Where An Airplanes’ Stabilizer And Rudder Fell Into A New York Bay And The Plane Crashed Into A Neighborhood, The Locality Requirement Of The Admiralty Jurisdiction Test Was Met And The Passenger Claims Against The Airline And The Plane’s Manufacturer Were Governed By General Maritime Law And Loss Of Society And Punitive Damages Were Available.
IN RE: AIR CRASH AT BELLE HARBOR, NEW YORK ON NOVEMBER 12, 2001
02 MDL NO. 1448 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2006 U.S. Dist. LEXIS 27387
May 9, 2006, Filed
In multidistrict litigation following a plane crash filed by plaintiffs, the survivors of the passengers, and ground residents killed, and ground residents suffering injuries or property damage, defendants, the airline and its parent, and the airplane’s French manufacturer, moved for a determination that New York law applied to the passenger and crew claims and that French law applied to punitive damage claims against the manufacturer.
The plane was scheduled for a transoceanic flight. If not for air travel, the trip would have been conducted by a waterborne vessel; thus, there was a significant relationship to traditional maritime activity. The loss of the plane’s vertical stabilizer and rudder over a bay meant the deaths of all aboard were inevitable. Thus, the locality requirement of the test for admiralty jurisdiction was met and the passenger cases fell within the admiralty jurisdiction. Because there was no wrongful death admiralty statute for non-seafarers in territorial waters, the general maritime death action, and its compensatory damages which included loss of society and punitive damages, applied. New York law did not apply because it was more narrow. The manufacturer’s French incorporation indicated French law would apply as to its liability for punitive damages, but its multinational composition and character could indicate otherwise; those factual issues precluded a ruling. New York law applied to the ground punitive damage claims because it was the place of the tort under New York conflict and choice of law rules, as the site of the crash was not fortuitous with respect to the ground victims.
The court held that general maritime law and its damages rules applied to the passenger cases, that factual determinations would determine whether or not the law of France applied to punitive damage claims against the manufacturer in the passenger cases, and New York law applied to the punitive damage claims against the manufacturer in the ground cases.
A Passenger’s Personal Injury Complaint Against A Cruise Line Was Properly Dismissed Based Upon A Forum Selection Clause Contained In The Passenger Ticket Contract.
GEORGE ASSIFF, Appellant, vs. CARNIVAL CORPORATION d/b/a CARNIVAL CRUISE LINES, Appellee.
CASE NO. 3D05-1457
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2006 Fla. App. LEXIS 8119; 31 Fla. L. Weekly D 1431
May 24, 2006, Opinion Filed
Plaintiff passenger appealed a judgment by the Circuit Court for Miami-Dade County (Florida) that dismissed his personal injury complaint against defendant cruise line; the passenger claimed that the trial court erred in failing to transfer or remove the action to a federal court pursuant to Fla. Stat. ¤ 47.122 (2005) or 28 U.S.C.S. ¤ 1441.
The passenger sought damages for injuries he allegedly sustained when he tripped and fell on board a cruise ship and for injuries resulting from the ship’s medical doctor’s misdiagnosis. The passenger ticket contract contained a forum selection clause requiring all disputes to be litigated in a specific federal court. Following a hearing, the trial court granted the cruise line’s motion to dismiss without prejudice, based on the forum selection clause. The appellate court found that Fla. Stat. ¤ 47.122 (2005) was Florida’s forum non conveniens statute and the complaint was dismissed based upon a forum selection clause contained in the passenger ticket contract, not forum non conveniens. Therefore, ¤ 47.122 was inapplicable. In addition, 28 U.S.C.S. ¤ 1441 was also inapplicable. The cruise line did not seek removal and the claim did not arise under the Constitution, treaties, or laws of the United States. Since there was no statutory mechanism to remove or transfer the matter to the federal court, the trial court properly dismissed the passenger’s complaint.
The judgment was affirmed.
