District Court Erred By Granting Summary Judgment For Corporation On Seaman’s Claim For Maintenance And Cure When He Presented Sufficient Evidence From Which A Reasonable Jury Could Find That He Injured His Knee During His Shift As Fire Watch Aboard Vessel.
EDDISON C. CAMACHO, a seaman, Plaintiff – Appellant, v. ICICLE SEAFOODS,
INC., an Alaska corporation; NORTHERN VICTOR F/V, a vessel, her engines,
equipment, tackle and appurtenances, In Rem; EVENING STAR INC, Defendants
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2006 U.S. App. LEXIS 27687
November 7, 2006, Filed
Appellant seaman challenged an order from the United States District Court for the Western District of Washington, which granted a summary judgment of dismissal in favor of appellee corporation in the seaman’s suit for recovery under the Jones Act, 46 U.S.C.S. app. ¤ 688(a) and under the admiralty common law doctrines of unseaworthiness and maintenance and cure.
The seaman alleged that his injury resulted from a conspiracy by other employees, including a supervisor. On appeal, the court held that the seaman produced no evidence to support his conspiracy theory beyond his own conjecture. Absent any evidentiary support, the seaman’s allegations were insufficient to defeat summary judgment on his Jones Act claim. The district court properly awarded summary judgment in favor of the corporation on the unseaworthiness claim because the seaman did not present sufficient evidence of savage and vicious acts by other crew members to support his claim. However, recovery for maintenance and cure was not predicated on the fault or negligence of a shipowner. The seaman produced evidence from which a reasonable jury could conclude that he sustained an injury to his knee and that the injury occurred during his shift as a fire watch aboard a vessel. The district court erred by granting summary judgment for the corporation simply because the seaman’s motion in opposition did not specifically address the corporation’s argument regarding the maintenance and cure issue.
The court affirmed the district court’s dismissal of the Jones Act and unseaworthiness claims. The court reversed the order to the extent that it dismissed the seaman’s claim for maintenance and cure and remanded that claim to the district court for trial.
In Accordance With 28 U.S.C.S. ¤ 1333, Estate Administrators’ Sea-Based Asbestos Claim Was To Be Tried Under Admiralty Jurisdiction, Applying Federal Maritime Law While Their Land-Based Claim Was To Be Tried Under Montana Law. All Claims Were To Be Tried Before A Single Jury To Serve Judicial Economy.
Willard E. Bartel and David C. Peebles, Administrators of the Estate of Charles Rich, Deceased, Plaintiffs, v. A-C Product Liability Trust, et. al, Defendants.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION
2006 U.S. Dist. LEXIS 82404
November 13, 2006, Opinion Filed
Plaintiff administrators of the estate of a decedent whose death was caused by exposure to asbestos sued defendant manufacturers, whose products contained asbestos. The administrators filed a demand for a jury and submitted briefs regarding choice of law.
In August, 2003, decedent was diagnosed with malignant mesothelioma. He died in July, 2006. His sickness and eventual death were allegedly caused by his exposure to asbestos while he was a merchant seaman from 1945 to 1950 and while he worked as an engineer at a jet fuel refinery in Montana from 1955 to 1975. The land-based claim of injury due to asbestos at the refinery was clearly land-based and thus not subject to federal maritime substantive law. The sea-based claims were appropriately under admiralty jurisdiction and maritime law. The claim of asbestos injury at the refinery was not closely related to admiralty law, nor was it related to traditional maritime activity; therefore, substantive federal maritime law would not apply to the land-based claim. The court concluded that Montana law appropriately applied to the land-based claim because the injury occurred in Montana and Montana was the decedent’s domicile for 20 years. The sea-based count was to be tried by the same jury. This would serve judicial economy, particularly since the administrators attributed the underlying injury to multiple product defendants.
The sea-based claim was to be tried under the court’s admiralty jurisdiction, applying federal maritime law. The land-based claim was to be tried under Montana law. All claims were to be tried before a single jury.
