JURY VERDICT AGAINST SEAMAN ON MAINTENANCE AND CURE AS WELL AS JONES ACT NEGLIGENCE IS AFFIRMED.
KENNETH B. O’BRIGHT, Plaintiff-Appellant, v. JOHN’S TOWINGSERVICE, INCORPORATED, a Pennsylvania Corporation, Defendant-Appellee, and J&CTOWING SERVICES, INCORPORATED, a Corporation, Defendant.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2001 U.S. App. LEXIS 10860
February 28, 2001, Argued
May 25, 2001, Decided
O’Bright testified that during the early morning of December 13, 1994, he was employed as a deckhand on the Lori Johnson when he fell into the Monongahela River because a stanchion on the boat broke while he was leaning against it. O’Bright claimed that he had just finished urinating into the river when a gust of wind came along and pushed him into the stanchion, which snapped under his weight, causing him to fall into the water. There were no witnesses[*3] to the incident. O’Bright was hospitalized and treated for acute hypothermia, myoglobinuria, and hypoglycemia resulting from his exposure to the cold water. Additionally, O’Bright claims that he suffers from ongoing back pain as a result of the incident.
Other members of the crew testified that they thoroughly inspected the Lori Johnson and found no broken stanchions or any other physical reason why O’Bright would have fallen into the water. Additionally, John’s Towing argued vigorously that O’Bright’s back injuries were not caused by this incident, but that, instead, they were likely the result of progressive degenerative disc disease.
Jury verdict against the seaman on all issues was affirmed on appeal.
A SEAMAN MAY NOT BE HELD CONTRIBUTORILY NEGLIGENT FOR CARRYING OUT ORDERS THAT RESULT IN INJURY , EVEN IF THE SEAMAN RECOGNIZES POSSIBLE DANGER AND DOES NOT DELAY TO CONSIDER A SAFER ALTERNATIVE
JOHN SIMEONOFF, Plaintiff-Appellant, v. TODD HINER and CLAREHINER, in personam and the F/V SAGA, Defendants-Appellees.
Case Number: 99-35910
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 8518; 2001 Cal. Daily Op. Service 3621;2001 Daily Journal DAR 4461
John Simeonoff (“Simeonoff”) injured his foot while crab fishing on a commercial vessel, the F/V SAGA (“SAGA”). Simeonoff brought a claim pursuant to the Jones Act, 46 U.S.C. § 688 et seq., and general maritime law against the SAGA and ship -owners, Clare and Todd Hiner (“Hiners”) claiming negligence and unseaworthiness. After a bench trial, the district court found the SAGA and the Hiners (“Appellees”) seventy percent negligent and Simeonoff thirty percent negligent. The court found $163,500 total damages and, reducing that by thirty percent, awarded[*2] $114,450 to Simeonoff.
Appellant argued that the district court erred (1) in finding appellant contributorily negligent, (2) in issuing unreviewable damages findings, (3) by awarding insufficient non-economic damages, and (4) by failing to award prejudgment interest. The court affirmed in part and reversed in part the district court’s judgment. As to appellant’s first argument, the court found that appellant could not be held contributorily negligent for responding to an urgent, yet general, call to the vessel’s crew for assistance; therefore, the district court clearly erred by reducing appellant’s damages based on a finding of contributory negligence. As to the second argument, the district court’s findings of fact were adequately detailed to permit meaningful appellate review of any substantive challenge to the awards. As to the third argument, the court found that the non-economic damages awards were not clearly erroneous in light of the record and the district court’s factual findings. The court finally found that it should remand on the issue of prejudgment interest, so the district court could articulate its reasons for denying that interest or to reconsider the issue.
District court’s judgment was affirmed and reversed in part. The court found that the district court erred in finding appellant contributorily negligent, and also remanded on the issue of prejudgment interest. However, the court found that the district court’s findings as to damages were sufficiently specific, and that the non-economic damages awards were not clearly erroneous.
When given any order, a seaman might be aware of potential injury if the order is followed, but reasonably might sacrifice personal safety for the good of the ship or crew. An order given from superior to seaman on the open sea should constitute the result of the superior’s consideration of risk to the seaman balanced against the value of the task to the safety and mission of all. It is more reasonable for a seaman to follow an order without assessing alternatives than to weigh alternatives beyond the immediate order. To assess alternatives is to second guess a superior’s assessment of the situation. Disruption of the chain of command at sea, and delays by seamen in executing orders, may imperil crew and vessel.
SUMMARY JUDGEMENT FOR SEAMAN GRANTED ON MAINTENANCE AND CURE
CARROLL RIPP VERSUS GULF SOUTH MARINE TOWING, INC. ANDMARTIN MARIETTA MATERIALS OF LOUISIANA, INC.
CIVIL ACTION NO: 01-136 SECTION: “R”(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 6403
May 11, 2001, Decided May 11, 2001, Filed, Entered
Plaintiff, while he was employed as a deckhand by defendant, slipped off the deck of a barge onto the river bed, causing multiple fractures in his right ankle and leg. Defendant paid plaintiff maintenance and cure benefits for six weeks. Plaintiff brought suit, claiming that he was still unable to work as a deckhand and needed physical therapy and medical attention for his injuries. Defendant refused to provide further maintenance and cure. Plaintiff moved for partial summary judgment establishing his right to maintenance and cure benefits. The court agreed with plaintiff, granting him partial summary judgment on the issues of maintenance and cure benefits because plaintiff provided evidence demonstrating that he was a seaman injured while in service. Furthermore, plaintiff provided an affidavit which stated that plaintiff was totally disabled because of his leg and ankle injuries and that he was in need of physical therapy and follow up care. Defendants did not opposed the motion and failed to demonstrate that a genuine issue of material fact existed for trial.
