Passenger Claim Against Cruise Line Transferred to Florida Where Carnival Cruise Line Passenger Ticket Included Forum Selection Clause Selecting Florida Despite Passenger’s Arguments That The Forum Selection Clause Was Not Reasonably Communicated to Passenger And That It Was Unreasonably Arduous In Light of Her Advanced Age and Difficulty Traveling.
LOUISE FERKETICH, Plaintiff, v. CARNIVAL CRUISE LINES, Defendant.
CIVIL ACTION No. 02-CV-3019
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 20052
October 17, 2002, Filed
Motion to Dismiss for lack of personal jurisdiction, or improper venue, or in the alterative, to transfer filed by the Defendant, Carnival Cruise Lines was granted. This action was transferred to the United States District Court for the Southern District of Florida.
Plaintiff passenger brought a personal injury action against defendant cruise line following her injury aboard a vessel owned by the cruise line. Following removal, the cruise line filed a motion to dismiss for lack of personal jurisdiction, improper venue or, in the alternative, to transfer venue.
The cruise line claimed that it did not maintain contacts with the forum state necessary to exercise either specific or general jurisdiction, and that the forum selection clause provided in the passenger’s ticket booklet was valid and enforceable and required the transfer of venue. The passenger claimed that she was provided inadequate notice of the forum selection clause, and that the forum selection clause imposed an unfair and arduous burden on her because of her advanced age and difficulty traveling. The court initially held that the passenger was provided with reasonable notice of the forum selection clause, and, thus, the clause satisfied the reasonable communication standard. The court then held that the passenger failed to offer any evidence suggesting that the forum selection clause was a product of the cruise line’s bad faith. The court finally held that, although the passenger was elderly and experienced difficulty in traveling, the inconvenience was not severe enough to demonstrate that transfer of venue would be so inconvenient for her that she would be deprived her day in court.
The motion was granted. The action was transferred to a different venue.
After employer attempts to remove an injured worker’s Jones Act claim to Federal Court claiming that the injured worker was not a Jones Act Seaman, the Federal Court grants a remand to state Court where the injured worker spent nearly two thirds of his time aboard vessels and received a permanent assignment to work aboard an oil rig prior to the injury.
ZACHARIAH N. ANGLIN VERSUS DIAMOND OFFSHORE DRILLING, INC. AND CONTINENTAL LABORATORIES, INC.
CIVIL ACTION NO. 02-1617 SECTION A(2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 20121
October 22, 2002, Decided
October 22, 2002, Filed, Entered
Plaintiff’s Motion to Remand GRANTED IN PART AND DENIED IN PART.
Plaintiff putative seaman sued defendants, contract employer and drilling rig leasing company, for personal injuries in state court. Defendants disputed plaintiff’s seaman status under the Jones Act, 46 U.S.C.S. app. § 688. They alleged fraudulent joinder of the Jones Act claim to defeat jurisdiction. The leasing company removed the case. The seaman moved to remand and for attorney’s fees and costs.
The leasing company asserted that the putative seaman’s assignments were based solely upon the oil companies’ selection of drilling contractors, and not as assigned or made by his contract employer. Since he did not work aboard a vessel or fleet of vessels owned by his employer, there was no possibility that he could establish a Jones Act, 46 U.S.C.S. app. § 688, claim. The putative seaman argued that, he spent nearly two-thirds of his time aboard vessels owned by the leasing company. Further, he received a permanent assignment from his employer to work aboard the leasing company’s rig. There was a reasonable basis for predicting that the putative seaman might establish that he was a seaman. His duties might be reasonably considered as contributing to the function of the vessel or to the accomplishment of its mission. His connection to the leasing company’s oil rigs might be reasonably considered as substantial in terms of both its duration and its nature. At the time of the injury, he was assigned to work aboard the leasing company’s vessel for an indefinite period of time.
The putative seaman’s motion to remand was granted, but the request for attorney’s fees and costs was denied.
Payments made by shipowner to an injured seaman in excess of its maintenance and cure obligation may not be sought by shipowner from insurer for a third party tortfeasor pursuant to contribution or indemnity where the third party insurer entered into a separate damage settlement with the injured seaman.
STEVEN DURGIN VERSUS CRESCENT TOWING & SALVAGE, INC., ET AL
CIVIL ACTION NO. 00-1602 SECTION “N”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 20126
October 18, 2002, Decided
October 18, 2002, Filed, Entered
West of England’s Motion in Limine to Strike Crescent’s Contribution and Indemnity Claims seeking recovery of payments made above and beyond its legal obligation to pay maintenance and cure was granted.
