COMPARITIVE NEGLIGENCE DOES NOT REDUCE AWARD OF MAINTENANCE AND CURE.

LASZLO FULOP, Plaintiff-Appellant, v. OCEAN HOPE 1 F/V, the vessel, her tackle & gear In Rem; US MARINE CORP., a foreign corporation InPersonam, Defendants-Appellees.

No. 99-35196
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2000 U.S. App. LEXIS 30216
November 15, 2000, Argued and Submitted, Seattle, Washington
November 27, 2000, Filed

It is true that an award of medical expenses under the Jones Act is properly reduced by the Seaman’s own negligence. Fitzgerald v. United States Lines Co., 374 U.S. 16, 19, 83 S. Ct. 1646, 1649, 10 L. Ed. 2d 720 (1963). However, awards for maintenance and cure are not so reduced. Id. Rather, they are payable until the seaman has reached maximum cure, regardless of fault on anyone’s part. Permanente S. S. Corp. v. Martinez, 369 F.2d 297, 298-99 (9th Cir. 1966); Crooks v. United States, 459 F.2d 631, 633 (9th Cir. 1972); see also Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527-28, 58 S. Ct. 651, 653, 82 L. Ed. 993 (1938).

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AMENDED COMPLAINT RELATED BACK TO ORIGINAL COMPLAINT.

CREIGHTON E. MILLER, Administrator of the Estates of Juvenal J. Rezendes, Deceased (99-3703), Louie E. Hudson, Deceased (99-3705), Booker T.Pompey, Deceased (99-3707), Walter L. Bowman, Deceased (99-3708), William B.Birch, Jr. (99-3709), Plaintiff-Appellant, v. AMERICAN HEAVY LIFT SHIPPING, etal., Defendants-Appellees.

Nos. 99-3703/99-3705/99-3707/99-3708/99-3709
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
231 F.3d 242; 2000 U.S. App. LEXIS 27440; 2000 FED App.0384P (6th Cir.)
June 21, 2000, Argued
November 3, 2000, Decided
November 3, 2000, Filed

OUTCOME:

The decision was reversed because the amended claims arose out of the same conduct, transaction, or occurrence as the original claims. Defendants were allegedly liable for the same conduct — negligently exposing the deceased seamen to toxins and failing to maintain seaworthiness of their vessels — as originally alleged.

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ADMIRALTY JURISDICTION FOR FAILURE TO PROCURE MARINE INSURANCE CLAIM.

JOHN FERNANDEZ, III, Plaintiff, v. JAMES B. HAYNIE, etc., etal., Defendants.


Civil Action No. 4:00cv9
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION
2000 U.S. Dist. LEXIS 16807
November 14, 2000, Decided

OVERVIEW:

Plaintiff allegedly contracted with defendant brokers to place and maintain with a solvent underwriter an insurance policy on plaintiff’s shrimping vessel. Defendant brokers delivered a marine insurance policy to plaintiff and the vessel. However, defendant brokers allegedly switched plaintiff’s insurance coverage to a new policy with a different insurer. A seaman suffered injuries on board plaintiff’s vessel and sued plaintiff. Plaintiff filed suit against defendants to redress losses incurred resultant to an alleged breach of the contract to procure and maintain marine insurance. The court denied defendants’ motion to dismiss for lack of subject matter jurisdiction. The court determined that the action on an alleged contract to procure marine insurance was within the grant of admiralty jurisdiction to the federal courts. The subject matter of the alleged contract between plaintiff and defendant brokers was maritime in nature, and jurisdiction over the claim was consistent with the protection of maritime commerce, thus satisfying the jurisdictional inquiry for maritime contracts.

OUTCOME:
Defendants’ motion to dismiss for lack of subject matter jurisdiction was denied because the court had admiralty jurisdiction over the alleged contract to procure marine insurance.

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THE DUTY TO PROVIDE SEAMAN WITH SAFE PLACE TO WORK DID NOT EXTEND TO VESSEL OVER WHICH EMPLOYER EXERCISED NO CONTROL.

NICHOLAS MASTRODONATO, et al v. SEA MAR, INC., et al

Civil Action No. 99-2547 SECTION: “D”(3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 16568
November 9, 2000, Decided
November 9, 2000, Filed, Entered

OVERVIEW:

Plaintiff, a seaman, was employed by defendant employer as a captain of a jack-up vessel. Plaintiff was transported from the jack-up vessel to the shore by the supply vessel. Plaintiff slipped and fell on the step on the supply vessel and sued co-defendant owner/operator of the supply vessel and defendant employer asserting negligence claims under maritime law and requested a trial by jury. Co-defendant filed a cross-claim against defendant employer, seeking contractual indemnity pursuant to defendant employer’s charter agreement. Co-defendant also filed a third party demand against defendant employer’s insurance company. Defendant employer and co-defendant both moved for partial summary judgment. The court found no evidence that defendant employer was negligent. The duty to provide plaintiff with a safe place to work did not extend to a vessel over which defendant employer exercised no control. Thus, plaintiff’s Jones Act and unseaworthiness claims against defendant employer were dismissed. Defendant employer owed no contractual indemnity obligation to co-defendant under either the charter agreement or the insurance policy. defendant under either its charter agreement or insurance policy.

