A FEDERAL DISTRICT COURT PROPERLY DISMISSED A CRUISE SHIP STATEROOM ATTENDANT’S SUIT FOR UNPAID WAGES UNDER THE SEAMAN’S WAGE ACT BECAUSE THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS REQUIRED MANDATORY ARBITRATION OF THE CLAIM.
INACIO EUFEMIO LOBO, Plaintiff-Appellant, versus CELEBRITY CRUISES, INC., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 13141; 20 Fla. L. Weekly Fed. C 704
June 7, 2007, Decided
Plaintiff cruise ship worker appealed a judgment from the United States District Court for the Southern District of Florida, dismissing with prejudice his complaint for unpaid wages and penalty wages brought under the Seaman’s Wage Act, 46 U.S.C.S. ¤ 10313.
The worker was a stateroom attendant who complained that he was required by his employer to share gratuities with his assistants by paying them $1.20 per passenger per day from his own earnings. The worker alleged that the cruise line was able to impose the requirement through duress and as a result of the unequal bargaining position of the parties and that the requirement constituted a failure to pay wages in violation of the collective bargaining agreement governing his employment. The district court dismissed the claim, finding that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. II(1) June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, and its implementing legislation, 9 U.S.C.S. ¤¤ 202-208, superseded the Seaman’s Wage Act and compelled arbitration of the claim. On appeal, the court agreed. Deciding an issue of first impression, the court held that the Convention required enforcement of the collective bargaining agreement’s arbitration provision. Congress did not intend the Convention to be superseded by the Seaman’s Wage Act with respect to wage disputes raised by foreign cruise ship workers.
The court affirmed.
DISTRICT COURT’S DISMISSAL OF THE CASE FOR LACK OF SUBJECT MATTER JURISDICTION WAS REVERSED BECAUSE THE RELEVANT ACTIVITY GIVING RISE TO THE ASSAULT OF THE SEAMAN BY THE EMPLOYER WAS THE FAILURE TO PAY WAGES FOR MARITIME SERVICES PERFORMED ABOARD A COMMERCIAL VESSEL.
JEFF GRUVER, Plaintiff-Appellant, v. LESMAN FISHERIES INC.; BOB LESMAN; F/V SUNSET CHARGE, Official Number 534685, in rem, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 13020
June 6, 2007, Filed
Plaintiff seaman sued defendants, a former employer and a vessel, alleging negligence in connection with an assault and unpaid wages. The unpaid wages claim was dismissed. The United States District Court for the Western District of Washington granted defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. The seaman appealed.
The seaman quit working for the employer and began to work for another fishing vessel. The seaman claimed the employer owed him unpaid wages and confronted the employer at the dock. The employer mailed the seaman his final check and the seaman left him a threatening message on his voicemail about getting paid. When he received the check, the seaman again called the employer and disputed the amount paid and threatened the employer and his property if not paid in full. While the seaman was in his bunk on his current work vessel, the employer and another individual attacked him which resulted in the seaman suffering broken ribs and a punctured lung. The district court held that the seaman failed to establish admiralty jurisdiction. The appellate court found that the physical beating of the seaman, which left him unable to perform his fishing duties, had a detrimental effect on maritime commerce. The employer’s failure to pay the seaman for services rendered had a sufficient connection to traditional maritime activity. The relevant activity giving rise to the assault in this case was a failure to pay wages for maritime services performed aboard a commercial vessel.
The district court’s dismissal of the case for lack of subject matter jurisdiction was reversed and the case was remanded for further proceedings.
A TRIAL COURT ABUSED ITS DISCRETION BY CERTIFYING A PUTATIVE CLASS OF BIDDERS IN A FRAUD SUIT AGAINST CRUISE SHIP ART AUCTIONEERS BECAUSE ADMIRALTY JURISDICTION APPLIED AND COMMON QUESTIONS OF LAW DID NOT PREDOMINATE OVER INDIVIDUAL QUESTIONS OF LAW SINCE THE ADMIRALTY LAW OF EACH INDIVIDUAL STATE HAD TO BE APPLIED.
ALAN BEEGAL AND BONNIE BEEGAL, KENNETH SATALOFF AND SHEILA SATALOFF, LAWRENCE BENTON AND CAROL BENTON, MICHAEL BLOCK AND ABBE BLOCK, ROBERT WAXLER, ESQUIRE AND STELLA ROSNER, , v. PARK WEST GALLERY, PARK WEST AT SEA, Defendants-Appellants, and CARNIVAL CRUISE LINES, Defendant.
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2007 N.J. Super. LEXIS 189
June 22, 2007, Decided
Defendants, two affiliated corporations conducting art auctions on cruise ships, appealed the order of the Superior Court of New Jersey, Law Division, Burlington County, which certified the putative class of plaintiff bidders. Plaintiffs had brought a fraud suit against defendants, claiming that defendants inflated the prices of the art through fraudulent bidding practices.
