Americans with Disabilities Act Is Generally Applicable To Foreign Flag Cruise Ships
DOUGLAS SPECTOR, ET AL., PETITIONERS v. NORWEGIAN CRUISELINE LTD.
SUPREME COURT OF THE UNITED STATES
125 S. Ct. 2169; 162 L. Ed. 2d 97; 2005 U.S. LEXIS 4655; 73U.S.L.W. 4429; 16 Am. Disabilities Cas. (BNA) 1345; 18 Fla. L.Weekly Fed. S354;11 Accom. Disabilities Dec. (CCH) 11-256
February 28, 2005, Argued
June 6, 2005, Decided
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. Spector v. Norwegian Cruise Line, Ltd., 356 F.3d 641, 2004 U.S. App. LEXIS 340 (5th Cir. Tex., 2004)
Reversed and remanded.
Plaintiff disabled passengers filed a class action against defendant foreign cruise line under Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12181 et seq. Though holding Title III generally applicable, the district court dismissed some claims but left others in place. The United States Court of Appeals for the Fifth Circuit held that the ADA was inapplicable to foreign vessels. The passengers sought review.
The passengers claimed the line’s ships were covered by Title III’s prohibition on discrimination in “public accommodations,” 42 U.S.C.S. § 12182(a), and “specified public transportation services,” 42 U.S.C.S. § 12184(a). Inter alia, the Supreme Court held that although the statutory definitions of “public accommodation” and “specified public transportation” did not expressly mention cruise ships, the cruise ships in question clearly fell within both definitions under conventional principles of interpretation. The “clear statement rule” demanded a clear congressional statement, not for all applications of a statute to foreign-flag vessels, but only those applications that would interfere with the foreign vessel’s internal affairs. This did not mean the clear statement rule was irrelevant to the ADA, however. If Title III by its terms imposed duties that interfered with a foreign-flag ship’s internal affairs, the lack of a clear congressional statement could mean that those specific statutory applications were precluded. The Circuit Court’s broadly sweeping clear statement rule interpretation was inconsistent with the Supreme Court’s case law and sound statutory interpretation.
The Supreme Court reversed the decision of the Circuit Court and remanded for further proceedings.
Admiralty Jurisdiction Applied Where Worker Injured Where Worker Injured While Cleaning Oil Tank Of Barge
FOLKSAMERICA REINSURANCE COMPANY, as successor in interestto Christiania General Insurance Company of New York, Plaintiff-Appellant, v.CLEAN WATER OF NEW YORK, INC., Defendant-Appellee.
Docket No. 03-9124
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2005 U.S. App. LEXIS 13041
November 9, 2004, Argued
June 30, 2005, Decided
[*1] Appeal from a memorandum and order entered on August 14, 2003, in the United States District Court for the Eastern District of New York (Block, J.), dismissing the complaint for lack of subject matter jurisdiction in the absence of admiralty jurisdiction. Folksamerica Reinsurance Co. v. Clean Water of N.Y., Inc., 281 F. Supp. 2d 530, 2003 U.S. Dist. LEXIS 13991 (E.D.N.Y., 2003)
A worker was injured cleaning an oil tank of a barge moored in New York Harbor. Plaintiff insurer filed suit for a declaration that it had no obligation to defend or indemnify defendant ship tank cleaning business, which had subcontracted the work to the worker’s employer. The United States District Court for the Eastern District of New York dismissed the case for lack of maritime jurisdiction under 28 U.S.C.S. § 1333(1). The insurer appealed.
The shiprepairers legal liability section and the modified comprehensive general liability (CGL) section together operated seamlessly to provide coverage that was primarily marine in nature. The sections shared a premium and were subject to the same deductible and limitations. The policy was custom-built to fill the gaps that traditional marine insurance policies–hull, collision, and protection and indemnity insurance–left in maritime-industry coverage. The SLL section protected against property damage to vessels undergoing repair, and the CGL section added completed operations, products, pollution, contractual liability, and premises and operations coverage. The provisions rounded out coverage for maritime transport operations and gave ship repair and maintenance coverage. Because one section provided full marine insurance, and the other was specifically modified to cover maritime risks, the policy was marine in nature without the necessity of determining whether the premises and operations coverage was marine or not. The policy’s primary objective was marine insurance. It was error to conclude that there was no admiralty jurisdiction under 28 U.S.C.S. § 1333(1).
The district court’s dismissal was vacated and the case was remanded.
Employer Of Seaman Not Liable For The Cracking Of The Necks Of Fellow Crewman Since It Was Outside The Scope Of The Employment. Summary Judgement Affirmed.
