Claim Brought By A Former Employee, A Tugboat Deckhand, Against An Employer Under The Illinois Whistleblower Act Was Preempted By 46 U.S.C.S. § 2114 Based On Uniformity Concerns; A Common Law Retaliatory Discharge Claim Was Not Preempted By § 2114 But Was Preempted By General Maritime Law.
DAVE ROBINSON, Plaintiff, v. ALTER BARGE LINE, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
2007 U.S. Dist. LEXIS 18191
March 15, 2007, Filed
Plaintiff former employee sued defendant former employer in Illinois state court for retaliatory discharge under Illinois common law and for violation of 740 Ill. Comp. Stat. 174/20 of the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/1-174/35. The employer removed the case to federal court and moved for summary judgment.
The employee, who worked as a deckhand aboard river towboats, claimed that he was terminated for reporting to a manager that coworkers were using illegal drugs. The court found that the employee’s claim under the Illinois Whistleblower Act was preempted by 46 U.S.C.S. § 2114, which provided a cause of action for seamen who were discharged for reporting safety law violations to federal authorities; conflicts existed between the rights and remedies provided under the two statutes, and application of the Illinois statute would have destroyed the uniformity of the rules applicable to commerce on inland waterways. The employee lacked a viable claim under § 2114 because he did not refuse to perform any duties and had not made a report to federal authorities until after his discharge. The employee’s common law retaliatory discharge claim was not preempted under § 2114 but was preempted by general maritime law; the only recognized exception to the at-will employment doctrine under general maritime law was when a seaman was terminated for filing a personal injury suit against an employer, while Illinois common law provided for a much wider range of viable retaliatory discharge actions.
The employer’s summary judgment motion was granted.
The Entry Of Summary Judgment In Favor Of Seaman In A Negligence Case Brought Under The Jones Act Was Affirmed Because Even If The District Court Erred In Designating The Litigation As An Admiralty Or Maritime Claim And Striking The Jury Demand, A New Trial Before The Same Judge Would Not Change The Outcome.
STANLEY KELVIN EUBANKS, Plaintiff – Appellee, versus NOBLE OFFSHORE CORPORATION; ET AL., Defendants, NOBLE DRILLING (U.S.) INC., Defendant – Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 5815
March 13, 2007, Filed
In a negligence action brought under the Jones Act, appellant drilling company sought judicial review of the decision by the United States District Court for the Eastern District of Louisiana, New Orleans Division, to grant summary judgment in favor of appellant seaman for injuries he sustained while working on a mobile offshore drilling platform.
The drilling company argued that the district court abused its discretion by granting, on the eve of trial, the seaman’s motion to designate the litigation as an admiralty or maritime claim and to strike the jury demand. Although there was a very strong argument that the district court erred in its ruling, there was no reversible error in the present case. Although it opposed the motion, the drilling company did not request a continuance to cure any possible error. Furthermore, the drilling company had no right to demand a jury trial. Accordingly, a new trial under different procedural timetables and before the same judge would hardly change the outcome. Furthermore, there was no clear error in the district court’s factual findings. The district court never reached the issue of whether the mobile offshore drilling platform was unseaworthy. As to the remaining three findings, the appellate court was not left with a definite and firm conviction that a mistake had been committed.
The judgment of the district court was affirmed.
Charterer’s Motion Under Supp. R. Certain Adm. & Mar. Cl. E(4)(F) For An Order Vacating A Maritime Attachment Was Granted As Owner Had Not Carried Its Burden Of Showing That At The Time Of The Attachment It Had A Valid Maritime Claim Against Charterer Because Its Claim Was For Indemnity In Respect Of A Cargo Claim That Owner Had Not Yet Paid.
SONITO SHIPPING COMPANY LTD., Plaintiff, -against- SUN UNITED MARITIME LTD., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 19531
March 19, 2007, Filed
Plaintiff owner, asserting a claim for relief within the admiralty and maritime jurisdiction under Fed. R. Civ. P. 9(h), commenced an action in order to invoke the remedy of maritime attachment and garnishment afforded by Supp. R. Certain Adm. & Mar. Cl. B. The court issued an ex parte order for process of maritime attachment. Defendant charterer moved under Supp. R. Certain Adm. & Mar. Cl. E(4)(f) for an order vacating the attachment.
