SEAMAN STATUS DENIED WHERE DREDGE WAS NOT VESSEL IN NAVIGATION.
WILLARD STEWART, Plaintiff, Appellant, v. DUTRA CONSTRUCTION COMPANY, INC., Defendant, Appellee.
Nos. 99-1487, 00-1090
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
230 F.3d 461; 2000 U.S. App. LEXIS 27090
October 31, 2000, Decided
OVERVIEW:
Plaintiff sought to recover for his injuries under, inter alia, the Jones Act, alleging that his injuries occurred while employed as a seaman upon defendant’s dredge which was excavating for a tunnel in a harbor. Defendant asserted that the statute did not apply since the dredge was not a vessel in navigation, thus precluding plaintiff’s seaman status. The appellate court held that established precedent demonstrated that plaintiff was not a seaman for purposes of the statute since the floating dredge was not a vessel in navigation. The primary purpose of the dredge was not navigation or commerce, and the dredge was not in actual navigation or transit at the time of plaintiff’s injuries. Plaintiff failed to show any ground for the court to reexamine, narrow, or distinguish the precedent, and thus the statute was not applicable.
OUTCOME:
Order was affirmed; since the primary purpose of defendant’s floating dredge was not navigation, and the dredge was not engaged in navigation at the time of plaintiff’s injuries while employed on the dredge, established precedent required the finding that plaintiff did not fall within the statutory definition of seaman because the dredge was not a vessel in navigation.
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SEAMAN’S SETTLEMENT AGREEMENT PRECLUDING RECOVERY FOR FUTURE INJURIES WHILE WORKING FOR SAME EMPLOYER ENFORCED
SEA-LAND SERVICE, INC., Plaintiff-Appellee, v. Pedro SELLAN,Defendant-Appellant.
No. 99-12571.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
231 F.3d 848; 2000 U.S. App. LEXIS 26886; 14 Fla. Law W.Fed. C 87
June 21, 2000, Argued
October 26, 2000, Decided
OVERVIEW:
Appellant was injured while on sea duty and was declared to be 100-percent disabled from sea duty. Appellee paid appellant, pursuant to a settlement agreement (agreement) for current expenses and for his entire work-life expectancy in exchange for a release of liability. Pursuant to the agreement, if appellant violated the agreement and returned to work on any vessels belonging to appellee, he would do so at his own risk. Appellant surreptitiously regained employment as a seaman with appellee, and then filed a claim that he had been re-injured. Appellee commenced a declaratory action to find the agreement enforceable against appellant’s newest claim. The district court found that the agreement was valid and that appellant was bound by its terms. Appellant sought review, claiming that the agreement violated the Federal Employers’ Liability Act (FELA), 45 U.S.C.S. § 51-60. The court held that the agreement was a valid settlement of a present claim of total disability for sea duty and was enforceable agreement under FELA. Consequently, appellee was not responsible for appellant’s injuries, and appellant was precluded from pursuing the new injury claim against appellee.
OUTCOME:
Judgment affirmed. The litigated provision of the settlement agreement was part of a valid settlement of a present claim of total disability for sea duty and represented an enforceable agreement that appellant would not work for appellee in the future, and if he did, that appellee was not responsible for appellant’s injuries.
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EXPERT TESTIMONY PROPERLY ALLOWED AS WITHIN COURT’S DISCRETION.
GEORGE DIEFENBACH, Plaintiff, Appellee, v. SHERIDAN TRANSPORTATION, Defendant, Appellant. SIX TUG BARGE CORPORATION, Defendant,Appellee.
No. 00-1099
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
229 F.3d 27; 2000 U.S. App. LEXIS 25225
October 6, 2000, Decided
OVERVIEW:
Plaintiff employee brought an action against defendant employer pursuant to the Jones Act, 46 U.S.C.S. app. § 688 (1994), for personal injuries sustained in the course of his employment. The first trial ended in a mistrial. The second trial resulted in a jury verdict and an award of damages for plaintiff. Defendant moved for a new trial on the grounds that the district court improperly instructed the jury, improperly admitted plaintiff’s maritime expert’s opinion and allowed an excessive verdict, and defendant also moved for remittitur. The district court denied the defendant’s motions for a new trial and remittitur. Defendant appealed, claiming district court error in denying its motions. The court affirmed, holding that the district court did not err in denying defendant’s motions because the district court properly admitted plaintiff’s maritime expert’s opinion and defendant waived any objection to its admission, the district court properly instructed the jury regarding damages, and th e jury’s damage award did not warrant remittitur as it was supported by the evidence.