Plaintiff seaman sued defendants, a shipowner and the insurer for a third party tortfeasor, for injuries received at sea under the Jones Act. The seaman settled its damage claims with both defendants separately. The shipowner filed a cross-claim against the insurer for contribution and indemnity. The insurer moved to strike the shipowner’s claim for payments above and beyond maintenance and cure.
The insurer’s insured’s defective mooring lines popped, striking the shipowner’s vessel and injuring the seaman. The shipowner loaned $10,713.11 to the seaman and then paid him $57,897.84 in payments, which could be characterized as temporary partial disability or supplemental wage payments. The insurer did not dispute the shipowner’s rights to seek indemnity for maintenance and cure payments, but contended that any other payments made were voluntary and not subject to any right of indemnification. The court agreed, holding that (1) maintenance and cure was the implied contractual right of a seaman who was injured in the service of the ship, regardless of fault, to payments from the shipowner through the time of maximum recovery; (2) the shipowner failed to show the requisite nexus between payments made in excess of its maintenance and cure obligation to the injured seamen and any legal obligation owed by the shipowner, as the payments were made before suit was filed, and the seaman had not pressed an unseaworthiness claim against the shipowner; and (3) the liability for damages was settled by all parties so there was no legal obligation to support the indemnification claim.
The motion to strike was granted.
Employer’s Motion to Dismiss for Lack of Jones Act Seaman Status Denied Where Factual Issues Existed As To Whether The Vessel Was Out Of Navigation At The Time The Employee Sustained His Injuries and Whether The Employee Was Acting In The Scope of His Employment At The Time of His Injury.
RICHARD CARTER VERSUS BISSO MARINE CO., INC.
NO. 01-2448 SECTION “K” MAGISTRATE “4”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 20127
October 17, 2002, Decided
October 17, 2002, Filed, Entered
Defendant Bisso Marine Company, Inc.’s Motion for Summary Judgment as to Plaintiff’s Alleged Seaman Status denied. Defendant Bisso Marine Company, Inc.’s Motion for Partial Summary Judgment as to Plaintiff’s Claim for Unseaworthiness denied. Defendant Bisso Marine Company, Inc.’s Motion as to Plaintiff’s Accident of December 2000 denied, and Defendant Bisso Marine Company, Inc.’s Motion For Partial Summary Judgment on Grounds of Statute of Limitations granted.
Defendant ship owner filed motions for summary judgment and motions for partial summary judgment in plaintiff employee’s admiralty action to recover damages under the Jones Act and general maritime law for his back injuries.
The ship owner claimed that the employee was not a seaman under the Jones Act, that the vessel worked on by the employee was not in navigation at the time of the employee’s injuries, that the employee was not acting in the course of his employment at the time of his latest injury, and that the employee’s earlier injury claims were time-barred. The court initially held that there were disputed factual issues regarding whether the employee fell short of the thirty percent temporal threshold for seaman status. The court the held that, due to the incomplete and contradictory evidence, it could not say as a matter of law that the vessel was out of navigation when the employee sustained his injuries. The court further held that there were issues of material fact as to whether the employee was acting in the scope of his employment at the time of his latest injury. The court finally held that the employee’s earlier injury claims were time-barred under 46 U.S.C.S. Appx. § 183(g) and La. Rev. Stat. Ann. § 9:5628(A).
Partial summary judgment was granted for the ship owner regarding the employee’s earlier injury claims. The remaining motions were denied.
Employer’s Motion for Summary Judgment Granted against Shipowner’s Indemnity / Contribution Claim for claim of a Longshore Worker whose injuries were caused by the negligence of the ship’s crew despite a safe berth clause in the charter party contract because the Longshore Harbor Workers Compensation Act bars suits for indemnity from a vessel owner against an employer.
MONICA M. HERETICK, Plaintiff, v. AMBERLEY SHIPPING CORPORATION, Defendant and Third-Party Plaintiff, v. HONEYWELL INTERNATIONAL ,INC., (formerly ALLIED SIGNAL, INC.), Third-Party Defendant.
ACTION NO. 4:01cv98
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NEWPORT NEWS DIVISION
2002 U.S. Dist. LEXIS 19859
October 17, 2002, Decided
October 17, 2002, Opinion Filed
Third-party defendant’s motion to dismiss granted.
Plaintiff employee filed an action under 46 U.S.C.S. § 740 against defendant vessel owner, alleging that her injuries were caused by the negligence of the ship’s crew. The owner filed a third-party complaint for indemnity or contribution against third-party defendant employer. The employer moved to dismiss the third-party complaint, pursuant to Fed. R. Civ. P. 12(b)(6).
