it had admiralty jurisdiction; (2) the district court had clearly erred because it lacked authority to enter judgment under Fed. R. Civ. P. 50(b) for defendants on a ground not raised prior to the submission of the case to the jury; (3) defendants owed a non-delegable duty to protect their passengers from crew member assaults and thereby safely transport their cruise passengers; (4) thus the district court had not erred in concluding that defendants were strictly liable for crew member assaults on their passengers during the cruise; and (5) the common carrier- passenger relationship did not have a strict spatial limit and thus was not severed when the passenger and the crew member left the ship’s premises. The court could not conclude that the interaction between them was outside the scope of the on-going carrier- passenger relationship. The court concluded that the sexual battery and sexual assault charges, and the jury’s verdict as to those charges, were in no way inconsistent.
The entry of judgment for defendants was reversed because the district court lacked authority to enter judgment as a matter of law on a new ground not raised by any party prior to submission of the case to the jury. The jury’s verdict for plaintiff was reinstated and affirmed and the case was remanded to the district court to enter final judgment on the jury’s verdict for plaintiff and against defendants.