The charterer argued that under English law the claim the owner asserted for indemnity in respect of a cargo claim that the owner had not yet paid was premature by reason of the Inter-Club New York Produce Exchange Agreement (ICA), and consequently could not form the basis for an attachment under Supp. R. Certain Adm. & Mar. Cl. B. The owner’s complaint made it clear that its claim was solely one for indemnity with respect to the owner’s liability to the cargo interests on a claim that those interests had asserted against the owner. That claim would have been decided by arbitration in London. The arbitration was just getting started. The owner had not made any payment to the cargo interests in respect of their claim. An English court of appeal stated that the “condition precedent” for apportionment and indemnification under the ICA was that the cargo claims had been paid. Thus, the court concluded that the owner had not carried its burden of showing that at the time of the attachment it had a valid maritime claim against the charterer. Finally, even if the court had discretion to uphold the attachment when the claim was unripe, there were no compelling circumstances to do so.
The motion for an order vacating the attachment was granted. The writ of attachment was vacated and the complaint was dismissed. The vacatur and dismissal were without prejudice to the owner filing a complaint and seeking an attachment at a later date, if subsequent developments made it clear that under English law a claim for indemnity had accrued.
Summary Judgment For An Employer Was Reversed As To A Negligent Aggravation Claim As An Employer Could Be Liable Even If It Was Not Aware That Its Conduct Was Causing Or Contributing To The Employee’s Injury. Moreover, The Employer Knew That Its Conduct Was Causing Or Contributing To The Employee’s Condition.
Benny W. Dickey v. Midstream Fuel Services, Inc.
COURT OF CIVIL APPEALS OF ALABAMA
2007 Ala. Civ. App. LEXIS 160
March 9, 2007, Released
An employee sued an employer seeking, pursuant to the Jones Act and general maritime law, to recover for the injuries to his lungs caused by his exposure to noxious fumes while working for the employer. The Mobile Circuit Court (Alabama) entered summary judgment for the employer. The employee’s Ala. R. Civ. P. 59(e) motion was denied. The employee appealed. The Alabama Supreme Court transferred the appeal to the appellate court.
The employer argued that the suit was barred by the statute of limitations. The appellate court held that the employee conceded that he could not recover for injuries he had sustained more than three years before he filed his suit. The employer’s claim that even if the employee had a claim of negligent aggravation, the employer did not know that its conduct caused or contributed to his injury was rejected as an employer could be liable even if it was not aware that its conduct was contributing to the employee’s injury. Moreover, the employer knew that its conduct was causing or contributing to the employee’s condition. The employer’s claim that even if the employee had a claim for negligent assignment, the employee had not personally told the employer that he suffered from chronic obstructive pulmonary disorder (COPD) was rejected. The employer was aware of the employee’s COPD before it assigned him to a ship, ordered him to paint the engine room, and reassigned him to another ship. Finally, the courts had rejected the modified continuing tort doctrine as a basis for recovery under the Jones Act and general maritime law. The summary judgment as to those claims was affirmed.
The summary judgment was reversed as to the negligent aggravation and negligent assignment claims. In all other respects, the summary judgment was affirmed. The matter was remanded to the trial court.
A District Court Was Allowed To Dispose Of A Foreign Company’s Negligent Misrepresentation Action By A Forum Non Conveniens Dismissal, Bypassing Questions Of Subject-Matter And Personal Jurisdiction, As Considerations Of Convenience, Fairness, And Judicial Economy So Warranted And The Court Did Not Assume Any Substantive Law-Declaring Power.
SINOCHEM INTERNATIONAL CO. LTD., PETITIONER v. MALAYSIA INTERNATIONAL SHIPPING CORPORATION
SUPREME COURT OF THE UNITED STATES
127 S. Ct. 1184
March 5, 2007, Decided
Respondent foreign company sued petitioner foreign importer, alleging that a foreign preservation petition negligently misrepresented a vessel’s fitness. The United States Court of Appeals for the Third Circuit held that the district court could not dismiss the case under the forum non conveniens doctrine until it determined that it had both subject matter and personal jurisdiction. Certiorari was granted to resolve a split among the circuits.
