U.S. CONVICTION OF FOREIGN CREW MEMBER WHO SEXUALLY ASSUALTED A 12 YEAR OLD PASSENGER ABOARD A CRUISE SHIP IN INTERNATIONAL WATERS IS AFFIRMED.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMMANUEL ORMAND NEIL, aka Emmanuel Ormand Neil, Defendant-Appellant.

No. 01-50459
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
312 F.3d 419; 2002 U.S. App. LEXIS 23809; 2002 Cal. DailyOp. Service 11275; 2002 Daily Journal DAR 13110
November 20, 2002, Filed

PRIOR HISTORY:

Appeal from the United States District Court for the Central District of California. D.C. No. CR-00-01292-SVW-1. Stephen V. Wilson, District Judge, Presiding.

DISPOSITION:

Affirmed.

PROCEDURAL POSTURE:

Appellant conditionally pleaded guilty to sexual contact with a minor in violation of 18 U.S.C.S. § 2244(a)(3), but asserted that the United States lacked jurisdiction since the crime occurred in foreign territorial waters. Appellant sought review of the judgment of conviction entered in the United States District Court for the Central District of California.

OVERVIEW:

Appellant fondled a minor, a United States citizen, while appellant was an employee on a cruise ship which departed from a United States port and visited foreign ports before returning to the United States. Appellant contended that extraterritorial jurisdiction did not apply since all of his criminal conduct occurred in foreign territorial waters. The appellate court held, however, that the United States had territorial jurisdiction over appellant’s offenses because § 2244(a)(3) expressly applied outside the United States and exercising jurisdiction did not offend any principle of international law. Both § 2244(a)(3) and the cross-referenced statute relating to minors, 18 U.S.C.S. § 2243(a), specifically invoked the special maritime and territorial jurisdiction of the United States. Further, the territorial principal of international law permitted United States jurisdiction since appellant’s extraterritorial conduct had a detrimental effect on the victim in the United States. Also, under the passive personality principle, the United States could assert jurisdiction over appellant’s offenses which were committed against a United States citizen.

OUTCOME:

The judgment of conviction was affirmed.

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SEAMAN’S MOTION FOR JUDGMENT AS A MATTER OF LAW DENIED AFTER JURY FOUND FOR EMPLOYER ON JONES ACT CLAIM BASED ON SEAMAN FALLING WHILE GROGGY DUE TO MEDICATION TAKEN AT THE DIRECTION OF SHIP’S MEDICAL OFFICER

MICHAEL J. SCARDINA versus MAERSK LINE, LTD.

CIVIL ACTION NO. 00-1512 SECTION: E/2
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 23135
November 27, 2002, Decided
December 2, 2002, Filed
December 3, 2002, Entered

DISPOSITION:

Plaintiff’s Motion for Judgment as a Matter of Law or, alternatively, for New Trial denied.

PROCEDURAL POSTURE:

Plaintiff employee moved for judgment as a matter of law or, alternatively, for a new trial after the jury returned a verdict in favor of defendant employer in the employee’s claims for injuries allegedly caused when he fell on a raised stepping block on the employer’s ship while he was groggy due to medication taken at the direction of the employer’s medical officer.

OVERVIEW:

The court found that while there was certainly conflicting testimony and evidence before the jury, the jury was entitled to accept some testimony and evidence, and reject other testimony and evidence. The jury’s verdict was entitled to appropriate deference and there was substantial evidence supporting the jury’s verdict. Even presuming that the employee’s complaints of back pain were real, the jury could have concluded that his back pain was due to some other aggravation of a pre-existing condition, and not to a fall as he described it. Conflicting evidence was presented relative to the employee’s attitude and work habits and during voir dire, all jurors indicated that they had taken Benadryl, and that none had fallen as a result of taking the Benadryl. Finally, based on all of the evidence before it, the jury could have reasonably concluded, without impermissibly resolving any ambiguities in favor of the employee, that the employer properly investigated the employee’s demand for aquatherapy, and reasonably refused to provide such cure.

OUTCOME:

The employee’s motion for judgment as a matter of law or, alternatively, for a new trial was denied.