Boat Seller And A Contractor Were Not Entitled To Fed. R. Civ. P. 12(B)(6) Dismissal Of Yacht Owners’ Suit For Injuries Allegedly Sustained From The Improper Installation Of A Davit On Their Yacht. The Suit Was Timely Filed Under The Maritime Limitations Statute Because It Was Filed Within Three Years After The Accident.
JOSEPH AND MARIA BURKE, Plaintiffs, VERSUS QUICK LIFT, INC., AND STATEN ISLAND BOAT SALES, Defendants. QUICK LIFT, INC., Third-Party Plaintiff, VERSUS CARVER BOAT CORPORATION, LLC, Third-Party Defendant.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2006 U.S. Dist. LEXIS 83394
November 16, 2006, Decided
Plaintiffs owners sued defendants, a boat seller and a contractor, alleging injuries from the failure to properly install a piece of equipment on a yacht they purchased. The contractor filed a third-party claim, impleading third-party defendant boat manufacturer. Defendants moved to dismiss the complaint for failure to state a claim. The manufacturer moved to dismiss the third-party complaint and for the imposition of sanctions on the contractor.
The seller hired the contractor to install a boat-lift davit on the owner’s yacht. While on a voyage, the davit malfunctioned and injured the owners. The court found that admiralty jurisdiction existed over the owners’ tort claim because the complaint alleged facts showing that (1) the alleged tort occurred on or over navigable waters, (2) the incident had a potentially disruptive impact on maritime commerce, and (3) the conduct bore a substantial relationship to a traditional maritime activity. Defendants sought dismissal of the complaint on the basis that it was time-barred. The court denied the motion, finding that a three year statute of limitations applied, that the cause of action accrued at the discovery of the underlying injury, and thus, that the complaint was timely because it was filed shortly after the davit allegedly malfunctioned and injured the owners. The court also denied the manufacturer’s motion to dismiss the third-party claim because it stated a viable claim upon which the manufacturer could be liable either to the owners or to the contractor. As the third-party complaint stated a viable cause of action, the court denied the manufacturer’s motion for sanctions.
The court denied defendants’ motion to dismiss the complaint. In addition, the court denied the manufacturer’s motion to dismiss the third-party complaint and its motion for sanctions.
District Court Granted Summary Judgment To Cruise Line In Passenger Vessel Act Suit To Recover Damages For Personal Injuries Passenger Sustained After Being Bitten By Snake On Shore Excursion; Even If Exculpatory Clause Did Not Apply, Passenger Failed To Show That Cruise Line Breached Any Duty Or That Bite Caused Her Heart Attack One Month Later.
KIM ISBELL, Plaintiff, vs. CARNIVAL CORPORATION, d/b/a and/or f/k/a CARNIVAL CRUISE LINES, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2006 U.S. Dist. LEXIS 84452
November 20, 2006, Decided
Plaintiff passenger filed suit pursuant to the Passenger Vessel Act, 46 U.S.C.S. ¤ 3501 et seq., against defendant cruise line, seeking to recover damages for personal injuries that the passenger suffered during a shore excursion that was operated by a third-party. The claim asserted by the passenger was one of negligence. The cruise line moved for summary judgment.
The passenger went on a shore excursion that was recommended by the cruise line. The excursion involved floating down a river in a rain forest, through caves, while on an inner tube. The passenger was bitten by a snake and was administered antivenin at a medical facility. The passenger blamed the snake bite for a heart attack that she suffered one month later. In granting summary judgment to the cruise line, the court first held that the passenger’s ticket contained an exculpatory clause relieving the cruise line of liability for incidents that occurred on shore excursions operated by third-parties. However, even if the exculpatory clause was not applicable due to statements made by the cruise line as to the safety of the rain forest excursion, the passenger failed to show that the cruise line breached any duty to warn the passenger about the possibility of snake bites, particularly where the danger of encountering a dangerous animal in the jungle was apparent and obvious. Further, the passenger failed to show that the snake bite caused her heart attack, as the passenger’s own doctor found no manifestations that appeared to be the result of the bite or the antivenin.