Court Denied Reconsideration Of Decision Granting Summary Judgment To Corporation In Suit Alleging Jones Act And Unseaworthiness Claims. Court Was Not Required To Consider Argument Made In Plaintiff’s Sur-Reply Because A Sur-Reply Is Limited To Addressing Arguments Raised In The Corporation’s Reply.
David Proper, Plaintiff, v. Ispat Inland, Inc., Defendants.
Case No. 3:05CV7062
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION
2006 U.S. Dist. LEXIS 31194
May 8, 2006, Filed
Plaintiff sought reconsideration the court’s order granting defendant corporation’s motion for summary judgment. Plaintiff alleged that the court failed to consider his argument, which was first raised in his sur-reply, that the absence of a handrail created an issue of fact in support of his Jones Act, 46 U.S.C.S. ¤ 688, and unseaworthiness claims. Alternatively, plaintiff sought leave to amend his complaint pursuant to Fed. R. Civ. P. 15.
Plaintiff correctly stated that his argument was not addressed in the order granting summary judgment. However, the court held that plaintiff’s assertion of a new basis for overruling the defendants’ motion for summary judgment in a sur-reply was not proper. The court held that when a sur-reply was allowed, it was limited to addressing new arguments raised in a movant’s reply. Thus, as plaintiff was not entitled to raise the argument, the court was justified in not considering it, and plaintiff’s motion for reconsideration was denied on the basis that the argument it asserted was not timely raised. Nonetheless, the court addressed the argument on its merits, rejecting the claim that the corporation per se violated applicable regulations or used unreasonable care by failing to provide a handrail over mooring lines on board a vessel. The court also denied plaintiff’s motion for leave to amend the complaint to raise the same allegation because plaintiff did not explain his failure to seek leave to amend prior to the entry of the summary judgment order.
The court denied the motion for reconsideration and for leave to amend the complaint.
Plaintiff’s Personal Injury Suit Based On Defective Stool On Riverboat Casino Was Improperly Dismissed As Time-Barred, And Extension Of Admiralty Jurisdiction Act Extended Admiralty Jurisdiction To Vessels On Navigable Water, On Which Casino Was Located.
LUCILLE TAGLIERE, Plaintiff-Appellant, v. HARRAH’S ILLINOIS CORPORATION, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
445 F.3d 1012; 2006 U.S. App. LEXIS 10945
May 3, 2006, Decided
Plaintiff appealed an order of the United States District Court for the Northern District of Illinois, Eastern Division, dismissing her admiralty action against defendant, the owner and operator of an indefinitely moored riverboat casino, for lack of admiralty jurisdiction. Plaintiff alleged that she was playing a slot machine when the stool she was leaning against collapsed, causing her to fall and suffer injuries.
Plaintiff filed suit within the three-year statute of limitations applicable to admiralty tort suits under 46 U.S.C.S. App. ¤ 763a, but the statute of limitations applicable to personal-injury suits under Illinois law was only two years under 735 Ill. Comp. Stat. 5/13-202. The court noted that the accident had nothing to do with the fact that the casino was on a boat afloat on a navigable stream rather than sitting on dry land; however, the Extension of Admiralty Jurisdiction Act, 46 U.S.C.S. App. ¤ 740, extended admiralty jurisdiction to cases of damage or injury caused by a vessel on navigable water. Because “vessel” had been interpreted to include the vessel’s fixtures, furniture, and other “appurtenances,” the injury resulting from the defective stool was an injury caused by a vessel. Further, the vessel was on navigable waters, and while a boat that had been permanently moored or otherwise rendered practically incapable of transportation or movement was not a “vessel” for purposes of admiralty jurisdiction, there had been no showing that the boat, though stationary for the past two years, was permanently moored. Thus, the district court erred in dismissing the suit.
The court reversed the district court’s order and remanded for further proceedings, leaving it open to the casino to show on remand that its boat was permanently rather than merely indefinitely moored when the accident occurred and was, therefore, no longer a “vessel” for purposes of admiralty jurisdiction.
