Where A Seaman Brings Claims For Jones Act Negligence, Unseaworthiness, And Maintenance And Cure, The Claims For Unseaworthiness And Maintenance And Cure Are Not Removable Unless They Arise From Separate And Distinct Incidents Independent Of The Subject Incident Of Jones Act Negligence.
JOHNNIE A. WAMSLEY, and STACEY A. WAMSLEY, his wife, Plaintiffs, v. TONOMO MARINE, Inc., a Pennsylvania corporation, and THE MOTORVESSEL THE LITTLE EAGLE, and JOHN DOE, and/or JOHN DOE CORPORATION, an unknown individual and/or corporation, Defendants.
CIVIL ACTION NO. 3:03-0613
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFWEST VIRGINIA, HUNTINGTON DIVISION
2003 U.S. Dist. LEXIS 18843
October 22, 2003, Decided
Plaintiffs’ motion to remand to state court granted.
Plaintiffs, a maritime worker and his wife, brought an action in state court against defendants, a maritime corporation and a vessel, under 46 U.S.C.S. § 688(a) of the Jones Act, for injuries to the worker while working on a river as an employee of the corporation. The complaint also included allegations of unseaworthiness, maintenance and cure, and loss of consortium. Defendants removed the action, and plaintiffs filed a motion to remand.
The complaint joined two different causes of action. One under the Jones Act alleging negligence, and the other under general maritime law alleging unseaworthiness and maintenance and cure. Jones Act claims brought in state court were not removable under 46 U.S.C.S. § 688(a). Claims of unseaworthiness and maintenance and cure were general maritime law claims that were removable if independent grounds for federal jurisdiction existed, such as diversity. The court found that when both types of claims were made, the case would be removable only if the claims were separate and independent. Plaintiffs’ complaint included allegations under the Jones Act and general maritime law stemming from injuries to his head, neck, back, and left leg while working on a river. The complaint alleged that the injuries were sustained on or about a specified date, all of which occurred at the same time and place. Consequently, the court found that plaintiffs’ claims under the Jones Act and general maritime law were not separate and independent; therefore the case was unremovable.
The district court granted plaintiffs’ motion to remand the suit to state court.
Where The Parties Prefer Application Of Foreign Law To A Seaman’s Personal Injury Case And The Foreign Jurisdiction Is An Adequate Alternative Forum, The Seaman’s Case Is Dismissed Pursuant To Forum Non Conveniens To Be Refiled In The Foreign Jurisdiction.
REYNALDO OYUELA VERSUS SEACOR MARINE (NIGERIA), INC., ET AL.
CIVIL ACTION NUMBER 02-3298 SECTION “L” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2003 U.S. Dist. LEXIS 18859
October 21, 2003, Decided
October 21, 2003, Filed, Entered
Matter was dismissed provided certain conditions are met.
Plaintiff sailor commenced the instant lawsuit against various affiliates of defendant shipping company and its affiliated entities and asserted causes of action under the Jones Act, general maritime law, the laws of Nigeria, the United Kingdom, and France, to recover damages for his personal injuries. Timely responsive pleadings were filed by the shipping company.
The sailor claimed to have injured his back when he attempted to move a heavy deck plate from its stowed position. There were a variety of issues of jurisdiction and choice of law, which needed to be resolved before the case, could proceed to final resolution. The present court had jurisdiction over two of the shipping company’s entities, but the issue was whether there was jurisdiction over its Bahamian entity. The court could assert personal jurisdiction over the Bahamian entity under a number of jurisdictional bases. First, the sailor served one of the Bahamian entity’s corporate officers, while he was present within the forum. Second, the Bahamian entity had sufficient minimum contacts with the present forum because a company officer worked and resided there. Third, the Bahamian entity did not maintain a corporate existence independent of the shipping company. However, private and public interest factors weighed in favor of dismissal under the second step of the forum non-conveniens framework, in part because the parties themselves expressed a preference for British law and a British forum and British courts were best suited to interpret and apply British law.
The court dismissed the matter provided that: (1) the shipping company submitted to jurisdiction in the appropriate United Kingdom forum; (2) the sailor initiated appropriate proceedings within 120 days of the order of dismissal, inter alia.
Cross Motions For Summary Judgment Denied Where A Ferry Owner May Have Accelerated The Ferry In A No Wake Zone Causing Injury To Pleasure Boat Operators Who May Have Failed To Keep Sufficient Lookout.
In the Matter of Island Express Boat Lines, as Owner of theMV Island Rocket II, Petitioner
Case No. 3:02CV7108
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFOHIO, WESTERN DIVISION
2003 U.S. Dist. LEXIS 19152
October 17, 2003, Decided
Petitioner’s motion for summary judgment denied and claimant-respondents; motion for summary judgment denied. Claimants motion for leave to amend their pleading granted.
