Union Presumed To Have Authority To Enter Into A Memorandum Withholding Vacation Benefits So As To Not Violate Penalty Wage Statute
Fanos, on behalf of himself and those similarlysituated,vs-Maersk Line, Ltd., Maersk Sealand, A. P. MollerGroup, Maersk, Inc., Wilmington Trust, Expander Transport Corporation, ExpediterTransport Corporation, Expresser Transport Corporation, Exporter TransportCorporation, and Extender Transport Corporation, Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
363 F.3d 358; 2004 U.S. App. LEXIS 4558; 9 Wage & Hour Cas.2d (BNA) 810
March 10, 2004, Filed
Plaintiff seaman appealed an order of the United States District Court for the Southern District of Texas, which granted summary judgment to defendants, a shipper, an owner, and contractors, in connection with the employee’s action seeking wages and penalty wages pursuant to 46 U.S.C.S. § 10313.
The shipper and the contractors entered into a collective bargaining agreement with a union, which provided employees with paid vacation and required employers to contribute to union benefit plans. The contractors and the union later signed a memorandum of understanding which eliminated employers’ duplicate benefit contributions for days when two officers were aboard a ship to perform one job. The shippers and the contractors were not required to pay vacation benefits directly to employees. Rather, they were required to make contributions to the union vacation plan, which distributed the funds. The seaman argued that withholdings pursuant to the memorandum of understanding were improper. The court held that assuming that the vacation benefits were wages, defendants did not violate § 10313 because the seaman did not allege that they did not make proper contributions to the plan and because defendants were not responsible for the withholding of the benefits. Further, the seaman showed no evidence that the union was not authorized to negotiate the terms of its members’ employment. Thus, the memorandum of understanding provided sufficient cause for withholding the vacation benefits.
The court affirmed the judgment.
Costa Cruise Line Motion For Reconsideration Of Denial Of Motion To Dismiss Based On Forum Non Convenience Was Denied As Costa Was Owned By Carnival Corp. Which Had It Base Ofoperations In The United States
ENRIQUE WILLIAMS, Plaintiff, vs. CRUISE SHIPS CATERING ANDSERVICE INTERNATIONAL, N.V.; PRESTIGE CRUISES N.V.; and COSTA CROCIERE, SPA,Defendants.
Case No. 03-60158-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA
2004 U.S. Dist. LEXIS 7586; 17 Fla. L. Weekly Fed. D 595
March 31, 2004, Decided
March 31, 2004, Filed
Plaintiff, a Costa Rican citizen and injured employee, sued defendants, including a vessel’s owner, for injuries suffered working aboard an Italian-flagged vessel. He alleged claims under the Jones Act, and claims for unseaworthiness, failure to cure, and failure to treat. Pending was defendants’ motions for reconsideration.
The motion for reconsideration pertained to the court’s order denying defendants’ motion to dismiss on forum non conveniens grounds. The court earlier denied the dismissal motion primarily due to its conclusion that defendants’ base of operations was in the United States. It examined the motion for reconsideration under both Fed. R. Civ. P. 59(e), 60(b). Based on defendants’ arguments, the court examined the motion under these Fed. R. Civ. P. 59(e), 60(b) standards: (1) mistake, inadvertence, surprise, or excusable neglect, or the need to correct clear error, and (2) new evidence. Regarding the first standard, none of defendants’ three grounds warranted reconsideration. As for newly discovered evidence, a review of the entire record simply strengthened the court’s conclusion that defendants’ base of operations was in the United States. Even upon consideration of new filings, reconsideration was not warranted. The case involved a controlling question of law, i.e., whether the United States could be considered the base of operations for a shipowner that was owned by a company that primarily conducted its business in the United States. The case was appropriate for certification.
Defendants’ motions for reconsideration were denied.
California Dram Shop Act Applied In The Absence Of A Federal Dram Shop Law. Survival Action And Claim For Punitive Damages Allowed To Proceed Where Non Seaman Killed In Territorial Waters
SERGE VOILLAT and SIMONE VOILLAT, individually and assuccessors-in-interest to LIONEL VOILLAT, Plaintiffs, v. RED AND WHITE FLEET,FISHERMAN’S WHARF BAY CRUISE CORPORATION d/b/a RED AND WHITE FLEET, GOLDEN GATESCENIC STEAMSHIP CORPORATION, LON RICHARDS, LOU’S BLUE SNAX, INC., JOHNNY BRETTand KEITH O’REILLY, both individually and d/b/a “OBLIVION,” “OBLIVIONSF,” and/or”OBLIVIONSF.COM,” SPECIALIZED SECURITY ENTERPRISES, WILLIAM O. MONAGHAN, andDOES 1-50, inclusive, Defendants.
