The Third District Court Of Appeals For Florida Adopts The Unpublished U.S. Court Of Appeals, Eleventh Circuit Decision In Fantome V. Frederick, Which Holds That Dismissal Pursuant To Forum Non Conveniens Is Inappropriate If The Jones Act Applies To A Matter Even Though The Ship Does Not Call On United States Ports.
ESMOND HENRY, Appellant, vs. WINDJAMMER BAREFOOT CRUISES, etc., et al., Appellees.
CASE NO. 3D02-93
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2003 Fla. App. LEXIS 7491
May 21, 2003, Opinion Filed
An Appeal from the Circuit Court for Miami-Dade County, Thomas S. Wilson, Jr., Judge. LOWER TRIBUNAL NO. 98-2260
Reversed and remanded.
Appellant injured seaman appealed from an order granting summary judgment in favor of appellee cruise line and a ship’s owner, by the Circuit Court for Miami-Dade County (Florida), and from an order dismissing his suit for the failure to establish subject matter jurisdiction under the Jones Act, 46 U.S.C.S. 688, and general maritime law.
The seaman, a Guyana national, was injured on a ship, which never called on ports in the United States. He contended that United States law was applicable, as the ship was a member of a fleet, which was operated by several Florida corporations. The operator corporations were owned and run by an American and/or his children. The seaman contended that a Panamanian corporation, which owned the ship, had a director who was also a director of another Panamanian company, which maintained a bank account in Florida. According to the seaman, the operators’ use of that bank account and the use of that account to reimburse the ship’s owner for expenses established subject matter jurisdiction under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime law. Although the home port of the ship was in St. Maarten, the ship was a Honduran flagged vessel, and the accident occurred while the ship was in the waters of St. Maarten, the appellate court adopted the unpublished opinion in Fantome, S.A. v. Frederick, 2003 U.S. App. Lexis 6639 (11th Cir. Jan. 24, 2003), to hold that dismissal was improper under the Jones Act, even though the ship did not call on ports in the United States.
The order was reversed, and the case was remanded for further proceedings.
Where Competing Medical Evidence As To Maximum Medical Cure Of A Seaman Exists It Defeats Employers Motion For Termination Of Maintenance And Cure Benefits And Supports Seaman’s Motion To Compel Maintenance And Cure Benefits.
PETITION OF RJF INTERNATIONAL CORPORATION FOR EXONERATIONFROM OR LIMITATION OF LIABILITY, CIVIL AND MARITIME
C.A. No. 01-588S
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODEISLAND
2003 U.S. Dist. LEXIS 8148
May 7, 2003, Decided
Petitioner’s Motion for Termination of Maintenance and Cure Benefits DENIED; Claimant’s Motion to Compel Payment of Maintenance and Cure Benefits GRANTED; Claimant’s request for attorneys’ fees DENIED.
Petitioner owner of a vessel moved for termination of maintenance and cure benefits for a seaman who was severely injured in a fall from the owner’s vessel on the ground that the seaman was incapable of further improvement. Claimant mother of the seaman cross-moved to compel payment of maintenance and cure benefits.
The seaman struck his head during the fall and suffered severe brain injuries, and the owner made substantial maintenance and cure payments to the seaman. After the mother requested additional inpatient treatment for the seaman, the owner’s medical experts examined the seaman and concluded that the seaman reached the point in his medical treatment where he no longer would benefit from inpatient rehabilitation treatment. The seaman’s treating physicians opined, however, that the seaman’s medical condition was still capable of improvement and thus warranted continued maintenance and cure. The court held that the competing medical evidence was insufficient to establish that the seaman achieved maximum medical cure, and thus termination of maintenance and cure was not warranted. While the owner provided detailed medical evidence in support of termination of benefits, the seaman’s treating physicians had the most experience with the seaman’s condition and, especially in view of the requirement for resolving doubts in favor of the seaman, continued maintenance and cure was required.
The owner’s motion for termination of maintenance and cure benefits was denied, and the cross-motion of the seaman’s mother to compel such benefits was granted.
Employer’s Motion For Summary Judgment On Jones Act Negligence, Unseaworthiness, And Maintenance Denied Where Seaman Was Assaulted By Fellow Crew Member Who Was Known To Smoke Marijuana Daily In Violation Of Ship’s Rules.
TEODORO C. ZUNIGA, Plaintiff(s), v. TMF, INC., Defendant(s).
CIVIL ACTION NO: 2:02CV 879
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OFVIRGINIA, NORFOLK DIVISION
2003 U.S. Dist. LEXIS 7913
May 5, 2003, Decided
May 5, 2003, Opinion Filed
Defendant’s motion for summary judgment granted in part and denied in part.
Plaintiff sailor alleged five claims against defendant ship owner: (1) breach of the warranty of seaworthiness; (2) Jones Act, 46 U.S.C.S. § 688, negligence for the assault on the sailor; (3) failure to provide maintenance and cure; (4) willful, arbitrary failure to pay maintenance and cure (which gave rise to damages that included a reasonable attorney’s fee); and, (5) Jones Act negligence for delay in treating the sailor following the assault.
