Order Of Remand Divested Appellate Court Of Jurisdiction To Consider If International Arbitration Act Applied To Indian Seaman’s Claim

VINOD KUMAR DAHIYA, Plaintiff-Appellee, versus TALMIDGEINTERNATIONAL, LTD., NEPTUNE SHIPMANAGEMENT SERVICES (PTE) LTD., AMERICAN EAGLETANKERS, INC., LTD., AMERICAN EAGLE TANKERS AGENCIES, INC., BRITANNIA STEAM SHIP INSURANCE ASSOCIATION, LTD., Defendants-Appellants.

No. 02-31068
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2004 U.S. App. LEXIS 9680
May 18, 2004, Filed

PROCEDURAL POSTURE:

Appellants, an employer, a shipowner, co-owners of the fleet, and the ship’s insurer, sought review of a decision of the United States District Court for the Eastern District of Louisiana, New Orleans, which remanded the claim filed by appellee employee to the state court where it was originally filed and denied appellants’ motions to stay the proceedings and compel arbitration.

OVERVIEW:

The employee, a native of India, filed a maritime personal injury action in a Louisiana state court against appellants. Appellants did not file a notice of removal within the 30-day time limit allowed under 28 U.S.C.S. § 1446, but argued that removal was still proper under 9 U.S.C.S. § 205, which allowed for removal at any time before trial. Appellants stated that the matter was governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Sept. 1, 1970, 21 U.S.T. 2517, T.I.A.S. 6997, art. I et seq., (Convention). The district court rejected the argument, remanded the matter, and denied appellants’ motions to stay pending arbitration. Affirming, the court held that the remand, whether or not it was appropriate, deprived the court of appellate jurisdiction, pursuant to 28 U.S.C.S. § 1447, and the court could not consider whether or not the stay and arbitration proceedings invoked under the Convention were applicable to the case. The limited exceptions that would have allowed review of the remand order did not apply because the orders did not have a preclusive effect and the matter could proceed in state court.

OUTCOME:

The court dismissed the appeal.

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Seaman On Tug Did Not Have Unseaworthiness Claim For Injury On Barge Being Towed Which Was Not Owned By His Employer

DERIC COAKLEY VERSUS SEARIVER MARITIME, INC.

CIVIL ACTION NO. 02-3509 SECTION “F”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 9980
May 25, 2004, Decided
May 25, 2004, Filed; May 26, 2004, Entered

PROCEDURAL POSTURE:

Plaintiff employee brought an action against defendant employer and asserted claims for Jones Act negligence and breach of the warranty of seaworthiness. The court had previously denied the employer’s motion for summary judgment on the unseaworthiness claim. The matter was before the court again after the parties submitted their trial briefs.

OVERVIEW:

The employee worked for the employer on a tug. At the time of the accident, the tug had several barges under tow. The employee went to fix the sounder on the front of an unmanned barged, which was owned by another company and pulled by agreement with the employer, and the employee injured himself. He brought this action, alleging negligence and unseaworthiness. The court had denied the employer’s summary judgment motion with respect to the unseaworthiness claim, but the court rescinded that order and granted the employer partial judgment as a matter of law on the issue. There was no question that the employee was a seaman with regard to the tug. However, the barge being towed by the tug was unmanned. The employee was required to establish that he was a seaman on the vessel on which he sustained the injury. The employee’s work on the barge while in service of the tug did not meet that standard. The employee was not a seaman as to all barges that could be towed by the employer under its towing agreement with the company, because the group of vessels was not a finite group. The agreement was not considered a demise charter, and thus the employer did not own the barge in question.

OUTCOME:

The court recalled and rescinded its previous order and entered partial summary judgment as a matter of law on the issue of unseaworthiness in favor of the employer. That claim was thus dismissed.

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Where Seaman Filed In Admiralty Shipowner Did Not Have A Right To A Trial By Jury

BANUEL ROSALES VERSUS BOUCHARD COASTWISE MANAGEMENT CORP.

CIVIL ACTION No. 03-2978 SECTION “K”(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 9172
May 18, 2004, Decided
May 19, 2004, Filed; May 20, 2004, Entered

PROCEDURAL POSTURE:

Plaintiff seaman filed a motion to strike the jury in connection with the seaman’s suit against defendant ship owner under the Jones Act, 46 U.S.C.S. app. § 688, and General Maritime Law.

OVERVIEW:

The seaman was injured when he slipped and fell while working aboard the owner’s vessel. The owner requested a trial by jury. The court held that the seaman’s simple statement in its initial complaint that he asserted jurisdiction based on the Jones Act and the general maritime law was adequate to designate his claim as one in admiralty. Because the seaman exercised his prerogative in electing to proceed in admiralty initially, Fed. R. Civ. P. 39(a) did not apply. Since the seaman did not invoke the court’s diversity jurisdiction, and instead based his claim upon admiralty jurisdiction from the outset of the litigation, the owner had no right to a trial by jury.

