PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY BASED ON APPLICATION OF “THE PENNSYLVANIA RULE,” WHERE FLORIDA STATUTES REGARDING RECREATIONAL BOATING SAFETY WERE VIOLATED.
RONALD TASSINARI, an individual, SHEILA SILVA, individually, and as next best friend of ASHLEY SILVA, a minor, Plaintiffs, vs. KEY WEST WATER TOURS, L.C., a Florida corporation, Defendant. KEY WEST WATER TOURS, L.C., a Florida corporation, Third-Party Plaintiff, vs. JEFFREY WILKERSON, Third-Party Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2007 U.S. Dist. LEXIS 46490
June 27, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff injured parties sued Defendant personal watercraft rental agency for damages allegedly sustained as a result of an accident during one of Defendant’s guided wave runner tours. Defendants moved for summary judgment on several issues: 1) they are entitled to exoneration from liability because there is no evidence of negligence; 2) they are entitled to limit their liability to the value of the vessel; 3) Florida statutory law does not apply; and 4) plaintiff’s claims are barred by contractual waiver. Plaintiffs move for summary judgment under the Pennsylvania Rule.
OVERVIEW:
The court found that Florida statutory law does apply where it does not conflict with Federal Maritime Law. Furthermore, the Pennsylvania rule ,which is Admiralty’s equivalent of negligence per se, does apply where defendants violated Florida statutes designed to promote recreational boating safety. Defendants were not entitled to limitation of liability under the limitation act because according to the Pennsylvania Rule, defendant’s violation of Florida statutes is presumed to have caused the collision, and the court found that defendant knew or should have known of the violation of these statutes. The release and waiver provisions in the rental contracts, while sufficient to release defendants from ordinary negligence, were invalid as against public policy when applied to liability arising from violation of these statutes.
OUTCOME:
The Court granted Plaintiff’s Motion for Summary Judgment as to Defendant’s liability because of the Pennsylvania Rule. Defendant’s Motion for Summary Judgment was denied.
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Where an employee allegedly was injured while working as a pile driver on a barge, a jury did not err in finding that he was not a Jones Act seaman, because, inter alia, only 16% of his work was performed on “water,” all the vessels on which he worked were dockside, he did not sleep or eat on the vessels, and there was no pre-injury reassignment.
OVIE REEVES, JR. VERSUS F. MILLER & SONS, INC.
COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT
07-201 (La.App. 3 Cir. 10/03/07); 2007 La. App. LEXIS 1838
October 3, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff employee sued defendant employer, claiming status as a Jones Act seaman under 46 U.S.C.S. § 688(a) and seeking damages allegedly sustained as a result of an accident. In the Fourteenth Judicial District Court, Parish of Calcasieu, Louisiana, a jury found that the employee was not a Jones Act seaman. The employee appealed.
OVERVIEW:
The employee worked as a pile driver/operator who performed various construction duties. The employee alleged that he injured himself while engaged in the course and scope of his employment when he slipped on the deck of a pile driving barge located at a port. The appellate court determined that the jury was not manifestly erroneous or clearly wrong in finding that the employee did not prove by a preponderance of evidence that he was a seaman under the Jones Act. The jury did not err in finding that the employee was a land-based employee, not a seaman, because (1) the employer presented evidence that 16% of his work was performed on “water” and a barge was on site 28% of the hours he worked, (2) all the vessels on which he worked were dockside, (3) he did not sleep or eat on the vessels, (4) he did not keep watch on the vessels overnight, and (5) his pile driving duties did not take him to sea. Also, the jury did not err in finding there had been no “reassignment” prior to the employee’s injury, because while his location may have changed at different jobs, his essential duties never did.
OUTCOME:
The appellate court affirmed the judgment and assessed all costs of the appeal to the employee.
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Employee who had a claim against the debtor for an injury sustained while on board the debtor’s vessel was allowed to file a late claim pursuant to Fed. R. Bankr. P. 9006 because the employee presented legitimate reasons for delaying the filing of the claim, in part, because he mistakenly thought he had reached maximum medical improvement.
