MARITIME CAUSE OF ACTION FOR NEGLIGENCE WITH RESPECT TO NON SEAMAN DEATH IN TERRITORIAL WATERS.
NORFOLK SHIPBUILDING & DRYDOCK CORPORATION v. CELESTINEGARRIS, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER GARRIS, DECEASED
SUPREME COURT OF THE UNITED STATES
121 S. Ct. 1927; 2001 U.S. LEXIS 4125; 69 U.S.L.W. 4410;2001 Cal. Daily Op. Service 4514; 2001 Daily Journal DAR 5549; 2001 Colo. J.C.A.R. 2759; 14 Fla. L. Weekly Fed. S 305
February 28, 2001, Argued
April 18, 2001, Argued
June 4, 2001, Decided
On writ of certiorari to the United States Court of Appeals for the Fourth Circuit, petitioner argued no cause of action existed under general maritime law for the death of a nonseaman in state territorial waters resulting from negligence. Respondent had brought a wrongful death suit for the death of her son under general maritime law and the Virginia wrongful death statute, Va. Code Ann. § 8.01-50 to 8.01-56 (2000).
The United States Supreme court held that respondent’s son, who was not a seaman, was not covered by the Jones Act, 46 U.S.C.S. app. § 688(a), or the Death on the High Seas Act (DOHSA), 46 U.S.C.S. app. § 761 et seq. The Jones Act bore no implication for actions brought by nonseamen. Even as to seamen, general maritime law could provide wrongful-death actions predicated on duties beyond those that the Jones Act imposed. DOHSA did not foreclose any nonstatutory federal remedies that could be found appropriate to effectuate the policies of general maritime law. DOHSA did not pre-empt respondent’s negligence action. The Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 901 et seq., expressly preserved all claims against third parties, 33 U.S.C.S. § 933(a), (i). And petitioner was a third party; it neither employed respondent’s son nor owned the vessel on which he was killed. The LHWCA therefore did not preclude the negligence action for wrongful death. The maritime cause of action established for unseaworthiness was equally available for negligence.
In her complaint filed in the District Court, respondent alleged that her son died as a result of injuries sustained while performing sandblasting aboard a vessel berthed in the navigable waters of the United States. She further asserted that the injuries were caused by the negligence of petitioner and another, and prayed for damages under general maritime law. The District Court dismissed the complaint for failure to state a federal claim, stating that no cause of action exists, under general maritime law, for death resulting from negligence. The Fourth Circuit reversed, explaining that although this Court had not yet recognized a maritime[**2] cause of action for wrongful death resulting from negligence, the principles contained in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772, made such an action appropriate.
The general maritime cause of action recognized in Moragne — for death caused by violation of maritime duties, id. at 409 — is available for the negligent breach of a maritime duty of care. Although Moragne’s opinion did not limit its rule to any particular maritime duty, Moragne’s facts were limited to the duty of seaworthiness, and so the issue of wrongful death for negligence has remained technically open. There is no rational basis, however, for distinguishing negligence from unseaworthiness. Negligence is no less a maritime duty than seaworthiness, and the choice-of-law and remedial anomalies provoked by withholding a wrongful death remedy are no less severe. Nor is a negligence action precluded by any of the three relevant federal statutes that provide remedies for injuries and death suffered in admiralty: the Jones Act, the Death on the High Seas Act, and the Longshore and Harbor Workers’ Compensation Act. Because of Congress’s extensive[**3] involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further development to Congress. See, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 455, 127 L. Ed. 2d 285, 114 S. Ct. 981. The cause of action recognized today, however, is new only in the most technical sense. The general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury. Pp. 2-9.
The judgment of the court of appeals was affirmed.
APPELLATE COURT REMANDED CASE TO TRIAL COURT TO DETERMINE IF PORTION OF RIVER WHERE THE ACCIDENT OCCURRED WAS NAVIGABLE EVEN THOUGH PARTIES STIPULATED THAT THE BOAT CRUISED ON A NAVIGABLE WATERWAY
Robbin Weaver, Plaintiff-Appellant, v. HollywoodCasino-Aurora, Inc., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2001 U.S. App. LEXIS 13870
February 13, 2001, Argued
June 21, 2001, Decided
Plaintiff employee was injured on a riverboat casino owned by defendant employer. She sued for relief under general maritime jurisdiction, 28 U.S.C.S. § 1333, and the Jones Act, 46 U.S.C.S. § 688, et seq. The employee appealed the causation ruling of the United States District Court for the Northern District of Illinois, Eastern Division, the denial of maintenance and cure, and the denial of attorneys’ fees.