OUTCOME:

The court granted the seaman’s motion to strike the jury.

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Dock Owner Did Not Have A Duty To Provide Seaman With Safe Access To The Dock From A Barge

PAUL WUESTEWALD, Plaintiff(s), v. FOSS MARITIME COMPANY,SHORE TERMINALS LLC, Defendant(s).

Case No. C02-03002 BZ
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
2004 U.S. Dist. LEXIS 9521
May 11, 2004, Decided
May 11, 2004, Filed, Entered in Civil Docket

PROCEDURAL POSTURE:

Plaintiff tankerman sued defendants, his employer and the owner of a dock, seeking damages under general maritime law and the Jones Act, 46 U.S.C.S. § 688, for injuries the tankerman sustained after he fell from a ladder while attempting to access a barge owned and operated by his employer, from the dock owner’s dock.

OVERVIEW:

The tide on the evening of the tankerman’s injury was extremely low. Consistent with his customary practice of accessing the dock, the tankerman braced the bottom of an aluminum ladder inside the side of the coaming facing the dock and leaned the ladder against the dock. The court held that there was no suitable place against which to brace the ladder or to tie off the ladder at either end. When he placed his right foot on the rung the ladder slipped from the bottom, causing him to fall approximately nine to 12 feet to the deck of the barge. The employer was aware of the customary use of ladders to access the docks, but never investigated conditions affecting dock accessibility or verified the feasibility of following its own ladder safety guidelines. The court declined to fault the tankerman for failing to employ many of the employer’s suggested alternatives, the majority of which were not included in the employer’s safety manual. The employer was negligent by failing to provide the tankerman with a safe means of access to and from the dock. The dock owner, however, did not have a duty to assist the tankerman or provide a safe means for accessing its dock from the barge.

OUTCOME:

Having concluded that the employer was negligent and failed to provide a seaworthy vessel, the court awarded the tankerman damages. The tankerman’s claim against the dock was dismissed.

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Seaman Could Bring A Claim For Punitive Damages Against Non-Employer Under General Maritime Law

JERRY STOGNER VERSUS CENTRAL BOAT RENTALS, INC. ET AL

CIVIL ACTION NO: 03-2119 SECTION: “J”(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 8503
May 11, 2004, Decided
May 11, 2004, Filed, Entered

PROCEDURAL POSTURE:

Plaintiff seaman filed an action against defendants, an employer and the owner of a mud barge, under the Jones Act, 46 U.S.C.S. § 761. The seaman later added defendant third-party non-employer to the action and added a cause of action against the non-employer for punitive damages under general maritime law. The court granted the non-employer’s motion to dismiss the punitive damages claim, and the seaman filed a motion for reconsideration.

OVERVIEW:

The seaman was injured while working offshore between a rig and a mud barge. The seaman sought relief in an action against defendants. The action included a punitive damages claim against the non-employer, who had “company men” aboard the barge participating in the operation conducted at the time of the seaman’s injury. After the seaman failed to respond to the non-employer’s motion to dismiss the punitive damages claim, the court granted the motion as unopposed. The next day, the seaman sought a reconsideration of the decision. The court held that punitive or nonpecuniary damages could be recovered in a general maritime law negligence action against non-employers. The court also implicitly held that the seaman’s punitive damages claim against the non-employer was viable where his claims against the non-employer were governed solely by the general maritime law and did not arise from any federal maritime statutes.

OUTCOME:

The court granted the seaman’s motion for reconsideration and reinstated the seaman’s claim for punitive damages.

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Shipowner Did Not Obtain Summary Judgment Where Affidavits Only Contained Statements That Were Conclusory

ROGER PERALTA VERSUS AMERICAN CONTINENTAL LINE, LLC, et al

CIVIL ACTION NO. 03-2497 SECTION “N” (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2004 U.S. Dist. LEXIS 8103
May 6, 2004, Decided
May 6, 2004, Filed; May 7, 2004, Entered

PROCEDURAL POSTURE:

Plaintiff seaman brought suit against defendant tugboat owner and alleged barge owner, seeking recovery for personal injury, alleging claims of negligence under the Jones Act and unseaworthiness under general maritime law. The tugboat owner moved for summary judgment, pursuant to Fed. R. Civ. P. 56.

