PLAINTIFFS WHO WERE PART OF OPERATING CREW OF CASINO BOAT WERE SEAMAN AND THEREFORE EXEMPTED FROM FAIR LABOR STANDARDS ACT PERTAINING TO OVERTIME
GLENN TATE, et al., Plaintiffs-Appellants, v. SHOWBOAT MARINA CASINO PARTNERSHIP, et al., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
431 F.3d 580; 2005 U.S. App. LEXIS 27168
October 24, 2005, Argued
December 13, 2005, Decided
Plaintiffs, members of the operating crew on a floating casino, appealed an order of the United States District Court for the Northern District of Illinois, Eastern Division, granting summary judgment in their action against defendants, the casino and others, brought under the Fair Labor Standards Act (FLSA).
On appeal, the court noted that the instant case was materially identical to a case filed the previous year. It involved the same boat, the same job titles, an overlapping time period, and the same plaintiffs’ lawyer. Defendants were different as they were successors to defendants in the first case, but the only material difference between the two cases was the identity of plaintiffs. Because they were different people from plaintiffs in the first case, the instant case was not barred by res judicata or collateral estoppel. However, the court held that the instant action was barred by stare decisis because the facts in the two cases were the same and plaintiffs in the first case lost because the jury correctly found that they had no claim because they were part of the boat’s operating crew and engaged in maritime-related activities, so they were seamen within the meaning of FLSA § 13(b)(6), 29 U.S.C.S. § 213(b)(6), which exempted seamen from the FLSA’s overtime provisions. Plaintiffs gave no good reason for the court to overrule the prior decision, and a case cited by plaintiffs did not support their position as it was a Jones Act case.
The court affirmed the district court’s judgment.
SHIPOWNER ALLOWED TO BRING CLAIM AGAINST SEAMAN FOR INDEMNITY WITH RESPECT TO PROPERTY DAMAGE
JEFFREY WAYNE WITHHART, Plaintiff-Counter Defendant-Appellee, versus OTTO CANDIES, L.L.C., ET AL., Defendants, SEA MAR, INC., SEA MAR MANAGEMENT L.L.C., NABOR MARINE, L.L.C., Defendant-Counter Claimants-Appellants
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2005 U.S. App. LEXIS 26270
December 2, 2005, Filed
Appellant shipowner-employer (owner) sought review of a decision of the United States District Court for the Western District of Louisiana, which dismissed the owner’s counterclaims for negligence and indemnity brought against appellee seaman-employee (seaman) pursuant to Fed. R. Civ. P. 12(b)(6). The seaman had filed the original action under the Jones Act, 46 U.S.C.S. app. § 688 and general maritime law to recover for his injuries.
The matter arose from an accident at sea, and the owner paid a second shipowner for damages to its vessel. The owner sought to recover from the seaman that amount plus an amount for property damage to the owner’s vessel allegedly caused by the seaman’s negligence. In a case of first impression, the court reversed in an interlocutory appeal under 28 U.S.C.S. § 1292(b), holding that the owner’s counterclaims were consistent with general maritime law and should not have been dismissed. The Federal Employers’ Liability Act, 45 U.S.C.S. § 51, and consequently the Jones Act, contained no prohibition against a general maritime negligence and indemnity counterclaim by the owner against its seaman-employee for property damage. Allowing the owner to bring a claim against its seaman for property damage arising out of the seaman’s negligence did not narrow the remedies available to the seaman under the Jones Act. The fact that seamen worked under difficult conditions was not a reason to shield them from liability from negligence and indemnity actions.
The court reversed the district court’s judgment of dismissal and remanded the cause for further proceedings.
EXONERATION GRANTED WITH RESPECT TO SEAMAN’S INJURY CLAIM IN LIMITATION PROCEEDING
In the Matter of the Complaint of VULCAN MATERIALS CO.
Civil Action No. 3:04CV909
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION
2005 U.S. Dist. LEXIS 38221
December 21, 2005, Decided
December 21, 2005, Filed
Exoneration granted to ship owner where seaman fell on stairs that seaman failed to prove were greasy and further seaman failed to establish that the pitch of the stairs, the absence of a handrail, or violation of OSHA regulations contributed to the seaman’s fall.
OWNER FOR LIMITATIONS PURPOSES INCLUDED MANAGEMENT AND OPERATIONS COMPANY FOR THE VESSEL
IN RE: Houseboat STARSHIP II and CLYDE CRAIG and VICKI CRAIG Individually and d/b/a EAST PORT MARINA, and JIM BARNA LOG SYSTEMS OF TENNESSEE, LLC, a domestic corporation d/b/a EAST PORT MARINA & RESORT.
