Arbitration provision was not enforceable under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Bahamian law would apply, precluding a Jones Act claim and compromising a maintenance and cure claim, and review would not include a substantive review of the facts or merits of the arbitration award.
ST. HUGH WILLIAMS, Plaintiff, v. NCL (Bahamas) LTD., A BERMUDA COMPANY d/b/a NCL, Defendant.
CASE NO. 10-22046-CIV-LENARD/TURNOFF
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2011 U.S. Dist. LEXIS 37952
March 31, 2011, Filed
The court held that an arbitration provision should not be enforced under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The provision was void as against public policy because it required that Bahamian law apply, precluding a Jones Act claim. Bahamian law did not impose a continuing duty on an employer to reimburse an injured seaman’s medical expenses, thus compromising plaintiff’s maintenance and cure claim. Furthermore, review of an arbitration award under Bahamian law would not include a substantive review of the facts or merits of the award.
The court granted plaintiff’s motion to remand in part, except as to attorney’s fees and costs. It denied as moot defendant’s motion to dismiss and compel arbitration.
Companies could not require an independent medical examination where the worker established her burden, the companies agreed to pay maintenance and cure, and the prescribed course of treatment was recognized as curative; the court affirmed the award of maintenance, damages, and attorney fees to the worker.
Tuyen Thanh Mai, Respondent, v. American Seafoods Company, LLC, et al., Appellants.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
160 Wn. App. 528; 249 P.3d 1030; 2011 Wash. App. LEXIS 615
March 14, 2011, Filed
Appellant companies challenged a decision of the King County Superior Court (Washington), which entered a judgment in favor of respondent worker for maintenance, compensatory damages, and attorney fees. The worker sought attorney fees.
The worker injured her knee. She was recommended to undergo a total knee replacement, but the companies stated that they would not pay for the procedure and instead insisted that the worker undergo an independent medical examination (IME) with another doctor. The companies also refused to pay maintenance for a certain period of time. The matter went to trial, and the trial court awarded a judgment in the worker’s favor. The court affirmed on appeal. The worker met the burden of proving the elements of her maintenance and cure claim. Together, case law appeared to foreclose the possibility of requesting an IME under the facts of this case. An IME could not be required where the seaman established her burden, the vessel owner agreed to pay maintenance and cure, the need for some course of medical treatment or the expertise of the physician was not questioned, and the prescribed course of treatment as curative was recognized. The trial court could reasonably have found that the true reason for the companies’ challenge was a desire to develop expert testimony for anticipated litigation, rather than any serious question about the worker’s need for treatment.
The court affirmed. The court granted the worker’s request for fees subject to rule compliance.
Defendant employer was entitled to summary judgment on an injured deckhand’s claim for maintenance and cure because the deckhand misrepresented that he had never had back, head, or neck trouble on his application for employment and disclosure of his previous injuries would have either prevented his employment, or at least delayed it.
ORLANDO RAMIREZ, Plaintiff – Appellant v. AMERICAN POLLUTION CONTROL CORPORATION, Defendant – Appellee
No. 10-40911 Summary Calendar
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2011 U.S. App. LEXIS 5079
March 14, 2011, Filed
Plaintiff deckhand was injured while working for defendant employer. The deckhand brought a lawsuit against the employer, seeking maintenance and cure for injuries suffered while serving on the employer’s vessel. The United States District Court for the Southern District of Texas granted the employer summary judgment because the deckhand had intentionally concealed preexisting injuries in his job application. The deckhand appealed.
n his application for employment, the deckhand stated that he had never had back, head, or neck trouble, never received workers’ compensation for injuries, and never had any accidents or serious injuries. These representations were false. He had suffered back injuries in 1979 and 1986, suffered a neck injury in 2002, suffered back and neck injuries in a car accident in 2004, and had made at least three workers’ compensation claims for injuries. On September 26, 2006, the employer hired the deckhand. On October 11, 2006, the deckhand slipped and fell while serving on a vessel. The deckhand alleged that this fall injured him and caused him serious pain in his neck, shoulder, elbow, and wrist. The deckhand’s injuries were material for purposes of a defense based on an intentionally concealed preexisting medical condition because the deckhand’s disclosure of his previous injuries would have either prevented his employment, or at least delayed it, preventing his having been present at the time of the accident.
