SUMMARY JUDGMENT ON LIABILITY FOR JONES ACT SEAMAN GRANTED AGAINST EMPLOYER WHEN PLATFORM ABOARD VESSEL COLLAPSED – NO COMPARATIVE NEGLIGENCE DESPITE SEAMAN’S DUTY, AS LEAD OPERATOR, TO INSPECT, MAINTAIN, AND REPAIR EQUIPMENT
JIM KLINGENBERG, Plaintiff, v. PERE MARQUETTE SHIPPING, Defendant.
File No. 1:01-CV-90
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2002 U.S. Dist. LEXIS 10095
May 28, 2002, Decided
May 28, 2002, Filed
Plaintiff’s motion for summary judgment as to liability GRANTED. JUDGMENT AS TO LIABILITY ONLY entered against Defendant Pere Marquette Shipping.
Plaintiff seaman brought a negligence claim under the Jones Act of 1920, codified at 46 U.S.C.S. app. § 688, and an unseaworthiness claim under admiralty law against his employer. The seaman moved for summary judgment as to liability only.
The seaman was lead operator on the employer’s vessel that hauled cargo on the Great Lakes. He was responsible for loading and unloading, which was by means of a conveyor cat that was accessed by a catwalk. A crew member/welder fabricated a platform to facilitate such access. The seaman was injured due to the employer’s negligence when the platform collapsed under him when all of its welds failed, because the conveyor vibrated so much as to cause welds to fail on various points on the machine. The evidence was uncontroverted that the vessel was unseaworthy when the seaman was injured, as the platform failed to fulfill its intended purposes during ordinary use. The employer alleged that the seaman was comparatively negligent. There was no evidence that he was negligent for using the platform when he fell, but the employer alleged negligence for the seaman’s failure to fulfill his alleged sole responsibility as lead operator to inspect, maintain, and repair the equipment. The court assumed this was so, but noted that this did not mean that a failure in equipment was due to his negligence, and the employer produced no evidence that the seaman failed to adequately inspect.
The court granted the seaman’s motion for summary judgment as to liability, and entered judgment against the employer as to liability only.
MAINTENANCE AND CURE NOT AVAILABLE FOR SEAMAN WHO CONTRACTS HIV THROUGH SEXUAL ACTIVITY – SUMMARY JUDGMENT GRANTED FOR CRUISE LINE AND AGAINST SEAMAN
IAN THOMAS, Plaintiff, v. NEW COMMODORE CRUISE LINESLIMITED, INC., Defendant.
CASE NO. 99-3313-CIV-HOEVELER
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9909
May 22, 2002, Decided
May 22, 2002, Filed
Defendant’s motion for summary judgment granted. All pending motions denied as moot.
Plaintiff seaman sued defendant cruise line to recover maintenance and cure. The court denied the cruise line’s first motion for summary judgment on the basis that more discovery was required. After taking the seaman’s deposition, the cruise line again moved for summary judgment.
The cruise line hired the seaman contingent upon a physical that included testing for HIV. The test revealed that the seaman was HIV positive, and he sought to recover maintenance and cure on that basis. The cruise line argued that the seaman was not entitled to maintenance and cure because that remedy was not available for injuries resulting from venereal disease. The court found no basis for distinguishing HIV from other venereal diseases, and noted that employers had a very limited ability to prevent employees from contracting HIV. The seaman argued that he might not have contracted HIV through sexual conduct, but he failed to raise more than a mere possibility of some other source. There was no evidence that the cruise line was aware of or tolerated promiscuity or other dangerous sexual activities; the fact that condoms were provided by the ship’s medical facility did not suggest that the cruise line knew of or encouraged promiscuity. The Americans with Disabilities Act (ADA) did not displace the venereal disease defense in general or with respect to HIV in particular, nor could the seaman complain that the cruise line had violated the ADA.
The cruise line’s summary judgment motion was granted.
SUMMARY JUDGMENT GRANTED FOR CRUISE LINE WHERE DEATH OF PASSENGER ALLEGEDLY CAUSED BY MALPRACTICE OF INDEPENDENTLY CONTRACTED DOCTOR AND NURSE
SANDRA JACKSON, individually and on behalf of her deceased husband, RONNIE LEE JACKSON, and on behalf of her minor children, ASHLEE JACKSON, ARIC JACKSON, and AUSTIN JACKSON, Plaintiffs, vs. CARNIVAL CRUISELINES, INC., CRAIG LUNN, and JOYCE BOYD-LITTLE, Defendant.
CASE NO. 99-1813-CIV-GOLD/SIMONTON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2002 U.S. Dist. LEXIS 9192
May 20, 2002, Decided
May 21, 2002, Filed
Defendant Carnival’s motion for summary judgment GRANTED.
Plaintiffs, cruise ship passenger who also sued on behalf of her minor children and deceased husband, sued defendants, cruise line, the ship’s doctor, and a ship’s nurse, for the death of her husband shortly after the family’s disembarkation from cruise ship. The decedent had been ill while on board the ship. The cruise line moved for summary judgment.