Sailor was hired to work on the ship owner’s vessel. The sailor was allegedly assaulted by a crew member who was known to smoke marijuana every day. The sailor’s Jones Act negligence claim was based on two negligent acts attributable to the ship owner in the manner that it managed the vessel or the crew. First, the sailor argues that the vessel owner deprived the crew member of adequate sleep, applied pressure on the crew member to work harder, and allowed the crew member to smoke marijuana on a daily basis. The sailor claimed that these factors, singly or in combination, induced the crew member to attack the sailor. Second, the sailor argues that the ship owner was negligent for its failure to enforce the ban on illegal drug usage aboard the ship. The evidence proffered by the sailor, established a prima facie case of Jones Act negligence. The evidence that the captain and the mate knew that the crew member smoked marijuana each day during the voyage and that this conduct was undertaken in violation of a ship rule forbidding illegal drugs, including marijuana, on board the vessel, established a prima facie case on the seaworthiness claim.
The ship company’s motion for summary judgment on the seaworthiness, negligence regarding the assault, and maintenance claims was denied, but was granted as to the other claims.
A Single Damage Award For A Seaman For Jones Act Negligence And Unseaworthiness Is Reversed Where The Pennsylvania Rule Applies Because The Court Is Precluded From Reducing The Award Apportioned To The Jones Act Negligence For Comparative Negligence Whereas The Court Is Required To Reduce The Award Apportioned To The Unseaworthiness For Comparative Negligence.
MARINE SOLUTION SERVICES, INC., an Alaska Corporation,Appellant/Cross-Appellee, v. THOMAS HORTON, Appellee/Cross-Appellant. THOMASHORTON, Appellant, v. STEVE ADAMS, Appellee.
Supreme Court No. S-9916, No. 5691, Supreme Court No. S-9935
SUPREME COURT OF ALASKA
2003 Alas. LEXIS 41
May 16, 2003, Decided
Affirmed in part, reversed in part, and remanded.
The Superior Court of the State of Alaska, Third Judicial District, Anchorage, granted judgment in favor of appellee company president after he sued appellant marine services company for unseaworthiness under traditional maritime law and for negligence under the Jones Act, after the president was injured while moving a dock. Both parties appealed.
The company appealed several of the jury instructions, focusing on whether the president was an employee and seaman entitled to a remedy under the Jones Act and whether The Pennsylvania rule applied. The appellate court noted that the company was an Alaska corporation that was owner of the vessels at the time of the accident, such that the president could sue in tort the corporation for which he worked. The Pennsylvania Rule applied to personal injury and Jones Act cases. The jury was properly instructed concerning violations of two regulations where the failure to maintain a lookout by the tugboat captain could reasonably have led to the events that resulted in the president’s injury. Because all of the president’s claimed damages arose out of a single incident, submission of a single interrogatory regarding his possible comparative negligence was appropriate. The president’s damages award could not be viewed as a single award flowing from both his unseaworthiness and Jones Act claims, given that his Jones Act claim could not be reduced for comparative negligence. Prejudgment interest would be awarded if the damages award was characterized as an unseaworthiness award.
The judgment was reversed as to the finding of a single damage award to the president as the superior court had to perform alternate calculations of the total judgment under the unseaworthiness and Jones Act claims; pre- and post-judgment interest was erroneously set. All other points were affirmed.
Class Certification Denied To Passengers Aboard Cruise Ship Caught In Hurricane Where Several Passengers Became Injured And Many Became Seasick Because Court Determined That Questions Of Law And Fact Common To The Class Did Not Predominate Over Questions Affecting Only Individual Members.
KENT STOBAUGH, NANCY STOBAUGH, RICHARD HEIDBRINK AND DORISHEIDBRINK, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED PERSONS,Appellants v. NORWEGIAN CRUISE LINE LIMITED D/B/A NORWEGIAN CRUISE LINE,Appellee
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2003 Tex. App. LEXIS 3690
May 1, 2003, Rendered
May 1, 2003, Opinion Filed
On Appeal from the 270th District Court. Harris County, Texas. Trial Court Cause No. 96-56183.
Plaintiffs, passengers, sought review of the decision of the 270th District Court, Harris County (Texas), which found in favor of defendant cruise line and denied the passengers class certification.
The case was an interlocutory appeal of an order denying class certification. The passengers challenged the trial court’s order denying their class certification of their claims against the cruise line arising out of a cruise that the passengers took aboard the cruise line’s vessel. The vessel attempted to avoid a hurricane, but was caught in extremely high seas and hurricane-force winds. Several passengers were injured and many became seasick; they then filed an action in part for breach of contract, breach of express and implied warranties, negligent misrepresentation, and negligence and gross negligence. The court affirmed the order, stating that the trial court did not abuse its discretion in its implied determination that the questions of law or fact common to the members of the proposed class did not predominate over questions affecting only individual members. The passengers failed to satisfy the predominance requirement, one of the most stringent requirements for class certification.
The judgment was affirmed.