MAINTENANCE WORKER HELD NOT TO BE A JONES ACT SEAMAN BECAUSE HE COULD NOT SHOW THAT HE SPENT AT LEAST 30% OF HIS TIME WORKING ON A VESSEL OR A FLEET OF VESSELS UNDER COMMON OWNERSHIP AND CONTROL

RUSTY ROBERTS, Plaintiffs-Appellants, versus CARDINAL SERVICES, INC.; ET AL.; Defendants.

No. 00-31232
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
266 F.3d 368; 2001 U.S. App. LEXIS 21256
October 2, 2001, Decided

PRIOR HISTORY:

Appeal from the United States District Court for the Eastern District of Louisiana. 99-CV-430-N. Edith Brown Clement, US District Judge.

DISPOSITION:

Affirmed.

PROCEDURAL POSTURE:

Plaintiffs, injured employee and wife, sued defendants, employer and oil and gas platform owner, in the United States District Court for the Eastern District of Louisiana, raising negligence claims against the employer under the Jones Act of 1920, and negligence, premises liability, and strict liability claims against the owner. The employee and spouse appealed the grants of summary judgment in favor of the employer and owner.

OVERVIEW:

While working on the owner’s platform as a plugging and abandoning operator, the employee was injured by the accidental firing of a perforation gun attached to a wireline that was being used in connection with plugging a well. The employee claimed he was a seaman under the Jones Act of 1920 (Act) and thus entitled to bring tort claims against his employer. The court of appeals agreed with the district court that the employee was not a seaman under the Act. Under the requirement that a worker spent at least 30 percent of his time on certain vessels, the employee did not have the requisite “substantial connection” to a vessel or an identifiable fleet of vessels under the employer’s common ownership or control. Claims under La. Civ. Code Ann. arts. 2315 and 667 for negligence (under vicarious liability) and strict liability against the owner because use of a wireline perforation gun under the circumstances was an “ultrahazardous activity” were not established. Wireline perforation was not congruent with “blasting with explosives” as used in La. Civ. Code Ann. art. 667, and did not satisfy Louisiana’s broader jurisprudential test for ultrahazardous activities.

OUTCOME:

The judgment was affirmed.

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CLASS ACTION UNDER THE AMERICANS WITH DISABILITIES ACT AGAINST TWO MAJOR CRUISE LINES SETTLED REQUIRING THE CRUISE LINES TO MAKE MAJOR SHIPBOARD MODIFICATIONS – SETTLEMENT APPROVED BY COURT

ACCESS NOW, INC. and EDWARD RESNICK, Plaintiffs, vs. CUNARD LINE LIMITED, CO., and CARNIVAL CORPORATION, Defendants.

Case No. 00-7233-CIV-MORENO
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2001 U.S. Dist. LEXIS 21481; 15 Fla. L. Weekly Fed. D 33
October 31, 2001, Decided
October 31, 2001, Filed

DISPOSITION:

[*1] Parties’ Joint Motion for Approval of Settlement Agreement GRANTED.

PROCEDURAL POSTURE:

In a class action suit, plaintiff passengers filed suit against defendant ship companies pursuant to the Americans with Disabilities Act for lack for accessible accommodations. The parties proposed a joint settlement.

TERMS OF SETTLEMENT:

This settlement requires Defendants to spend $7 million on installing fully and partially accessible cabins, accessible public restrooms, new signage, coamings, thresholds, stairs, corridors, doorways, restaurant facilities, lounges, spas and other shipboard facilities. To enforce the settlement agreement, Defendants agreed to create a fund to pay experts who will inspect the modified cruise ships. Additionally, Defendants agreed to allow Plaintiffs an opportunity to inspect the cruise ships within sixty days of the time of completion. As such, Plaintiffs have obtained much of the relief they sought in their complaint, weighing heavily in favor the settlement’s approval.

OVERVIEW:

Following a considerable amount of time in supervised mediation, the parties arrived at a settlement agreement, which they submitted to the court for approval. In determining the settlement agreement’s fairness, the court looked at (1) the passengers’ likelihood of success at trial, (2) the range of relief the passengers could obtain at trial vis-a-vis that proposed in the agreement, (3) the complexity and expense of litigation, (4) the amount of opposition, and (5) the stage of litigation in which the agreement was reached. Using these factors, the court found that the proposed settlement agreement was fair and that the settlement notice met the requirements of Fed. R. Civ. P 23(e) for notice in a Fed. R. Civ. P 23(b)(1) or (2) class action.

OUTCOME:

The parties’ joint motion for approval of settlement agreement was granted. All pending motions were denied as moot.