Plaintiff’s motion for partial summary judgment was granted and the court awarded past maintenance and cure and attorneys’ fees.
DEFENDANT’S ATTORNEY NOT DISQUALIFIED FOR HAVING AN EX PARTE CONVERSATION WITH PLAINTIFF’S EXPERT
JAMES E. CRAMER, Plaintiff, v. SABINE TRANSPORTATION COMPANYet al., Defendants.
CIVIL ACTION NO. G-00-116
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2001 U.S. Dist. LEXIS 5992
May 4, 2001, Decided
May 4, 2001, Entered
In maritime personal injury case, plaintiff filed suit and asserted causes of action for negligence and for the unseaworthiness of defendants’ vessel on which he worked. Plaintiff moved to disqualify an attorney working for defendants. Plaintiff also filed a motion in limine to prevent defendants from offering certain wage loss evidence.
At least part of plaintiff’s theory of liability hinged upon the unsafe condition of the vessel’s stairwell, which allegedly caused plaintiff’s injury. Plaintiff hired an active chief officer as an expert on this issue. One of the associates that worked for the law firm representing defendant boarded plaintiff’s expert’s boat for photographs to be used in the case and had a conversation with plaintiff’s expert. Plaintiff complained that the associate’s alleged substantive conversations with his expert constituted prohibited ex parte communications for which the associate individually, but not the law firm, should have been disqualified. The court denied plaintiff’s request, finding plaintiff failed to carry its burden of demonstrating a need for disqualification. Although the court was not convinced that an ex parte conversation regarding the subject of the lawsuit took place, even assuming that a discussion occurred, the court found no basis for imposing a disqualification sanction, since plaintiff did not allege that any confidential information, or any specific information was shared. Since this was a bench trial, any motion in limine was unnecessary.
Plaintiff’s motion to disqualify and motion in limine were denied.
FACT ISSUE OF WHETHER VESSEL WAS IN NAVIGATION REQUIRED REVERSAL OF SUMMARY JUDGEMENT FOR EMPLOYER THAT JONES ACT AND GENERAL MARITIME LAW DID NOT APPLY
DENISE DAVIS, Appellant v. THE MISSOURI GAMING COMPANY d/b/aARGOSY RIVERSIDE CASINO, Respondent
COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT
2001 Mo. App. LEXIS 799
May 15, 2001, Filed
Plaintiff appealed a decision of the Circuit Court of Platte County (Missouri) granting summary judgment for defendant in an action brought pursuant to 46 U.S.C.S. § 688 (Supp. 2000) of the Jones Act, and general maritime law.
Plaintiff employee sued defendant riverboat casino employer pursuant to 46 U.S.C.S. § 688 (Supp. 2000) of the Jones Act (Act), and general maritime law, seeking to recover for personal injuries that she sustained while she participated in a United States Coast Guard fire drill on board defendant’s casino. The trial court granted summary judgment for defendant, concluding that the Act did not apply and that state workers’ compensation law provided plaintiff’s exclusive remedy. Plaintiff appealed, and the appellate court reversed and remanded for further proceedings. As to the issue of whether plaintiff qualified for jurisdiction under the Act, the critical inquiry in this case was whether defendant’s casino constituted a “vessel in navigation” at the time that plaintiff was injured. The issue of whether the structure was such a “vessel in navigation” was a fact-intensive inquiry. Disputed issues of material fact existed as to that issue, such that the issue should have been submitted to a jury.
The trial court’s grant of summary judgment for defendant was reversed and the case was remanded for further proceedings. Disputed fact issues existed as to whether defendant’s casino was a “vessel in navigation” at the time of plaintiff employee’s injury.
FAILURE TO FILE TIMELY CLAIMS IN BANKRUPTCY BARRED SEAMANS CLAIMS
In re U.S. LINES, INC., ASBESTOSIS CLAIMANTS, Appellant, -against – U.S. LINES REORGANIZATION TRUST, U.S. LINES, INC., Appellee.
00 Civ. 3800 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 6612
May 17, 2001, Decided
May 21, 2001, Filed
Appellant legal clinic challenged order of United States Bankruptcy Court, which had granted the motion of appellees vessel owner and its reorganization trust to expunge 23,963 claims of seamen exposed to asbestos that had been filed by appellant in the bankruptcy proceeding. Appellant also moved for permission to file a master complaint.
The bankruptcy court had expunged the seaman claims after appellant failed to meet the 30-day timeframe set forth in the bankruptcy court’s order. The reviewing court affirmed the bankruptcy court’s order denying appellant’s request for modifications and extensions because the bankruptcy court’s factual findings were not clearly erroneous and equitable estoppel was not warranted for appellant’s failure to timely file the claims. Moreover, the bankruptcy court had authority to apply a statute of limitations in disallowing claims, including the seaman’s personal injury claims, and it lacked authority to extend the 30-day time limit set forth in 11 U.S.C.S. § 108(c)(2). The bankruptcy court properly barred redundant claims given that those claims had been disallowed and could not have been revived under the applicable statutes of limitations. Appellant was not entitled to file a master complaint under Fed. R. Bankr. P. 8013 given it’s past history of failing to file documentation to support seaman claims. In addition, Fed. R. Civ. P. 8 and Fed. R. Civ. P. 11 required appellant to act more diligently than the proposed master complaint would have allowed.
Order was affirmed and appellant’s motion to file a master complaint was denied.