DEFENDANT CRUISE LINE’S MOTION TO COMPEL ARBITRATION DENIED AS TO JONES ACT CLAIMS WHERE TURKISH SEAFARER WAS REQUIRED TO ARBITRATE IN MONACO ACCORDING TO PANAMANIAN LAW. DISTRICT COURT HELD THAT PROSPECTIVE WAIVER OF U.S. STATUTORY RIGHTS WAS VOID UNDER THOMAS V. CARNIVAL.
NURETTIN MAYAKAN, vs CARNIVAL CORPORATION, Defendant.
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, ORLANDO DIVISION
2010 U.S. Dist. LEXIS 58570
June 14, 2010, Filed
Plaintiff originally brought suit in state court in Florida. Defendant timely removed the action to this Court pursuant to 9 U.S.C. § 205, contending that Plaintiff’s claims arise out of, and are related to, one or more arbitration agreements that are subject to the United Nations Convention on the Recognition and Enforcement of Arbitral Awards. Defendant Carnival sought to compel arbitration pursuant to two seafarer’s agreements.
Plaintiff, a citizen and resident of Turkey, was a seaman who suffered severe spinal injuries while working as a headwaiter on Defendant’s cruise ships. Plaintiff filed suit alleging claims for Jones Act negligence, unseaworthiness and failure to provide maintenance and cure. Defendant filed its Motion to Dismiss and Compel Arbitration, contending that this case must be arbitrated pursuant to the New York Convention. In support of its motion, Defendant relied on two seaman’s contracts that Plaintiff executed in 2006 and 2007, respectively. If enforced, these contracts would require Plaintiff to arbitrate his claims under the substantive law of Panama in an arbitration proceeding to be held in Monaco. Plaintiff asserted that requiring arbitration of his Jones Act claims would amount to a prospective waiver of his statutory rights under U.S. law in violation of Thomas v. Carnival. In Thomas, the Eleventh Circuit held that an arbitration clause that required a seaman to arbitrate his Seaman’s Wage Act claim (but not a Jones Act claim) in the Philippines under Panamanian law was unenforceable because the choice-of-law and arbitration provisions worked in tandem to operate as a prospective waiver of the seaman’s right to pursue his statutory remedies under U.S. law. 573 F.3d at 1123-24.
The District Court denied Carnival’s Motion to Compel Arbitration finding that Thomas generally precludes arbitration of Jones Act claims.
DISTRICT COURT APPLIED THE CORRECT STANDARD OF CARE IN MAKING ITS NEGLIGENCE FINDING BECAUSE A SHIP’S CAPTAIN HAD AMPLE TIME TO FIND A SAFER BERTH AND WAS NOT IN A POSITION OF PERIL AT THE TIME HE DECIDED TO PROCEED TO NEW ORLEANS, AND NONE OF THE FINDINGS THAT SUPPORTED REJECTION OF THE PROPOSED IN EXTREMIS STANDARD OF CARE WERE CLEARLY ERRONEOUS.
CRESCENT TOWING & SALVAGE COMPANY INC; COOPER CONSOLIDATED INC, Plaintiffs-Appellees Cross-Appellants v. CHIOS BEAUTY MV, her engines, boilers, tackle, apparel, etc, in rem; HARBOR SHIPPING AND TRADING S A; CHIOS BEAUTY SHIPPING AND TRADING SA, Defendants-Appellants Cross-Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2010 U.S. App. LEXIS 13963
June 23, 2010, Filed
Plaintiff towing companies brought suit against defendant ship and her owner and operator for damages sustained when the ship allided with plaintiffs’ barges and tugboats during Hurricane Katrina. The U.S. District Court for the Eastern District of Louisiana found defendants negligent. The district court denied plaintiff’s motion for post-judgment interest in excess of the letter of undertaking. Both parties appealed.
The captain of the ship had ample time to find a safer berth and was not in a position of peril at the time he decided to proceed to New Orleans. None of the findings that supported the rejection of the proposed in extremis standard of care were clearly erroneous. The district court applied the correct standard of care in making its negligence finding. The finding that Katrina was forecasted to pass near or directly hit New Orleans was also not clearly erroneous. Although weather advisories were predictions and subject to uncertainty, they were the best available forecast of Katrina’s path when the captain decided to proceed to New Orleans. The court could not agree that the “inclusive of interests and costs” provision of the letter of undertaking constituted a waiver of Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions E(5) interest. The phrase was consistent with Rule E(5)’s mechanism for setting the principal sum at an amount sufficient to cover the claim with interest and costs up to the value of the vessel. Plaintiffs were entitled to post-judgment interest under 28 U.S.C.S. § 1961, but their recovery was limited to the present value of the letter of undertaking.
The court affirmed the judgment of the district court as to the standard of care it employed and its factual findings, and remanded to the district court to determine the present value of the letter of undertaking, the present value of plaintiffs’ judgment, and based on those calculations, enter an order setting the total amount of recovery, as specifically set forth in the court’s opinion.
DURING A JURY TRIAL ON A SEAMAN’S CLAIM UNDER THE JONES ACT, A DEFENSE WITNESS ADMITTED THAT HE HAD DISCUSSIONS ABOUT PRIOR COURT TESTIMONY WITH DEFENSE COUNSEL AND A CORPORATE REPRESENTATIVE. BECAUSE THE RECORD DID NOT SHOW THAT TEX. R. CIV. P. 267 WAS VIOLATED, THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY PERMITTING THE WITNESS TO TESTIFY.