The court granted the cruise line’s motion for summary judgment
Cruise Line’s Summary Judgment Motion Should Have Been Granted In Passenger’s Claim Based On Assault Which Occurred 10 Minutes After Passenger Disembarked After A Four-Hour Cruise. Assault Did Not Occur On Navigable Water, And Was Not Caused By A Vessel On Navigable Water. Any Common Carrier Duty Ended Upon Passenger’s Safe Disembarkation.
Mark Hayes, Plaintiff-Respondent, v The City of New York, et al., Defendants, Skyline Cruise Line, Inc., Defendant-Appellant.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2006 NY Slip Op 7962; 2006 N.Y. App. Div. LEXIS 13114
November 2, 2006, Decided
Plaintiff passenger on a cruise boat sued defendant cruise line company, seeking damages for injuries sustained when the passenger was assaulted. The Supreme Court, Bronx County (New York), denied the cruise line’s summary judgment motion. The cruise line appealed.
The passenger witnessed an altercation between other passengers during the four-hour cruise. Ten minutes after disembarking after the cruise ended, the passenger was assaulted by one of the individuals involved in the altercation aboard the boat. The appellate court found that neither the “location” nor the “connection with maritime activity” tests were satisfied such as to extend maritime jurisdiction to the injuries. The assault did not occur on navigable water, and was not caused by a vessel on navigable water. An assault on a pier was not the kind of incident that had a potentially disruptive impact on maritime commerce or a substantial relationship to traditional maritime activity. The cruise line’s duty of care as a common carrier terminated upon the passenger’s safe disembarkation from the vessel. There was no evidence that what transpired during the cruise should have put the cruise line on notice that there was a risk of assault to the passenger. The injuries occurred at a substantial distance and time away from the vessel in an area leased and controlled by a nonparty while the passenger was moving at his own pace and under his own control.
The judgment was reversed, and the motion was granted.
A Seaman Who Fraudulently Concealed Preexisting Back And Mental Health Problems On His Application To Work As A Deckhand On An Oceangoing Tug Was Properly Denied Maintenance And Cure Benefits Under The Mccorpen Rule But Properly Awarded Damages For Medical Expenses Under The Jones Act Because The Two Claims Provided For Independent Remedies.
JON ANTHONY JAUCH, Plaintiff-Appellant, versus NAUTICAL SERVICES, INC., Defendant-Appellee/Cross-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 27879
November 9, 2006, Filed
Plaintiff, an American seaman, brought an action under the Jones Act, 46 U.S.C.S. app. § 688, against defendant, an American employer, for personal injuries allegedly occurring while the seaman was working aboard one of the employer’s vessels. The employer filed an opposed motion to transfer venue under 28 U.S.C.S. § 1404(a) and an alternate motion to dismiss under Fed. R. Civ. P. 12(b)(3).
On his employment application to work as a deckhand on an oceangoing tug, the seaman concealed his preexisting back injury and lengthy history of psychiatric treatment. The district court found he had not been instructed in the proper procedure for helping to lower a johnboat to a lower deck, which caused him to suffer a back injury that eventually required surgery, but that he also had not asked how to perform the task and had not remained attentive while performing it. On appeal, the court held that, because the seaman had fraudulently concealed his preexisting medical conditions, the district court correctly applied the McCorpen rule in denying his claim for maintenance and cure benefits. The district court’s apportionment of equal fault was not clearly erroneous. The award of damages for medical expenses under the Jones Act was independent of the seaman’s maintenance and cure claim. However, the record was insufficient for the court to review whether the district court had correctly calculated damages or had properly denied prejudgment interest.