PAUL SOBIESKI and GAIL SOBIESKI, Plaintiffs-Appellants, v. ISPAT ISLAND, INC., INDIANA HARBOR STEAMSHIP CO., LLC, CENTRAL MARINE LOGISTICS,INC., and M/V JOSEPH L. BLOCK, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2005 U.S. App. LEXIS 12901
January 5, 2005, Argued
June 29, 2005, Decided
[*1] Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:01-CV-617-PRC. Paul R. Cherry, Magistrate Judge.
Appellants, crewman and his wife, filed suits against appellees, corporations, employer, and vessel, and alleged various negligence claims under maritime law. The United States District Court for the Northern District of Indiana, Hammond Division dismissed the claims that remained after a grant of summary judgment. The crewman challenged the grant of summary judgment on the claims under the Jones Act, 46 U.S.C.S. app. § 688.
The crewman’s neck was injured when his crewmate forcefully cracked his neck unexpectedly. The crewman then fell down his basement stairs when he experienced a lock up pinch in his neck. As a result, the crewman broke his neck in three places and required multiple surgeries and rehabilitation. The crewman and his wife contended that the employer was vicariously liable under the Jones Act, 46 U.S.C.S. app. § 688 for what they described as the crewmate’s pseudoctic ways. The crewman and his wife also argued that the employer was directly negligent and liable for the crewman’s injury because it was aware, or should have been aware, through its officers, of the crewmate’s neck-tractioning activities and did nothing to prevent them. The court found that the crewmate’s altruistic tractioning of necks clearly fell within that category of acts commonly held to be outside the scope of employment, those undertaken by an employee for a private purpose and having no causal relationship with his employment. Thus, no reasonable jury could have found that the crewmate’s act of cracking the crewman’s neck fell within the scope of employment, and the crewman’s respondeat superior argument failed.
Summary judgment on the crewman and the wife’s Jones Act claims was appropriate. Therefore, the judgment of the district court was affirmed.
Judgment For Seaman Who Fell By Reason Of Boots Becoming Wet Was Reversed Because There Was Not Duty To Warn About Open And Obvious Dangers
EDDIEPATTERSON,Plaintiff-Counter-Defendent-Appellee, Versus ALLSEAS USA,INC., ET ALDefendants, ALLSEAS MARINE CONTRACTORS SA, Defendants-Counter Claimant-Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2005 U.S. App. LEXIS 10692
June 8, 2005, Filed
[*1] RULES OF THE FIFTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Texas, Lufkin Division. No. 9:02-CV-175.
Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Texas, Lufkin Division, which ruled in favor of appellee employee in his suit to recover damages for personal injuries pursuant to the Jones Act, 46 U.S.C.S. § 688.
The employee, who was the highest ranking employee on the ship other than the captain, went with a co-employee to inspect a pool of standing water. The employee’s boots became wet during the process. Following the inspection, the employee descended a stairway and slipped, though he was prevented from falling because the co-employee blocked the employee’s fall. The employee’s boots were wet at the time of the fall, and a portion of the handrail on one side of the stairs was missing. The district court entered judgment for the employee on the grounds that the co-employee, who was a barge supervisor tasked with safety, had breached a duty to warn the employee of the dangers of descending the stairway with wet boots and that the employer was vicariously liable for the co-employee’s breach of duty. In reversing the judgment, the court pointed out that under the Jones Act, a shipowner need not warn seamen of dangers that were “open and obvious.” The court held that the employee, who was the co-employee’s supervisor and the main safety official on the ship, should have known of the dangers associated with descending a stairway in wet boots, and thus, the co-employee had no duty to warn.
The court reversed the district court’s judgment and rendered judgment in favor of the employer.
One Year Passenger Ticket Limitation To File Suit Applied To Claims Against Independent Contractor Who Ran The Spa On The Ship. Also Filing Suit In State Court Did Not Toll The Time Period To File Suit In Federal Court.
SUE LEVICK, Plaintiff, v. STEINER TRANSOCEAN LIMITED, Defendant.
CASE NO. 04-21910-CIV-LENARD/KLEIN
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA, MIAMI DIVISION
2005 U.S. Dist. LEXIS 14770
July 13, 2005, Decided
July 13, 2005, Filed
Levick v. Steiner Transocean Ltd., 228 F.R.D. 671, 2005 U.S. Dist. LEXIS 11350 (S.D. Fla., 2005)
Plaintiff claimant brought a negligence action against defendant, a provider of spa services, after the claimant was injured when stepping down from a massage table while a passenger on a cruise line. The provider filed a motion to dismiss, which the court construed as a motion for summary judgment.