Plaintiffs were all State of New Jersey residents representing the putative class, which they asserted included potentially thousands of United States residents who, between 1996 and the present, attended defendants’ art auctions on cruise ships. Plaintiffs argued that members of the class were injured by defendants’ fraudulent scheme either because they paid too much for the art, or because they were unable to purchase art as a result of defendants’ fraudulent practices. The court found merit in defendants’ argument that individual factual issues predominated over common issues since the members of the class who did not purchase art may have suffered no loss and, as to them, the fact of damages did not predominate. Further, as to those members who did purchase art, an accurate damages calculation would require an analysis of each individual claim. Most significantly, the court determined that maritime law applied, which made maritime choice of law principles as to the application of substantive law applicable. As such, each putative class member’s home state law had to be applied, which presented insurmountable difficulties in the management of the class action.
The court reversed the order certifying the class as an abuse of the trial court’s discretion upon concluding that the difficulties likely to be encountered in the management of the case as a class action due to the required application of the governing law of each plaintiffs’ state of residence precluded certification. The case was remanded to the trial court for further proceedings consistent with the court’s opinion.
WRONGFUL DEATH SUIT BY NON-DEPENDENT PARENTS OF DECEASED LONGSHOREMAN, WHICH SOUGHT DAMAGES FOR LOSS OF SOCIETY, WAS PROPERLY DISMISSED BECAUSE NONPECUNIARY DAMAGES WERE AVAILABLE ONLY TO DEPENDENT SURVIVING PARENTS; THE DECEDENT’S EMPLOYER WAS GRANTED SUMMARY JUDGMENT IN ITS LIMITATION OF LIABILITY SUIT.
In Re: In the Matter of: AMERICAN RIVER TRANSPORTATION COMPANY, v. US MARITIME SERVICES, INC; ET AL, Defendants;
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 14464
June 19, 2007, Filed
Claimants, the parents of a deceased longshoreman employed by petitioner employer, filed an interlocutory appeal under 28 U.S.C.S. ¤ 1292(a)(3) from a judgment issued by the United States District Court for the Eastern District of Louisiana, dismissing their wrongful death claim seeking damages for loss of society and granting summary judgment to the employer in its limitation of liability proceedings under former 46 U.S.C.S. app. ¤ 181 et seq.
The 24-year-old decedent died when he jumped from a barge on which he was employed into territorial waters in an attempt to save a coworker who had fallen from the barge. The decedent had been incarcerated for the five years immediately preceding his death and had not provided any financial support to his parents, either before or after his incarceration. At issue was whether non-dependent parents could recover for loss of society in maritime wrongful death actions in which a deceased longshoreman or harbor worker died in territorial waters. The district court held that they could not. On appeal, the court agreed. The court applied the U.S. Supreme Court’s Miles rule, which held that survivors of seamen who died in territorial waters or on the high seas could recover pecuniary damages but not nonpecuniary damages, such as for loss of society. The court drew no distinction between the Miles decedent, who was a seaman, and the instant decedent, who was a longshoreman. Restricting the recovery of nonpecuniary damages to dependents of a decedent served the policy goal of limiting the class of relatives and friends who could otherwise assert claims for the loss of love and affection.
The court affirmed the judgment of the district court. The court dismissed the parents’ appeal of their survival claim because the issue was not presented to or decided by the district court.
BECAUSE PETITIONER DID NOT DISPUTE THAT HIS WORK CONTRIBUTED TO THE FUNCTION OF A VESSEL, THE COURT MOVED TO THE SECOND PART OF THE TEST. GIVEN THE ABSENCE OF SUBSTANTIAL EVIDENCE SHOWING THAT PETITIONER’S JOB FUNDAMENTALLY CHANGED IN THE MONTHS DIRECTLY PRIOR TO HIS ACCIDENT, THE COURT HAD TO CONCLUDE THAT HE CONTINUED TO BE COVERED BY THE LHWCA.
IAN JARRETT, Claimant – Petitioner, v. DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, Respondent – Respondent.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2007 U.S. App. LEXIS 15071
June 21, 2007, Filed
Petitioner sought review of a decision of the Department of Labor’s Benefits Review Board (BRB) that affirmed the administrative law judge’s (ALJ) determination that petitioner was not eligible for compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. ¤ 902.