The employee was injured while assisting in the docking operation of the owner’s vessel that was chartered to the employer. After her injury, the employee received benefits under the Longshore Harbor Workers Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., from the employer. The owner alleged that the employer breached the safe berth clause contained in the charter party contract because it failed to properly train its equipment operators, including the employee, in handling mooring lines, and that this failure created an unsafe berth for the docking ships. This breach of warranty required the employer to indemnify the owner for any judgment against it. The employer argued: (1) the safe berth clause provided no basis for indemnification for personal injuries; and (2) the LHWCA barred suits for indemnity by a vessel owner against an employer. Neither expressly, nor by implication, was the employer obligated to indemnify the owner against personal injury actions. Additionally, because the owner alleged that the employer was negligent only in its role as the employee’s employer, not in its role as vessel operator, the LHWCA prohibited the employer from being held liable.
The employer’s motion to dismiss was granted.
Louisiana Statute Prohibiting the Enforcement of Forum Selection Clauses Contained in Employment Contracts Or Collective Bargaining Agreements Held to Apply to Maritime Cases.
DIMITRIOS KERAMIDAS VERSUS PROFILE SHIPPING LIMITED AND STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION LIMITED
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
2000-1852 (La.App. 5 Cir, 10/16/02);
2002 La. App. LEXIS 3149
October 16, 2002, Decided
REVERSED AND REMANDED.
Appellant wife filed a maritime personal injury suit for the death of her husband. The trial court granted appellee employer summary judgment because the forum selection clause of the employment agreement precluded filing suit in the United States. The court of appeals upheld the summary judgment. Subsequently, the Louisiana Supreme Court granted a writ of certiorari and remanded for reconsideration in light of another case decision.
The supreme court remanded for reconsideration in light of a case decision holding that La. Rev. Stat. Ann. § 23:921A(2) prohibited the enforcement of forum selection clauses contained in employment contracts or collective bargaining agreements, that the statute applies to maritime cases, that it was to be applied prospectively and retroactively, and that it did not violate either the state or federal constitutional prohibitions against impairment of contracts. The wife argued that the case decision was on point and mandated reversal. The employer argued that the statute could not be applied constitutionally under the Commerce Clause and could not be applied retroactively. Upon reconsideration, the court of appeals reversed the grant of summary judgment. The court found that the case was on point and it disposed of the employer’s arguments. Since the court of appeals was bound by the supreme court’s holding, the court of appeals was required to reverse its initial ruling.
The judgment was reversed and remanded.
Summary Judgment Granted against Cruise Line Passenger bitten by Spider on Cruise Ship Where Passenger Was Unable to Show any Notice to Cruise Line of Spider Problem Aboard Ship.
ALLEN ILAN, Plaintiff and Appellant, v. PRINCESS CRUISES, INC., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
2002 Cal. App. Unpub. LEXIS 9593
October 16, 2002, Filed
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. SC 058753. Cesar C. Sarmiento, Judge.
Defendant Princess Cruises, Inc. (Princess) obtained summary judgment in the trial court on plaintiff Allen Ilan’s (Ilan) complaint alleging negligence and breach of warranty. Seeking reversal of the summary judgment, Ilan contends on appeal that the trial court erred in granting summary judgment because triable issues of material fact existed with respect to whether Princess was negligent. We conclude that Ilan has waived any challenge to the summary adjudication of the warranty cause of action and that Princess met its burden to demonstrate that Ilan could not establish its negligence cause of action. In the absence of any evidence of disputed facts from Ilan to rebut Princess’s showing with respect to the negligence cause of action, we affirm the judgment. Ilan alleged that he was been bitten by a hobo spider while in bed on a Princess cruise ship, and sued for negligence and breach of warranty. Princess moved for summary judgment, contending that (1) Ilan was not bitten by a hobo spider and that the ailments he claimed could not have arisen from a spider bite; (2) any spider bite was unforeseeable, so Princess bore Ilan no duty to insure against the presence of a spider on the ship; (3) Princess had no notice of a dangerous condition on the ship prior to the alleged incident and therefore could not as a matter of law have been negligent; and (4) as a matter of law there was no warranty against the presence of a spider on the ship, so there could not have been any breach of warranty. Princess set forth the following facts in its separate statement of undisputed facts: it is impossible for a hobo spider to have caused the physical problems of which Ilan complained; Ilan did not suffer any of the ailments commonly associated with hobo spider bites; the spider described by Ilan did not resemble a hobo spider; and some of the ailments alleged by Ilan were in fact associated with the prescription medications Ilan was taking. Princess also produced evidence concerning its pest control procedures and the absence of any prior reports of spiders on board.
The Order Granting Princess’ Motion for Summary Judgment was Affirmed.