The judgment was affirmed.
Defendant’s motion to dismiss the negligence claim was granted because permitting plaintiffs to proceed on their claim of negligence against defendant solely because of a rising crime rate in Nassau would improperly expand a cruise line’s duties to its customers.
ADRIANUS KOENS, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant. CHARLOTTE ASHFIELD, Plaintiff, v. ROYAL CARIBBEAN CRUISES LTD., a Liberian Corporation, Defendant.
CASE NO.: 10-24371-CV-KING,CASE NO.: 10-24373-CV-KING
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2011 U.S. Dist. LEXIS 38566
March 24, 2011, Decided
Defendant Cruise line moved to dismiss Plaintiff’s Complaint.
Plaintiff Ashfield, an Irish citizen, was a ticketed passenger aboard a November 2009 sailing of the Royal Caribbean cruise ship, Navigator of the Seas. Plaintiff Koens, a Dutch citizen, was a ticketed passenger aboard the same sailing of the Navigator of the Seas. During that sailing of the Navigator, the ship was scheduled to stop in, among other places, Nassau. While Plaintiffs were aboard the Navigator on that journey, they were purportedly bombarded by Royal Caribbean — through daily “Cruise Compasses,” television advertisements, and personal interactions with crew members — regarding the availability of certain shore excursions in Nassau for the day the Navigator was in port. Based on these Royal Caribbean representations, Plaintiffs purchased tickets for the excursion from the Excursion Desk, located aboard the Navigator and manned by a Royal Caribbean employee. During the shore excursion, the excursion participants were robbed at gunpoint. They were ordered by the robbers to lie facedown on the ground, and the robbers fired gunshots in their vicinity. Plaintiff Ashfield was thrown into a ditch and mistreated, having her purse stolen and a gun fired in close proximity to her person. Plaintiff Koens was forcibly thrown to the ground before being kicked in the side and having his backpack stolen. Plaintiffs feared for their physical safety. Plaintiffs filed suit sounding in negligence. RCL moved to dismiss both Complaints, largely on the basis that it cannot be held liable for criminal actions on Nassau or for the alleged actions of an entity RCL claims is an independent contractor, operating and controlling the excursion. Defendant’s motion to dismiss the negligence claim was granted because permitting plaintiffs to proceed on their claim of negligence against defendant solely because of a rising crime rate in Nassau would improperly expand a cruise line’s duties to its customers. There were no allegations in either of the Complaints that defendant knew or should have known of dangerous conditions on either the excursion or on the grounds of nature preserve.
Defendant’s motion to dismiss granted.
In a negligence action under FELA, 45 U.S.C.S. § 51 et seq., district court properly refused to give a jury a common-law tort law proximate cause instruction because a proper charge in FELA cases informed juries that a railroad caused or contributed to an employee’s injury if the railroad’s negligence played any part in bringing about the injury.
CSX TRANSPORTATION, INC., PETITIONER v. ROBERT MCBRIDE
SUPREME COURT OF THE UNITED STATES
2011 U.S. LEXIS 4795
March 28, 2011, Argued June 23, 2011, Decided
Petitioner, a railroad employer, sought review of a decision of the United States Court of Appeals for the Seventh Circuit, which affirmed a district court decision awarding respondent, a railroad employee, damages in his negligence action under the Federal Employers’ Liability Act (FELA), 45 U.S.C.S. § 51 et seq. A writ of certiorari was granted.
The employee worked as a locomotive engineer for the employer. The employee injured his hand using an independent brake to switch rail cars. The district court rejected the employer’s requested instruction that would have required the employee to show that the employer’s negligence was a proximate cause of the injury. Instead, the district court employed the Seventh Circuit’s pattern instruction for FELA cases, which read: “Defendant ’caused or contributed to’ Plaintiff’s injury if Defendant’s negligence played a part–no matter how small–in bringing about the injury. The mere fact that an injury occurred does not necessarily mean that the injury was caused by negligence.” The jury returned a verdict for the employee. The Court of Appeals affirmed. The Supreme Court held that, pursuant to 45 U.S.C.S. § 51, FELA rendered railroads liable for employees’ injuries or deaths resulting in whole or in part from carrier negligence. FELA did not incorporate proximate cause standards developed in nonstatutory common-law tort actions. Under FELA, injury was proximately caused by the railroad’s negligence if that negligence played any part in causing the injury
The Court affirmed the decision of the Court of Appeals. 5-4 decision; 1 opinion; 1 dissent; 1 Justice joined all but Part III-A of the majority opinion.