In re: SUNCRUZ CASINOS, LLC, JAB AMERICA, INC., Debtors.
UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, FORT LAUDERDALE DIVISION
2007 Bankr. LEXIS 3629
October 26, 2007, Decided
PROCEDURAL POSTURE:
The debtor filed for relief under Chapter 11 of the United States Bankruptcy Code. A former employee filed a motion for rehearing on the court’s earlier order denying the judgment creditor’s motion to allow a late-filed claim and to allow relief from stay. The debtor and the primary secured creditor objected to the motion.
OVERVIEW:
In July 2005, the former employee had initiated a maritime personal injury action against the debtor alleging he sustained an injury aboard ship in July 2002. The employee filed a motion in the bankruptcy court proceeding in March 2006, which sought permission to assert a late-filed claim against the debtor. The court had established September 15, 2004 as the deadline for filing claims. The employee suffered a subsequent injury in 2005, while working for a different owner. The court noted that on the date of the 2002 elevator incident the employee had a cause of action, and thus a bankruptcy claim, against the debtor. The court found that there were valid reasons for the employee’s delay in filing a claim, particularly when he had become pain free for a period of time and had been told that he had reached maximum medical improvement. Any prejudice to the debtor and the primary creditor was outweighed by the employee’s right to pursue a claim. The employee’s delay in filing a claim was not unreasonable. The court found that relief from the stay was appropriate so that the employee could liquidate his claim in a district court.
OUTCOME:
The court granted the employee’s motion to allow a late filed claim. The court granted the employee’s motion for relief from stay and the employee was authorized to liquidate his claim in a district court. Upon completion of the liquidation, the parties were directed to return to the court for allowance or disallowance of the claim.
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A trial court properly granted a vessel owner summary judgment on a captain’s negligence claim under the Jones Act where nothing indicated that the verbal confrontations between the captain and a deckhand placed the captain in reasonable apprehension of physical harm so as to satisfy the zone of danger test. An unseaworthiness claim also failed.
RICHARD ZENTNER VERSUS SEACOR MARINE, INC.
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2006 2049 (La.App. 1 Cir. 10/24/07); 2007 La. App. LEXIS 1928
October 24, 2007, Judgment Rendered
PROCEDURAL POSTURE:
Plaintiff vessel captain sued defendant vessel owner under the Jones Act and general maritime law, alleging that the vessel owner was negligent in failing to properly supervise a deckhand and in failing to remove him from the vessel after his insubordination. The 16th Judicial District Court Parish of St. Mary (Louisiana) granted the vessel owner summary judgment, dismissing the captain’s claims. The captain appealed the judgment.
OVERVIEW:
Considering the evidence submitted in support of and in opposition to the vessel owner’s motion for summary judgment on the Jones Act claim, nothing indicated that the verbal confrontations between the captain and deckhand placed the captain in reasonable apprehension of physical harm so as to satisfy the zone of danger test enunciated by the United States Supreme Court. As for the general maritime law claim, the captain offered no evidence that the vessel was not a reasonably safe vessel upon which to work, that the deckhand was a violent person, or that the vessel owner knew or should have known that the deckhand might have posed a danger to other crew members when it hired him. Absent any such evidence, the appellate court agreed with the trial court, that, as a matter of law, the captain did not have a claim against the vessel owner based in negligence under the Jones Act or for unseaworthiness of its vessel for any psychological injuries allegedly sustained by him as a result of his verbal confrontations with the deckhand.
OUTCOME:
The summary judgment was affirmed.
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Summary judgment in favor of employee regarding maintenance rate was reversed because the maintenance rates, like any other benefit that was the ultimate result from give and take collective bargaining between parties, should be binding on them. Therefore, the $ 8.00 per day rate fixed by the collective bargaining agreement was enforceable.
LARRY SKOWRONEK, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
07a0417p.06; 2007 U.S. App. LEXIS 23926; 2007 FED App. 0417P (6th Cir.)