The cruise line hired the doctor and the nurse as independent contractors. The passenger claimed the cruise line negligently hired and trained its medical staff. The court found the cruise line presented sufficient evidence, in the form of employment records and credentials, to support its position that it exercised reasonable care in hiring, training, and retaining the individual defendants. The passenger failed to submit any evidence to refute the cruise line’s evidence. The passenger’s contention that the employment files had documents missing was without merit because the missing documents were not relevant to the allegations. The court rejected the passenger’s contention that the cruise line impliedly guaranteed its passengers safe passage. The ticket contract had no language that would have created such an obligation. In fact, the contract specifically disavowed responsibility for the actions of the medical staff provided aboard the cruise ship. Given this language, the court also rejected the passenger’s claim that the cruise line failed to warn her that it was immune from its medical staff’s negligent acts or that it was not obligated to provide medical care.
The district court granted the motion for summary judgment on behalf of the cruise line.
SEAMAN’S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD EMPLOYER’S REINSURER AS DEFENDANT IN NEGLIGENCE CLAIM DENIED WHEN BROUGHT AFTER EXPIRATION OF THREE YEAR STATUTE OF LIMITATIONS
STEVEN DURGIN VERSUS CRESCENT TOWING & SALVAGE, INC., ET AL
CIVIL ACTION NO: 00-1602 SECTION: “N” (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 9650
May 17, 2002, Filed; May 20, 2002, Entered
Motion to file second amended complaint granted in part and denied in part.
Plaintiff seaman filed a motion to file a second amended complaint and requested leave to amend his complaint to add a reinsurer as a defendant and to request a trial by jury. The seaman had initiated his original action for negligence against defendants, employer, insurer, and company. The matter was submitted to the magistrate judge for determination.
The seaman was injured while he was a crewman on a tug that was assisting an oceangoing vessel. The injury occurred in June 1997 and the seaman filed his original complaint in June 2000. The court denied the seaman’s motion to amend his complaint to add the reinsurer as a defendant. The court, through the magistrate judge, held that the seaman’s action would be time barred under the three year statute of limitations set forth in 46 U.S.C.S. § 736(a). Moreover, there was nothing that would make the amended complaint timely under the relation back provisions of Fed. R. Civ. P. 15(c) because there was no showing that the reinsurer received actual notice of the action or should have known about the action. The reinsurer was not in privity with the employer and there was no identity of interest sufficient to allow the seaman’s claim to relate back under Rule 15(c). The seaman’s request for a jury trial was not within the 10 day requirement of Fed. R. Civ. P. 38, but the seaman’s late jury demand would be granted under Fed. R. Civ. P. 39 (b) because the case was one that was normally tried to a jury and defendants had not established that they would be prejudiced thereby.
The court through the magistrate judge denied the seaman’s motion to amend his complaint to add the reinsurer as a defendant in the seaman’s action for negligence. The court granted the seaman’s request for a trial by jury.
DEFENDANT MANUFACTURER’S MOTION FOR EXTENSION OF TIME TO FILE AN APPEAL GRANTED IN HORIZON CRUISES LEGIONNAIRE’S DISEASE CASES
In re: HORIZON CRUISES LITIGATION; In re: LITIGATION JOINT DISCOVERY M/V HORIZON LEGIONNAIRES DISEASE; CELEBRITY CRUISES INC., and FANTASIACRUISING INC., Plaintiffs, – against – ESSEF CORP., PAC-FAB, INC., and STRUCTURAL EUROPE N.V. (f/n/a SFC), Defendants.
Master File 94 Civ. 5270 (JCF), 94 Civ. 6147 (JCF), 95 Civ.0374 (JCF)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 8679
May 15, 2002, Decided
May 15, 2002, Filed
Defendants’ motion to extend the time to file an appeal in each of the Horizon actions granted. Defendants’ application to direct the clerk of court to enter judgments denied. Silivanch plaintiffs’ motion for sanctions denied. Defendants’ motion for a stay of execution of the judgments pending appeal granted.
In related lawsuits, plaintiff passengers obtained judgments against defendants, cruise lines and manufacturers and distributors, because the passengers contracted Legionnaire’s Disease aboard a cruise ship. Included among the postjudgment applications were the manufacturer’s motions to extend the time to file a notice of appeal and to stay enforcement of the judgments pending appeal, and one set of passengers’ motion for sanctions.
The first issue presented was whether the manufacturer timely filed and properly served its motion for an extension. A technical defect in the motion had been corrected, so the court accepted the motion as timely filed. The manufacturer, however, served only on the attorney for one set of passengers — the attorney who served as liaison counsel with respect to discovery and other matters. Good cause existed to excuse the manufacturer’s error; despite this technical flaw, the court’s scheduling order gave counsel in all of the cases notice of the manufacturer’s motion, and the prejudice to the manufacturer would be extraordinary if the court rejected the motion. On the merits of the motion, excusable neglect justified granting the manufacturer the extension; the manufacturer’s attorney relied on the cruise lines’ attorney’s misstatement of the appeal deadline. Regarding the passengers’ motion, although some of the manufacturer’s arguments were unfounded, it ultimately prevailed on the motion; thus, sanctions were not warranted. Finally, the court granted the manufacturer’s motion for a stay provided that the manufacturer post the required bond.