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION
2005 U.S. Dist. LEXIS 36237
December 12, 2005, Decided
December 12, 2005, Filed
Company that had management and operation responsibilities for rented house boat could file for limitation of liability as an owner.
ADMIRALTY JURISDICTION APPLIED TO PERSONAL WATER CRAFT. PLAINTIFF FAILED TO FILE TIMELY REMAND TO STATE COURT UNDER SAVINGS TO SUITORS CLAUSE.
Case No. 3:05-cv-469-J-32TEM
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
2005 U.S. Dist. LEXIS 34207
December 12, 2005, Decided
December 12, 2005, Filed
Plaintiff filed an action in state court against defendant corporation, a Florida corporation, alleging that the corporation was negligent and breached obligations that it had to plaintiff when it repaired plaintiff’s personal watercraft device. The corporation removed the matter to the court, invoking the court’s admiralty jurisdiction. Plaintiff sought to remand the matter to state court.
Plaintiff filed an action in state court based upon negligence and breach of contract when plaintiff was injured on his personal watercraft device after it had been repaired by the corporation. Plaintiff had requested a jury trial. The corporation removed the matter to the court, invoking the admiralty jurisdiction of the court. The court held that it had jurisdiction under admiralty law. Plaintiff was injured while operating the watercraft device in water and the tort alleged satisfied the location test for admiralty jurisdiction. Plaintiff’s operation of the watercraft device in the water constituted traditional maritime activity, and the activity could have potentially caused a disruption to maritime commerce. The contract claim, based on an obligation to repair the watercraft, was also related to traditional maritime activity. The court acknowledged that the “saving to suitors” clause of 28 U.S.C.S. § 1333, which could have potentially retained plaintiff’s jury trial claim in the state court, had been waived by plaintiff because the assertion had not been raised within the 30-day removal period.
The court denied plaintiff’s motion to remand the matter to state court.
OPERATED HERNIATED DISC AWARD OF ABOUT $70,000 FOR SEAMAN ON FISH PROCESSING VESSEL.
ALMOTAZ ALSHAZLI, Plaintiff, v. AMERICAN SEAFOODS COMPANY, LLC, a Washington corporation and F/T NORTHERN HAWK, her tackle, gear, furniture, apparel and equipment, Defendants.
Case No. C04-1684L
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2005 U.S. Dist. LEXIS 38860
December 12, 2005, Decided
Seaman who slipped and fell on fish processing vessel awarded approximately $70,000 for operated herniated disk in back. This is after deduction 25% for seaman’s comparative negligence.
BARBETTA FOLLOWED IN CASE FOR BAD MEDICAL CARE ON A VESSEL. THIS CONFLICTS WITH ANOTHER DECISION FROM THE SAME DISTRICT COURT AS WELL AS THE CARLISLE DECISION WHICH WAS RECENTLY ARGUED IN THE FLORIDA SUPREME COURT
BRANDEN DOONAN, individually and as personal representative of THE ESTATE OF JAMES DOONAN, LYNDSEY DOONAN, KRISTINE DOONAN, Plaintiffs, vs. CARNIVAL CORPORATION, a Panamanian Corporation, and GARY COLNER, ship’s physician, Defendants.
Case Number: 05-20128-CIV-MARTINEZ-BANDSTRA
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2005 U.S. Dist. LEXIS 31609
November 30, 2005, Decided
November 30, 2005, Filed
In a wrongful death case, plaintiffs, a personal representative and two other individuals, sued defendants, a cruise line and a ship’s physician. The court denied the cruise line’s motion to dismiss the original complaint as moot since plaintiffs filed an amended complaint. The cruise line filed a motion to dismiss three counts in the amended complaint. Plaintiffs moved to amend the complaint by interlineation.
The cruise line argued that counts III and IV had to be dismissed because, under the Barbetta decision, it could not be held vicariously liable for the negligence of its ship’s medical staff in the treatment and care of passengers. Plaintiffs chiefly relied on the Florida state court decisions in Carlisle and Huntley, which the present court declined to follow, in arguing that they were entitled to relief. Their argument was not sufficiently persuasive to justify deviation from the majority rule in the Barbetta decision. Regarding count IV, addressing vicarious liability and apparent agency, plaintiffs alleged that in addition to being the ship’s physician, the doctor was recognized in other capacities aboard the ship. The court was unwilling to conclude that there were no conceivable facts under which plaintiffs would have been entitled to relief. Count V alleged a breach of contract. That claim failed because there was no express provision guaranteeing safe passage. Futhermore, the same arguments regarding count V raised in the current motion to dismiss were also raised in the original motion to dismiss. The amended complaint did not remedy the breach of contract claim.