October 12, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff employee sued defendant employer in which he challenged the maintenance rate for ill crew members alleging that a collective bargaining agreement (CBA) discriminated against ill crew members in comparison to injured crew members with regard to the payment of maintenance. The United States District Court for the Eastern District of Michigan granted summary judgment in favor of the employee. The employer appealed.
OVERVIEW:
The employee worked as a wheelsman aboard the employer’s ship. While at sea, the employee suffered a heart attack. Under the terms of the CBA, he was paid $ 56.00 per week for maintenance. Under the CBA, an injured crew member received $ 300 per week for maintenance. The employee sought $ 300 per week in maintenance. The appellate court found that maintenance rates, like any other benefit that was the ultimate result from give and take collective bargaining between parties, should be binding on them. Therefore, the $ 8.00 per day rate fixed by the CBA was enforceable. The employee did not allege that the agreement was not legitimately negotiated, that the CBA was unfair as a whole, or that he was not adequately represented by the union. When a benefits package included an express reference to a precise rate of maintenance, the adequacy of this rate, considered in isolation, was not a subject for judicial speculation when the rate was part of a total package of wages and benefits that resulted from the process of collective bargaining.
OUTCOME:
The judgment was reversed and the case was remanded for further proceedings consistent with the opinion.
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Court denied motion by provider of military entities to vacate ex parte order served by bunker supplier directing attachment under Supp. R. Certain Adm. & Mar. Cl. B. Contract for furnishing fuel to vessel qualified as maritime contract such that admiralty jurisdiction was proper even though fuel was provided by third party at supplier’s order.
WILHELMSEN PREMIER MARINE FUELS AS, Plaintiff, -against- UBS PROVEDORES PTY LTD. a/k/a USS-UBS INTERNATIONAL and RAECORP INTERNATIONAL PTY LTD., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 74477
October 1, 2007, Filed
PROCEDURAL POSTURE:
Defendants, a provider of military entities including the provision of marine fuel to military vessels and its successor, moved to vacate the ex parte orders directing issuance of a Process of Maritime Attachment and Garnishment against defendants and served by plaintiff bunker supplier under Supp. R. Certain Adm. & Mar. Cl. B & E(4)(f), or, alternatively, to certify an interlocutory appeal, pursuant to 28 U.S.C.S. § 1292(b).
OVERVIEW:
The provider entered into a marine fuel oil requirements contract with the United States to provide bunker fuel to vessels. The provider then agreed with plaintiff wherein plaintiff would provide vessels nominated by the provider with bunkers. Plaintiff performed under the contract by ordering another to bunker the nominated vessel, but claimed that it was never paid. Plaintiff attached electronic fund transfers (EFT) to and from defendants while they passed through New York banks. Defendants claimed that the EFTs were not subject to attachment under Rule B. The court rejected the argument that the EFTs were not subject to maritime attachment. Further, the attachment was not premature because plaintiff had yet to commence an action to litigate the underlying claims. More importantly, the court held that even if it characterized plaintiff as a broker or intermediary that would not preclude it from finding maritime jurisdiction. The court explained that a contract for furnishing fuel to a vessel qualified as a maritime contract such that admiralty jurisdiction was proper, regardless of whether the fuel was provided by plaintiff directly or by a third party at plaintiff’s order.
OUTCOME:
The court denied defendants’ motion in its entirety.
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Evidence that a decedent spent 32 percent of his time performing marine work for his employer in conjunction with his job description, the skills he was expected to perform, and the actual task performed at the time of his death established that the decedent was Jones Act seaman under 46 U.S.C.S. § 30104, barring recovery of non-pecuniary damages.