OUTCOME:
Judgment affirmed because the district court properly admitted plaintiff employee’s maritime expert’s opinion and defendant employer waived any objection to its admission, the district court properly instructed the jury regarding damages, and the jury’s damage award was supported by the evidence.
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JURY QUESTION IF DEALER ON CASINO VESSEL WAS SEAMAN.
KRISTINE BIERING, Plaintiff, vs. HARVEY’S IOWA MANAGEMENT COMPANY, INC., Defendant.
8:99CV48
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
2000 U.S. Dist. LEXIS 16130
October 30, 2000, Decided
OVERVIEW:
Plaintiff was injured in fall during her employment as a dealer on defendant’s casino vessel, and plaintiff alleged that defendant was liable for the injuries under the Jones Act and general maritime law. Defendant asserted that plaintiff did not have the seaman status required for jurisdiction under the statute. The court held that, in view of statements in defendant’s employee handbook and correspondence from defendant’s attorney, the evidence indicated that defendant treated plaintiff as a worker covered by the statute. A jury could reasonably find that plaintiff was a maritime employee substantially connected in terms of duration and nature to a fully functioning gaming vessel.
OUTCOME:
Plaintiff’s motion to vacate summary judgment was granted, and defendant’s motion for summary judgment was denied; based on defendant employer’s treatment of plaintiff as a maritime worker, a jury could reasonably find that plaintiff work as a dealer on defendant’s casino vessel was sufficient to confer seaman status for purposes of maritime jurisdiction.
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EMPLOYEE WHO SPENT 24.88% OF TIME ON VESSELS DID NOT QUALIFY AS SEAMAN.
RUSTY ROBERTS VERSUS CARDINAL SERVICES, INC. ET AL
CIVIL ACTION NO. 99-430 SECTION “N”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 15631
October 16, 2000, Decided
October 18, 2000, Filed, Entered
OVERVIEW:
Plaintiff brought suit against defendant employer under the Jones Act, 46 U.S.C.S. § 688, for injuries sustained in an explosion on board a boat on which he was working. Defendant moved for summary judgment, alleging he was not a seaman within the meaning of the Jones Act. The court found, according to his work records, plaintiff spent 24.88 percent of his time assigned to defendant’s boats. Case law established that a worker who spent less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman. The court found, because the evidence clearly proved that plaintiff had an inadequate temporal connection to a vessel, it was appropriate for the court to take the determination of seaman status from the jury. Accordingly, since plaintiff did not raise any questions of fact as to how much time he spent on a vessel in navigation, the court found he was not a seaman under the Jones Act and granted defendant summary judgment.
OUTCOME:
The court granted summary judgment finding plaintiff failed to raise an issue of fact to contradict defendant’s proof that he worked on boats under 30 percent of the time and, therefore, did not qualify as a seaman.
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VALIDITY OF SEAMAN’S RELEASE ISSUE OF FACT.
MICHAEL C. PETTY, Plaintiff, v. ODYSSEA VESSELS, INC.,ODYSSEA MARINE, INC., ODYSSEA MARINE GROUP, L.L.C., HORIZON OFFSHORE, INC.,HORIZON OFFSHORE CONTRACTORS, INC. and HORIZON VESSELS, INC., Defendants.
CIVIL ACTION NO. G-00-046
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
115 F. Supp. 2d 768; 2000 U.S. Dist. LEXIS 15559
October 11, 2000, Decided
October 11, 2000, Entered
OVERVIEW:
Plaintiff seaman sued defendants, marine companies, for personal injury following a fire at sea. Defendants paid plaintiff maintenance and cure for eight months and then called him to Houston to execute a release of all claims and an indemnity agreement. Plaintiff signed and defendants moved for summary judgment. Plaintiff argued that he lacked the mental capacity to enter into a valid agreement and that defendants had overreached and coerced plaintiff. The summary judgment was denied. The court treated plaintiff as a “ward of the admiralty” and carefully scrutinized the agreement. The court found that there were genuine issues of material fact as to whether the release and indemnity agreement had been coerced from plaintiff. Specifically, defendants had questioned plaintiff’s credibility. Credibility was an issue to be determined by the trier of fact. In addition, the court looked at the facts alleged by plaintiff that could establish both coercion and lack of mental capacity to sign the documents.
OUTCOME:
Motion was denied. The court found that there were genuine issues of material fact regarding whether defendants had overreached themselves and had coerced plaintiff into signing the release.
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EVEN THOUGH JONES ACT AND UNSEAWORTHINESS CLAIMS REJECTED GENERAL NEGLIGENCE CLAIM REMAINED.