The cruise line’s motion to dismiss was granted as to counts III and V of the amended complaint. Those claims were dismissed with prejudice. The motion to dismiss was denied in all other respects. Plaintiffs’ motion for leave to amend the complaint by interlineation was granted in part.
BEING A SHIP’S CAPTAIN IS NOT ENOUGH TO BE AN EXPERT IN A LIFTING CASE.
MAURICE WARNER versus UNITED STATES OF AMERICA
CIVIL ACTION No. 04-2789 SECTION: I/4
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2005 U.S. Dist. LEXIS 36528
November 29, 2005, Decided
December 1, 2005, Filed
Experienced ship captain’s testimony as an expert with respect to lifting paint cans on a vessel was not allowed.
DOCK WINCH DID NOT QUALIFY AS APPURTENANCE OF VESSEL FOR PURPOSES OF UNSEAWORTHINESS
Sean O’Donnell v. Jean McCausland, LLC et al,
Case No. 04-cv-175-PB
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
2005 DNH 158; 2005 U.S. Dist. LEXIS 29202
November 17, 2005, Decided
Defendant vessel owner filed a motion to dismiss plaintiff crew member’s unseaworthiness claim.
The crew member was injured when his arm became ensnared in the line of a dock winch that was permanently affixed to the dock. The crew member was using the winch to move a cooler filled with bait from the dock to a fishing boat, not the vessel. In granting the owner’s motion to dismiss, the court held that the dock winch did not qualify as an appurtenance of the vessel because it did not travel with the vessel, was neither owned nor controlled by the owner, was not in contact with the owner’s vessel when he was injured, and it was not being used to perform a function that was important to the vessel’s operation. The court also held that the evidence revealed that the vessel had its own winch and did not regularly use the dock winch in loading or unloading operations.
The court granted the owner’s motion to dismiss.
FORUM SELECTION CLAUSE IN PASSENGERS TICKET ENFORCED. CASE TRANSFERRED TO MIAMI, FLORIDA
MURRAY A. POWELL, Plaintiff, vs. CARNIVAL CRUISE LINES and DOES 1 through 50, Defendants.
No. CV-F-05-1238 REC DLB, (Docs. 4 & 10)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
2005 U.S. Dist. LEXIS 29982
November 17, 2005, Decided
Plaintiff filed an action in state court against defendant cruise line to recover for injuries he suffered during the cruise, and the cruise line removed the action to federal court. Plaintiff filed a motion to remand and the cruise line filed a motion to dismiss based on a forum selection clause in the parties’ contract.
Plaintiff, an experienced traveler, booked a cruise with the cruise line, whose principal place of business was in Florida. The court first held that it was powerless to order a remand because plaintiff’s sole ground for his motion — the difficulty of traveling to the federal court — was no a theory provided for in 28 U.S.C.S. § 1447(c). The court then held that the forum selection clause was valid and its enforcement was reasonable because (1) the physical characteristics of the contract and the circumstances surrounding purchase and retention of the ticket indicated that the forum-selection clause was reasonably communicated to plaintiff; (2) plaintiff failed to show that the cruise line had invoked the forum-selection clause fraudulently or to thwart litigation against it; and (3) plaintiff’s physical disability did not require the court to refuse to enforce the forum-selection clause. However, rather than dismissing the action under Fed. R. Civ. P. 12(b)(3), the court held that, in the interest of justice, the case should be transferred under 28 U.S.C.S. § 1406 to the location of the federal court specified in the forum selection clause.
The court denied plaintiff’s motion to remand, denied defendant’s motion to dismiss, and transferred the action to the Southern District of Florida for further proceedings.
MAGISTRATE RECOMMENDED THAT SHIP OWNER’S COUNTERCLAIM AGAINST SEAMAN FOR ATTACHING VESSEL FOR MAINTENANCE AND CURE AFTER THREE YEARS FROM THE DATE OF INJURY BE DENIED
BASIL ROBINSON, Plaintiff, v. GREGORY PRIOR and F/V KARRIE N, Defendants.
Civil No. 05-24-P-C
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
2005 U.S. Dist. LEXIS 28596
November 16, 2005, Decided
Plaintiff seaman filed a motion for summary judgment on his maintenance and cure claim against defendants, a shipowner and a vessel, and on the shipowner’s counterclaim for wrongful or malicious seizure of the vessel. The seaman also filed a motion for interlocutory sale of the vessel. The matter was referred to a magistrate.