Judgment In Favor Of Claimant’s Maritime Personal Injury Action Was Reversed And Remanded Because The Convention On The Recognition And Enforcement Of Foreign Arbital Awards Was The Supreme Law Of The Land And Preempted Louisiana Law, Which Nullified Forum Selection Clauses In Contracts Of Employment.
VINOD KUMAR DAHIYA VERSUS TALMIDGE INTERNATIONAL LTD., NEPTUNE SHIPMANAGEMENT SERVICES (PTE), LTD., AMERICAN EAGLE TANKERS, INC., LTD., AMERICAN EAGLE TANKERS AGENCIES, INC. AND THE BRITANNIA STEAM SHIP INSURANCE ASSOCIATION LTD.
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2005-0514 (La.App. 4 Cir. 05/26/06);
2006 La. App. LEXIS 1475
May 26, 2006, Decided
Defendants, an employer, a vessel owner, and a co-owner of the fleet to which the vessel belonged, challenged the judgment of the 25th Judicial District Court for the Parish of Plaquemines, Louisiana, entering judgment in favor of plaintiff claimant in the amount of $ 579,988, in the claimant’s maritime personal injury action.
The claimant was a citizen of India and suffered injuries while working as a seaman. The accident occurred while the vessel was in international waters. The vessel was en route to Louisiana at the time, and the claimant was transported to a Louisiana hospital where he received medical care before being repatriated to his home in India. The claimant returned to Louisiana in 2001 on a student visa and subsequently filed suit in 2002. The claimant’s employment contract included an arbitration forum selection clause requiring all disputes to be resolved in arbitration in either Singapore or India, pursuant to Indian law. The appellate court ruled that the claimant had not met his heavy burden of showing that the forum selection clause was unreasonable. Also, the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbital Awards presumed arbitration provisions to be valid, irrevocable, and enforceable. Federal law controlled and made clear that state law was preempted, in this case La. Rev. Stat. Ann. ¤ 23:921(A)(2), a Louisiana statute that nullified forum selection clauses in contracts of employment.
The judgment was reversed and remanded.
Jones Act Case Was Transferred To Virginia Federal Court Because Transfer Increased Convenience Of All Involved.
RONALD FORREST, Plaintiff, v. OMEGA PROTEIN CORPORATION, OMEGA PROTEIN, INC., and the M/V TIDELAND, Defendants.
CIVIL ACTION NO. G-05-693
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2006 U.S. Dist. LEXIS 33445
May 17, 2006, Filed
In a Jones Act case arising out of personal injuries sustained by plaintiff crewmember while aboard defendant vessel, which was owned and operated by another defendant, defendants moved to transfer venue to the United States District Court for the Eastern District of Virginia, Richmond Division.
The court declined to transfer this matter based upon a forum selection clause in the employment contract. However, defendants carried their burden of demonstrating that transferring this case would have increased the convenience of all involved, and would have been in the interests of justice. The availability and convenience of key witnesses would have increased if this case were transferred. All of the physicians that treated the crewmember immediately following the alleged accident, and for several months thereafter, were residents of Virginia. Their attendance at trial could not be compelled by defendants, and they were beyond the subpoena power of the instant court. Further, the crewmember was able to compel his retained experts to attend trial. The alleged wrong took place within the Eastern District of Virginia, Richmond Division. The case had no connection to Galveston, Texas, while residents of Virginia had a clear interest in the outcome, as the case involved Virginia residents and a company that did substantial business in Virginia. Finally, the crewmember mad no claim of prejudice other than that he would lose the benefit of the court’s fast trial docket.
The motion to transfer venue was granted, the case was transferred to the Eastern District of Virginia, Richmond Division.
Where A Seaman Was Injured When She Slipped On The Deck, The Evidence Was Sufficient To Establish The Maritime Company’s Liability Under The Jones Act. Further, Under Texas Law, A Life Care Planner Was Qualified To Testify As An Expert Witness On Medical Costs, But The Jury’s Award Of $1,000,000 In Future Medical Damages Was Excessive.