ROY MUDRICK; CAROL MUDRICK, Plaintiffs-Appellants v. CROSS EQUIPMENT LTD, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 23345
October 4, 2007, Filed
PROCEDURAL POSTURE:
Plaintiffs appealed an order of the United States District Court for the Southern District of Texas, Galveston, which granted summary judgment in favor of defendant, a manufacturer of a winch, and determined that plaintiffs’ decedent was a seaman under the Jones Act, 46 U.S.C.S. § 30104, at the time of his death. Thus, the district court found that plaintiffs were barred from recovering non-pecuniary damages from the manufacturer.
OVERVIEW:
The decedent, while working as an oil spill technician, was struck in the head by a steel anchor cable that came off of the winch that he was using to wind the cable and raise the anchor. Plaintiffs challenged the determination that the decedent had a connection substantial in terms of both duration and nature. On appeal, the court affirmed the grant of summary judgment. Plaintiffs failed to present any evidence to contradict the manufacturer’s proof that the decedent spent 32 percent of his time performing marine work aboard his employer’s vessels in navigation. That evidence in conjunction with the decedent’s job description, the skills he was expected to perform in the course of his employment, and the actual task that he was performing when he was killed led to only one conclusion, that the decedent was a Jones Act seaman under § 30104.
OUTCOME:
The court affirmed the grant of summary judgment.
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Crane operator’s negligence action was properly dismissed for lack of admiralty jurisdiction under Fed. R. Civ. P. 9(h) and 28 U.S.C.S. § 1333(1) because operator was walking a crane on a dock with no vessels on or near dock at the time of incident. Thus, land-based movements giving rise to injuries did not fit the definitions of maritime activity.
ROBERT ABT, Plaintiff-Appellant, v. DICKSON COMPANY OF TEXAS, and GREENSPORT SHIP CHANNEL PARTNERS, L.P., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 24314
October 17, 2007, Filed
PROCEDURAL POSTURE:
Plaintiff, a crane operator, appealed a decision of the United States District Court for the Southern District of Texas, which granted a motion to dismiss for lack of subject matter jurisdiction filed by defendant, a dock owner. The operator had filed an action pursuant to admiralty jurisdiction under Fed. R. Civ. P. 9(h) and asserted claims of negligence, gross negligence, premises liability, and other torts.
OVERVIEW:
The operator was injured while walking a crane down the dock. The district court concluded that the operator failed to demonstrate that his actions at the time of the accident were substantially related to maritime activity under 28 U.S.C.S. § 1333(1). On review, the court upheld the dismissal of the case. Using the maritime situs test under 46 U.S.C.S. app. § 740, the court agreed that the locality test was satisfied because the operator was injured once he hit the water and the injuries were exacerbated by the fact that he remained in the channel for a period of time before being rescued. However, the court agreed that the incident was not substantially related to maritime activity. It was uncontested that the operator was walking the crane on the dock and that there were no vessels on or near the dock at the time of the incident. Thus, the land-based movements giving rise to the incident did not fit within the traditional definitions of maritime activity. The injuries were only fortuitously and incidentally connected to navigable waters and bore no relationship to maritime activity in order to satisfy the requirements of federal admiralty jurisdiction.
OUTCOME:
The court affirmed the district court’s judgment of dismissal.
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The voyage requirements in 46 U.S.C.S. §§ 10301, 10501, applied to seamen on both American and foreign vessels who sought penalty wages under 46 U.S.C.S. §§ 10313, 10504, thus, summary judgment to the alleged ship owner on the seaman’s penalty wage claim was affirmed as the ship was on neither a foreign nor an intercoastal voyage.
JENGGI KALUOM, Individually, and on behalf of those similarly situated, Plaintiff-Appellant, versus STOLT OFFSHORE INC; ET AL, Defendants, STOLT OFFSHORE INC., Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 23813; 12 Wage & Hour Cas. 2d (BNA) 1665
October 10, 2007, Filed
PROCEDURAL POSTURE:
Plaintiff seaman appealed the grant of summary judgment to defendant alleged ship owner, by the United States District Court for the Southern District of Texas, Galveston Division, on claims to a penalty wage under 46 U.S.C.S. §§ 10313, 10504, finding the voyage requirements of 46 U.S.C.S. §§ 10301, 10501, applied to the foreign vessel and that the vessel was not embarked on one of the voyage types of §§ 10301, 10501.