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CLASS CERTIFICATION OF SEAMANS’ ACTION TO RECOVER OVERTIME WAGES ALLEGEDLY WITHHELD IN VIOLATION OF EMPLOYMENT CONTRACTS, COLLECTIVE BARGAINING AGREEMENTS, AND THE SEAMAN’S WAGE ACT, GRANTED.

LUIS BOLANOS, et al., Plaintiffs, -against-NORWEGIAN CRUISELINES LIMITED, d/ b/ a NORWEGIAN CRUISE LINES, et al., Defendants.

01 Civ. 4182 (RMB) (AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 22791
November 26, 2002, Decided
November 26, 2002, Filed

DISPOSITION:

Magistrate’s Report was adopted in its entirety.

PROCEDURAL POSTURE:

Plaintiff employees sued defendants, a cruise line and others, to recover overtime wages allegedly withheld in violation of employment contracts, collective bargaining agreements, and the Seaman’s Wage Act. The employees moved for certification as a class under Fed. R. Civ. P. 23. The magistrate recommended that the motion be granted. Defendants objected to the recommendation.

OVERVIEW:

The employees sought to certify a class of almost five thousand seafarer-employees who worked on defendants’ ships and who worked, or would work, on the various defendants’ vessels at some point in time during the period from January 1998 through the time of the suit. The magistrate found that the employees met the requirements under Fed. R. Civ. P. 23(a) including (1) numerosity, as the proposed class consisted of five thousand seafarers; (2) commonality, as they shared common factual and legal questions; (3) typicality, as they were all employees who had not been paid overtime; and (4) adequacy of representation, as this element was not challenged. The magistrate also found that certification under Rule 23(b)(3) was appropriate as the employees sought primarily damages and only secondarily injunctive relief. Defendants objected that the employees did not meet the predominance requirement. The court disagreed, finding that liability issues were common as the employees’ claims were based on the alleged across-the-board deprivation of overtime wages, and only damage issues would differ.

OUTCOME:

The magistrate’s recommendation was adopted in its entirety, and the motion for class certification was granted.

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COURT HOLDS THAT EMPLOYER’S MAINTENANCE AND CURE OBLIGATION CONTINUES WHERE THERE IS A CONFLICT AMONG DOCTORS AS TO WHETHER SEAMAN HAS REACHED MAXIMUM MEDICAL IMPROVEMENT; HOWEVER, SEAMAN’S CLAIM FOR PUNITIVE DAMAGES AND ATTORNEYS FEES DENIED.

CHARLES W. GORUM VERSUS ENSCO OFFSHORE COMPANY

CIVIL ACTION NO. 02-2030 c/ w 02-2031 SECTION: “R” (1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 21992
November 14, 2002, Decided
November 14, 2002, Filed, Entered

DISPOSITION:

Plaintiff claim for continuing maintenance and cure from the date defendant discontinued maintenance and cure payments allowed. Plaintiff’s claim for punitive damages and attorney’s fees denied.

PROCEDURAL POSTURE:

The court held a bench a trial on plaintiff seaman’s claims for maintenance and cure against defendant ship owner, and for punitive damages, attorney’s fees, and costs. The seaman had injured his knee while descending a derrick ladder on board the vessel. The ship owner had discontinued maintenance and cure, asserting the seaman had reached the point of maximum medical improvement (MMI).

OVERVIEW:

The seaman received medical attention from numerous sources. It was undisputed that the seaman’s injury occurred while in the service of the vessel, entitling him to cure and maintenance. The issue at trial was whether the ship owner continued to owe him maintenance and cure after the date two physicians opined that plaintiff reached MMI, while two others believed he would continue to improve. The seaman argued that the ship owner had discontinued maintenance arbitrarily and capriciously, and that he should be awarded punitive damages and attorney’s fees as well. The court followed the general rule stated in Vaughan that where the evidence was conflicting, the court was required to resolve the conflict in favor of the seaman. The court granted judgment interest, but denied the claim for attorney’s fees and punitive damages.

OUTCOME:

The seaman was awarded continuing maintenance and cure from the date the ship owner had discontinued maintenance and cure payments. The claim for punitive damages and attorney’s fees was denied.

