June 2009 Issue

District court did not abuse its substantial discretion in concluding District of South Carolina was not appropriate forum to litigate issues of liability and damages for collision that occurred in China between ships owned by foreign corporations, particularly in view of its conclusion that U.S. had no connection to events giving rise to action.

In Re: COMPANIA NAVIERA JOANNA SA, as OWNER; MSC MEDITERRANEAN SHIPPING COMPANY SA, Appellees, v. KONINKLIJKE BOSKALIS WESTMINSTER NV; BOSKALIS INTERNATIONAL BV; WESTMINSTER INTERNATIONAL BV, Claimants-Appellants.

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

2009 U.S. App. LEXIS 13807
June 26, 2009, Decided

PROCEDURAL POSTURE:

After a collision occurred in Chinese territorial waters, appellants sought to litigate its claims for damages against appellees in the United States. Appellees filed a limitation action pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions F. The United States District Court for the District of South Carolina granted appellees’ motion to dismiss based on the doctrine of forum non conveniens. Appellants sought review.

OVERVIEW:

The district court did not abuse its discretion in applying the doctrine of forum non conveniens and dismissing the action, even though appellees claimed that they could not prosecute their claim in the admiralty court in China. The United States had absolutely no connection to the events giving rise to the action. None of the parties was a United States entity or citizen. Neither vessel was registered in the United States. Neither vessel ever darkened the doorstep of a United States port. No member of either crew was a United States citizen. No United States citizens were fact witnesses. Most, if not all, of the potential witnesses spoke a language other than English, requiring a plethora of translators if the case were retained by this court and the most compelling public interest factor favoring dismissal was the challenge of applying foreign law. Appellees did not abuse the limitation-of-liability process and the district court did not err in considering a motion to dismiss filed in the limitation-of-liability action on the ground of forum non conveniens when the limitation-of-liability action was part of a larger related complex of actions filed in the United States.

OUTCOME:

The appellate court affirmed the dismissal, but with the modification that any applicable statute of limitations or defense based on a missed deadline could not be affirmatively asserted in the Chinese proceedings.

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In supreme court case where lipcon, margulies & alsina, p.a. wrote an amicus brief, the court found that a Tugboat crew member who claimed to have been denied maintenance and cure could pursue a claim for punitive damages. Punitive damages were available for willful and wanton disregard of the maintenance and cure obligation as a matter of general maritime law, and 46 U.S.C.S. § 30104 of the Jones Act did not eliminate that remedy.

ATLANTIC SOUNDING CO., INC., ET AL., PETITIONERS v. EDGAR L. TOWNSEND
No. 08-214

SUPREME COURT OF THE UNITED STATES

2009 U.S. LEXIS 4732
June 25, 2009, Decided

PROCEDURAL POSTURE:

Petitioners, a tugboat owner and its parent corporation, filed suit against respondent crew member for a declaratory judgment regarding maintenance and cure obligations. The crew member sought punitive damages for the denial of maintenance and cure. The district court denied petitioner’s motion to dismiss the punitive damages claim, and the United States Court of Appeals for the Eleventh Circuit affirmed. The Supreme Court granted certiorari.

OVERVIEW:

The crew member allegedly injured his arm and shoulder while working on the owner’s tugboat. The owner allegedly told the crew member that it would not provide maintenance and cure. Resolving a split among the circuits, the Supreme Court held that punitive damages were available for willful and wanton disregard of the maintenance and cure obligation as a matter of general maritime law. Punitive damages had long been available at common law, a tradition that extended to maritime claims, including maintenance and cure claims. 46 U.S.C.S. § 30104 of the Jones Act did not eliminate preexisting remedies available to seamen for the common-law cause of action based on the right to maintenance and cure. The language of § 30104 allowing a seaman to “elect” to bring a Jones Act indicated that the Act did not provide an exclusive remedy. The fact that claims for wrongful withholding of maintenance and cure had been brought under the Jones Act did not mean that the Jones Act had replaced common-law remedies.

OUTCOME:

The court of appeals’ judgment was affirmed, and the case was remanded for further proceedings. 5-4 Decision; 1 Dissent.

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Seaman’s negligence and unseaworthiness claims against a vessel were time-barred under the three year limitations period of the Jones Act, 46 U.S.C.S. § 30106, because the claims were filed more than eight years after the injury, a state savings statute did not toll the limitations period, and the seaman was unable to establish equitable estoppel.

ANDREW CUNNINGHAM, Plaintiff-Appellant, v. INTERLAKE STEAMSHIP COMPANY, Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
09a0195p.06; 567 F.3d 758; 2009 U.S. App. LEXIS 11723; 2009 FED App. 0195P (6th Cir.)

June 2, 2009, Filed

PROCEDURAL POSTURE:

Appellant seaman sought review of a decision of the U.S. District Court for the Northern District of Ohio, which granted summary judgment to appellee vessel in the seaman’s suit for negligence, unseaworthiness, and maintenance-and-cure. The district court had ruled that the negligence and unseaworthiness claims were untimely and that the claim for maintenance and cure failed because the vessel had discharged its obligations toward the seaman.

