Fifth Circuit Holds That Philippine Seaman’s Claim For Jones Act Negligence, Unseaworthiness, And Maintenance And Cure Was Subject To Contractual Arbitration Clause Requiring All Claims To Be Arbitrated In The Philippines
ERNESTO FRANCISCO, Plaintiff-Appellant, versus STOLT ACHIEVEMENT MT, a vessel bearing official number 1973; STOLT ACHIEVEMENT, INC.;STOLT-NIELSEN TRANSPORTATION GROUP, LTD.; STOLT PARCEL TANKERS, INC., the operator and/or owner of the M/T Stolt Achievement, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2002 U.S. App. LEXIS 10683
June 4, 2002, Decided
Appeal from the United States District Court for the Eastern District of Louisiana. 00-CV-3532. Sarah S. Vance, US District Judge.
Appellant seaman sued appellee vessel, and various shippers under the Jones Act, and under general maritime law for unseaworthiness, maintenance, and cure. The United States District Court for the Eastern District of Louisiana ordered the case to arbitration. The seaman appealed.
The seaman, a Philippine national, was injured on a chemical tanker ship located on the Mississippi River. Previously, the seaman had signed an employment contract agreeing to arbitrate claims against the shippers in the Philippines, and that the contract was subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention Act), 9 U.S.C.S. § 201 nt. In regard to arbitration, the appellate court held that arbitration was proper. Specifically, the seaman had signed a written employment contract stating that claims and disputes arising from his employment, including personal injury claims, were subject to arbitration in the Philippines. Further, the employment contract stated that it was governed by the law of the Philippines and such conventions and treaties to which the Philippines was a signatory. Moreover, the Philippines and the United States were both signatories to the Convention Act. Furthermore, the exclusion of seamen employment contracts in the Arbitration Act, 9 U.S.C.S. § 1 et seq., conflicted with the Convention Act as ratified by the United States, and was therefore not applicable to the Convention Act.
The judgment of the district court was affirmed.
Admiralty Jurisdiction Denied Where Ship Located On A River Entirely Within A State And Bounded By Two Bridges With Lower Height Clearance Than The Height Of The Ship – Hence, The Ship Was Not Located In Navigable Waters.
ARNE G. SVENDSEN, Plaintiff, v. HOLLYWOOD CASINO – AURORA, INC. and the M/V CITY OF LIGHTS 1, in rem, Defendants.
No. 01 C 8408
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2002 U.S. Dist. LEXIS 11907
June 27, 2002, Decided
July 1, 2002, Docketed
[*1] Motion to dismiss granted.
Plaintiff employee sued defendants, his employer, a casino, and in rem against the employer’s ship where the casino was located. He claimed coverage under the Jones Act, 46 U.S.C.S. Appx. § 688, for personal injuries as a seaman due to the employer’s negligence and the unseaworthiness of the ship. The employer filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of admiralty jurisdiction under 28 U.S.C.S. § 1331.
The district court noted that in order for the employee to have asserted federal admiralty jurisdiction, the key question was whether the specific area of the river where casino ship was located was navigable. The district court found that this area was clearly not navigable in fact. The casino ship was bounded by two bridges – one to the north and one to the south. Because the height of the casino ship exceeded the available clearance under both bridges, the ship was not able to pass beneath either of the bridges. Further, a lockless dam existed across the river that would have prohibited southern travel beyond this obstruction. Other obstructions prohibited northern travel. Finally, because the waterway was located entirely within the state of Illinois, interstate travel and commerce was not possible. The location test having failed, the court did not have admiralty jurisdiction under 28 U.S.C.S. § 1331(1). Accordingly, because the ship was not located in navigable waters, the employee was not covered under the Jones Act, 46 U.S.C.S. Appx. § 688.
The district court granted the motion to dismiss.
Summary Judgment Granted Against Longshoreman Alleging That Ship Owner Breached Their “Turnover Duty” And “Active Control” Duty Where An Incident Causing Injury Occurred On A Barge After It Was Taken By The Longshoreman From A Mooring Bay To A Dock.
JUAN TORRES, Plaintiff, – against – BUCHANAN MARINE INC., et al., Defendants.
98 Civ. 3298 (KMW) (RLE)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 11675
June 25, 2002, Decided
[*1] Defendants’ motion for summary judgment granted.
Plaintiff longshoreman filed a complaint against defendant shipping company and alleged negligence and related damages in violation of general maritime tort law. The shipping company filed a motion for summary judgment. The case was referred to a magistrate judge for report and recommendation.