The court granted the manufacturer’s motion to extend the time to file a notice of appeal. The court conditionally granted the manufacturer’s motion for a stay of enforcement of the judgments pending appeal. The court denied the passengers’ motion for sanctions.
COMPLAINT FILED IN FEDERAL COURT DISMISSED FOR LACK OF JURISDICTION WHERE SEAMEN ALLEGE VIOLATION OF OVERTIME PROVISIONS OF FAIR LABOR STANDARDS ACT (FLSA) – COURT HOLDS THAT THE FLSA DOES NOT CREATE MARITIME JURISDICTION AND THERE WAS NO DIVERSITY AMONG THE PARTIES
JASON MCMICHAEL, et al., PLAINTIFFS v. FALLS CITY TOWING COMPANY, et al., DEFENDANTS
CIVIL ACTION NO. 3:01CV-278-H
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, LOUISVILLE DIVISION
2002 U.S. Dist. LEXIS 8170; 7 Wage & Hour Cas. 2d (BNA) 1463
May 2, 2002, Decided
Plaintiff’s motion for summary judgment DENIED. Plaintiff’s complaint for lack of jurisdiction DISMISSED.
Plaintiffs, employees, sued defendants, employers, to recover alleged overtime compensation under Ky. Rev. Stat. Ann. § 337.285. Both sides moved for summary judgment.
The employees worked as deck hands on harbor boats that traversed the Ohio River between Kentucky and Indiana. The Kentucky Labor Cabinet, which was responsible for administering the wage and hour laws, determined not to apply or enforce Ky. Rev. Stat. Ann. § 337.285 to seamen such as the employees. The employees sought to enforce the state law in federal court due to the cabinet’s position on the issue. The employers asserted that the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq., preempted the state statute as applied to seamen because the FLSA specifically exempted any employee who worked as a seaman from the FLSA’s overtime wage provision. The court held that the parties were not diverse and the employees did not state a clam that arose under the Constitution, laws, or treaties of the United States. The FLSA was not a maritime statue, nor did it create maritime jurisdiction. Under Kentucky law, the employees were required to submit their claims to the Kentucky Labor Cabinet prior to filing an action in court.
The employees’ motion for summary judgment was denied. The employers’ motions for summary judgment were sustained and the complaint was dismissed for lack of jurisdiction.
IN A JONES ACT CASE, TOLLING OF STATUTE OF LIMITATIONS IS APPROPRIATE WHERE (1) A PLAINTIFF BEGINS AN ACTION IN A COURT OF COMPETENT JURISDICTION, (2) THE PLAINTIFF MAKES SERVICE OF PROCESS ON THE OPPOSING PARTY, AND (3) THE STATE COURT DISMISSES THE ACTION BECAUSE OF IMPROPER VENUE
THOMAS D. NASH, Plaintiff-Appellant/Cross-Appellee, v USSGREAT LAKES FLEET, INC, Defendant-Appellee/Cross-Appellant.
COURT OF APPEALS OF MICHIGAN
2002 Mich. App. LEXIS 712
May 14, 2002, Decided
PRIOR HISTORY: Presque Isle Circuit Court. LC No. 98-002281-NO.
Plaintiff sought to recover for injuries he sustained while employed as a seaman aboard defendant’s ship. Plaintiff asserted two theories of recovery: 1) defendant’s negligence under the Jones Act, 46 USC 688, and 2) defendant’s failure to provide a safe workplace under the common-law maritime doctrine of “unseaworthiness.” Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), contending plaintiff had not filed the action within the three-year statute of limitation. 46 USC 763a. Plaintiff did not dispute that it filed this action more than three years after his injury aboard defendant’s ship. However, the circuit court denied defendant’s motion, finding that plaintiff’s previous filing of these claims in a Pennsylvania state court equitably tolled the limitations period. Equitable tolling of a federal statute of limitations is appropriate where the congressional purpose in enacting a statute and the corresponding limitations period is effectuated by tolling that period in given circumstances. In a Jones Act action, the congressional purpose is served, and tolling appropriately applied, when (1) a plaintiff begins an action in a state court of competent jurisdiction, (2) the plaintiff makes service of process on the opposing party, and (3) the state court dismisses the action because of improper venue. As such, because plaintiff did not properly serve defendant in Pennsylvania, plaintiff’s filing in that state was insufficient to equitably toll the statute of limitations. Accordingly, plaintiff’s Michigan claim was time-barred, and the trial court erred in denying defendant’s motion for summary disposition.
The trial court correctly granted defendant’s motion for summary disposition.