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SHIPOWNER’S PETITION FOR EXONERATION FROM AND/OR LIMITATION OF LIABILITY DENIED IN SEAMAN’S ACTION FOR NEGLIGENCE AND UNSEAWORTHINESS WHERE SHIPOWNER HAD PRIVITY AND KNOWLEDGE OF UNSEAWORTHY CONDITION.

IN THE MATTER OF THE COMPLAINT OF THE PARISH OF PLAQUEMINESAS OWNER OF THE M/ V POINTE-A-LA-HACHE FOR EXONERATION FROM OR LIMITATION OFLIABILITY

CIVIL ACTION NO. 01-2967 SECTION “L”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 22222
November 14, 2002, Decided
November 14, 2002, Filed, Entered

DISPOSITION:

Court issued findings of fact and conclusions of law. Damages awarded and petition for exoneration from and/ or limitation of liability denied.

PROCEDURAL POSTURE:

Petitioner vessel owner sought exoneration from and/ or limitation of liability arising from respondent deckhand’s accident on the owner’s passenger ferry. The deckhand claimed that his injuries and disabilities were caused or precipitated by the negligence of the owner and/ or the unseaworthiness of the vessel. The owner claimed that the deckhand’s injuries were caused by his own negligence and his disabilities were unrelated to the accident.

OVERVIEW:

The deckhand was injured after tying up the port stern mooring line and lowering the vehicle ramp. The ramp slipped off the bulwark and rested on the gate which dislodged from its track and fell on the deckhand. The deckhand’s hip and foot were broken but he sustained no other injuries. After recovering from his injuries, the deckhand suffered a stroke which was unrelated to the accident that left him totally and permanently disabled. The deckhand received maintenance and care from the owner from the date of his injury and had no claim for past or current maintenance and cure. The court found that the accident was the result of the combined negligence of the deckhand, another seaman, and the unseaworthiness of the vessel. The owner had privity and knowledge of the unseaworthy condition and was not entitled to limit its liability. The vessel was 70 percent liable for the accident based on its own knowledge of the unseaworthiness and the fault attributed to the seaman. The seaman’s negligence was within the scope of his employment and thus was attributed to the owner.

OUTCOME:

The owner’s petition for exoneration from and/ or limitation of liability was denied. The deckhand was awarded damages with an award of prejudgment interest as to the future damages. The owner was liable for only 70% of the damages because of the deckhand’s contributory negligence.

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COURT HOLDS THAT AN AWARD OF MAINTENANCE AND PAST LOST WAGES FOR AN IDENTICAL PERIOD OF TIME WAS NOT DUPLICATIVE

RANDALL CUNNINGHAM VERSUS NOBLE DRILLING, CORPORATION

CIVIL ACTION NO. 01-2766 SECTION “K” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 21983
November 12, 2002, Filed, Entered

PROCEDURAL POSTURE:

Defendant, off-shore drilling company, moved to adjust a damage award. A jury awarded plaintiff, seaman $25,000 for injuries he suffered while working on the drilling company’s rig. The seaman claimed that the company’s negligence and the unseaworthy conditions on the vessel were the causes of his injuries. He also claimed maintenance and cure.

OVERVIEW:

The jury actually awarded $150,000 in damages, but found the seaman was 75 percent at fault, hence the $25,000 for past lost income. The jury made no award for maintenance. In advance of trial, the parties stipulated that the drilling company had paid $8,119.56 in maintenance and $9,120.32 in supplemental wages and/or advances. In its motion, the drilling company argued that because the parties stipulated to the amount of maintenance and supplemental wages and/or advances, the sum of these payments, $17,239.88, should be deducted from the total award for past lost income. The court agreed. The company also contended that the court should offset the stipulated $8,119.56 in maintenance payments against the award for past lost income. The company argued that the seaman could not recover maintenance plus wages for the identical period of time. Unlike the payments of advances and/or supplemental income, the court found that the award of maintenance in addition to past income was not duplicative of the jury’s award for past loss of income. The company was not entitled to offset the paid maintenance from the past-income award.

OUTCOME:

From the jury’s original award of $25,000 in damages, the district court reduced the award by $9,120.32, the stipulated amount of advances and supplemental wages. Consequently, the revised award for past lost income, as offset by the payments of advances in the amount of $9,120.32, was 15,879.68.