The longshoreman claimed that he was injured as a result of the shipping company’s negligence while working as part of a dock crew on a barge owned by the company The court identified three duties owed to stevedores and longshoremen by the vessel owner. The longshoreman alleged violations of all three duties. The longshoreman argued that defendants breached their “turnover duty” because they failed to sound signals to warn the longshoreman of the oncoming barge. The longshoreman contended, inter alia, that the shipping company breached its “active control” duty, its duty to intervene, its duty to warn, and its duty of due care. The court held that the breaking of the winch cable occurred after the longshoreman and at least two others had taken the barge from a mooring bay to a dock owned by a different company. Consequently, the longshoreman failed to establish any factual allegations indicating the shipping company’s failure to exercise reasonable care or maintain its turnover duty. Furthermore, the longshoreman failed to present evidence demonstrating that the shipping company breached any other duties.
The magistrate judge recommended that the shipping company’s motion for summary judgment be granted.
Cruise Line’s Motion To Dismiss Denied Under The Americans With Disabilities Act Where Cruise Line Failed To Provide Passenger With A Ventilator And Failed To Make Reasonable Modifications In Its Policies To Allow Passenger To Use Telephone To Obtain A Ventilator After The Passenger’s Ventilator Was Damaged By The Cruise Line.
STEVEN LARSEN and KIMBERLY LARSEN, Plaintiffs, vs. CARNIVAL CORP., INC., Defendant.
Case No. 02-20218-CIV-GRAHAM
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2002 U.S. Dist. LEXIS 10553
June 11, 2002, Decided
June 12, 2002, Filed
Defendant’s motion to dismiss was denied.
In an amended complaint, plaintiff husband and wife alleged that defendant cruise line violated the Americans with Disabilities Act, the Florida Civil Rights Act, Fla. Stat. ch. 413.08, 760.07, and 509.092, and the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. ch. 501.204. They also asserted state tort and contract claims. The cruise line moved to dismiss the federal and two state statutory claims.
The cruise line did not dispute that the husband was a qualified individual with a disability, or that a cruise ship was a public accommodation. Rather it argued that a ventilator was personal device and that under the personal device exclusion, it was expressly excluded from Title III of the Americans with Disabilities Act’s reasonable modification requirement. Plaintiffs argued that the complaint did not simply allege that the cruise line failed to obtain a ventilator, but that it failed to make reasonable modifications in its policies or procedures by failing to allow the husband to use the telephone to obtain a ventilator for himself after his was alleged damaged by the cruise line. The complaint also alleged that the cruise line failed to make numerous other reasonable modifications. The cruise line faired no better in arguing for dismissal of the Florida Civil Rights Act (FCRA) claims. While the FCRA may not have not required the modification of services to accommodate individuals with disabilities, the plaintiffs argued that even if the FCRA did not require reasonable modifications, at a minimum it protected the plaintiffs’ right to equal treatment.
The cruise line’s motion to dismiss was denied.
Barge Owner And Steel Company’s Motions To Dismiss Based On Lack Of Subject Matter Jurisdiction Denied Where Longshoreman Conceded That He Suffered No Injury On Navigable Water But Contended That The Admiralty Extension Act Applied Because Of The Longshoreman’s Allegations Of Negligence Against The Barge Itself.
RODRIGO MAGANA and MARIA MAGANA, Plaintiffs, v. HAMMER & STEEL, INC., POSTON INDUSTRIAL MAINTENANCE COMPANY, INC. and ROBERT B. MILLER &ASSOCIATES, Defendants.
CIVIL ACTION NO. G-02-180
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2002 U.S. Dist. LEXIS 10272
June 5, 2002, Decided
June 6, 2002, Entered
Defendant Miller’s Motion to Dismiss for Lack of Subject Matter Jurisdiction DENIED. Defendant Hammer’s Motion to Dismiss respectfully DENIED.
Plaintiffs, a longshoreman and his wife brought a personal injury lawsuit against defendants, a barge owner, the company responsible for the steel on the barge, and a maintenance corporation. The owner and company brought motions to dismiss. The longshoreman maintained that both 33 U.S.C.S. § 905(b) and Article III of the United States Constitution conferred federal jurisdiction over the instant suit.