The parties stipulated that the boat cruised on a navigable waterway, though the employer’s counsel stated that the boat could only travel 300 yards, since there was a dam on one side, and a bridge on the other side. Over the employer’s objection, the district court found that it had jurisdiction under the Jones Act, 46 U.S.C.S. § 688 et seq., but it did not specifically consider its general maritime law jurisdiction, and the employer did not appeal jurisdiction under the Jones Act. The court of appeals, sua sponte, considered the jurisdictional issues, and remanded the case to the district court for a determination whether the portion of the river where the employee’s injury occurred was navigable water. The dam and bridge suggested the gambling boat was located, entirely within one state, in a portion of the river that could not be used as a highway for maritime commerce. As the boat was a commercial boat engaged in transporting passengers for profit, an injury to a crew member would disrupt its participation in maritime commerce. The same navigability inquiry was necessary to determine if there was a sufficient relationship to navigable waters for Jones Act jurisdiction.
The court of appeals remanded the case for proceedings to determine whether there was general maritime and Jones Act jurisdiction.
COLLECTIVE BARGAINING AGREEMENT COULD VALIDLY PROVIDE FOR SICK WAGES BELOW THE ACTUAL WAGE RATE AND COULD LIMIT THE DURATION OF THE SICK WAGES.
Jose Antonio Cabrera ESPINAL, Plaintiff-Appellee, v. ROYALCARIBBEAN CRUISES, LTD., Celebrity Cruises, Inc., Defendants-Appellants. JoseAntonio Cabrera Espinal, Plaintiff-Appellant, v. Royal Caribbean Cruises, Ltd.,Celebrity Cruises, Inc., Defendants-Appellees.
Nos. 00-12619, 00-13268.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2001 U.S. App. LEXIS 11908; 14 Fla. L. Weekly Fed. C 796
June 8, 2001, Decided
June 8, 2001, Filed
Plaintiff was involved in two related cases that were consolidated on appeal. Plaintiff worked on defendants cruise lines’ ships as a tip-earning employee under a contract that provided for at-will employment to be terminated with two weeks notice. A collective bargaining agreement (CBA) governed the contract. In the first case plaintiff herniated a lumbar disc and in the second case plaintiff developed an eye injury. In both cases defendants paid him sick wages in the amount of his guaranteed minimum salary. Plaintiff contended in both suits that he was entitled to his actual monthly salary as sick wages instead of the guaranteed minimum. In the first case the appellate court found that the court erred in finding that the clause modifying maritime law was inapplicable. Nothing in maritime law prevented the setting of sick wages below the average tip income received and the court erred in not relying on the CBA to calculate the amount of unearned sick wages. In the second case the court found that to find that defendant owed plaintiff any further obligations would contradict both contract law as embodied in the CBA and the interpretation of general maritime law.
The district court’s calculation of the amount of sick wages was reversed. Application of the collective bargaining agreement’s 112-day sick period was affirmed. The district court’s grant of summary judgment in the second case was affirmed.
CASE DISMISSED ON FORUM NON CONVENIENS. ONLY SLIGHT DEFERENCE TO CHOICE OF FORUM SELECTED BY FOREIGN PLAINTIFF
WILSON VALAREZO, Plaintiff, -against- ECUADORIAN LINE, INC.,INDIAN OCEAN SHIPPING, LTD. and TRIREME VESSEL MANAGEMENT, N.V., Defendants.
00 Civ. 6387 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 8942
June 26, 2001, Decided
June 29, 2001, Filed
Plaintiff Wilson Valarezo, an Ecuadorian national and resident, brings this personal injury action against defendants Ecuadorian Line, Inc., Indian Ocean Shipping, Ltd. and Trireme Vessel Management, N.V. (“Trireme”). Defendants move to dismiss the lawsuit on grounds of forum non conveniens, arguing that Ecuador is a more appropriate forum. Each defendant agrees to submit to jurisdiction in Ecuador should this Court order a dismissal. For the reasons stated below, the motion to dismiss is granted based on forum non conveniens.
On December 15, 1997, the incident giving rise to Valarezo’s claim took place aboard the M/V INDIAN OCEAN, in international waters while the vessel was en route to Panama from Florida. See id. P 3. Valarezo claims that he suffered serious personal injuries from a slip and fall caused by the defendants’ negligence in permitting an area of the vessel to “become and remain in a greasy, oily and otherwise slippery and dangerous condition.” Complaint P 27.