No. C 03-3016 MHP
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 4359
March 18, 2004, Decided
Defendants, a cruise ship passenger, cruise ship owners, corporations, and individuals, moved to dismiss plaintiff parents’ survival and dram shop liability claims for failure to state a claim, or, in the alternative, to strike portions of the parents’ prayer for relief in a wrongful death and survival action.
After their son was killed when he was thrown overboard from a cruise ship by another passenger, the parents brought a wrongful death and survival action against defendants. Defendants moved to dismiss the survival and dram shop liability claims for failure to state a claim, or, in the alternative, to strike portions of the parents’ prayer for relief. The court found that the parents properly stated a claim for relief under a general maritime survival action. The court further found, however, that California’s anti-dram shop provision, Cal. Bus. & Prof. Code § 25602(b), precluded the parents’ dram shop claim. Under California law, the parents failed to state a claim for relief under their claim for improper service of alcohol. Finally, the court found that while the parents were entitled to punitive damages and damages for pre-death pain and suffering, they were not entitled to damages for both loss of support and lost future earning capacity, though they could seek one or the other. As wrongful death beneficiaries, they were entitled to damages for loss of support.
The court denied defendants’ motion to dismiss the parents’ survival action. The court granted defendants’ motion to dismiss the parents’ claim for improper service of alcohol. The court denied defendants’ motion to strike the parents’ request for damages for pre-death pain and suffering, damages for lost future earning capacity, and punitive damages.
Claim Against Cruise Line For Malpractice Of Ship’s Physician Based On Vicarious Liability Stated Claim For Relief
KATHLEEN HUNTLEY, Plaintiff, v. CARNIVAL CORPORATION, aforeign corporation, d/b/a CARNIVAL CRUISE LINES, and DR. GREGORY M. McNAMARA,M.D., Defendants.
CASE NO. 03-21925-CIV-KING
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFFLORIDA, MIAMI DIVISION
307 F. Supp. 2d 1372; 2004 U.S. Dist. LEXIS 4195; 17 Fla. L.Weekly Fed. D 415
March 12, 2004, Decided
Plaintiff passenger filed an action against defendants, a cruise ship corporation and a cruise ship doctor, to recover damages after she suffered injuries during a fall on a cruise ship. Her complaint contained five negligence-based counts. Pursuant to Fed. R. Civ. P. 12(b)(6), the corporation moved to dismiss the counts of the complaint that alleged medical negligence and vicarious liability for the doctor’s alleged medical malpractice.
The passenger claimed that she slipped while in the ship’s casino bar and that the doctor, who was employed by the corporation, committed medical malpractice while treating her. The corporation moved to dismiss the passenger’s two medical malpractice based claims, asserting that under the majority legal rule articulated by the United States Court of Appeals for the Fifth Circuit, it could not be held vicariously liable for the alleged negligence of the ship’s doctor. The court denied the motion after concluding that the passenger might be able to establish a set of facts entitling her to relief. The court had already recognized the possibility of a cruise line’s vicarious liability for a ship doctor’s actions based upon apparent agency grounds. The Third District Court of Appeal of Florida had rejected the majority rule and had embraced the minority view, which held that a shipowner might be held vicariously liable where a ship’s physician was in the regular employment of a ship, as a salaried member of the crew, subject to the ship’s discipline and the master’s orders, and presumably also under the direction and supervision of the company’s chief surgeon.
The court denied the corporation’s motion to dismiss. It ordered the corporation to file an answer to the passenger’s complaint within 20 days of the court’s order.
Injury On A Permanently Moored Riverboat Casino Not In Admiralty
GWEN WARD VERSUS BOYD GAMING CORPORATION IN PERSONAM and TheM/V TREASURE CHEST, her engine, Tackle, etc. IN REM
CIVIL ACTION NO. 04-0060 SECTION “K” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 3509
March 4, 2004, Decided
March 4, 2004, Filed; March 5, 2004, Entered
Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) plaintiff’s personal injury action in which plaintiff asserted that she seriously injured her right leg on the job, attributing defendant’s negligence and the vessel’s unseaworthiness as the cause of the accident. Plaintiff brought her action under the Jones Act, 46 U.S.C.S. § 688, and General Maritime Law, pursuant to Fed. R. Civ. P. 9(h).
The boat upon which plaintiff worked was a paddlewheel-driven riverboat casino. The court noted that the Jones Act provided that “any seaman ” who sustained personal injury in the course of his employment could maintain an action for damages at law, with the right to trial by jury. Plaintiff alleged that at the time of her injury, the boat was a vessel in navigation and as such, she was a member of the crew, entitling her to seaman status under the Jones Act, and general maritime law. The court disagreed. It held that the federal courts had consistently held that indefinitely or permanently moored riverboat casinos were not Jones Act vessels. Therefore, Jones Act seaman status did not apply to plaintiff. Plaintiff next asserted that if she was not a seaman, then she still had a general maritime law cause of action because the casino was floating in navigable waters at the time of her injury and thus was within the admiralty jurisdiction. The court found that plaintiff had failed to establish a sufficient maritime nexus due to a lack of potential impact on maritime commerce. Her claims were not within the court’s admiralty jurisdiction and, therefore, had to be dismissed.
