SUMMARY JUDGMENT GRANTED AGAINST JONES ACT SEAMAN WHERE SEAMAN DID NOT ESTABLISH MOVING HEAVY GARBAGE IS A TWO PERSON JOB AND CREW INCOMPETENCE – COURT FINDS SHIPOWNERS FAILURE TO TRAIN ON HOW TO LIFT WAS INSIGNIFICANT AND THAT INCURRING A STRAINING INJURY WHILE PERFORMING A TASK DOES NOT ESTABLISH THAT THE TASK REQUIRES ADDITIONAL CREW
TWALLA JOY HAYNES, Plaintiff, v. HARRAH’S CASINO JOLIET, Defendant.
Case Number: 99 C 5546
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 18847
November 15, 2001, Decided
November 16, 2001, Docketed
[*1] Defendant’s motion for summary judgment [11-1] granted.
Plaintiff employee sued defendant employer for damages for a back injury she allegedly sustained while working on the employer’s gaming vessel. The employee’s remaining claims were that the employer was liable for damages under the Jones Act of 1920 for negligence and under general maritime law for unseaworthiness. The employer moved for summary judgment on the employee’s claims.
The employee, who worked as a cleaner, allegedly injured her back while setting a wheeled garbage container down inside a ship’s elevator. The same allegations underlay both of the employee’s claims: (1) the vessel was understaffed; (2) the crew was incompetent; (3) the employer failed to supply the employee with proper equipment to move heavy garbage; and (4) the employer failed to properly train the employee on how to lift or move heavy garbage. The court found that the employee, as a matter of law, did not establish either claim. Regarding understaffing, the employee produced no evidence to show it was unreasonable for the employer to expect the employee to move the container herself; the evidence showed it was a one-person job. Her injury by itself did not establish that it was a two-person job. One instance of a co-worker leaving the container in a hallway did not establish crew incompetence. Nothing indicated that the container was inadequate. The employee had comprehensive training on her job duties, and failure to train on how to lift was insignificant, as the employee did not try to lift the container on the day she was injured.
The court granted the employer’s motion for summary judgment.
COURT FINDS THAT A CREW’S PERFORMANCE OF ITS WORK IN AN UNSAFE MANNER DOES NOT CONSTITUTE UNSEAWORTHINESS BUT, RATHER, JONES ACT NEGLIGENCE AND THAT SINCE INJURED SEAMAN HAD SEVERAL YEARS OF EXPERIENCE ON BOAT, HE WAS HELD TO BE 60% NEGLIGENT FOR WALKING UNDER A HEAVY SUSPENDED BOAT, THEREBY BARRING HIS CLAIM
MICHAEL B. HUSS, Plaintiff, v THE KING COMPANY, INC., and LAKE MICHIGAN CONTRACTORS, INC., Defendants.
No.1:98 cv 366
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2001 U.S. Dist. LEXIS 19293
November 14, 2001, Decided
November 14, 2001, Filed
[*1] Defendant’s motion for summary judgment granted.
Plaintiff employee sustained a back injury during his employment. He brought claims of breach of the warranty of seaworthiness under general maritime law and negligence under the Jones Act against defendant shipowner, his former employer. The shipowner moved for summary judgment.
The court concluded that the employee had an employment-related connection to a dredge, contributing to its function. His actions on the date in question were a part of that function. The employee therefore had seaman status within the meaning of the relevant law. However, the court found that the record was void of any evidence from which a jury could have concluded that the ship was unseaworthy because it was not equipped with a picking harness. Further, the employee had not shown that the vessel was unseaworthy because the crew was incompetent or inadequate. The court concluded that the crew’s performance of its work in an unsafe manner was a breach of duty, and that the employee’s injury due to the weight of the boat falling on him was a foreseeable result of the breach. The employee, who had several years of experience, had a duty to protect himself from harm, and the court concluded that he breached that duty by walking under the heavy, suspended boat. The employee’s negligence, as well as that attributable to the shipowner, caused his injuries. The percentage of negligence attributable to the employee was 60 percent.
The shipowner’s motion for summary judgment was granted.
ROYAL CARIBBEAN CRUISES FORUM SELECTION CLAUSE, SELECTING MIAMI, FLORIDA, UPHELD BY COURT DISMISSING PASSENGERS CLAIM IN CALIFORNIA DESPITE LAPSING OF STATUTE OF LIMITATIONS TO REFILE SUIT IN MIAMI, FLORIDA
TERUO WATANABE et al., Plaintiffs and Appellants, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
2001 Cal. App. LEXIS 2654
November 28, 2001, Filed
APPEAL from a judgment of the Superior Court of Los Angeles County. (Super. Ct. No. KC 032144). Karl W. Jaeger, Judge.