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WHERE LIMITATION OF LIABILITY FILED BY SHIPOWNER, CLAIMANT MUST FIRST BEAR BURDEN AT TRIAL BY PUTTING FORTH EVIDENCE OF NEGLIGENCE OR UNSEAWORTHINESS BEFORE THE BURDEN SHIFTS TO SHIPOWNER TO ESTABLISH THAT THEY WERE NOT PRIVY TO, NOR HAD ANY KNOWLEDGE OF, THE ACT OF NEGLIGENCE OR UNSEAWORTHINESS

In the Matter of the Complaint of MORAN TOWING CORPORATION, MORAN ATLANTIC TOWING CORPORATION and MORAN TOWING AND TRANSPORTATION CO., INC.as Owners or Bareboat Charterers of the Tug HEIDE MORAN, for Exoneration from or Limitation of Liability. In the Matter of the complaint of MORAN ENTERPRISES CORPORATION, MEC I, INC., MORAN TOWING AND TRANSPORTATION CO., INC., MORANTOWING CORPORATION, PETROLEUM TRANSPORT CORPORATION and SEABOARD BARGE CORPORATION, as Owners or Bareboat Charterers of the Barge TEXAS, for Exoneration from or Limitation of Liability.

CV 97-1647 (ADS), CV 97-2272 (ADS)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
166 F. Supp. 2d 773; 2001 U.S. Dist. LEXIS 16869
October 16, 2001, Decided

PRIOR HISTORY:

None.

DISPOSITION:

Motion for order directing petitioners to proceed first at trial was denied.

PROCEDURAL POSTURE:

Petitioner owners filed two limitation petitions seeking exoneration from or limitation of liability, pursuant to the Limitation of Liability Act, 46 U.S.C.S. § 183 et seq., on behalf of two vessels. Claimants filed claims against the owners in both actions seeking damages for repair of the submarine electrical cables. Claimants filed a motion requesting a finding that the owners be required to present their proof first at trial.

OVERVIEW:

The determination of whether the owners were entitled to limitation of liability required a two-step analysis. First, the court must have determined what acts of negligence or conditions of unseaworthiness caused the accident. Second, the court must have determined whether the owners had knowledge or privity of those same acts of negligence or conditions of unseaworthiness. The court found that claimants bore the burden of going forward at trial by putting forth evidence that the damage or loss was caused by unseaworthiness or negligence. Provided that claimants succeed in this first stage of the proceeding, the burden would have shifted to the owners to establish that they were not privy to, and had no knowledge of, the decisive act of negligence or condition of unseaworthiness.

OUTCOME:

Claimants’ motion for order directing the owners to proceed first at trial was denied.

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SUMMARY JUDGMENT GRANTED AGAINST JONES ACT SEAMAN’S MAINTENANCE AND CURE CLAIM WHERE SEAMAN FAILED TO DISCLOSE A PRIOR BACK INJURY

Robert N. Britton, Plaintiff, v. U.S.S. Great Lakes Fleet, Inc., Defendant.

Civ. File No. 00-2160 (PAM/RLE)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
2001 U.S. Dist. LEXIS 17804
October 15, 2001, Decided

DISPOSITION:

[*1] Defendant’s motion for summary judgment was granted. Plaintiff’s motion for partial summary judgment was denied.

PROCEDURAL POSTURE:

Suing under the Jones Act, 46 U.S.C.S. app. § 688, under general maritime law, and for alleged medical malpractice, plaintiff seaman sought to impose liability on defendant owner for injuries the seaman suffered while working on the owner’s vessel. The seaman moved for partial summary judgment on the owner’s affirmative defense. The owner moved for summary judgment.

OVERVIEW:

The seaman alleged the owner violated the Jones Act and failed to ensure the owner’s ship was seaworthy by failing to have enough crewmembers on deck the day the seaman was injured. Asserting an affirmative defense, the owner stated that the seaman failed to report a prior back injury. Regarding the seaman’s motion, the owner offered evidence that the seaman failed to report his prior injury. Whether the owner would have hired the seaman even if he had disclosed the injury was of no moment in determining whether genuine issues of material fact existed about the affirmative defense. Regarding the owner’s motion, the seaman’s own testimony was the only evidence he offered to prove the owner’s alleged negligence and the unseaworthiness of the vessel. That testimony, the court held, was insufficient to create a genuine fact dispute. The seaman failed to rebut the owner’s evidence that the seaman failed to disclose his prior back injury. The seaman’s omission defeated his claim for maintenance and cure. Finally, assuming the owner could be liable for its designated physician’s acts, the seaman offered no evidence of malpractice.

OUTCOME:

The court denied the seaman’s motion for partial summary judgment and granted the owner’s summary judgment motion.

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SEAMAN’S MOTION TO REMAND JONES ACT CASE TO STATE COURT GRANTED AFTER DEFENDANT ERRONEOUSLY REMOVED CASE TO FEDERAL COURT BY CLAIMING THAT SEAMAN’S EMPLOYMENT CONTRACT WAS SUBJECT TO EXCLUSIVE FEDERAL QUESTION JURISDICTION PURSUANT TO THE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

WILFREDO JARANILLA VERSUS MEGASEA MARITIME LTD., PANKAR MARITIME S.A., GREECE AND KOUROS MARITIME ENTERPRISES CIVIL ACTION NO. 01-1449 SECTION “J”(2)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
171 F. Supp. 2d 644; 2001 U.S. Dist. LEXIS 17233; 18 BNA IERCAS 22
October 12, 2001, Decided
October 12, 2001, Filed
October 15, 2001, Entered

DISPOSITION:

[**1] Plaintiff’s motion to remand was granted.

