A district court’s grant of a preliminary injunction in favor of a marine construction worker that his employer immediately pay maintenance and cure benefits was vacated, and the case was remanded as the district court erred in concluding preliminarily that the worker would likely be successful in proving he was a seaman.

JOSEPH COLLICK v. WEEKS MARINE, INC.; HAZTEK INC.; EVANSTON INSURANCE COMPANY, Weeks Marine, Inc., Appellant

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
2010 U.S. App. LEXIS 21034

October 12, 2010, Filed

PROCEDURAL POSTURE:

Appellant employer sought judicial review of the United States District Court for the District of New Jersey’s grant of a preliminary injunction in favor of appellee, a marine construction worker. He was injured while working on the construction of a finger pier. The district court ordered the employer to immediately pay maintenance and cure benefits pending the outcome of trial.

OVERVIEW:

Prior to litigation, the employer was voluntarily paying benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA). 33 U.S.C.S. §§ 901-950. Once the worker filed suit, the employer discontinued paying the LHWCA benefits, stating that by filing a suit for maintenance and cure, the worker raised a question as to whether he was eligible to receive the LHWCA benefits. The worker failed to meet the burden required to qualify for a mandatory preliminary injunction because it could not be concluded that he met the first prong of the standard, namely, that he had shown a reasonable probability of success in his claim for maintenance and cure. For him to meet that prong, he had to demonstrate that he would most likely be able to prove he is, in fact, a seaman. The employer urged that his work was substantially related to the construction of the pier and unrelated to the mission of the barge. In light of the presence in the record of substantial facts on both sides of the argument, and particularly the relatively thin record evidence presented by the worker, the district court erred in concluding preliminarily that he would likely be successful in proving he was a seaman.

OUTCOME:

The district court’s order was vacated, and the case was remanded for the court to proceed to trial, forthwith, on the worker’s complaint.

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A shipowner was entitled to summary judgment in an action under the Jones Act, by an administratrix for the estate of a seaman because the harm suffered by the seaman was not foreseeable and the shipowner owed the seaman no duty to protect him from it.

Ina Dixon, Administratrix of the Estate of James A. Dixon, Jr. et al. v. The Bridgeport & Port Jefferson Steamboat Company
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN

2010 Conn. Super. LEXIS 2676

October 15, 2010, Decided

PROCEDURAL POSTURE:

Plaintiff, an administratrix for the estate of a seaman, filed a two-count complaint against defendant, a shipowner that employed the seaman, seeking recovery under the Jones Act, 46 U.S.C.S. § 30104, and for furnishing an unseaworthy vessel pursuant to general maritime law. The shipowner filed a motion for summary judgment on both counts.

OVERVIEW:

The decedent was employed as a purser and an able bodied seaman by the shipowner. Shortly after the seaman reported for duty, on-board emergency drills were called. At some point after the drills were completed, the decedent had a heart attack and died. With respect to the Jones Act claim, the shipowner argued the administratrix failed to produce any evidence showing an act or omission by which the shipowner breached a duty to the decedent. The shipowner also argued the administratrix failed to show an unseaworthy condition that caused injury to the decedent. The drills were the same ones the crew had performed many times before, the work was disbursed among multiple individuals, and the decedent showed no sign of illness. Consequently, the harm suffered was not foreseeable and the shipowner owed the decedent no duty to protect him from it. The administratrix failed to establish a genuine issue of material fact relating to the element of duty. Although the administratrix argued the ship was insufficiently equipped and, therefore, unseaworthy, she submitted no evidence showing that any of the alleged deficiencies were a factual or proximate cause of the decedent’s death.

OUTCOME:

The motion for summary judgment was granted.

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Lipcon, Margulies, Alsina & Winkleman, P.A. Successfully attached assets of foreign defendants which were located within the district. District court denied defendants motion to vacate process and held that payments owed under a time charter agreement were subject to maritime attachment under supplemental admiralty Rule B.

SYLVIA NELSON JOHNSON, as personal representative of the estate of decedent, EDWIN COOK, vs. LUZON STRAIT, et. al.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
Case No. 10-cv-22909.