The court affirmed the district court’s order denying the seaman’s claim for maintenance and cure and apportioning fault equally between the seaman and the employer, vacated the award of past medical expenses and the denial of prejudgment interest, and remanded to allow the district court to consider the claims further and to provide more detailed analysis and reasons for its decisions.
Trial Court Erred In Granting Summary Judgment In The Employee’s Favor In His Negligence Suit Against His Employer Under The Jones Act, 46 U.S.C.S. App. ¤ 688(A), And General Maritime Law As The Employer Was Entitled To Offset Disability Benefits It Had Paid To The Employee And Those Benefits Did Not Amount To A Fringe Benefit For The Employee.
MATTHEW WENDELBOE VERSUS SEARIVER MARITIME, INC.
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2006 La. App. LEXIS 2472
November 3, 2006, Judgment Rendered
Appellee employee sued appellant employer for negligence and sought damages under the Jones Act, 46 U.S.C.S. App. ¤ 688(a), and general maritime law. The employer sought an offset for disability benefits the employee had received. The 19th Judicial District Court of East Baton Rouge Parish, Louisiana, held that the disability plan was a fringe benefit, and the employer was not entitled to a reduction. The employer appealed.
On review, the employer contended the trial court erred in granting the employee’s motion for summary judgment, thus shielding his disability benefits from offset by the employer against any tort litigation recovery he might have received. The appellate court agreed, finding first that the employer was both the alleged tortfeasor and the would-be “independent” source that funded the disability plan. As these conceptual identities were merged in the same entity, there was no true collateral source here. The inquiry hinged on the nature of the plan at issue, and the intent of the employer through the plan to avoid a double payment for both benefits and tort recovery was what controlled. The language of 45 U.S.C.S. ¤ 55 clearly aimed to provide a means by which employees could receive employer assistance and compensation for their injuries and employers had an incentive to provide such benefits while protecting themselves against double payment obligations. In the instant case, the employer’s plan clearly expressed its intent to do so, in accordance with the statute.
The judgment was reversed, and judgment was rendered in favor of the employer.
Where A Husband And Wife Sued A Cruise Line, Its Fed. R. Civ. P. 56 Partial Summary Judgment Motion Was Granted Because The Characteristics Of The Parties’ Tickets Were Such That Terms And Conditions Were Conspicuous, They Were On Notice That A Limitation Of Liability Provision Was In Effect, And Loss Of Consortium Would Not Lie Under Maritime Law.
MARIANNE PAUL AND ROBERT PAUL, Plaintiffs, v. HOLLAND AMERICA LINE, INC., et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2006 U.S. Dist. LEXIS 81527
November 6, 2006, Decided
Plaintiffs, a husband and wife, sued defendant cruise line, alleging negligence, negligent infliction of emotional distress, and loss of consortium, after the wife required heart surgery following a cruise. They alleged that her condition was caused by an echovirus that she contracted on-board. The cruise line sought partial summary judgment under Fed. R. Civ. P. 56.
The cruise line requested an order that recovery be limited to 46,666 Special Drawing Rights (SDR) pursuant to the Athens Convention, and that the husband’s loss of consortium claim be dismissed. The federal district court granted the motion, finding that the physical characteristics of plaintiffs’ ticket were such that the terms and conditions were sufficiently conspicuous to plaintiffs. Further, the provision at issue identified the relevant limitation of 46,666 SDRs, meaning that plaintiffs needed only visit the International Monetary Fund website to view the current value of an SDR in American dollars. Moreover, the language that was provided was sufficient to have put them on notice of the liability limitation. Furthermore, there was nothing confusing about the contract’s reference to the Athens Convention as well as to the laws of the U.S. Although neither the Convention nor the 1976 Protocol had been ratified by the U.S., so they carried no force of law, the limitation provision had force because it was properly incorporated into the contract. Finally, loss of consortium claims were not cognizable in cases that were governed by maritime law.
The district court granted the cruise line’s motion for partial summary judgment.