REYNALDO GONZALEZ, Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, Appellee.
COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI – EDINBURG
2010 Tex. App. LEXIS 4777
June 24, 2010, Filed
Appellant, a seaman, tried his Jones Act and other maritime claims to a jury under 46 U.S.C.S. § 688. The jury found appellee maritime company 25 percent negligent and found appellant 75 percent negligent. The 206th District Court of Hidalgo County, Texas, accordingly reduced the damage finding of $ 500,000 to $ 125,000. Appellant filed an appeal.
Appellant worked on the vessel from 1998 to 2005. On the day that he slipped and fell, the stairs were clean and dry. If there was any water present, he brought it in on his shoes. He admitted that he “misstepped.” The evidence was sufficient to support the jury’s finding of contributory negligence. Appellant asserted the trial court erred by not properly applying “the sequestration rule” under Tex. R. Civ. P. 267 to a defense witness. On cross-examination, the witness admitted that he had discussions about prior court testimony with defense counsel and the corporate representative. The trial judge addressed the situation to ascertain whether the letter and spirit of Rule 267 had been adhered to. Appellant failed to show that the witness’s trial testimony differed from his deposition testimony. The trial court did not abuse its discretion by allowing the defense witness to testify.
The judgment of the trial court was affirmed.
GRANT OF EQUITABLE VACATUR OF A WRIT OF MARITIME ATTACHMENT UNDER SUPP. R. ADM. OR MAR. CL. & ASSET FORFEITURE ACTIONS B AGAINST A CORPORATION WAS AN ABUSE OF DISCRETION BECAUSE THE CORPORATION COULD NOT OBTAIN IN PERSONAM JURISDICTION OVER THE COMPANY IN THE DISTRICT WHERE THE CORPORATION WAS LOCATED.
PROSHIPLINE INC; EP-TEAM INC., Plaintiffs-Appellants, v. ASPEN INFRASTRUCTURES LTD, formerly known as Suzlon Infrastructure Ltd; SUZLON INFRASTURCTURE LTD, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2010 U.S. App. LEXIS 12372
June 8, 2010, Amended
Appellants, a corporation and its agent, challenged two of the United States District Court for the Western District of Washington’s decisions in favor of appellee infrastructure company. Both decisions involved a writ of maritime attachment that the corporation and its agent obtained against the company pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B.
The district court held in the first decision that it could not compel the infrastructure company to post security in lieu of garnishment, which forced the corporation and its agent to waive their right to garnish the company’s property pursuant to a previously obtained Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B writ or to garnish the property despite alleged impracticability. The district court, in the second decision, equitably vacated the corporation and its agent’s Rule B writ and exonerated security posted for that writ. The appellate court found that the district court abused its discretion when it found that the agreement was not a maritime contract that gave rise to federal maritime jurisdiction under 28 U.S.C.S. § 1333 because it did not make reference to specific vessels or voyages where, under the conceptual test adopted by the United States Supreme Court, the agreement manifestly had maritime commerce as its principal objective. Equitable vacatur of the writ as it pertained to the agent was warranted since the agent could obtain in personam jurisdiction over the company in the district where the agent was located.
The district court abused its discretion by vacating the writ as it pertained to the corporation. The court of appeals ordered that the writ be reinstated on behalf of the corporation. Because the writ was improperly vacated as to the corporation, the order to reimburse the company for the value of the garnished property was also improper. Each party was to bear its own costs on appeal.
Judgment dismissing fishing boat captain’s negligent infliction of emotional distress claim for failure to state claim was reversed as captain stated claim by alleging that he was within zone of danger of near-miss with freighter and that he suffered emotional distress from fright caused by owners and operators of freighter’s negligence.
BRIAN STACY, Plaintiff-Appellant, v. REDERIET OTTO DANIELSEN, A.S.; K.S. ARIES SHIPPING, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2010 U.S. App. LEXIS 13222
June 29, 2010, Filed
Appellant fishing boat captain filed suit against appellees, the owners and operators of a freighter (defendants), for negligent infliction of emotional distress. The United States District Court for the Northern District of California dismissed the suit for failure to state a claim. The captain appealed.
The captain alleged that the freighter was proceeding at an unsafe speed without a proper lookout, proper radar equipment, or proper signals in violation of the International Navigation Rules Act, and narrowly missed striking his boat. The appellate court noted that jurisdiction was based on federal maritime jurisdiction of torts committed on the high seas under 28 U.S.C.S. § 1333(1). The captain stated a claim by alleging that he was within the zone of danger and that he suffered emotional distress from the fright caused by defendants’ negligence. The zone of danger test did not require the captain to witness harm to another person. Chan did not adopt the witness test as exclusive, or address the case where a plaintiff suffered psychic damage from a direct encounter. The United States Supreme Court had not abandoned its statement of the tort inflicted by creating a zone of danger. Chan related how the court had maritime jurisdiction of a claim for the tortious infliction of emotional injury. It was otherwise not instructive in this case.
The judgment of the district court was reversed, and the case was remanded for further proceedings.