OVERVIEW:
46 U.S.C.S. § 10301(a) clearly dictated that 46 U.S.C.S. § 10313 applied only to vessels that met the foreign or intercoastal voyage requirement. Section 10313’s penalty wage provision was thus limited by 46 U.S.C.S. § 10301’s voyage requirement, whether the vessel was American or foreign. Because the ship was on neither a foreign nor an intercoastal voyage, § 10313’s penalty wage provision did not apply. Because 46 U.S.C.S. § 10501 dictated that 46 U.S.C.S. § 10504 applied only to those vessels not covered by 46 U.S.C.S. ch. 103 that had embarked on a voyage between a port in one State and a port in another State, except an adjoining State, and because the ship was not on such a voyage, 46 U.S.C.S. § 10504’s penalty did not apply. 46 U.S.C.S. §§ 10313, 10504, had to be read in conjunction with 46 U.S.C.S. §§ 10301, 10501. The assertion that including the phrase “in a harbor of the United States” in 46 U.S.C.S. §§ 10313(i), 10504(e), indicated the lack of a voyage requirement for foreign vessels was rejected. The voyage requirements in 46 U.S.C.S. §§ 10301, 10501, applied to seamen on both American and foreign vessels who sought penalty wages under 46 U.S.C.S. §§ 10313, 10504.
OUTCOME:
The district court’s grant of summary judgment was affirmed.
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Although district court articulated correct standard to determine whether an arresting party was entitled to a warrant of arrest, it improperly turned Supp. R. Certain Adm. & Mar. Cl. E(4)(f) hearing into a mini-trial and posed a much higher burden than was authorized, applied incorrect legal standard, and failed to consider claim for replevin.
PDS GAMING CORPORATION, Plaintiff-Counter-Defendant-Appellant, CDD ENTERPRISES, INC., et al., Intervenors-Plaintiffs, versus M/V OCEAN JEWELL OF ST. PETERSBURG, Official Number 7625823, her boats, engines, tackle, apparel, furnishings, equipment and appurtenances, in rem, et al., Defendants, M/V CASINO ROYALE, Official Number 7350442, her boats, engines, tackle, apparel, furnishings, equipment and appurtenances in rem, 21 MIAMI OCEANS INTERNATIONAL LTD., et al., Defendants-Counter-Claimants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2007 U.S. App. LEXIS 24407
October 15, 2007, Decided
PROCEDURAL POSTURE:
Plaintiff gaming corporation filed an interlocutory appeal from a decision of the United States District Court for the Middle District of Florida which summarily denied its motion under Fed. R. Civ. P. 59(a) for a new trial and its motion under Fed. R. Civ. P. 59(e) to alter or amend the district court’s order vacating the arrest of a gambling ship.
OVERVIEW:
The underlying case arose out of various agreements related to the purchase of over $ 7,000,000 in gaming equipment. After several demands for payment, the gaming corporation had filed an in rem action for conversion, replevin, and on a common count for goods had and received against the gambling ship for the tortious transfer of the gaming devices sold to another ship. Subsequently, the ship was arrested. The appellate court first concluded it had jurisdiction under the collateral order doctrine. The appellate court also concluded that the appeal was not moot. The appellate court then concluded that the district court abused its discretion by summarily denying the motion under Fed. R. Civ. P. 59(a) without considering it on the merits. Further, while the district court articulated the correct standard to determine whether an arresting party was entitled to a warrant of arrest, it improperly turned the Supp. R. Certain Adm. & Mar. Cl. E(4)(f) hearing into a mini-trial and posed a much higher burden on the gaming corporation than was authorized, applied an incorrect legal standard to the maritime law of conversion, and failed to consider the claim for replevin.
OUTCOME:
The appellate court vacated the decision of the district court and remanded the matter for further proceedings.