Longshore worker seeking damages for on-the-job personal injury did not make a Fed. R. Civ. P. 9(h) election for her in personam claims against vessel owners and managers and the mere presence of admiralty claims against the vessels did not preclude a jury trial, so it was not error to order that all the claims be tried together to a jury.
MELINDA LUERA, Plaintiff – Appellee v. M/V ALBERTA, Its engines, tackle, apparel, equipment, furniture, accessories, appurtenances, etc., in rem, SAMOS SHIPPING CO. LTD., In Personam, WHITE DOLPHIN ENTERPRISES, INC., Defendants – Appellants; MELINDA LUERA, Plaintiff – Appellee v. SAMOS SHIPPING CO. LTD., In Personam, Defendant – Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
635 F.3d 181; 2011 U.S. App. LEXIS 4424
March 7, 2011, Filed
Plaintiff, a longshore worker injured at work, sued several defendants, including a shipping company and a vessel owner, in personam, and defendant vessels in rem, claiming damages due to the negligence of each of the defendants. The United States District Court for the Southern District of Texas granted defendants’ request for certification of its order granting plaintiff a jury trial on all of her claims.
The worker, who was injured while performing her job duties in port, brought claims against two vessels in rem asserting admiralty jurisdiction, and claims against the owners and managers of those vessels in personam asserting diversity jurisdiction and demanding a jury trial. The district court ordered that all the claims be tried together before a jury. Defendants argued that the worker was not entitled to a jury trial because she had elected to proceed under admiralty rules by virtue of the in rem claims. The appellate court held that, as defendants were not prejudiced, the district court did not err in permitting the worker to amend her complaint and withdraw any Fed. R. Civ. P. 9(h) election she may have made. The worker clearly expressed her intent that her in personam claims be premised on diversity rather than admiralty jurisdiction, and so she did not make a Rule 9(h) for those claims. The mere presence of the admiralty claims did not preclude a jury trial. There was no question that the worker was entitled to a jury trial on her in personam claims. Consistent with Fitzgerald, the district court did not err by ordering that all the claims be tried together to a jury.
The appellate court affirmed the order of the district court.
Where a seaman’s assignment was unreasonably difficult for one person to perform, he was given inadequate tools to perform the task, and the method chosen to perform the task was unsafe, each of those findings supported a district court’s conclusion that the vessel was unseaworthy and that the unseaworthy condition caused the seaman’ injury.
FRANK DRAPELA, Plaintiff-Appellee v. UNITED STATES OF AMERICA, Defendant-Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2011 U.S. App. LEXIS 5975
March 22, 2011, Filed
Appellant, the United States, sought review of a judgment from the United States District Court for the Eastern District of Texas in favor of appellee seaman based on the district court’s finding that a government-owned vessel was unseaworthy, which condition proximately caused the seaman’s injuries.
The seaman suffered a spine injury when he worked over a period of three days to free 165 frozen D-rings. The government argued on appeal that the condition of the D-rings frozen to the deck was not an unseaworthy condition that caused his injury. The court pretermitted any consideration of whether the record supported a finding that the D-rings were a proximate cause of the seaman’s injury. As the government conceded, an unsafe method of work was one of the conditions that might render a vessel unseaworthy. The record was sufficient to support the district court’s finding that the assignment to the seaman to physically free up 165 D-rings in a limited period of time was unreasonably difficult for one person to perform. The record also supported the findings that the tools provided to him to perform this task were inadequate and that the method chosen to perform this task was unsafe. Each of those findings supported the district court’s conclusion that the vessel was unseaworthy and that the unseaworthy condition caused the seaman’s injury.
The district court’s judgment was affirmed.