The Superior Court granted defendant cruise ship operator’s motion to dismiss based on forum selection clause inserted within its passenger cruise tickets requiring a passenger to bring suit in a court in Miami, Florida.
Passsengers aboard defendant’s cruise ship filed suit against the cruise line after the ship struck a reef during the cruise, forcing the passengers to abandon ship. Plaintiffs filed suit in California state court despite defendant’s forum selection clause, inserted within its brochure and passenger tickets, selecting the court’s of Miami, Florida to the exclusion of all other courts. Forum selection clauses are presumed valid. The party resisting the clause’s application bears the “heavy” burden of showing enforcement is unreasonable under the circumstances to overcome the presumption. The passenger need not have actually read or been aware of the provision to be bound by it, so long as he had an opportunity to review the contract. Contractual clauses have been affirmed where the passenger never opened the ticket packet before boarding. Here, plaintiffs received the tickets seven days before the cruise. Plaintiffs did not claim they would have tried to book a different cruise had they known before then of the forum selection clause. Plaintiffs’ arguments all involve the inconvenience of litigating the case in Florida, and their unwillingness to pursue paying Florida counsel, apparently due to the estimated return from the case’s property loss and personal injury causes of action. Those factors do not support invalidating the forum selection clause. Further, plaintiffs unquestionably knew or should have known about the forum selection clause after their cause of action arose and before the Florida limitations period expired. Although plaintiffs declared they did not read the forum selection clause before losing their tickets while abandoning ship, they never claimed they did not know of the clause before the Florida limitations period lapsed.
The granting of defendant’s motion to dismiss was affirmed.
SUMMARY JUDGMENT GRANTED AGAINST JONES ACT SEAMAN’S MAINTENANCE AND CURE CLAIM WHERE SEAMAN FAILED TO DISCLOSE A PRIOR BACK INJURY
LINDA KAY WELCH, INDIVIDUALLY AND AS TUTRIX FOR DAYLON CHASEBOSWELL AND KYLER WELCH AND AS PERSONAL REPRESENTATIVE OF BYRON JOSEPH BOSWELLAND LISA PERIERA, INDIVIDUALLY AND AS TUTRIX FOR BRANDON BOSWELL AND AS PERSONALREPRESENTATIVE OF BYRON JOSEPH BOSWELL VERSUS FUGRO GEOSCIENCES, INC., AND ITSINSURER SIGNAL MUTUAL INDEMNITY ASSOCIATION, LTD.; MARSHLAND MARINE OF BAYTOWN,TEXAS, AND ITS INSURER XYZ INSURANCE COMPANY
2000 CA 1231
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2000 1231 (La.App. 1 Cir, 11/21/01); 2001 La. App. LEXIS 2716
November 21, 2001, Rendered
On appeal from the eighteenth judicial district court. (number 25,579), parish of West Baton Rouge, state of louisiana. Honorable Jack T. Marionneaux, judge.
AFFIRMED. Costs are assessed against the plaintiffs-appellants.
Appellant, a deceased longshoreman’s minor child, sued appellees, employer and insurer, asserting claims under the Jones Act, 46 U.S.C.S. § 688, under 28 U.S.C.S. § 1333, and under state law. The Eighteenth Judicial District Court of West Baton Rouge Parish, Louisiana, granted partial summary judgment to the employer and insurer, and dismissed the child’s claims for consortium, punitive, and other nonpecuniary damages. The child appealed.
The child’s father, working on his employer’s airboat, died in Louisiana territorial waters after the airboat sank. The child alleged that the employer was negligent, and violated its warranty of seaworthiness to the decedent. In granting partial summary judgment to the employer and its insurer, the trial court held that nonpecuniary damages could not be recovered for the death of a longshoreman injured in territorial waters. The appellate court agreed. It assumed for purposes of the opinion that the parties had stipulated that the decedent had been a longshoreman. 33 U.S.C.S. § 905(b) of the Longshore and Harbor Workers’ Compensation Act barred any recovery from shipowners for the death of a longshoreman resulting from breach of the duty of seaworthiness. A dependent of a longshoreman injured on the outer continental shelf could not recover loss of consortium damages under the general maritime law. The fact that La. Civ. Code Ann. art. 2315.3 authorized punitive damages was immaterial, as the statute was inapplicable, having been preempted by federal maritime law.
The judgment was affirmed.
