As to collision between vessels one and two, vessel owner two was not entitled to limitation of liability under 46 U.S.C.S. §§ 30505, 30506 because owner two had privity and knowledge of fault at issue, to wit, that vessel two was not equipped with navigation chart and captain was not taught how to navigate in heavy fog or how to operate fog horn.

IN RE: INTERNATIONAL MARINE, LLC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2009 U.S. Dist. LEXIS 37080

May 1, 2009, Filed

PROCEDURAL POSTURE:

Plaintiff mechanic sought to recover damages for personal injuries from defendants, vessel owner one, vessel owner two, and the operator of vessel one. The injuries occurred during a collision between the two vessels. Vessel owner two petitioned for limitation of liability. The court issued findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

OVERVIEW:

The mechanic was on vessel one to fix the diesel engines. The captain insisted on a sea trial, though it was dark and foggy, and vessel one’s navigation light was not functioning. Vessel two was not equipped with a navigational safety chart and ended up in the middle of a channel, where the two vessels collided. The mechanic injured his back during the collision, and the injuries would require multiple surgeries to decrease his pain and increase his mobility. The court held that (1) vessel one was 35% at fault and vessel two was 65% at fault; (2) vessel owner two was not entitled to limitation of liability under 46 U.S.C.S. §§ 30505, 30506 because vessel owner two had privity and knowledge of the fault at issue, to wit, that vessel two was not equipped with the chart, that the captain had not been taught how to navigate in heavy fog, and that the captain was not taught how to operate the fog horn; (3) vessel owner one was entitled to receive from vessel owner two 65% of the amount of damages sustained by vessel one; and (4) although the mechanic was entitled to prejudgment interest, vessel owner one was not, given that vessel one was partially responsible for the collision.

OUTCOME:

The court held that owner one was 35% liable and owner two was 65% liable; the mechanic was entitled to $ 937,135 in past and future damages, with prejudgment interest on the past damages, starting at the time of the collision, and interest on the future damages, starting on the date of judgment; and the operator was entitled to recover 65% of its damages from owner two.

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Employee’s personal injury claims against employer were barred under 33 U.S.C.S. § 905(b) of the LHWCA because employer’s building of scaffolding on barge that it owned was undertaken in employer’s role as contractor working on bridge repair, rather than in employer’s role as owner of the barge. Employee was thus limited to remedies under LHWCA.

JULIO C. ROMO VERSUS MASSMAN CONSTRUCTION CO.
CIVIL ACTION NO: 08-4406 SECTION: “A” (2)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2009 U.S. Dist. LEXIS 38465

May 5, 2009, Filed

PROCEDURAL POSTURE:

Plaintiff employee filed suit against defendant employer, seeking damages for personal injuries that the employee sustained aboard a barge while performing welding and other work on a bridge. The suit was filed pursuant to § 905(b) of the Longshoreman and Harbor Workers Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., based on vessel negligence. The employer moved for summary judgment.

OVERVIEW:

The employee was injured while working on a barge, which served as a work platform and contained no living quarters or crew. The injury occurred when the employee fell from scaffolding that coworkers had erected on the barge to facilitate crane boom removal. The employee alleged that the scaffolding was defective because it lacked guide wires, railings, and wire reinforcements. The employer alleged that the employee’s sole remedies were under the LHWCA and that the employee could not recover for any alleged negligence by the employer because such occurred in the employer’s capacity as an employer, rather than as a barge owner. The court agreed. Under 33 U.S.C.S. § 905(b), an injured worker was limited to remedies under the LHWCA and could recover from a vessel owner for its negligence only. In dual capacity cases such as this one, where the employer was also the vessel owner, only if the employer’s alleged negligent acts were taken its capacity as a vessel owner could the employee recover outside the remedies provided by the LHWCA. Here, the building of the scaffolding was done by the coworkers on behalf of the employer in its role as a bridge contractor, not as a barge owner.

OUTCOME:

The court granted the employer’s motion for summary judgment and dismissed the employee’s complaint.

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Forum selection clause requiring England courts to resolve disputes under bills of lading between cargo owner and vessel owners was enforceable; § 3(8) of COGSA was not violated because English courts were presumed to properly apply COGSA, and in rem action was not necessary where district court preserved jurisdiction over vessels via surety bond.