PROCEDURAL POSTURE:

Plaintiff seaman was severely burned as a result of an electrical explosion on the ship where he worked. Plaintiff filed suit in state court, seeking damages pursuant to the Jones Act, general maritime law, and applicable foreign law. Defendants removed the action to federal court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C.S. § 201 et seq. The seaman moved to remand.

OVERVIEW:

Based on the plain language of the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C.S. § 201 et seq., the court concluded that United States arbitration law specifically excluded seafarers’ contracts of employment from the scope of commercial contracts. 9 U.S.C.S. § 1. The Convention did not apply to employment contracts of seaman, as such contracts were not commercial under the national law of the United States. Accordingly, the court ordered that the case be remanded for lack of federal question subject matter jurisdiction.

OUTCOME:

Plaintiff seaman’s motion to remand was granted.

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FORUM SELECTION CLAUSE HELD TO VIOLATE PUBLIC POLICY UNDERLYING THE GENERAL MARITIME LAW AND THE JONES ACT

ALISTAIR J. MACPHAIL, Plaintiff, v. OCEANEERING INTERNATIONAL, INC., Defendant. CIVIL ACTION NO. G-01-266

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
170 F. Supp. 2d 718; 2001 U.S. Dist. LEXIS 17430
October 12, 2001, Decided
October 17, 2001, Entered

DISPOSITION:

[**1] Defendant’s rule 12(b)(3) motion to dismiss was denied.

PROCEDURAL POSTURE:

Plaintiff employee scuba diver sued defendant employer marine company pursuant to the General Maritime Law of the United States of America, the Jones Act, specifically, 46 U.S.C.S. § 688, and state laws for injuries suffered in the course of his employment as a saturation diver. The employer moved to dismiss the complaint.

OVERVIEW:

The employer claimed that the complaint should have been dismissed pursuant to an Australian forum selection clause contained in a release and discharge (Release) previously executed by the parties. The employee claimed that the clause was unenforceable because the employer procured the Release, including the forum selection clause, through fraud and overreaching. The court held that the motion to dismiss pursuant to the forum selection clause fell within the purview of Fed. R. Civ. P. 12(b)(3). Even though the employee had presented affidavits suggesting fraud, coercion, and manifest overreaching by the employer, none of the averments supported a finding that the employee was induced to include the forum selection clause. However, the forum selection clause violated public policy underlying the General Maritime Law and the Jones Act. Specifically, the employee’s averments regarding his injuries and the conditions which existed when he signed the Release established that the employee unquestionably fell within the group of plaintiffs that the venerable and strong public policy favoring the rights of seamen was fashioned to protect.

OUTCOME:

The company’s motion to dismiss was denied.

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NEW TRIAL GRANTED WHERE DIRECTED VERDICT ENTERED AGAINST A PASSENGER CLAIM THAT SHE WAS STRUCK BY A MOORING LINE WHILE SITTING ON A DECK OF THE SHIP – COURT NOTES THAT A SHIP OWNER COULD HAVE A HIGHER DUTY THAN A LANDOWNER WHERE DANGER DIFFERENT THAN FROM DANGERS ENCOUNTERED IN DAILY LIFE

SARA KALENDAREVA, Appellant, v. DISCOVERY CRUISE LINE PARTNERSHIP, DISCOVERY SUN PARTNERSHIP, d/b/a DISCOVERY CRUISE LINE, DISCOVERY DAWN, INC., and DISCOVERY DAWN PARTNERSHIP, Appellees. CASE NO. 4D00-4151

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
798 So. 2d 804; 2001 Fla. App. LEXIS 15025; 26 Fla. L.Weekly D 2545
October 24, 2001, Opinion Filed

PRIOR HISTORY:

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Estella May Moriarty, Judge; L.T. Case No. 99-04309 (05).

DISPOSITION:

Reversed for a new trial.

PROCEDURAL POSTURE:

Appellant passenger sued appellee ship owner in the Circuit Court for the Seventeenth Judicial Circuit, Broward County (Florida), alleging maritime negligence. The trial court granted the ship owner’s motion for directed verdict holding there was no evidence it knew or should have known of the danger. The passenger appealed.

OVERVIEW:

The passenger was sitting on a lounge chair on the third deck of the cruise ship and was struck by the weighted end of a rope thrown while the ship was docking. After she presented her maritime negligence case, the trial court granted the ship owner a directed verdict on the ground it was plaintiff’s burden to show notice of a dangerous condition, and that there was no evidence the ship owner had notice of the freak accident. The appellate court initially noted a ship owner could have a higher duty of care than a landowner, depending on the danger. The appellate court held the extent to which the circumstances surrounding maritime travel were different from those encountered in daily life and involved more danger to a passenger, would determine how high a degree of care was reasonable in each case. The appellate court concluded the trial court should have allowed the jury to decide whether the ship owner should have known of the danger to passengers on the third deck.

OUTCOME:

The directed verdict was reversed and case was remanded for a new trial.