The longshoreman attempted to unload an eighty-five foot long steel-piling sheet from a floating barge. Unbeknownst to the longshoreman, however, the steel-piling sheet was covered with a sticky coating applied by the maintenance corporation. Consequently, a loose chunk of concrete aboard the barge adhered to the sticky steel. The concrete dislodged from the top of the steel sheet and plummeted downward towards him and the longshoreman sustained serious injuries. The longshoreman alleged that all three defendants were negligent. The longshoreman admitted that the he suffered no injury on navigable water and, consequently, could not invoke the court’s admiralty and maritime jurisdiction. However, the longshoreman’s allegations of negligence by the personnel aboard the barge were equivalent to allegations of negligence by the barge itself, thus, the longshoreman obtained jurisdiction against the barge owner under the Admiralty Extension Act (AEA), 46 U.S.C.S. app. § 740. The longshoreman’s claims against the company and the maintenance corporation were so related, that those claims fell within the court’s maritime jurisdiction under the AEA.
The court denied the barge owner’s and the company’s motions to dismiss.
Court Holds That An Individual Injured While Working On A Barge Afloat In Louisiana Navigable Waters Which Had No Working Equipment On Board, No Crew, No Kitchen And Incomplete Crew Quarters Was Not A Jones Act Seaman Because The Barge Was Not A “Vessel In Navigation”.
JODY TAYLOR versus DELTA SEABOARD WELL SERVICE, INC.
CIVIL ACTION NO. 01-3409 SECTION: E/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 10429
June 3, 2002, Decided
June 3, 2002, Filed; June 4, 2002, Entered
Defendant Delta Seaboard Well Service, Inc.’s motion for summary judgment GRANTED.
Plaintiff employee filed a “seaman’s complaint” against defendant employer for maintenance and cure, negligence, and unseaworthiness. The employer moved for summary judgment. The issue was whether the employee qualified as a “seaman” under the Jones Act.
A worker was a seaman if he was (1) assigned permanently to or performed a substantial part of his work on (2) a vessel in navigation (3) contributing to the function of the vessel or to the accomplishment of its mission. The key to seaman status was employment related connection to a vessel in navigation. The essence of the employer’s argument was that the rig on which the employee was injured was not a vessel in navigation at the time of the accident. The employee argued that at the time of the accident, the rig was a barge afloat in Louisiana navigable waters and as such was a vessel in navigation. The court found that whether a vessel may have been in navigation at some point before and after a particular casualty was immaterial to whether it was in navigation at the time of that casualty. There was no dispute that the rig, which was being refurbished, was not engaged in its expected duties at the time of the accident. It had no working equipment on board, no deck, no crew, no kitchen, and incomplete crew quarters. Therefore, the court found that it was not a vessel in navigation. Since the rig was not a vessel in navigation, the employee was not a Jones Act seaman.
Defendant’s motion for summary judgment was granted.
Directed Verdict Denying Seaman’s Claim For Failure To Properly Treat Reversed – Court Holds That The Law Places A Greater Obligation On Seaman’s Employer To Provide For The Welfare Of A Crew Member Than The Law Places On The Crew Member To Provide For His Own Welfare.
JANINE VAN MILL, Appellant, v. BAY DATA, INC., Appellee.
CASE NO. 4D01-131 COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT 2002 Fla. App. LEXIS 8757; 27 Fla. L. Weekly D 1479 June 26, 2002, Opinion Filed
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; J. Leonard Fleet, Judge; L.T. Case No. 97-9726 08.
REVERSED AND REMANDED.
The Circuit Court for the Seventeenth Judicial Circuit, Broward County, Florida, entered a directed verdict on appellant employee’s failure to treat claim and a jury found in favor of appellee employer on her negligence and unseaworthiness claim. The appeal followed.
The employee challenged the judgment against her on the issue of whether the trial court erred in directing a verdict in favor of the employer on her claim for failure to properly treat under the Jones Act, 46 U.S.C.S. § 688. The court of appeals held that an error occurred. Although there was a factual dispute as to when either the captain or the first mate was made aware of the employee’s injury, there was no dispute that once the captain learned of it, he accompanied the employee to the hospital and initial doctor visit and, by calling his vice-president, set in motion the process of relieving the employee of her duties. The employee insisted on remaining on the ship, continuing to perform her job, and completing the tour. Upon arriving back in Fort Lauderdale, she delayed seeking follow-up medical care and even agreed to do additional work on the boat during the off-season. Despite all of the evidence suggesting that the employee declined the captain’s offers of assistance, ignored doctor’s orders, and contributed to her injury, the law placed a greater obligation on the captain to provide for crew members’ welfare than it did on the crew members themselves.
The judgment was reversed and the case was remanded.