Petitioners/third-party plaintiffs, owners of a ferry, filed a petition to exonerate themselves of liability for an occurrence on a lake during which respondents/claimants/third party defendants, husband and wife, and claimants, passengers, were injured. The owners moved for summary judgment. The husband and the wife moved for summary judgment. The husband, the wife, and the passengers moved to amend their claim for injuries and damages.
As the ferry passed the boundary of the harbor’s no-wake zone, the pleasure boat, which was owned by the wife and was operated by the husband approached the entrance to the harbor. The husband turned his attention to a cabin cruiser and when he looked to port, he noticed a large wave about to strike the boat. The boat was hit by three large swells. The husband, the wife, and their passengers were injured. The court found that the owners were not entitled to summary judgment because the testimony of one of the passengers that he saw the ferry accelerate, its bow come up, and the wake it was leaving before the boat struck the wave was sufficient to overcome the owners’ motion for summary judgment because if credited, the testimony supported a finding that the ferry failed to give adequate heed to the presence of other boats approaching that harbor in violation of the Inland Navigation Rules, 33 U.S.C.S. § 2006, Rule 6. The husband and the wife were not entitled to summary judgment because a fact finder could have concluded that the husband failed to fulfill his duty to maintain sufficient lookout, as codified in the Inland Navigational Rules, 33 U.S.C.S § 2005, Rule 5.
Leave was granted to the husband, the wife, and the passengers to amend their claim. The cross-motions for summary judgment were denied.
Court Holds That Arbitration Agreements Entered Into By Cruise Ship Employer And Crew Members Are Subject To And Enforceable Under The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards
RIZALYN BAUTISTA, etc., et al., PAUL PERALTA, RAYMONDLOVINO, RONALDO MARCELINO, ROLANDO TEJERO, ABDI COMEDIA, CRISTINA L. VALENZUELA,etc., et al., MARILEN S. BERNAL, etc., et al., WILLY I. VILLANUEVA, etc., etal., MARIA GARCIA L. ROSAL, etc., et al., Plaintiffs, v. STAR CRUISES andNORWEGIAN CRUISE LINE, LTD., Defendants.
CASE NO. 03-21642-CIV-SEITZ/BANDSTRA, CASE NO.03-21643-CIV-SEITZ/BANDSTRA, CASE NO.
03-21644-CIV-SEITZ/BANDSTRA, CASE NO.03-21645-CIV-SEITZ/BANDSTRA, CASE NO.
03-21646-CIV-SEITZ/BANDSTRA, CASE NO.03-21647-CIV-SEITZ/BANDSTRA, CASE NO.
03-21648-CIV-SEITZ/BANDSTRA, CASE NO.03-21649-CIV-SEITZ/BANDSTRA, CASE NO.
03-21650-CIV-SEITZ/BANDSTRA, CASE NO.03-21651-CIV-SEITZ/BANDSTRA
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2003 U.S. Dist. LEXIS 18274
October 14, 2003, Decided
October 14, 2003, Filed
Defendant NCL’s motion to compel arbitration granted. Plaintiffs’ motion for remand denied; Plaintiffs’ motion for attorneys’ fees denied; all pending motions not otherwise ruled upon denied.
Plaintiffs, seamen and personal representatives of dead crewmembers, sued defendant cruise ship, in state court, alleging negligence, unseaworthiness under the Jones Act, 46 U.S.C.S. app. § 688, and failure to provide maintenance, cure and unearned wages under the general maritime law of the United States. The cruise ship removed the action to federal court and moved to compel arbitration. Plaintiffs moved to remand and moved for attorneys’ fees.
A steam boiler explosion killed six of the seamen, and seriously injured four others. The cruise ship removed the cases to district court and alleged that plaintiffs had entered into written agreements to arbitrate claims arising from their employment with the cruise ship in the Philippines, and these agreements were subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention), 9 U.S.C.S. § 201 et seq. The court found that the exclusion of seamen contract under the Federal Arbitration Act (FAA), 9 U.S.C.S. § 1 et seq., did not apply to the Convention because the term “including” instructed that the transactions, contracts and agreements described in 9 U.S.C.S. § 2 were covered by the Convention Act, as well as other arbitration agreements that arose out of commercial legal relationships. The arbitration agreements between plaintiffs and the cruise ship fell within the scope of the Convention and the agreements were not null and void, inoperative, or incapable of being performed. Removal was proper under 9 U.S.C.S. § 205 because the Convention was construed broadly in favor of removal.
The cruise ship’s motion to compel arbitration was granted. Plaintiffs’ motions for remand and for attorneys’ fees were denied.