OVERVIEW:

The seaman fell on a barge attached to the tugboat and was injured. The seaman brought a negligence action against the tugboat owner, and in its motion for summary judgment, the tugboat owner claimed that the seaman was solely responsible for his fall and resulting injuries. However, the court found that the tugboat owner failed to defeat the negligence claim by only making conclusory statements regarding its purported lack of a duty. While the tugboat owner alleged that it did not have a duty to warn of open and obvious conditions, the tugboat owner failed to prove its absence of a duty. Thus, there was a genuine material fact as to whether the tugboat owner exercised reasonable care under the circumstances surrounding the seaman’s injury. Next, the seaman challenged the seaworthiness of the barge, and the tugboat owner sought summary judgment on the ground that it did not own or possess an interest in the barge. Regardless, the tugboat owner failed to offer any evidence, by way of affidavit, contract with the alleged barge owner or any other material, to support its assertion. Therefore, the tugboat owner was not granted summary judgment as to liability of unseaworthiness.

OUTCOME:

The tugboat owner’s motion for summary judgment was granted insofar as it sought dismissal of any claim for unseaworthiness of the tugboat. The motion was denied in all other respects.

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Court Verdict For Seaman’s Employer In Death Case Involving Asbestos

WILLARD E. BARTEL and DAVID C. PEEBLES, ADMINISTRATORS ofthe ESTATE of ROLF L. LINDSTROM, Plaintiffs, v. JOHN CRANE, INC., Defendant.

CASE NO. 1:98 CV 13222
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
2004 U.S. Dist. LEXIS 8132
May 3, 2004, Filed

PROCEDURAL POSTURE:

Plaintiffs, administrators of the estate of a deceased merchant seaman, sued defendant corporation and asserted claims for negligence under the Jones Act, 46 U.S.C.S. app. § 688 et seq., the general admiralty and maritime law, and traditional product liability law. After the seaman’s death, the complaint was amended to include wrongful death and survival claims. The parties consented to the case being tried before the court.

OVERVIEW:

The seaman claimed that his exposure to the corporation’s asbestos-containing products was a substantial factor in causing his peritoneal mesothelioma. After the seaman’s death, the administrators were substituted as plaintiffs in the suit against the corporation. The court found that the administrators had not met their burden of proving that the corporation’s gaskets or packing was a substantial factor or a proximate cause in the seaman’s peritoneal mesothelioma because the seaman was exposed to lots of other asbestos-containing material on board ship during his 30-year career, the corporation’s gaskets and packing contained only chrysotile asbestos, and it was generally accepted that it took a far greater exposure to chrysotile fibers than to amphibole fibers to cause mesothelioma, and the chrysotile asbestos in the corporation’s packing and gaskets was at least partially encapsulated. Moreover, there was no evidence that the corporation did not take reasonable care in designing or manufacturing its products, and the corporation had no duty to warn, because there was no information available suggesting there was any condition that required a warning.

OUTCOME:

The court entered a verdict in favor of the corporation.

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Seven Million Dollar Plus Jury Award For Death Of Rigger On Barge Vacated And New Trial Ordered, Due To Improperly Giving Jury Claim Based On Unseaworthiness And Improperly Charging Jury On Negligence Standards

Amerada Hess Corporation, et al., Third-PartyPlaintiffs-Appellants, v. G. Marine Diesel Corp., Third-PartyDefendant-Respondent, FCE Industries Ltd. (Inc.), Third-Party Defendant.

2598
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2004 N.Y. App. Div. LEXIS 6500
May 4, 2004, Decided
May 4, 2004, Entered

PROCEDURAL POSTURE:

Defendants, a barge owner and its operator, appealed a judgment of the Supreme Court, New York County (New York), which after a jury trial, awarded plaintiff administratrix over $7 million in damages in her suit, filed individually and as administratrix of a decedent’s estate, to recover damages for a fatal injury decedent incurred while working as a rigger on defendants’ barge.

OVERVIEW:

The administratrix filed a suit against defendants, seeking to recover for the fatal injury decedent incurred while working as a rigger on defendant’s barge. Defendants filed a third-party action against decedent’s employer. After claims based on the Jones Act and N.Y. Lab. Law § 240 were dismissed because the decedent did not qualify as a seaman and federal maritime law preempted state law, the jury awarded damages after finding the barge unseaworthy and defendants negligent. On appeal, the court reversed and remanded for a new trial, first finding that the trial court erred when it submitted the issue of seaworthiness to the jury. The court found that because decedent was covered under the Longshore and Harbor Workers’ Compensation Act and received federal workers’ compensation benefits from his employer, the administratrix was limited to a claim of negligence against defendants; therefore the issue of seaworthiness should not have been presented to the jury. The court then found that the trial court erred in its instructions on negligence because it improperly placed primary responsibility for safety on the vessel owner and its agents, rather than on decedent’s employer.

OUTCOME:

The court reversed and vacated the judgment to the extent that it awarded the administrator damages and remanded the matter for a new trial.