MAINTENANCE AND CURE ADVISE BY LOUISIANA ATTORNEY NOT SUFFICIENT TO ALLOW DIRECT ACTION AGAINST P&I CLUB
GERRARD P. ADAMS VERSUS ODYSSEA MARINE GROUP, LLC, ET AL
CIVIL ACTION 00-0506 SECTION “T”(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 8562
June 14, 2001, Decided
June 14, 2001, Filed
June 15, 2001, Entered
The parties agreed that the accident occurred offshore and not within Louisiana. The policy was drafted in London, England. And delivered to the employer in Texas. The insurer claimed that, as the Louisiana Direct Action Statute required that the accident, the policy, or the delivery of the policy be in the state before a direct action could be brought against it. The seaman claimed, however, that the decision to discontinue maintenance and cure payments had been made by defense counsel in the state, so the action could be brought. The court held that maintenance and cure was predicated upon a maritime employment contract and not fault, so the employer was charged with the payment of applicable benefits. Since the employer’s agent in Texas stated that the decision to discontinue the payments was made by him based on advice from counsel. The seaman neither alleged that the insurer made the decision to stop the payments nor sufficiently proved that anyone other than the employer, thorough its agent, made the decision.
The insurer’s motion for summary judgement was granted.
SUMMARY JUDGEMENT REVERSED FOR VESSEL OWNER ON CLAIM FOR INJURY CAUSED BY SLIP ON A WET FOOTREST AS ISSUE OF UNSEAWORHTINESS AND NEGLIGENCE WERE FOR THE JURY TO DECIDE
FREDERICK LANE, Appellant, vs. JANE G. TRIPP, Appellee.
CASE NO. 3D00-2195
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2001 Fla. App. LEXIS 8058
June 13, 2001, Opinion Filed
Employee, a seaman, was employed by employer as a crew member on her 90-foot yacht. During the course of a voyage to Maine, the vessel stopped in New Jersey. The crew started to clean the vessel. As employee attempted to dismount the console, he slipped on a wet footrest, and severely injured his knee. Employee sued employer claiming the footrest was unseaworthy because it lacked a non-skid coating. After summary judgment was granted to employer on the unseaworthiness claim, employer amended his complaint to add a claim for negligence under the Jones Act, 46 U.S.C.S. App. § 688. Summary judgment was subsequently granted to employer on employee’s negligence claim. The judgment was reversed. Employee adduced sufficient evidence to satisfy his “featherweight” burden of proof on his Jones Act negligence claim. In addition, the issue of whether the footrest was unseaworthy due to the lack of non-skid coating was for a jury to decide.
The judgment was reversed and remanded for further proceedings.
CASE REMANDED TO TRIAL COURT TO SEPARATE PAST DAMAGES FROM FUTURE DAMAGES AND ONLY AWARD PREJUDGMENT INTEREST ON THE PAST AMOUNTS.
DRURY DEROUEN VERSUS MALLARD BAY DRILLING, LLC.
NO. 2000 CA 1268
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2000 1268 (La.App. 1 Cir, 06/22/01); 2001 La. App. LEXIS 1684
June 22, 2001, Rendered
Drury Derouen was employed by Mallard Bay for approximately eighteen months. Derouen was assigned as a floorhand (roughneck) to Mallard Bay Rig 56 (Rig 56), a submersible[*2] drilling rig. On March 3, 1998, the crew of Rig 56 had completed drilling operations at a site in St. Mary Parish and was in the process of dismantling the drilling equipment so that the rig could be moved to its next location.
At approximately 6:00 p.m. Derouen began his 12-hour shift. He was assisting in offloading some of the equipment when Elijah Robertson, the driller, asked Derouen for assistance in disconnecting a barite line. The barite line was a transfer hose connected to the rig’s metal piping system that was being used to transfer barite from Rig 56 to a nearby barge. Barite is a dry substance used in drilling operations.
John Davis, who was the derrickman for Rig 56, indicated that the crew was having trouble offloading barite because the line kept getting plugged. Before the plugs could be removed from the system, the pressure in the lines had to be relieved. In an effort to relieve or release the pressure, Davis bled the system down, i.e., opened a series of valves that allowed the pressure to escape.
Ronald Authement, the tool pusher and supervisor of the operation, was standing on a deck approximately eight feet above Derouen and Robertson. Authement told them[*3] to disconnect the barite line in order that the plug might be removed. Derouen placed both hands on the barite line while Robertson attempted to unhook the line. The barite line was secured by two connections (sometimes referred to as flaps or ears). When Robertson undid the first connection, barite began to come out of the line. Derouen realized that the barite line was still under pressure and yelled to Authement that the line was under pressure. Employing the use of profanities, Authement insisted Robertson and Derouen immediately remove the line. Jonathan Breaux, a roustabout, [Pg 3] who had been assisting Derouen with the barite line, backed away from the area when he heard Derouen indicate there was still pressure in the line, leaving Derouen as the only person holding the barite line. Responding to Authement’s urging, Robertson removed the second clamp on the line, which immediately caused the trapped pressure to explode from the piping, striking Derouen in the chest and knocking him backward. The force of the release knocked Derouen back several feet and slammed him against a pipe, causing injury to his lower back.
The trial court ordered Mallard Bay to pay Derouen the sum of $699,702.00, plus interest, from the date of the incident, March 3, 1998, as compensation for his injuries.