SETTLEMENT OF PORT CHARGES CLASS ACTION APPROVED BY COURT
FRANCINE PICKETT, BRIAN COHEN, JACK MASIN, BELLE MASIN, individually and on Behalf of all other similarly situated, Respondents, LEONARD BEBCHICK, Respondent, JOSEPH HESS, LEONA HESS, TOM CRAGO, and LINDA CRAGO, Intervenors, v. HOLLAND AMERICA LINE– WESTOURS, INC., Petitioner.
SUPREME COURT OF WASHINGTON
35 P.3d 351; 2001 Wash. LEXIS 758
May 17, 2001, Argued
November 29, 2001, Filed
[*1] Appeal from Superior Court, King County; 96-2-10831-6. Honorable Jay White, Judge.
Respondents class representatives sued petitioner cruise line to recover a portion of port charges charged to them in addition to cruise fares. Intervenor objecting class member objected to the proposed settlement that was approved by the trial court. The Washington Court of Appeals reversed the approval of the proposed settlement. The cruise line appealed.
The class representatives sued the cruise line for consumer protection violations and other claims. The trial court conditionally certified the class for the settlement. One member of the class objected to the trial court’s approval of the settlement. The state supreme court held that the appellate court erred by focusing on the initial denial of class certification rather than determining if the settlement was fair, adequate, and reasonable. The factors used to make that determination include: plaintiffs’ likelihood of success; the amount of discovery; the settlement terms; recommendation and experience of counsel; future expense and duration of litigation; recommendation of neutral parties; number of objectors and nature of objections; and the presence of good faith and the absence of collusion. The court considered that there was only one objection to the settlement out of a class of 450,000, the class was facing great uncertainty if the settlement was not approved, the travel vouchers received in the settlement were redeemable if not used, the parties were represented by good counsel, and the presence of good faith to hold the settlement was fair, adequate, and reasonable. Pursuant to the settlement agreement, members of the class were to receive fully transferable travel vouchers, redeemable for future Holland cruises. They are valid for three years from the date of issuance. The voucher amounts vary, depending upon the length of the original cruise and the date of its departure. The amounts are as follows:
Years of Departure Duration of Cruise Voucher Amount: 1992-94: Under 14 Days = $10.00; 14-21 Days = $15.00; Over 21 Days = $20.00; 1995-96: Under 14 Days = $25.00; 14-21 Days = $37.50; Over 21 Days = $50.00. The principal restriction on use of the vouchers is that they must be used for a booking made within 45 days of departure.
The Court of Appeals was reversed the class settlement was determined to be fair, adequate, and reasonable
FIVE BILLION DOLLAR PUNITIVE DAMAGE AWARD AGAINST EXXON FOR VALDEZ OIL SPILL VACATED AND CASE REMANDED TO DETERMINE LOWER PUNITIVE DAMAGE AWARD AND WHETHER CERTAIN CLAIMANTS WERE LIMITED TO PURELY ECONOMIC DAMAGES
In re: the EXXON VALDEZ, GRANT BAKER, et al., as representatives of the Mandatory Punitive Damages Class, Plaintiffs-Appellees,v. JOSEPH HAZELWOOD, Defendant, and EXXON CORPORATION; EXXON SHIPPING COMPANY,Defendants-Appellants. In re: the EXXON VALDEZ, GRANT BAKER, et al., as representatives of the Mandatory Punitive Damages Class, Plaintiffs-Appellees,v. EXXON CORPORATION; EXXON SHIPPING COMPANY, Defendants, and JOSEPH HAZELWOOD,Defendant-Appellant. DANIEL R. CALHOUN; BRADFORD J. CHISHOLM; DAVID P. CLARKE;THOMAS S. MCALLISTER; PHILLIP G. MCCRUDDEN; MICHAEL J. MCCLENAGHAN; GUY PIERCEY;HUGH WISNER; GRANT C. BAKER; LARRY L. DOOLEY; KIM J. EWERS; JOHN W. HERSCHLEB;KENT HERSCHLEB; DAVID B. HORNE; MICHAEL J. OWECKE; GERALD E. THORNE; GEORGE A.GORDAOFF; OLD HARBOR NATIVE CORPORATION; TIMBERLINE, INC.; BARBARA BROWN; JOHNFOGES; JAMIE L. HALLADAY; CHARLES MCMAHON; JENNIFER BRIGGS; TERRI MAST; MARK T.COLES; FRED GALICANO; MIKE HOLLERBEKE; KATHY BRYAN; VINCENT LIBED; ARTHUDDLESTON; ROBERT LOVE; ROXANE VILLAUEVA; MARCELO ROMBAOA; SCOTT HULBERT; BRIANGILLIS; FRANK MICHAEL CARLSON; ELENOR MCMULLEN; NATIVE VILLAGE OF LARSEN BAY;NATIVE VILLAGE OF CHENEGA BAY, Plaintiffs-Appellants, v. EXXON CORPORATION;EXXON SHIPPING COMPANY; JOSEPH HAZELWOOD, Defendants-Appellees.