OUTCOME:

Defendant’s motion to strike jury demand was granted, as plaintiff’s maritime negligence claim was dismissed. Co-defendant’s cross-motion for partial summary judgment was denied.

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SAVINGS TO SUITORS ALLOWED SEPARATE ACTION TO PROCEED WHERE STIPULATION MADE THAT LIMITATION MATTERS WOULD BE DECIDED IN THE COURT WHERE LIMITATION OF LIABILITY SOUGHT.

In the Matter of LEBEOUF BROTHERS TOWING CO., INC. as owner of M/V ERIKA LEIGH and BARGE LB-16

Civil Action No. 00-0848 SECTION: “J”(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 16881
November 7, 2000, Decided
November 9, 2000, Filed; November 13, 2000, Entered

OVERVIEW:

Petitioner vessel owner brought an action under the Limitation of Vessel Owner’s Liability Act (Act), 46 U.S.C.S. app. § 181 et seq., to limit petitioner’s liability for injuries incurred by claimant while working on petitioner’s vessel. Claimant sought to lift the stay to permit claimant to pursue his Jones Act action in a separate federal court under 28 U.S.C.S. § 1333. The court permitted claimant to proceed on his separate federal action, since petitioner’s statutory right to limit its liability to petitioner’s interest in the vessel and its pending cargo was sufficiently protected by claimant’s stipulation to have all limitation issues adjudicated in the instant forum. The Savings to Suitors clause of 28 U.S.C.S. § 1333 did not limit claimant to state common law remedies, and claimant was thus not barred from seeking a federal statutory remedy. Further, although a stipulation by claimant to exclusive adjudication in federal court with respect to the issue of exoneration was not required by the Act, claimant expressly stipulated to such exclusive adjudication.

OUTCOME:

Motion was granted; petitioner vessel owner’s right to limitation of its liability for claimant’s injuries was adequately protected by claimant’s stipulation to adjudicate limitation and exoneration issues in the instant forum, although the stipulation concerning exoneration issues was not required, and claimant was thus entitled to pursue his federal statutory claim in a different court.

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PUNITIVE DAMAGES NOT AVAILABLE IN MAINTENANCE AND CURE ACTIONS. ISSUE CERTIFIED TO FLORIDA SUPREME COURT BASED ON CONFLICT WITH THIRD DISTRICT COURT OF APPEAL.

PAUL GARY NURKIEWICZ, Appellant, v. VACATION BREAK U.S.A.,INC., RESORT YACHTS OF AMERICA, INC., and SERENITY YACHT CLUB, INC., Appellees.

Case No. 4D99-3198
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2000 Fla. App. LEXIS 15234
November 22, 2000, Opinion Filed

OVERVIEW:

Plaintiff captain of sport boat was loading sodas onto the boat. As plaintiff was loading the 24 can cases, two at a time, into a hatch in the galley floor, he injured his back. Plaintiff alleged unseaworthiness and negligence under the Jones Act, 46 U.S.C.S. § 688, as defendant owners had not trained him to load heavy objects without injuring his back, given him a belt to protect his back, and made storage space more accessible. The trial court granted summary judgment to defendants. The appellate court found there was no negligence or unseaworthiness as a matter of law . Plaintiff was barred from recovery for negligence or unseaworthiness as the injury was entirely his fault. The trial court erred in entering summary judgment on the claim for maintenance and cure as claimed medical expenses were palliative rather than curative, but punitive damages were not recoverable in the claim.

OUTCOME:

Order was affirmed as to negligence and unseaworthiness, but reversed and remanded for further proceedings with regard to the claim for maintenance and cure.

After reading the fifth circuit’s opinion in Guevara, which interpreted the 1990 opinion of the Supreme Court in Miles, we are persuaded that, if faced with the question, the Supreme Court would agree with Guevara and hold that punitive damages are[*7] not recoverable in a maintenance and cure case. We note that a trial court within the eleventh circuit has disallowed punitive damages in a maintenance and cure case, concluding that the eleventh circuit would follow Guevara when presented with the issue. Hollinger v. Kirby Tankships, Inc., 910 F. Supp. 571 (S.D. Ala. 1996). We therefore hold that punitive damages are not available. We certify conflict with Norwegian Cruise Lines, Ltd. v. Zareno, 712 So. 2d 791 (Fla. 3d DCA 1998).