TERRY SPEER, Plaintiff, v. TAIRA LYNN MARINE, LTD., INC.,AND HOLLYWOOD MARINE, INC., Defendants.
CIVIL ACTION NO. G-99-716
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
116 F. Supp. 2d 826; 2000 U.S. Dist. LEXIS 15576
October 11, 2000, Decided
October 13, 2000, Entered
OVERVIEW:
Plaintiff seaman suffered a heart attack while training on a derelict moored barge. He sued defendants, marine companies, under the Jones Act and for unseaworthiness and general negligence. The defendant marine company who was not his employer but owner of the barge moved for summary judgment. The motion was granted in part and denied. The court granted the motion as it applied to plaintiff’s Jones Act claim because under the act, plaintiff had to establish an employee-employer relationship which he could not do. The court rejected plaintiff’s argument that the defendant was imbued with the same duty of care as his employer. Summary judgment was granted against the unseaworthiness claim because plaintiff was not a member of the crew of the vessel when he suffered the heart attack. The court rejected the argument that defendant was an agent of his employer and owed him a duty of seaworthiness. The court denied the motion with regards to the general negligence claim because discovery was still going on and the status of the barge was still disputed.
OUTCOME:
The motion was granted in part and denied part. The court granted the motion as to plaintiff’s Jones Act claim because plaintiff was not defendant’s employee and as to plaintiff’s unseaworthiness claim because defendant did not owe plaintiff any duty since he as not a member of the crew. The court denied the motion as to plaintiff’s general negligence because discovery was still going on and the training barge’s status was disputed
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ISSUE OF FACT WHETHER BACK INJURY WAS NEW OR WAS OLD INJURY NOT REVEALED BY PLAINTIFF.
DALE W. RUSSELL VERSUS SEACOR MARINE, INC., ET AL.
CIVIL ACTION NO. 00-339 SECTION: “R” (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 15245
October 10, 2000, Decided
October 10, 2000, Filed, Entered
OVERVIEW:
Plaintiff seaman suffered a herniated disc while working on a boat and sought maintenance and cure. Defendants, boat rental company and marine company, moved for partial summary judgment alleging that plaintiff did not qualify for maintenance and cure because he had failed to disclose a prior back injury and numbness in his legs in his job application. The court rejected plaintiff’s argument that he answered the questions properly asked on the application and the ones he did not answer were in violation of the Americans with Disabilities Act. The court found that plaintiff had intentionally misrepresented or concealed medical facts. The issue was whether there was a causal link between the old back injury and the present one. The court denied the partial summary judgment motion because there was a genuine issue of material fact as to whether the present back injury was a new problem clearly from the herniation plaintiff previously suffered or whether it was not. The former position was supported by plaintiff’s neurologist, and the later position was supported by an earlier MRI which showed a slight bulge at the spot of the present herniation.
OUTCOME:
The court denied defendants’ motion. The court agreed that plaintiff improperly withheld information regarding a prior back injury. However, plaintiff passed the pre-employment physical examination. A genuine issue of material fact arose because plaintiff’s neurosurgeon stated the new back problem was new problem, and an earlier MRI of plaintiff’s back showed a slight bulge where the herniation occurred.
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ADMIRALTY LAW GOVERNS EMPLOYER’S THIRD PARTY ACTION TO RECOVER MAINTENANCE AND CURE PAYMENTS.
American Commercial Barge Line Company and American Commercial Barge Line LLC v. Allen Chase Roush.
1990952
SUPREME COURT OF ALABAMA
2000 Ala. LEXIS 445
October 20, 2000, Released
OVERVIEW:
Appellant shipowner’s employee was injured in an automobile accident while a passenger in appellee’s vehicle. Appellant was required to pay the employee maintenance and cure because a seaman injured in the service of his ship was entitled to benefits, regardless of fault. Appellant filed an indemnity action against appellee to recover the money paid to the employee, arguing appellee’s negligence caused his injuries. The trial court granted appellee’s motion to dismiss, holding Alabama law did not recognize a right of indemnity for maintenance and cure payments in the absence of a contractual or statutory right. Appellant challenged the dismissal. The court held federal maritime law governed the indemnity claims of shipowners against third-party defendants for the payment of maintenance and cure. The court concluded a shipowner could recover those payments from a third-party whose negligence partially or wholly precipitated the seaman’s injury.
OUTCOME:
Judgment reversed, because appellant shipowner was entitled to recover those payments from appellee whose negligence may have partially or wholly caused appellant’s employee’s injury, therefore dismissal was error. Whether the action was barred by the statute of limitations was a matter for the trial court to address on remand.