October 21, 2010, decided

PROCEDURAL POSTURE:

Before the Court was Defendant’s Motion to Vacate Process of Maritime Attachment and Garnishment.

OVERVIEW:

Edwin Cook was a Costa Rican Longshoremen working in Port Limon in Costa Rica.  Cook died from injuries suffered while loading cargo on the M/V Luzon Strait. Decedent’s mother, as personal representative of the estate, alleged four defendants owned, operated, controlled and/or managed the vessel and are liable for Cook’s death.  Plaintiff filed suit as a Sieracki Seamen seeking damages under the Jones Act, unseaworthiness and the Death on the High Seas Act.  All four defendants moved to dismiss for forum non conveniens, and the shipowner and operator also moved to dismiss for lack of personal jurisdiction.  Defendant Shipowner Luzon Strait is a German based company.  Defendant ship operator Seatrade is a Netherlands Antillean Company.  At the time of Cook’s death, the vessel was under a time charter to Defendant Network Shipping, a Florida Corporation within the Del Monte family of corporations.  Defendant Del Monte Fresh is a Florida based Corporation also within the Del Monte family of corporations, which provides administrative services. The district court granted Defendants’ Luzon Strait and Seatrade’s Motion to Dismiss for lack of personal jurisdiction, but denied Defendants Del Monte and Network Shipping’s Motion to Dismiss for forum non conveniens.  Thereafter, Plaintiff filed a Supplemental Admiralty Rule B action seeking to attach the property of the dismissed foreign defendants which was located in the hands of Network Shipping.  Specifically, Plaintiff attached the proceeds payable pursuant to the time charter between Networking Shipping and Seatrade.  Defendants moved to vacate the process of attachment and argued Network Shipping was not in possession of any of Defendants’ assets at the time of service of the attachment, and that Plaintiffs were improperly attempting to avoid the district court’s previous dismissal of the foreign defendants. The district court disagreed with defendants and held the payments owed under the time charter agreement were subject to maritime attachment under Supplemental Rule B, and held that there was nothing improper about Plaintiff’s use of Rule B. As the Court stated: “The Court finds nothing improper in [Plaintiff] employing the tools provided her to seek relief.”

OUTCOME:

The district court denied Defendants Motion to Vacate Process of Maritime Attachment and Garnishment.

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Where a commercial fisherman’s foot was crushed, the judgment against the vessel owner under the Jones Act was proper because evidence regarding the ship’s safety problems was relevant, it was not plain error to allow counsel to suggest a specific damage amount, and the facts supported the damage award.

WOJCIECH BIELUNAS, Plaintiff, Appellee, v. F/V MISTY DAWN, INC., Defendant, Appellant.

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
621 F.3d 72; 2010 U.S. App. LEXIS 20855

October 8, 2010, Decided

PROCEDURAL POSTURE:

Plaintiff commercial fisherman sued defendant vessel owner, alleging Jones Act negligence, ship unseaworthiness, and a right to maintenance and cure. A jury returned a verdict in the fisherman’s favor. The United States District Court for the District of Massachusetts denied the owner’s motion for a new trial or a remittitur and entered judgment against the owner. The owner appealed.

OVERVIEW:

The fisherman was riding atop a closing hatch cover because the designated walkways were blocked, and his foot was crushed by the cover when he lost his balance. The jury returned a $ 2,775,000 verdict against the vessel owner but also found the fisherman 15% comparatively negligent, resulting in a $ 2,307,690 judgment in his favor. The appellate court determined that the district court did not abuse its discretion in admitting a staged photo of a deckhand sidling along a hatch ledge because it was relevant since it tended to make the vessel owner’s negligence and the ship’s unseaworthiness more probable. An expert’s testimony about safety problems on the ship was properly admitted because this evidence gave the jury a proper frame of reference for assessing the parties’ competing claims regarding whether a safe work place was provided and whether the ship was seaworthy. It was a mistake to allow counsel to suggest a specific damage amount, but it was not plain error, because there was no injustice given that the fisherman would live out his life in pain, deprived of his livelihood. The facts supported the district court’s decision not to pare down the award.

OUTCOME:

The appellate court affirmed the judgment in all respects.