SEARIVER MARITIME, INC., Appellant, v. ELLA PIKE, Appellee.
COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI 2006 Tex. App. LEXIS 4905
June 8, 2006, Memorandum Opinion Filed
Appellee seaman fell and injured herself shipboard in the galley during a storm. The 189th Judicial District Court of Harris County, Texas, found appellant maritime company liable under both general maritime law and the Jones Act. The seaman was awarded damages, past and future, totaling $ 2,564,912. The maritime company appealed.
An employee of an inspection company was injured while working on a vessel. The employee filed a tort action against several named defendants, including his employer and the president and sole shareholder of the vessel’s corporate owner. At that time, because the employee did not know the actual name of the company that owned the vessel, he also named as defendants three fictitious corporations. During discovery, the employee learned the name of the corporate owner and amended the complaint to expressly name the corporation as a defendant. Seven months after the filing of the initial complaint, the vessel owner filed the instant action. In affirming the district court’s dismissal of the action under 46 U.S.C.S. app. ¤ 185 because it was not filed within six months of the vessel owner’s receipt of written notice of the employee’s claim, the court held that the original complaint adequately gave notice to the vessel owner that the employee was making a claim against the vessel owner because the original complaint clearly asserted claims against the vessel’s owner and was served on the sole shareholder and president of the vessel owner.
The court affirmed the district court’s decision.
Court Denied In Part Defendants’ Motion For Partial Summary Judgment In Tankerman’s Suit To Recover For Injuries He Sustained While Working On Barge Because He Offered Evidence That He Was Subject To Barge Owner’s Control While Working As Tankerman, So A Material Fact Dispute Existed About Whether Owner Was An “Employer” Under Jones Act.
SHANNON PHILLIPS, Plaintiff, v. TIDEWATER BARGE LINES, INC., an Oregon corporation; and BARGE 2, including her valves, pumps, and equipment, Defendants.
No. CV 05-1157-ST
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
2006 U.S. Dist. LEXIS 40442
June 16, 2006, Decided
Seeking recovery for personal injuries, plaintiff tankerman sued defendants, a barge owner and a barge, asserting claims for Jones Act negligence, breach of duty under the Longshore Harbor Workers Compensation Act (LHWCA), unseaworthiness, general maritime negligence, state common law negligence, as well as violations of the Oregon Employer Liability Act (OELA). Defendants moved, and the tankerman cross-moved, for partial summary judgment.
The tankerman sought to recover for injuries he sustained while working on the barge. Defendants sought summary judgment on all claims except the LHWCA claim. The tankerman cross-moved for summary judgment regarding his status as a “seaman” under the Jones Act. A magistrate judge issued findings and recommendations concluding that a material fact dispute existed about whether the tankerman was a “seaman.” However, the magistrate concluded that the barge owner was not the tankerman’s “employer” under that Act. Thus, the magistrate recommended that the court grant summary judgment against the tankerman on the Jones Act claim, as well as the negligence claims. The magistrate recommended that the court deny summary judgment on the unseaworthiness and OELA claims. Both parties filed timely objections. The court agreed with the magistrate only in part. A material fact dispute existed about whether the tankerman was a seaman. The court agreed with the magistrate regarding the unseaworthiness, negligence, and OELA claims. However, the court disagreed that the owner was entitled to summary judgment on the tankerman’s status as an employee.
The court adopted in part, with modifications, and declined to adopt in part a magistrate judge’s findings and recommendation. The court granted defendants’ motion for partial summary judgment as to the negligence claims, but the court otherwise denied the motion. The court denied the tankerman’s cross-motion. Finally, the court corrected several factual errors in the magistrate’s findings.
In A Police Lieutenant’s Suit Against New York City For Injuries Incurred While Serving Aboard A City Vessel, The Collateral Source Rule Precluded The City From Presenting Evidence Of The Lieutenant’s Pension Payments In Mitigation Of His Damages Because These Payments Were Collateral Since They Were Not An Effort By The City To Provide Indemnification.