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UNDER THE JONES ACT THE STATUTE OF LIMITATIONS APPLYS TO EACH ASBESTOS RELATED DISEASE SEPARATELY.
ROBERT WAGNER, Plaintiff and Appellant, v. APEX MARINE SHIPMANAGEMENT CORPORATION et al., Defendants and Respondents.
A087349
COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT,DIVISION TWO
83 Cal. App. 4th 1444; 2000 Cal. App. LEXIS 781; 100 Cal.Rptr. 2d 533; 2000 Cal. Daily Op. Service 8248; 2000 Daily Journal DAR 10919
October 4, 2000, Filed
OVERVIEW:
Plaintiff appealed the trial court’s decision, sustaining, without leave to amend, the demurrer of defendants in plaintiff’s asbestos action brought pursuant to the Jones Act. The trial court found plaintiff’s claims to be untimely pursuant to the applicable statute of limitations. However, plaintiff alleged on appeal that because he claimed to have suffered from two distinct asbestos-related diseases, with the later-discovered illness forming the basis of his claim against defendants, the trial court should have found his claim timely under the Jones Act. The court reversed the trial court’s decision and remanded. Each disease resulting from asbestos exposure triggered anew the running of the statute of limitations. Accordingly, plaintiff had stated a timely claim for his later-discovered asbestos-related disease.
OUTCOME:
Trial court’s decision was reversed and case was remanded. Each disease resulting for asbestos exposure triggered anew the running of the statute of limitations, such that plaintiff had stated a timely claim for the latter of two asbestos-related diseases suffered by him.
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VALIDITY OF VIDEOTAPED SEAMAN’S RELEASE IS QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT.
ODILON CHACHA COTO; EDIBERTO HERNANDEZ HERNANDEZ; EMEDELIOH. TORRES; HECTOR R. GAMAS; NELLI R. OBANDO, ET AL. VERSUS J. RAY MCDERMOTT,S.A.; MCDERMOTT INTERNATIONAL INC.; THE AMERICAN BUREAU OF SHIPPING, INC.; CCCFABRIONES Y CONSTRUCTTIONES, ET AL.
NO. 99-CA-1866
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
99-1866 (La.App. 4 Cir, 10/25/00); 2000 La. App. LEXIS 2625
October 25, 2000, Decided
PROCEDURAL POSTURE:
Plaintiffs appealed from Civil District Court, Orleans Parish (Louisiana), summary judgments for defendants, dismissing their Jones Act and general maritime claims on the basis of seaman’s releases executed by them in favor of defendants, challenging the validity of the releases.
OVERVIEW:
Plaintiffs were 11 divers from a crew of 20 divers aboard a barge in Mexican waters when it sank in a storm. They were rescued and sent home at their employer’s expense. Defendant employer subsequently met with plaintiffs to discuss settlement of their claims and hosted a banquet to celebrate their survival. Following the banquet, the men continued to celebrate with drinking. The next day, plaintiffs settled their claims with defendants and signed releases. Each settlement meeting was recorded on videotape. Defendants contended the videotapes proved plaintiffs had a complete understanding of what they were doing and intelligently and freely entered into the settlements. Plaintiffs contended the videotapes proved they were unfairly led or forced into settlements they did not understand. The court held this fact alone compelled the conclusion that there were genuine issues of material fact as to the subjective states of minds of the parties. The court reversed the grant of summary judgments to defendants, which had been based on the seaman’s releases executed by plaintiffs, and remanded the case.
OUTCOME:
Summary judgments were reversed and case remanded, as videotapes relied on by both sides to prove each side’s position created genuine issues of material fact, including subjective state of minds, to be resolved by fact finder and therefore improper for summary judgment.
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WELDER HELD TO BE SEAMAN.
JIMMY SHAY RICHARD VERSUS MIKE HOOKS, INC., CONSOLIDATEDWITH JIMMY SHAY RICHARD VERSUS MIKE HOOKS, INC., CONSOLIDATED WITH JIMMY SHAYRICHARD VERSUS BUCYRUS-ERIE COMPANY, INC. et al.