A district court was allowed to dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warranted. A forum non conveniens determination was a threshold, non-merits issue because resolving such a motion did not entail any assumption by the court of substantive law-declaring power. The lower court’s concern that it could not condition dismissal on respondent’s waiver of any statute of limitations defense or objection to a foreign forum’s jurisdiction was not an issue in the case as proceedings to resolve the instant dispute were already underway. If a court could readily determine that it lacked jurisdiction over a cause or a defendant, the proper course was to dismiss on that ground. However, immediate dismissal was warranted in the instant case as discovery concerning personal jurisdiction would have burdened petitioner with needless expense and delay.
The judgment was reversed. The case was remanded for further proceedings.
While Evidence Was Sufficient To Find An Employer Liable For Negligence Under The Jones Act, A New Trial On Damages Was Ordered Because The Expert Report On Which It Was Based Lacked A Proper Foundation Under The Federal Rules Of Evidence In That The Expert Failed To Consider The Seasonal Nature Of The Worker’s Dredging Industry Positions Prior To His Injury.
DAVID SCOTT McMILLAN, Plaintiff, v. WEEKS MARINE, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
2007 U.S. Dist. LEXIS 20833
March 22, 2007, Decided
Plaintiff, a worker in the dredging industry, brought an action against defendant employer under the Jones Act, alleging that he sustained damages as a result of the employer’s negligence. After a jury verdict in the worker’s favor, the employer filed several motions, including a motion for judgment as a matter of law and a motion to vacate the award of past and future lost earnings and for a new trial on damages.
The worker alleged that, through its negligence and unseaworthy vessels, his employer subjected him to unsafe working conditions from which he sustained injuries. According to the worker, he had been working on an overly muddy scow and was not given a chance to wash the mud off his boots before transferring to another boat. As a result, he slipped and fell off the boat, sustaining facial and shoulder injuries. A jury returned a verdict finding that the employer was partially negligent, and awarded the worker $ 378,533. The court found that the worker’s evidence was sufficient to support the jury’s verdict finding the employer partially negligent. However, it also found that the worker’s expert improperly based his projections of lost earnings on his assumption that the worker would work for the rest of his work-life on a full-time basis at an artificially determined wage. The court concluded that the expert reports lacked a proper foundation because the expert failed to consider the worker’s complete work history and the seasonal nature of the worker’s dredging industry positions prior to the injury. As a result, the court ordered a new trial on damages.
The court denied the employer’s motion for judgment as a matter of law, but granted the motion to vacate the award and for a new trial on damages.
Because Vessel Was “Thrill Ride” Vessel Available For Customers Who Willingly Went For A Ride, Boat Trip On Which Passenger Was Injured Did Not Involve “Transporting Passengers,” And 46 U.S.C.S. App. § 183c(A) Did Not Apply. In Passenger’s Negligence Action Trial Court Did Not Err In Granting Summary Judgment For Corporation Based On Release.
Sandra A. Cook, Appellant, vs. Crazy Boat of Key West, Inc., and William Shepard, Appellees.
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2007 Fla. App. LEXIS 3303; 32 Fla. L. Weekly D 644
March 7, 2007, Opinion Filed
Appellant, a passenger who was injured in a boat ride, sued appellee corporation, seeking damages for injuries allegedly suffered during the boat ride. The Circuit Court for Monroe County (Florida) granted summary judgment in favor of the corporation. The passenger appealed.
The passenger admitted to signing a release, but claimed that this release was void pursuant to 46 U.S.C.S. app. § 183c(a), and because the release was ambiguous and did not contain the word “negligence.” The appellate court found that the trial court properly rejected both of these contentions. The vessel was a “thrill ride” vessel that was available for customers who willingly desired to go for a ride. The corporation was not in the business of “transporting passengers” but rather it was in the business of providing a recreational activity. In addition, the corporation did not travel between ports of the United States but rather left from and returned to the same port. Accordingly, 46 U.S.C.S. app. § 183c(a) did not apply. The appellate court also rejected the passenger’s contention that the statutory language “between ports of the United States” could have been interpreted to apply to trips out from one port and back to that same port as it contradicted the plain language of the statute. The release was not ambiguous because it failed to use the term “negligence.” The release encompassed the alleged negligence which was the basis of the passenger’s claim.
The judgment was affirmed.