The court granted defendant’s motion and dismissed plaintiff’s claims with prejudice.
Employee Who Only Unloaded Fish From Docked Vessels Was Not A Seaman
OSAY DUPLESSIS versus DAYBROOK FISHERIES, INC.
CIVIL ACTION No. 03-1901 SECTION: I/1
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 3259
March 2, 2004, Decided
March 3, 2004, Filed; March 4, 2004, Entered
Plaintiff bailer who unloaded fishing vessels sued defendant employer which operated a fishing business and processing plant, alleging that the employer was liable under the Jones Act and general maritime law for the bailer’s injuries from a fall on one of the employer’s vessels. The employer moved for summary judgment on the ground that the bailer was not a seaman entitled to protection under maritime law.
The bailer contended that maritime law applied to render the employer liable for the bailer’s injuries suffered in a fall from a ladder while aboard the employer’s vessel. The employer argued that the bailer was not a seaman for maritime purposes since he was a land-based employee who was only aboard vessels when they were docked. The court held that the bailer, whose duties involved only unloading fish from vessels using land-based equipment when the vessels were docked, was not a seaman for purposes of maritime law. The bailer was not involved in fishing operations and did not go to sea, and thus the bailer did not contribute to the primary fishing function of the vessels and had no substantial connection to the vessels in terms of duration and nature.
The employer’s motion for summary judgment was granted.
Forum Selection Clause Of Paris France For Vessel That Did Not Touch A U.S. Port Upheld With Respect To Cruise Line Passenger
EUGENE BURNS, Appellant, v. RADISSON SEVEN SEAS CRUISES,INC., SERVICES ET TRANSPORTS TAHITI, COPROPRIETE DU NAVIRE PAUL GAUGUIN, THECRUISE STATION, and DIMENSIONS IN TRAVEL, INC., Appellees.
CASE NO. 4D03-1333
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
867 So. 2d 1191; 2004 Fla. App. LEXIS 2710; 29 Fla. L.Weekly D 544
March 3, 2004, Opinion Filed
Plaintiff passenger appealed an order by the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), that dismissed his complaint against defendant cruise line for improper venue; the passenger claimed that the venue was inconvenient and unreasonable.
The passenger contracted to act as radio host for seven days on a Tahitian cruise ship. He was subsequently injured in a slip and fall while on board. The cruise ticket contained a forum selection clause providing that United States citizens had to bring suit, for any incidents arising on board a cruise ship that did not touch a United States port, in Paris, France. The appellate court held that the ship both departed and returned from a foreign locale, never making contact with any ports or waters of the United States. Therefore, it was reasonable that the cruise line selected France as a neutral location in order to dispel confusion as to where passengers from a variety of countries could bring a lawsuit. The forum selection clause was valid. The passenger failed to meet his burden of proving that the venue was improper.
The order was affirmed.
Class Certification Denied With Respect To Mobility Impaired Passengers Because Common Issues Not Shown To Predominate
DOUGLAS SPECTOR, ANA SPECTOR, JULIA HOLLENBECK, DAVID KILLOUGH, and RODGER PETERS, Appellants v. NORWEGIAN CRUISE LINE LTD. D/B/ANORWEGIAN CRUISE LINE, Appellee
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2004 Tex. App. LEXIS 2941
March 30, 2004, Opinion Issued
Appellant consumers sought review of an order from the 270th District Court, Harris County (Texas), which denied class certification in the consumers’ lawsuit against appellee cruise line for contract breach, fraud or fraudulent inducement, unjust enrichment, negligent misrepresentation, deceptive trade practices, and disability discrimination.
The consumers alleged that the cruise line falsely represented that its vessels or related port excursions were accessible to mobility-impaired passengers and that those passengers would have assistance on and off the ship. The court, in affirming the denial of certification, concluded that the consumers had failed to preserve a spoliation argument for review. The trial court did not abuse its discretion or act improperly by ruling without reviewing sealed volumes of documents that it had been told related to the issue of numerosity, which was not seriously contested. The denial of class certification was proper because the consumers did not show that common issues predominated, as required by former Tex. R. Civ. P. 42(b)(4) (renumbered as Tex. R. Civ. P. 42(b)(3)). As to the claim of deceptive practices, the trial court reasonably could have determined that individual reliance inquiries under Tex. Bus. & Com. Code Ann. § 17.50(a)(1)(A), (B) (2002) would predominate over common ones. Determination of oral contract terms also required individual inquiries, as did unjust enrichment allegations. Tex. Hum. Res. Code Ann. ch. 121 applied only to vessels that sailed in Texas waters.
The court affirmed the trial court’s order denying class certification.