The appellate court noted that the sole question presented on review was whether, for purposes of compensation for an injury, petitioner should have been considered a land-based employee covered by the LHWCA, 33 U.S.C.S. ¤ 902(3), or a seaman covered by the Jones Act, 46 U.S.C.S. ¤ 30104(a). The court noted a two part test articulated by the United States Supreme Court to determine whether a worker was excluded from the LHWCA coverage as a master or member of a crew of any vessel. First, an employee’s duties had to contribute to the function of the vessel or to the accomplishment of the mission. Second, the employee had to have a connection to a vessel in navigation that was substantial in terms of both its duration and its nature. Because petitioner did not dispute that his work contributed to the function of a vessel, the court moved to the second part of the test. Given the absence of substantial evidence showing that petitioner’s job fundamentally changed in the months directly prior to his accident, the court had to conclude that he continued to be covered by the LHWCA.
The court granted the petition and remanded for an award of benefits.
SUMMARY JUDGMENT AGAINST THE WAGE CLAIMANTS’ CLAIM FOR DOUBLE WAGES UNDER 46 U.S.C.S. ¤ 10313(G) WAS AFFIRMED. RECORD WAS DEVOID OF EVIDENCE THAT EVEN A SINGLE WAGE CLAIMANT MET STATUTORY REQUIREMENTS FOR DOUBLE WAGES. EACH OF THE WAGE CLAIMANTS’ AFFIDAVITS SUBMITTED IN THE DISTRICT COURT OMITTED AN ESSENTIAL ELEMENT OF 46 U.S.C.S. ¤ 10313(F).
IN RE: MILLENIUM SEACARRIERS INC., Debtor. CREW OF THE DEBTORS’ VESSELS, MARITIME TRANSPORT WORKERS’ UNION OF RUSSIA, et al. Plaintiffs-Appellants-Cross-Appellees, -against- ALLFIRST BANK, f/k/a/ FIRST NATIONAL BANK OF MARYLAND, WAYLAND INVESTMENT FUNDS, LLC, et al. Defendants-Appellees-Cross-Appellants.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 13072
June 5, 2007, Decided
Plaintiffs, a group of seamen on foreign-flag vessels and their union (wage claimants), appealed from the affirmance by the U.S. District Court for the Southern District of New York of the bankruptcy court’s grant of summary judgment in favor of defendant lenders. The lenders cross-appealed from the district court’s decision to allow the wage claimants to supplement the bankruptcy court record with newly-created evidence of their wage demands.
The wage claimants did not seek ordinary wages. Their claim was for double wages under 46 U.S.C.S. ¤ 10313(g). The record was devoid of evidence that even a single wage claimant met the statutory requirements for double wages. Each of the affidavits submitted by the wage claimants in the district court omitted an essential element of 46 U.S.C.S. ¤ 10313(f). The affidavits failed to show either that the voyage in question ended in a U.S. port or that a wage claimant who was discharged in a U.S. port did not receive his wages within four days after his discharge or twenty-four hours after the discharge of the cargo. Therefore, the appellate court affirmed the district court’s ruling on the ground that the wage claimants failed to make a showing sufficient to establish the existence of an element essential to their claim and on which they would bear the burden of proof at trial.
The decision of the district court was affirmed.
DISMISSAL OF MARITIME NEGLIGENCE ACTION WAS AFFIRMED BECAUSE THE NATIONAL OCEANIC AND ATMOSPHERIC ASSOCIATION CHART FOR THE BAY CLEARLY NOTED THE LOCATION OF THE POWER LINES AND THEIR CLEARANCE OF 30 FEET ABOVE THE CONFLUENCE OF THE BAY AND LAGOON, AND THE CLAIMANT WAS CHARGED WITH KNOWLEDGE OF ALL WARNINGS AND HAZARDS CONTAINED IN THE CHARTS.
Scott Alprin, Appellant, v. City of Tacoma et al., Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION TWO
2007 Wash. App. LEXIS 1417
June 5, 2007, Filed
Appellant, claimant, sued respondent, City of Tacoma and Tacoma Public Utilities (the City), alleging negligence as a matter of law for failing to warn of an overhead power line hazard. The City moved for summary judgment. The Washington trial court granted summary judgment in favor of the City, and the claimant appealed.
While sailing, the claimant’s sailboat mast hit power transmission cables suspended above the bay. The resulting jolt of electricity severely injured the claimant, threw him into the water, and caused major damage to his sailboat. The appellate court ruled that by including the power lines in the National Oceanic and Atmospheric Association (NOAA) charts, the City fulfilled its duty to warn as a matter of law. The NOAA chart for the bay clearly noted the location of the power lines and their clearance of 30 feet above the confluence of the bay and lagoon. The appellate court was bound by the admiralty rule that any boater, even a recreational one, was charged with knowledge of all warnings and hazards contained in the NOAA charts. The claimant did not bother to consult or to take notice of the NOAA chart, which clearly showed the location and clearance of the power lines, and he did not heed the red danger buoys, claiming instead to have mistakenly believed that they marked a no-wake zone, also contrary to the NOAA charts.
The judgment was affirmed.