OVERVIEW:

The seaman injured his back in 1998 while serving as a crew man aboard a certain vessel. He filed suit in state court, which he voluntarily dismissed without prejudice in 2005. Instead of refiling in state court, the seaman filed his claims in federal court in 2006. On appeal, the court found that the district court did not err in ruling that the seaman’s negligence and unseaworthiness claims were time-barred. In particular, as more than eight years had elapsed between the injury and the federal court filing, the negligence and unseaworthiness claims were barred by the three year limitations period under the Jones Act, 46 U.S.C.S. § 30106. A state savings statute did not toll this limitations period, and the vessel’s failure to inform the seaman about the effect of the state court voluntary dismissal did not support an equitable estoppel argument. While the maintenance and cure claim was timely filed, the court agreed with the district court that the vessel was not liable to the seaman for certain medical procedures and that the seaman failed to establish a causal connection between his back injury and certain later medical conditions to show that the vessel had an obligation.

OUTCOME:

The court affirmed the district court’s decision.

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Under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(6), amount of attachment was properly reduced because plaintiff was likely to recover only costs it incurred in securing release of vessel where plaintiff waited more than 6 months to seek release and defendant released vessel immediately upon being notified that arrest was wrongful.

TRANSPORTES NAVIEROS Y TERRESTRES S.A. DE C.V., Plaintiff-Appellant, –v.– FAIRMOUNT HEAVY TRANSPORT N.V., Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2009 U.S. App. LEXIS 13394

June 23, 2009, Decided

PROCEDURAL POSTURE:

Plaintiff alleged that it has suffered significant monetary damages as a result of defendant’s wrongful arrest of plaintiff’s vessel. The United States District Court for the Southern District of New York granted plaintiff an order for process of maritime attachment pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B. Plaintiff appealed the district court’s order reducing the amount of the maritime attachment.

OVERVIEW:

The initial order for process of maritime attachment authorized attachment of defendant’s property in an amount up to $ 10,220,000. The court subsequently reduced the amount of the attachment to $ 15,000 to reflect the amount for which defendant might be potentially responsible. The district court determined that defendant could not be held responsible for the amount claimed in plaintiff’s complaint because plaintiff failed to mitigate its damages. On appeal, the court held that the district court was permitted to assess the reasonableness of plaintiff’s claimed damages and weigh other equitable considerations when it set or reduced a security under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(5) and (6). The district court did not abuse its discretion in drawing the preliminary conclusion that plaintiff was likely to recover only the costs it incurred in securing the release of the vessel because plaintiff waited more than six months to seek the release of the vessel from an attachment it believed was wrongful and defendant released the vessel immediately upon being notified that the arrest was wrongful.

OUTCOME:

The court affirmed the district court’s order reducing the amount of the maritime attachment.

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Where seaman, whose cold-like symptoms were not severe, was not subjected to discrete traumatic event like chemical exposure, it was for factfinder to determine whether seaman should have known he had a serious fungal infection of lungs prior to 2005 diagnosis, and if not, 2006 suit was timely under 46 U.S.C.S. §§ 30104, 30106 and 45 U.S.C.S. § 56.

HERBERT B. PRETUS, JR., Plaintiff – Appellant, v. DIAMOND OFFSHORE DRILLING INC.; DIAMOND OFFSHORE MANAGEMENT CO.; DIAMOND OFFSHORE SERVICES CO., Defendants – Appellees.

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2009 U.S. App. LEXIS 13084

June 12, 2009, Filed

PROCEDURAL POSTURE:

Appellant seaman sought review of a judgment from the United States District Court for the Eastern District of Texas, which granted summary judgment to appellee employer in the seaman’s suit seeking damages for a lung disorder he allegedly contracted in the course of his maritime employment.

OVERVIEW:

The seaman began working for his employer in 1978. Starting in 1999, upon his assignment to a new rig, the employee began experiencing cold-like symptoms. The employee was diagnosed with respiratory conditions such as bronchitis and was treated with antibiotics and other common medications, which helped to alleviate the symptoms. The seaman continued to seek medical treatment during 2004 and in 2005 was diagnosed with a serious fungal infection of the lungs. The district court held that the claims were time barred under the three-year limitations period in 46 U.S.C.S. § 30106 and in the Jones Act, 46 U.S.C.S. § 30104, because the seaman filed suit on September 6, 2006 and his cause of action did not accrue on or after September 6, 2003. On appeal, the district court held that there were genuine issues of material fact as to whether the seaman, whose symptoms were not severe and who was not subjected to a discrete traumatic event like a chemical exposure, should have been aware that he has a serious disease prior to the 2005 diagnosis. If the fact finder concluded that the seaman could not have reasonably discovered he had a serious illness before 2004, his suit was timely.

OUTCOME:

The court reversed the district court’s judgment and remanded the case for further proceedings.