A passenger’s personal injury suit against a cruise line was dismissed due to a forum selection clause in the parties’ contract, limiting the passenger to federal court, because, inter alia, the clause did not violate 28 U.S.C.S. § 1333(1)’s saving to suitors clause or 46 U.S.C.S. § 30509, on maritime contract clauses purporting to limit liability.
Viktoriya Lischinskaya, appellant, v Carnival Corporation, d/b/a Carnival Cruise Lines, respondent, et al., defendants.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 7875; 2008 N.Y. App. Div. LEXIS 7666
October 14, 2008, Decided
Plaintiff passenger sued defendant cruise line in the Supreme Court, Kings County (New York), for personal injuries. The trial court granted the cruise line’s motion to dismiss, and the passenger appealed.
The trial court held the parties’ contract’s forum selection clause denied it subject matter jurisdiction. The appellate court held no fact issues barred finding the clause was enforceable because (1) the passenger could review the ticket containing the clause, (2) her consent to it was not due to fraud or overreaching, and (3) limiting the forum to the port of embarkation was not inconvenient. The clause did not violate 28 U.S.C.S. § 1333(1)’s savings to suitors clause because she could contract away the savings to suitors clause’s forum choice, nor did the forum selection clause violate 46 U.S.C.S. § 30509, as it allowed judicial resolution of claims and did not limit the cruise line’s negligence liability. The forum selection clause did not deny subject matter jurisdiction to a trial court competent to adjudicate maritime tort cases, so relief based on New York State rules regarding the inconvenience of the forum could be considered, but such relief was properly denied as dismissal was not discretionary, but due to enforcing the parties’ contract, so its impact on the passenger and whether fatality to her claims could be avoided were irrelevant, as the trial court could not grant such relief once it found the contract required dismissal.
The trial court’s judgment was affirmed.
Defendant helmsmen of racing sailboats were found to have violated navigational rules under 33 U.S.C.S. foll. § 1602 and both were at fault for failing to maintain a proper distance between sailboats, but plaintiff passenger, who was struck by a boom, was 40% at fault, and her damages for the loss of taste and smell were reduced accordingly.
JULIANNE MARIE EVANS, Plaintiff, v. NANTUCKET COMMUNITY SAILING, INC., a Massachusetts Corporation, RONAN O’SIOCHRU and DONNCHA KIELY, Defendants.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2008 U.S. Dist. LEXIS 85628
October 22, 2008, Decided
The action arose out of an accident during a sailboat race when defendant, racer I, at the helm of a sailboat, jibed the boat during the race causing the tip of the boom to strike plaintiff, a passenger in a nearby sailboat with defendant, racer II, at the helm. Plaintiff sued both defendants for negligence under maritime law in causing her injury. Defendants claimed that plaintiff was comparatively negligent. The case was tried to the bench.
The court accepted the testimony of a physician who gave specific tests relative to the nature and depth of plaintiff’s injury–the loss of taste and smell. The court was convinced that the loss was proximately caused by the accident and not by plaintiff’s hypothyroidism. As for the parties’ negligence, racer I’s conduct in undertaking a jibe and misjudging the distance between the boom and plaintiff amounted to negligence contrary to 33 U.S.C.S. foll. 30 R. 17. Racer II was negligent by failing to take early or substantial action to avoid a collision contrary to 33 U.S.C.S. foll. 30 R. 16. Both defendants were at fault for failing to maintain a proper distance between the sailboats. Plaintiff was at fault for not paying attention; if she had acted with reasonable care, she would have seen the boom and moved in time to avoid it hitting her neck. Fault was apportioned as follows: racer II, 35 %; racer I, 25%; and plaintiff, 40%. Damages totaling $ 150,000 adequately and fully compensated plaintiff for her loss of taste and smell. The court was not persuaded that the activities and substitution of trial counsel warranted a denial of prejudgment interest.
The court found in favor of plaintiff on the negligence claim in the amount of $ 90,000, or 60% of the $ 150,000 total. The court also awarded plaintiff prejudgment interest at the rate of 12% per annum which yielded an award of $ 15,111.
Evidence was sufficient to support an award for a former seaman under 46 U.S.C.S. § 30104 of the Jones Act based on a failure to remove unruly crew members from a vessel when the seaman was charged with assuming the role of captain. The seaman was violently assaulted by the crew on his first day as captain of the vessel.
RIGDON MARINE CORPORATION, Appellant v. BOBBY ROBERTS, JR., Appellee
COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA
2008 Tex. App. LEXIS 7576
October 7, 2008, Decided
Appellant former employer challenged a decision from the 273rd Judicial District Court, San Augustine County, Texas, which entered judgment in favor of appellee seaman in a case alleging a violation of the Jones Act under 46 U.S.C.S. § 30104 and unseaworthiness. The damages awarded were also challenged.
During the seaman’s first day as captain of another ship, he was brutally assaulted. Two days passed before a doctor was made available to assess the seaman’s injuries. In a subsequent action brought against the employer, the seaman prevailed. This appeal followed. In affirming, the appellate court held that the trial court did not err by refusing to submit the employer’s proposed instructions. The trial court could have found that one proposed instruction did not assist the jury because it did not address the seaman’s direct liability theory; moreover, the instruction improperly stated that the employer was not liable unless the assault was foreseeable. This was not required under a vicarious liability theory. Another proposed instruction omitted that an attack with a dangerous weapon was an unordinary attack that rendered a ship unseaworthy. There was sufficient evidence presented to support the jury’s findings regarding the employer’s liability under the Jones Act based on a failure to remove unruly crew members and a breach of the employer’s warranty of seaworthiness. Finally, there was sufficient evidence to support a lost future earning capacity award of $ 1,150,000.
The decision was affirmed.
Under Bahamian law, there were disputed issues of material fact whether a resort adequately warned a swimmer, who was a licensee of the resort and who was struck by a motorboat in the ocean, not to swim outside the buoys and whether the swimmer was inside the resort’s sphere of control.
COLIN CAMPBELL, Plaintiff, v. STARWOOD HOTELS & RESORTS WORLDWIDE, INC., et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2008 U.S. Dist. LEXIS 81121
October 14, 2008, Decided
Plaintiff swimmer, who sustained personal injuries at the resort, brought a negligence suit against defendant Bahamian resort, alleging that the resort failed to provide a safe swimming area, failed to warn of a dangerous condition, and was vicariously negligent for the acts of a motorboat company. The resort filed a motion for summary judgment, under Fed. R. Civ. P. 56(c). The guest opposed the motion for summary judgment.
The swimmer was struck by a motorboat that was providing water sports activities to the guests of the resort and to the general public. The swimmer was in the water past the buoys and was not a registered guest of the resort. The resort argued that Bahamian law applied, and the swimmer argued that United States maritime law applied. The court held that, although the locality test for admiralty jurisdiction was satisfied because the swimmer was struck by a vessel in navigable waters, the incident did not impact maritime commerce. However, the court had diversity jurisdiction, under 28 U.S.C.S. § 1332. Bahamian law applied because the Bahamas was where the injury occurred and where the parties’ relationship was centered. Under Bahamian law, the resort had a duty to warn the swimmer, as a licensee of the resort, of known and concealed dangers. Whether the swimmer was adequately warned not to swim outside the buoys and whether the swimmer was inside the resort’s sphere of control were disputed issues of material fact. The court also held that the resort could not be held vicariously liable for the actions of the motorboat company.
The court granted the resort’s motion for summary judgment with respect to the swimmer’s claim of vicarious liability. The court denied the resort’s motion for summary judgment with respect to the swimmer’s claims of direct negligence based on the resort’s alleged breach of duty.