NUMBER 99-1631, NUMBER 99-1632, NUMBER 99-1633
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
99-1631 (La.App. 3 Cir, 10/04/00); 2000 La. App. LEXIS 2257
October 4, 2000, Decided
OVERVIEW:
The appeal arose from the trial court’s determination that the plaintiff, an injured welder employed by defendant, was a seaman under the Jones Act, 46 U.S.C.S. § 688. The defendant, a marine salvage and dredging company, brought an appeal challenging the trial court’s finding. The court affirmed the judgment of the trial court. Defendant did not dispute the trial court’s findings of fact. Instead, it asserted that the trial court’s application of the law to the facts was erroneous. Defendant argued that plaintiff did not meet all of the criteria required for seaman status. It assigned three issues for review, all of which could be summarized as: was the nature of plaintiff’s relationship to defendant’s fleet of vessels sufficient for him to be a seaman? To determine whether plaintiff had a connection with defendant’s vessels that was substantial in duration and nature, the court considered plaintiff’s total employment relationship with defendant. The court found no error in the factual determination made by the trial court, nor did the court find any legal error leading to the conclusion that plaintiff was a seaman under the Jones Act.
OUTCOME:
Judgment was affirmed. There was no error in the factual determination of the trial court that the plaintiff was a seaman, after reviewing plaintiff’s total relationship with defendant’s vessels.
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VENUE IMPROPER WHEN ONLY CONNECTION WITH STATE WAS PERSONAL REPRESENTATIVE.
NELDA GARCIA, AS PERSONAL REPRESENTATIVE OF THE ESTATES OFABOU EL SOUD TAHA MOHAMED HAMMOUDA, MOHAMED REFAT ABDOU WANAS, MOHAMED AHMED ALMEZAYEN, ABDUL MUHAIMIN, HUSSAIN AHMED, AND CHARALAMBOS VOUZEKIS VERSUS BUREAUVERITAS QUALITY INTERNATIONAL (NORTH AMERICA) INC., BUREAU VERITAS, PARIS,FRANCE, NAGOS SHIPPING LTD. OF VALETTA, MALTA, OSTENE SHIPPING SOUTH AFRICA,GOOD FAITH SHIPPING COMPANY SOUTH AFRICA AND SONMEZ DENIZCILIK.
NO. 99-CA-3092
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
99-3092 (La.App. 4 Cir, 10/04/00); 2000 La. App. LEXIS 2555
October 4, 2000, Decided
OVERVIEW:
Plaintiff, as a representative of the deceased, brought an action for claims under both the Jones Act and the general maritime law when a boat sank off the coast of South Africa. The decedents and their survivors were all foreign nationals. The named defendants are all foreign corporations. The only connection that the case had with Louisiana was that the purported personal representative of the decedents’ estates happened to reside in Louisiana. The trial court granted defendants an exception of improper venue.
Plaintiff appealed from that exception. Since the case had no connection with Louisiana other than the personal representative, the appellate court declined to stretch the long-arm statute, La. Rev. Stat. Ann. § 13:3201, et seq., to find Louisiana was a proper venue for the action. The court also questioned the plaintiff’s capacity to bring the action as a personal representative.
OUTCOME:
Judgment affirmed; Louisiana was not a proper venue as the only connection the case had with the State was that it was where the personal representative resided.
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CREWMEMBER ON VESSEL STUCK BY NEEDLE UNABLE TO PROVE NEEDLE HAD HEPATITIS C AND COURT RULED THAT THE PENNSYLVANIA RULE AND SENTILLES DID NOT APPLY UNDER THESE CIRCUMSTANCES.
NELLIE T. CRANE and QUENTIN BARRYMAN, husband and wife, andtheir community, Appellants, vs. THE STATE OF WASHINGTON; The WASHINGTON STATEDEPARTMENT OF TRANSPORTATION; The WASHINGTON STATE FERRY SYSTEM, and The F/VWalla Walla, Respondents.
No. 45258-4-I
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2000 Wash. App. LEXIS 1905
October 2, 2000, Filed
OVERVIEW:
Plaintiffs filed a negligence claim against defendant state transportation department, alleging that plaintiff seaman had contacted hepatitis C after sticking her finger on a diabetic’s lancet while cleaning a ferry passenger cabin as a result of defendant State’s failure to follow regulations regarding bloodborne pathogens. The trial court granted summary judgment for defendants, finding that no genuine issue of material fact existed because plaintiff seaman was unable to prove proximate cause. The court affirmed. Despite defendant state transportation department’s violation of applicable Washington State Industrial Safety and Health Act regulations on bloodborne pathogens, the Pennsylvania rule did not apply to shift the burden on causation to defendant state transportation department, as the violation pertained to a general safety statute instead of a maritime-specific statute. Plaintiffs failed to present evidence to meet even the reduced burden of proof on causation that they had in the case.
OUTCOME:
Trial court’s grant of summary judgment for defendants was affirmed. Because defendant state transportation department had violated a general safety statute instead of a maritime-specific statute, the Pennsylvania rule did not apply to shift burden of proof on causation to it in plaintiffs’ maritime-related negligence action.