The provider contended that the claimant’s action was barred by the shortened one-year limitation period under the cruise ticket contract, as allowed by 46 U.S.C.S. app. § 183b(a). The court granted summary judgment in favor of the provider because there were no material facts in dispute relevant to the one-year limitation period. The court found that the provider could benefit from the shortened filing time because the one year period was lawful under § 183b(a) and the ticket contract clearly notified the claimant and other passengers of the types of liability exclusions and the types of entities who could benefit. The contract included independent contractors and detailed the type of contractors covered, including spa and masseuse services. Thus, the provider was clearly the type of independent contractor or concessionaire covered by the contract. Equitable tolling was not applicable because the claimant chose to pursue her action solely in the state court system without preserving her claim by filing in federal court. The claimant was aware of the shortened time period before its expiration, and no inequitable event prevented her from timely filing in federal court.
The court granted the provider’s motion to dismiss, construed as a motion for summary judgment, and closed the case. The court denied as moot all pending motions.
Suit Filed In Wrong Forum Against Cruise Line Transferred To U.S. District Court For Southern District Of Florida
DEBORAH HELLMAN, Plaintiff, v. ROYAL CARRIBEAN INTERNATIONAL Defendant.
Case No. 04 C 4041
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION
2005 U.S. Dist. LEXIS 14177
July 8, 2005, Decided
July 8, 2005, Filed
Plaintiff passenger, an Illinois resident, sued defendant cruise ship company for negligence, alleging she sustained serious injury to her arm as the result of a massage she received while a passenger aboard one of the company’s ships. The company moved to dismiss the complaint for improper venue and lack of personal jurisdiction, or, in the alternative, to transfer the case to a court where venue was proper.
The passenger’s ticket contract provided that the forum for any litigation would be Miami, Florida. She argued that the forum selection clause was unenforceable because she lacked adequate notice of the clause and because it was fundamentally unfair. The court disagreed. The contract stated in bold letters that the document was “Important” and admonished the passenger to “Read All Clauses”; the forum selection clause itself appeared in all capital letters. That the passenger chose not to read the contract was immaterial. She was presented with adequate notice of the forum selection clause and the opportunity to reject it within 30 days without incurring a substantial financial penalty. She failed to show that fundamental unfairness would result from prosecuting the claim in Florida rather than in Illinois, as there was at least some likelihood that discoverable material and/or witnesses related to the company’s alleged negligence would at its corporate offices in Miami. The court determined that justice was better served by transfer under 28 U.S.C.S. 1406(a) rather than dismissal, since the contract limited the time period in which an action could be brought.
The company’s motion to dismiss was denied, and its motion to transfer was granted. The case was transferred to the U.S. District Court for the Southern District of Florida.
Riverboat Casino Employee Had Claim For Overtime Under The Fair Labor Standards Act But Did Not Have In Rem Claim Or A Maritime Lien
JOHN F. HURLEY, Plaintiff, v. M/V MAJESTIC STAR, herengines, boilers, furniture, tackle and apparel; and MAJESTIC STAR CASINO, Defendants.
NO. 2:04-CV-277 PS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFINDIANA, HAMMOND DIVISION
2005 U.S. Dist. LEXIS 13480
July 6, 2005, Decided
Plaintiff, a riverboat casino employee, sued defendant casino seeking overtime wages under the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee also attempted to invoke the court’s admiralty jurisdiction; he brought an action in rem against the physical vessel on which he worked pursuant to the Maritime Lien Act (MLA), 46 U.S.C.S. 31342(a)(2). The vessel and the casino moved to dismiss.
The employee had not stated a claim for relief with respect to the vessel because the complaint alleged that the employee was not “employed as a seaman” and that he performed services of a non-maritime nature aboard a vessel that was virtually permanently moored. By attempting to take advantage of the protections of the FLSA, the employee had, in effect, pled himself out of court on his maritime lien claim. Moreover, there was no right to overtime under general maritime law principles, and the employee admitted that he was properly paid his regular wages in full. Further, the employee could not bring an FLSA claim directly against the vessel because the vessel was not an employer. The employee also could not maintain a maritime lien against the casino because the employee had pled that he was not a seaman. However, the employee could maintain an FLSA claim against the casino as he alleged that he worked in excess of 40 hours per week, that he was not compensated at a rate of one and one half times his regular rate, that he was not employed as seamen, and that he performed non-maritime duties.
The in rem case against the vessel was dismissed for failure to state claim, but the casino’s motion to dismiss was denied.