DAVID EBERT, Plaintiff, – against – THE CITY OF NEW YORK, Defendant.
04 Civ. 9971 (LMM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2006 U.S. Dist. LEXIS 43337
June 26, 2006, Filed
Plaintiff city police lieutenant sued defendant city under the Jones Act, 46 U.S.C.S. ¤ 688, and general maritime law for injuries sustained while serving aboard a city vessel. The lieutenant was eligible to receive an accident disability pension from a city police pension fund. The city moved in limine for an order permitting it to present evidence of the pension in mitigation of damages and to preclude testimony from the lieutenant’s expert.
The lieutenant moved to preclude the city from offering such evidence on the basis of the collateral source rule, which barred evidence of recovery from other sources to reduce the amount of recoverable damages. The city countered that the collateral source rule did not apply because the pension was funded by the city and it was not a bargained-for term of employment. The court found that the ultimate inquiry was whether the city established the plan to protect against liability. Applying this test, the court concluded that the pension was not an effort by the city to provide indemnification, but that the pension reflected the public’s concern for the welfare of police injured in the line of duty. The fact that the pension was not the result of collective bargaining was not relevant. Accordingly, the court denied the motion, holding that the collateral source rule applied and that the city could not offset the pension payments against any verdict favorable to the lieutenant. In addition, the court summarily denied the motion to exclude testimony from the lieutenant’s expert, finding that he was competent to testify as to the slipperiness of the ladder at issue.
The court denied the city’s motion.
A Passenger’s Action Against Cruise Ship Operators For His Slip And Fall Was Governed By General Maritime Law And Not State Law. Summary Judgment Was Not Proper Because The Passenger Raised Genuine Issues Of Material Fact As To Whether His Fall Had Been Caused By Spilled Food Or By Water And As To Whether The Operators Had Constructive Notice.
EDMOND ROBERT MANSOOR, Plaintiff, v. M/V ZAANDAM, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2006 U.S. Dist. LEXIS 39787
June 15, 2006, Decided
Defendant cruise ship operators moved for summary judgment in plaintiff passenger’s action to recover for his slip and fall on the ship’s deck during a cruise. The passenger filed a cross-motion for partial summary judgment on the question of whether the operators had failed to conduct regular inspections of the deck.
In the passenger’s action against the operators, he claimed that he had slipped and fallen during the cruise on a combination of food and water that had been spilled on the deck. The operators claimed the passenger had slipped on water from a nearby pool or hot tubs and that nearby signs warned of the hazard of spilled water. According to the passenger’s wife, people routinely carried food on the deck from nearby food stands. The court denied the operators’ motion for summary judgment because it found that a genuine issue of material fact existed as to whether the passenger’s fall had been caused by food or water. Although the passenger’s reliance on Washington law was misplaced when he sought to show that Washington law did not require proof of constructive notice, the court found a genuine issue of material fact on the issue of constructive notice under general maritime law. The court struck the passenger’s cross-motion for partial summary judgment on the issue of whether the operators conducted regular inspection of the deck because the motion had been untimely made.
The court denied the operators’ motion for summary judgment and struck the passenger’s cross-motion for partial summary judgment.
An Operator Of A Gaming Vessel Was Liable For Discharging Merchant Marine Officers In Retaliation For Sending Correspondence To The U.S. Coast Guard Because The Officers’ Correspondence Was Based On An Honest Belief That The Coast Guard’s Grant Of A Variance From Engineer Licensing Requirements Violated Safety Regulations.
MICHAEL P. GAFFNEY, THOMAS BELL, EDWARD ANDERSON, et al., v. Plaintiffs-Appellees, Cross-Appellants, v. RIVERBOAT SERVICES OF INDIANA, INCORPORATED, RIVERBOAT SERVICES, INCORPORATED, ROBERT HEITMEIER, et al., Defendants-Appellants, Cross-Appellees, v. SHOWBOAT MARINA CASINO PARTNERSHIP, SHOWBOAT, INCORPORATED, SHOWBOAT INDIANA, INCORPORATED, et al., Defendants-Appellees.