AMBRACO INC; GREAT AMERICAN INSURANCE COMPANY, Plaintiffs-Appellants v. BOSSCLIP B V, in personam; DOCKENDALE SHIPPING COMPANY LTD, in personam; FAITH SHIPPING COMPANY LTD, in personam, Defendants-Appellees; AMBRACO INC; GREAT AMERICAN INSURANCE COMPANY, Plaintiffs-Appellants v. CLIPPER FAITH MV, her engines, tackle, apparel, furniture, etc, in rem; BOSSCLIP B V, in personam; DOCKENDALE SHIPPING COMPANY LTD, in personam; FAITH SHIPPING COMPANY LTD, in personam, Defendants-Third Party Defendants-Appellees v. PACORINI HOLDING, LLC, Defendant-Third Party Plaintiff-Appellant

No. 07-30727 Consolidated With Case No. 07-31156
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2009 U.S. App. LEXIS 11653

May 28, 2009, Filed

PROCEDURAL POSTURE:

Appellant cargo owner sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which dismissed the cargo owner’s Carriage of Goods by Sea Act (COGSA), Pub. L. No. 74-521, ch. 229, 49 Stat. 1207 (reprinted in the notes to 46 U.S.C.S. § 30701), claims against appellee vessel owners. Appellant stevedore appealed the dismissal of its indemnification claims against the vessel owners.

OVERVIEW:

The cargo owner contracted with the vessel owners to have several thousand pounds of bailer twine shipped from Brazil to Louisiana. The cargo was damaged by the stevedore during unloading. The bills of lading stated that any disputes were to be brought in England and that COGSA applied. The court agreed with the district court that the forum selection clause was enforceable. First, the clause did not violate the public policy embodied in § 3(8) of COGSA with regard to limitations of liability. English courts were presumed to be fair and to apply COGSA in compliance with American law. That English law did not recognize an in rem action in many instances did not alter the result because the district court preserved jurisdiction over the vessels by way of a surety bond, thus mooting the need for a separate in rem action. Second, the stevedore’s indemnification claims were properly brought under Fed. R. Civ. P. 14(c), rather than Fed. R. Civ. P. 13(g), because the claims were asserted after the vessel owners were dismissed from the suit. However, a stay of those claims might be appropriate to avoid two separate inquiries into fault by the English court and by the district court.

OUTCOME:

The court affirmed the dismissal of the cargo owner’s claims against the vessel owners. However, the court vacated the district court’s dismissal of the stevedore’s indemnification claims against the vessel owners. The case was remanded, and on remand, the district court had discretion to decide whether to stay the stevedore’s indemnification claims until the termination of the cargo owner’s suit against the vessel owners in an English court.

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Plaintiff police officer’s Jones Act claims were properly dismissed on summary judgment. Officer’s injuries were not caused by ignorance of the skills apparently relevant to a commercial salvage operation. He slipped. No record evidence indicated this occurrence could have been avoided with the technical training detailed by plaintiff’s expert.

THOMAS MURRAY, Plaintiff-Appellant, v. CITY OF NEW YORK, ISLAND TOWING & SALVAGE, INC., and ROBERT HENRY, in personam, and TUG RACHEL MARIE, her engines, tackle, gear and appurtenances, in rem, Defendants-Cross-Claimants-Cross-Defendants-Appellees.

No. 08-1696-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2009 U.S. App. LEXIS 11458

May 29, 2009, Decided

PROCEDURAL POSTURE:

Plaintiff police officer alleged Jones Act, unseaworthiness, and general-maritime claims for injuries sustained when he slipped on the stern deck of a private tugboat. The police officer boarded from a police department’s launch in the course of providing assistance to the tug. The U.S. District Court for the Southern District of New York granted summary judgment in favor of defendant city and others. The police officer appealed.

OVERVIEW:

The police officer claimed that the city inadequately trained him to engage in rescue operations such as the one performed for the tugboat. The police officer argued the district court erred in finding that his expert evidence would not have been admissible at trial. The district court’s ruling fell well within its discretion because the expert report at issue based its conclusions on comparisons dissociated from an actionable causation theory. The expert sought to establish that (1) the city did not adequately train its employees on how to conduct a commercial rescue, and, (2) given the inadequacy of that training, the officers should have called the Coast Guard to assist the tugboat. The first of these propositions (on which the second then depended) failed to establish but-for causation. The police officer’s injuries were not caused by ignorance of the skills apparently relevant to a commercial salvage operation, such as navigation and piloting, towing, engineering-casualty-control procedures, and use of rescue and survival gear. He slipped. No record evidence indicated that this occurrence could have been avoided with the technical training detailed by plaintiff’s expert.

OUTCOME:

The judgment of the district court was affirmed.