The seaman was injured in 2000. The seaman claimed that even if the three-year statute of limitations was applicable and even if principles of equitable tolling did not save the bulk of his complaint, he was entitled to maintenance and cure commencing three years prior to the date he filed suit, and that his maintenance and cure claim was sufficient to justify his action in rem against the vessel, thereby negating the owner’s counterclaim for wrongful or malicious seizure of the vessel. The owner argued that the entire maintenance and cure claim was barred by laches. The court held that the seaman’s claim for maintenance and cure since 2002 was not time-barred. Based on the shipowner’s showing of prejudice, the application of the laches doctrine was the subject of factual disputes. The shipowner failed to brief the equitable or legal standard that governed his counterclaim for damages for the allegedly wrongful institution of arrest proceedings against his vessel. The court rejected the seaman’s argument that sale of the vessel was inevitable. Because of concerns over storage fees, the court suggested that the vessel be released to the owner with an obligation to preserve it.
The court recommended that the seaman’s motion for summary judgment against the shipowner’s counterclaim for damages be granted but that it otherwise be denied, and that action be postponed on the seaman’s motion for interlocutory sale.
SANCTIONS ENTERED FOR FAILURE TO PAY MAINTENANCE AND CURE AS PREVIOUSLY ORDERED BY COURT
PATRICK J. CONNORS, Plaintiff, v. IQUIQUE U.S.L.L.C., et al., Defendants.
CASE NO. C05-334JLR
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2005 U.S. Dist. LEXIS 27935
November 8, 2005, Decided
November 9, 2005, Filed
Connors v. Iqueque U.S.L.L.C., 2005 U.S. Dist. LEXIS 33580 (W.D. Wash., Aug. 25, 2005)
Defendants, a shipowner and a fisheries corporation as employers, filed a motion under Fed. R. Civ. P. 60(b) to modify the court’s previous order compelling the payment of maintenance to plaintiff seaman as employee. Plaintiff filed a motion to force defendants to comply with the court’s order. Defendants also filed a motion for summary judgment on their intentional concealment defense.
Before boarding the ship, plaintiff disclosed to defendants that he had undergone heart bypass surgery four years earlier. Within one month of serving aboard the ship, plaintiff experienced chest pain while lifting a pump. Plaintiff returned to shore and underwent a variety of cardiac treatments for complications from coronary artery disease. As an initial matter, the court found that disputed facts prevented summary judgment on the intentional concealment defense. Because defendants appealed the order directing defendants to make maintenance payments for at least an additional three months, the court also concluded that it lacked jurisdiction to grant the relief that defendants were entitled to under Rule 60(b)(1) based on deposition testimony from plaintiff’s physician, which was taken subsequent to the court’s order and which demonstrated that plaintiff reached maximum recovery six months after the shipboard injury. The court, however, exercised its inherent power to stay enforcement of its order pending appellate court action. Nevertheless, the court found defendants’ unilateral decision to ignore its original order contemptuous, and it imposed sanctions against defendants.
The court denied defendants’ motion for summary judgment. The court also denied defendants’ motion for relief from the court’s order pending action in the appellate court. The court, however, stayed enforcement of its order. The court denied plaintiff’s motion to compel further payment of maintenance, but it ordered defendants to pay sanctions for willful violation of the court’s order
BEFORE FILING SUIT AGAINST UNITED STATES UNDER SUITS IN ADMIRALTY ACT, ADMINISTRATIVE REMEDIES MUST BE STRICTLY FOLLOWED CASE DISMISSED WITH PREJUDICE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
DIANA LEE HOUSE, Plaintiff, v. MARINE TRANSPORT LINES, INC. et al, Defendants.
CIVIL ACTION NO. G-05-188
2005 U.S. Dist. LEXIS 30006
October 31, 2005, Decided
Plaintiff seaman filed suit pursuant to the Jones Act against defendants, a ship’s manager, the United States, and the United States Maritime Administration (MARAD), seeking to recover damages for personal injuries she sustained. Defendants moved for dismissal.
Because the seaman did not object to the motion to dismiss with regard to the manager and MARAD, the court granted dismissal as to those defendants. The U.S. contended that the court lacked subject matter jurisdiction over the suit because the seaman had not followed the claims procedures in 46 C.F.R. § 327 and 346 C.F.R. § 327.6. The court agreed. Reading these provisions together, a party could not file suit pursuant to the Suits in Admiralty Act, 46 U.S.C.S. app. § 745, as amended by the Clarification Act, 50 U.S.C.S. app. § 1291, until 60 days after MARAD received an administrative claim unless the party received notice of disallowance prior to that day. Here, the seaman’s complaint was filed 59 days after the Division of Marine Insurance received her claim, which was 80 days after the claim had been sent. However, the claim was not addressed to the party specified in the regulations, and thus spent three weeks being passed around until it reached the Division. The court held that it was the seaman’s sole burden to make sure that the claim was properly addressed. Because the seaman had not waited 60 days to file her claim, the court lacked jurisdiction to entertain it.
The court granted defendants’ motion to dismiss and dismissed the suit with prejudice.