Nos. 04-3829, 04-3900
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2006 U.S. App. LEXIS 15069
June 16, 2006, Decided
In a 46 U.S.C.S. ¤ 2114 whistleblower action, defendants, a vessel operator, its president, and its personnel director, appealed a judgment the United States District Court for the Northern District of Indiana entered in favor of eight of 10 plaintiffs, merchant marine officers. The operator also appealed a summary judgment entered on an indemnification claim filed against defendant vessel owner. The officers appealed a denial of attorneys’ fees.
After the United States Coast Guard granted the president’s request that the gaming vessel’s certificate of inspection be amended to permit employment of engineers with limited licenses, the merchant marine officers wrote letters to the Coast Guard expressing their concern that the relaxation of licensing requirements reduced passenger safety. The Coast Guard subsequently concluded that allowing employment of limited engineers violated 46 C.F.R. ¤ 15.915. The personnel director informed one merchant marine officer that he was terminated for sending unauthorized correspondence to regulatory agencies. The other officers were fired in rapid succession, but were not given any reason for their discharges. Pursuant to Fed. R. Civ. P. 21, the officers’ claims against the owner and the owner’s cross-claim against the operator were severed from the proceedings between the officers and the operator. On appeal, the court held that all the officers were entitled to whistleblower protection because they honestly believed that the Coast Guard’s grant of a variance from licensing requirements violated safety regulations and the protected correspondence was a motivating factor in the discharges.
The court affirmed the judgment holding that officers were discharged in violation of 46 U.S.C.S. ¤ 2114, the awards of back pay and punitive damages, the judgment holding that the owner was not required to indemnify the operator, and the denial of attorneys’ fees. The court reversed the judgment entered against the president and the judgment holding that two officers were not entitled to whistleblower protection and remanded the case.
Motion To Dismiss Granted Where No Duty Found Upon Defendant To Monitor The Video Cameras Aboard Its Vessel.
JOHN A. MIZENER, as Personal Representative of the Estate of ANNETTE MIZENER, Plaintiff, v. CARNIVAL CORPORATION, Defendant.
CASE NO.: 05-22965-CIV-COOKE/BROWN
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2006 U.S. Dist. LEXIS 4433
June 15, 2006, Filed
In a wrongful death missing persons claim, Defendant filed its Motion to Dismiss on December 12, 2005. Plaintiff filed his response on December 30, 2005. Thereafter, Defendant filed its reply on January 17, 2006.
Plaintiff alleges that on December 4, 2004 Annette Mizener was a passenger aboard Defendant’s vessel the Carnival Pride which was in navigable waters. Plaintiff avers that while aboard the Carnival Pride Ms. Mizener disappeared. According to Plaintiff, Ms. Mizener’s disappearance was reported to the ship’s crew and a search of the vessel resulted in the finding of Ms. Mizener’s purse and other personal property located in an area of the vessel which had a video camera. Further, Plaintiff avers that a search of the vessel and a subsequent search of the ocean failed to locate Ms Mizener. Finally, Plaintiff alleges that had the Defendant properly monitored the video camera they would have known that Annette Mizener had gone overboard and the vessel could have been stopped so that a search and rescue could have been performed. Plaintiff asserts a single cause of action for negligence. In its Motion, Defendant contends that the Complaint should be dismissed because it was not an insurer of Ms. Mizener’s safety and therefore not under a duty to continually monitor cameras aboard its vessel. Plaintiff argues that because Defendant placed the video camera aboard the vessel it voluntarily assumed a duty to exercise reasonable care in monitoring the camera for the safety of its passengers. To support this proposition, Plaintiff relied upon a string of cases, all of which the court distinguished, summarily finding no duty upon the defendant to monitor the video cameras they installed on their vessel.
Defendant’s motion to dismiss was granted.