Seaman’s Motion For Cure Granted. Claim For Attorneys Fees And Punitive Damages Denied
BETTY FROST, Plaintiff, vs. TECO BARGE LINES, Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFILLINOIS
2005 U.S. Dist. LEXIS 11795
June 1, 2005, Decided
June 1, 2005, Filed
Plaintiff seaman filed an admiralty complaint against defendant barge company under the Jones Act, 46 U.S.C.S. § 688 et seq., and general admiralty and maritime law to recover for personal injuries sustained in the course and scope of her employment as a crew member aboard one of the company’s vessels. The seaman filed a motion for cure, punitive damages, and/or attorney fees.
The seaman alleged that she sustained back injuries while working on one of the company’s vessels. The seaman’s doctor recommended treatment in the form of medication, nerve blocks, and possible physical therapy. The company stated that it was not required to pay for this treatment because the injury was not related to the injuries the seaman sustained on the vessel and because the treatment was purely palliative, not curative. The court disagreed. First, the seaman’s doctor sent a letter clarifying that the treatment was related to the injury sustained aboard the vessel. Second, the medical treatment was aimed at resolving pain at the injury site, thereby relaxing tissue and allowing healing of the tissue. Thus, the seaman was entitled to cure. However, the court held that the seaman was not entitled to an award of attorney fees because the company’s failure to pay was not willful as there had been confusion over whether the injury for which cure was sought was one that was sustained aboard the vessel. Nor was the seaman entitled to punitive damages, which the court held were not available even for an employer’s willful failure to pay maintenance and cure.
The court granted the seaman’s motion for cure to the extent that the company was ordered to comply with its cure obligations with regard to the seaman’s medical treatment. The remainder of the motion was denied.
Attacking The Character Of A Defense Witness On Matters Not Relevant To The Issues At Trial Required A New Trial
STERLING CASINO LINES, L.P., Appellant, v. LESLIE ROSALEEPLOWMAN-RENDER, Appellee.
Case No. 5D04-2830
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
902 So. 2d 938; 2005 Fla. App. LEXIS 8265; 30 Fla. L. WeeklyD 1404
June 3, 2005, Opinion Filed
Released for Publication June 22, 2005.
[*1] Appeal from the Circuit Court for Brevard County, Lawrence V. Johnson III, Judge.
REVERSED and REMANDED for a new trial.
Appellant cruise line appealed a judgment in favor of appellee individual by the Circuit Court for Brevard County (Florida) in the individual’s personal injury action; the cruise line claimed that the trial court erred in admitting improper character evidence, evidence of prior bad acts, and other irrelevant evidence.
The individual claimed that she injured her shoulder when a waitress carrying a tray of coffee bumped into her. The cruise line’s emergency medical technician treated the individual with a first aid spray. The individual returned home, and her burns healed in a few days. However, two or three days later, she had a stiff neck and a sore shoulder. She went to see her primary care physician, whose medical records indicated the injury occurred when the individual struck her shoulder on a door a month later. Over the cruise line’s objection, the individual was able to introduce information relating to the medical technician’s alcohol-induced coma, suicide attempt, stays in a mental facility, and the reason for his termination from employment with the cruise line. The court held that the questions asked of the technician might have been appropriate in a discovery context. However, they were irrelevant to the issues at trial and served simply to portray the technician in an unfavorable light. Because the questions impugned the technician’s character and might have destroyed his effectiveness as a witness, the cruise line was entitled to a new trial.
The judgment was reversed, and the cause was remanded for a new trial.
Permanent Transfer Of A Seaman To A Platform That Was Not A Vessel Defeated Claims Under The Jones Act
ROBERT MCINNIS VERSUS PARKER DRILLING COMPANY AND STONE ENERGY CORPORATION
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
04-1887 (La.App. 4 Cir. 06/01/05);
2005 La. App. LEXIS 1565
June 1, 2005, Decided
[*1] THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.
PRIOR HISTORY: APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2001-13692, DIVISION “G-11”. Honorable Robin M. Giarrusso, Judge.
Appellant drilling company employee was injured aboard platform rig-3 while in the course and scope of his employment. He alleged that he was employed by appellee employer as a seaman at the time of his employment injury, thereby entitling him to recover under the Jones Act, 46 U.S.C.S. app. § 688. The Civil District Court, Orleans Parish, Division “G-11” (Louisiana) found that the employee failed to prove seaman’s status, and he appealed.