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RES IPSA DID NOT APPLY TO INJURY TO PASSENGER STRUCK BY PORTION OF PANEL FROM BATH TUB WHICH FELL.

ROBERT HOOD, Plaintiff, – against – REGENCY MARITIME CORP.,Defendant.

99 Civ. 10250 (CSH)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2000 U.S. Dist. LEXIS 17298
November 29, 2000, Decided
November 30, 2000, Filed

OVERVIEW:

While using a private bathroom on a cruise ship, plaintiff was struck by a part of the tub which had come loose. Plaintiff filed suit against defendant cruise line for negligence. Defendant moved for summary judgment, which the court granted. The court held that being struck by a portion of the tub was not an incident uniquely encountered while at sea, and that the appropriate standard of care to be applied was that which was reasonable in the circumstances. As such, defendant had no actual or constructive knowledge of the defect. Plaintiff’s res ipsa loquitor claim failed because he failed to prove that defendant had exclusive control over the instrument which caused the injury.

OUTCOME:

Motion of defendant for summary judgment granted, because plaintiff failed to present evidence that defendant breached appropriate standard of care; res ipsa loquitor claim failed where defendant did not have exclusive control.

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CASE DISMISSED FOR FAILURE TO FILE WITHIN ONE YEAR EVEN THOUGH TICKET PURCHASED BY GROUP FOR ONE OF IT’S MEMBERS

LICENSED PRACTICAL NURSES, TECHNICIANS AND HEALTH CAREWORKERS OF NEW YORK, INC., Plaintiff, -v- ULYSSES CRUISES, INC., d/b/a PREMIER CRUISES, Defendant.

00 Civ. 4349 (GEL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2000 U.S. Dist. LEXIS 16619
November 14, 2000, Decided
November 15, 2000, Filed

OVERVIEW:

Plaintiff union purchased tickets for their members on defendant’s cruse ship to hold a meeting. The tickets contained provisions for where a law suit should be brought and stated that any suit must be brought within one year. Plaintiff brought their action after one year and in a court other that those listed on the ticket. The court held that since the union purchased the tickets for its members they were bound by the ticket’s terms. The court found that presence of a forum-selection clause did not deprive the disfavored forum of jurisdiction or venue, because the conditions of subject matter and in personam jurisdiction and proper venue were otherwise met. They found that the ticket reasonably communicated the contractual limitations period to the purchaser. The face of the ticket contained a bold, large print, boxed notice, specifically calling the purchaser’s attention to the fact that the ticket contained terms limiting the cruise line’s liability. Therefore, the limitations clause of the contract was enforceable. Because the suit was brought more than one year after the incident complained of, as the contract provided for, the action was dismissed.

OUTCOME:

The complaint was dismissed for failure to comply with the agreed-upon one-year limitations period printed on the tickets purchased by plaintiff.

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LOSS OF CONSORTIUM AVAILABLE TO NONSEAMAN IN TERRITORIAL WATERS.

CHRISTOPHER ANTHONY LINER, et al. v. DRAVO BASIC MATERIALS COMPANY, et al.

Civil Action No. 00-1908 SECTION: “J”(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 16593
November 3, 2000, Decided
November 7, 2000, Filed; November 8, 2000, Entered

OVERVIEW:

Two of the plaintiffs struck an unmarked submerged barge owned by defendants while they were using a 17-foot fiberglass recreational boat. Plaintiffs sued. Among the claims were loss of consortium and punitive damages. Defendants moved for partial summary judgment on these two claims calling into question the availability of loss of consortium damages and non-pecuniary damage awards under general maritime law. The motion for partial summary judgment was denied. Since the two plaintiffs were not seamen, and therefore not covered by United States Congressional statute, they could supplement their claims under general maritime law with applicable state law since the accident occurred in state territorial waters. State law permitted claims for loss of consortium. Under state law, punitive damages were available only in two specific instances, which did not apply in the instant case. However, turning the argument around, plaintiffs sought to supplement this claim by general maritime law. The court acknowledged that the general trend in the caselaw supported punitive damage claims under general maritime law when there were no overlapping federal statutes.

OUTCOME:

Motion for partial summary judgment was denied. The two plaintiffs were not seamen; they could supplement their claims under general maritime law with applicable state law. State law permitted claims for loss of consortium. State law permitted punitive damages in only two circumstances, which were not present. However, caselaw supported the idea that general maritime law permitted punitive damages when there was no overlap with federal law.