No. 97-35191, No. 97-35192, Nos. 97-35193, 97-35235
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
270 F.3d 1215; 2001 U.S. App. LEXIS 24029; 2001 Cal. DailyOp. Service 9528; 2001 Daily Journal DAR 11915
May 3, 1999, Argued and Submitted, Seattle, Washington
November 7, 2001, Filed
[**1] Appeal from the United States District Court for the District of Alaska. D.C. No. CV-89-00085-HRH, D.C. No. CV-89-00095-HRH. H. Russell Holland, District Judge, Presiding.
$5 billion punitive damages award was vacated and case was remanded to determine lower award in light of standards recently established by the United States Supreme Court. Summary judgment was affirmed in part but reversed as to specific classes of plaintiffs and remanded for latter group to establish allowable damages.
Defendant corporation and plaintiff class cross-appealed from the judgment of the United States District Court for the District of Alaska, entering a punitive damage award against the corporation in the class’ action alleging damage to economic expectations for state commercial fishermen due to an oil spill by the corporation.
The corporation claimed that the punitive damage award was barred as against public policy, that the punitive damage award was barred by res judicata, that common law punitive damages remedy was preempted by the remedies in the Clean Water Act, 33 U.S.C.S. §§ 1251-1387, that there was insufficient evidence for the jury to award punitive damages, and that the punitive damage award was unconstitutionally excessive. The class claimed that the district court erroneously granted summary judgment against the claimants who suffered purely economic injury on account of the oil spill. The appellate court held that, although there was substantial evidence to support the jury verdict and damage awards, the district court failed to review the constitutionality of the punitive damage award under the appropriate standards. The court concluded that the punitive damage award was too high for its required review without the district court’s initial review. The court further held that the district court should have determined whether certain claimants could recover purely economic damages due to the oil spill.
The judgment was vacated in part and remanded regarding whether the punitive damage award was unconstitutionally excessive, and whether certain claimants could recover purely economic damages due to the oil spill. The judgment was affirmed in part regarding the remaining claims.
EMPLOYEE WHO HAD WORKED FOR EMPLOYER FOR SEVERAL YEARS AS SEAMAN BUT WHO WAS TRANSFERED TO STATIONARY BARGE PERFORMING A SUBSTANTIAL AMOUNT OF NONSEAMAN’S WORK MAY BE PROTECTED BY THE MAXIMUM HOUR AND OVERTIME PROVISIONS OF THE FAIR LABOR STANDARDS ACT WHICH EXEMPTS SEAMEN
BOBBY OWENS, on behalf of himself and all other employees of Sea River Maritime, Inc., similarly situated, Plaintiff-Appellant, versus SEARIVER MARITIME, INC., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
272 F.3d 698; 2001 U.S. App. LEXIS 23908; 7 Wage & Hour Cas.2d (BNA) 732
November 6, 2001, Decided
Appeal from the United States District Court for the Southern District of Mississippi. 1:98-CV-436-BrR. David C Bramlette, III, US District Judge.
REVERSED and REMANDED.
Plaintiff employee sued defendant employer pursuant to the maximum hour and overtime provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C.S. § 201 et seq. The employee appealed the grant, by the United States District Court for the Southern District of Mississippi, of the employer’s motion for summary judgment based on the employee’s exemption from the FLSA as a seaman.
The employee had worked several years for the employer as a seaman. However, he was transferred to a “strike team” assigned to a stationary barge. The team performed work usually done by towboat crews, including loading and unloading product, but worked on unattended barges that were neither towed by the employer’s boats nor attended by its crews. The employee attended the barges only for the purposes of loading and unloading product. The court of appeals disagreed with the district court’s ruling that the employee was a seaman for purposes of the FLSA and thereby exempt from its overtime provisions. The court found that the employee performed a substantial amount of nonseaman’s work, that is, loading and unloading petroleum product, which was the primary purpose of his employment, and the activity to which the employee devoted the most substantial portion of his working time. This activity only prepared vessels for navigation; it did not aid in its actual operation as a means of transportation.
The court of appeals reversed the decision of the district court granting summary judgment for the employer, and remanded for further proceedings.