The issue was whether the employee’s transfer to rig-3, which was not a vessel, was temporary or permanent. If the transfer was permanent, then the employee forfeited whatever seaman’s status he previously had enjoyed prior to the transfer. The employee claimed that because he had worked on both platform rigs and jack-up rigs for the employer, his transfer to rig-3 had to be considered temporary. The appellate court disagreed and held that the fact that the employee might have been a seaman in the past and might have had the prospect of becoming one again in the future did not mean that his assignment to rig-3 was temporary instead of permanent as those terms were understood in the jurisprudence. It was to the new duties that the appellate court had to look in determining the employee’s seaman’s status. The court found that all of his duties in his new work assignment to rig-3 were non-vessel-related. Coupling that undisputed fact with the trial court’s finding that the employee’s reassignment to rig-3 was permanent compelled the conclusion that the employee was not a seaman at the time of his injury regardless of whether he might have qualified as such immediately prior thereto.
The judgment of the trial court was affirmed
Where Cruise Line Ticket Delivered 13 Days Before Cruise, Adequate Notice Of The Forum Selection Clause Was Not Provided And Would Not Be Enforced
MARK CASAVANT & another n1 vs. NORWEGIAN CRUISE LINE, LTD. n1 Tara Casavant.
APPEALS COURT OF MASSACHUSETTS
63 Mass. App. Ct. 785; 829 N.E.2d 1171; 2005 Mass. App.LEXIS 632
September 9, 2004, Argued
June 30, 2005, Decided
[**1] Worcester. Civil action commenced in the Superior Court Department on October 3, 2002. The case was heard by James P. Donohue, J., on motions for summary judgment.
Judgment reversed. Order denying motion for reconsideration vacated.
Plaintiff customers filed a claim against defendant cruise line seeking to recover payment for a cruise they attempted to reschedule. The cruise line moved to dismiss the complaint based on a forum selection clause, which required that litigation be filed in Florida. The Worcester Superior Court Department (Massachusetts) entered judgment dismissing the complaint and denying the customers’ motion for reconsideration. The customers appealed.
The customers purchased tickets for a cruise that was scheduled to depart from Boston harbor on September 16, 2001. The customers were fearful of going on the cruise, and sought to reschedule. The cruise line denied the customers’ requests. The cruise line did not provide the customers with information concerning the forum selection clause until close to one year after the original booking, two months after full payment was made, and approximately 13 days before sail date. The appellate court concluded that because the manner and means of the delivery of the terms of the contract for passage did not fairly allow the customers the option of rejecting the contract with impunity, and because, in the limited time frame allotted, the customers did not accept the ticket as a binding contract, under controlling Federal maritime law and Massachusetts contractual law, the Florida-dictated forum selection clause was not enforceable. The appellate court also found fundamental error in the manner in which the trial court handles the cruise line’s motion to dismiss which included extra material concerning the forum selection clause and thus, should have been treated as summary judgment motion.
The judgment of the trial court was reversed.
Employee Injured On Ship In Russia Not A Seaman Due To Lack Of Connection To A Vessel In Navigation
DENNIS S. GRENNAN, Appellant, v. CROWLEY MARINE SERVICES, INC., Respondent.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2005 Wash. App. LEXIS 1788
July 25, 2005, Filed
[*1] PUBLISHED IN PART
Superior Court County:
King. Superior Court Cause No: 03-2-28136-1 SEA. Date filed in Superior Court: October 8, 2004. Superior Court Judge Signing: Hon. Nicole MacInnes.
Appellant employee challenged a decision from the Superior Court in King County (Washington), which granted summary judgment in favor of respondent employer in an action brought under the Jones Act and general maritime law to recover for injuries suffered on a ship.
The employee was injured on a ship that was docked in Russia. He later filed an action against the employer under the Jones Act, 46 U.S.C.S. § 688, and general maritime law. The employer filed a motion for summary judgment, contending that the Longshore and Harbor Worker’s Compensation Act (LHWCA) governed instead. After the motion was granted, the employee sought review. On appeal, the court determined that the situs of the injuries fell within the coverage of 33 U.S.C.S. § 903(a). There was no genuine issue of material fact whether the employee had the status of “seaman” at the time of his injury. He did not have “seaman” status because he lacked a connection to a vessel in navigation that was substantial both in terms of duration and nature. Rather, he was an “employee” for purposes of and subject to exclusive coverage under 33 U.S.C.S. § 905(a). Thus, dismissal of his claims was proper. Next, the court reversed the sanctions awarded under Wash. Super. Ct. Civ. R. 37 for the failure to produce a document because the three-part inquiry was not conducted. The court did not consider whether the violation was willful, if there was prejudice, or if a lesser sanction was appropriate.
The court affirmed the decision to grant summary judgment in favor of the employer and the order denying the employee’s motion to strike the employer’s affirmative defense. The court vacated the sanctions order and remanded that issue for further consideration.