CARNIVAL CREWMEMBER COMPELLED TO ARBITRATE HIS JONES ACT CLAIMS UNDER BERMUDA LAW IN BERMUDA.
Aleixo ESTIBEIRO, Plaintiff, v. CARNIVAL CORPORATION, Defendant.
Only the Westlaw citation is currently available. United States District Court, S.D. Florida.
Oct. 3, 2012.
PROCEDURAL POSTURE:
THIS MATTER came before the Court upon Defendant’s Motion to Compel Arbitration and Plaintiff’s Motion to Remand.
OVERVIEW:
Plaintiff Aleixo Estibeiro, an Indian seaman, sued Carnival Corporation for damage to his heart muscle sustained as a result of an alleged failure to administer medication in a timely manner after Plaintiff suffered a heart attack while working on Carnival’s cruise ship. Carnival seeks to compel arbitration of Plaintiff’s claims in Bermuda under Bermuda law pursuant to an arbitration clause contained in Plaintiff’s Terms and Conditions of Employment. Upon review, the district Court granted Carnival’s Motion to Compel Arbitration and denied Plaintiff’s Motion to Remand. District court held that Plaintiff’s defense that the arbitration clause is void as against public policy is not available at the arbitration enforcement stage, but instead must be asserted after Plaintiff has obtained an arbitral award. Moreover, the court held that even if Plaintiff could assert the public policy defense now, at the enforcement stage, he has failed to make a showing that his remedies under Bermuda law are inadequate. Further, Plaintiff’s defense that the arbitration clause is unconscionable is not a recognized defense so as to render the agreement to arbitrate null and void.
OUTCOME:
District Court granted the Motion to Compel Arbitration and Denied the Motion to Remand.
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CRUISE SHIP SPA CONCESSIONAIRE STEINER’S EXCESS LIABILITY INSURER SOUGHT CONTRIBUTION AND/OR INDEMNITY FROM NCL AFTER A $9.48 MILLION DOLLAR JURY VERDICT, BUT DISTRICT COURT GRANTED SUMMARY JUDGMENT IN FAVOR OF NCL BASED ON CONCESSIONAIRE AGREEMENT WHICH EXPRESSLY BARRED SUCH CONTRIBUTION AND INDEMNITY CLAIMS.
ARCH INSURANCE COMPANY and Navigators Management (UK) Ltd., Plaintiffs, v. NCL (BAHAMAS), LTD. d/b/a Norwegian Cruise Line, Defendant.
United States District Court, S.D. Florida.
Oct. 15, 2012.
PROCEDURAL POSTURE:
THIS MATTER came before the Court upon Defendant’s Amended Motion for Summary Judgment.
OVERVIEW:
Plaintiffs, who are the excess liability insurers for a concessionaire that provides spa services on NCL cruise ships, seek contribution and/or indemnity from NCL for maintenance and cure paid to the concessionaire’s employee for injuries he sustained while working on an NCL ship. Steiner Trans–Ocean, Ltd., Plaintiffs’ insured, operated a spa aboard Defendant NCL’s cruise ship, the Norwegian Crown. On February 22, 2006, Danny Simpson, a fitness instructor employed by Steiner, sustained personal injuries when he slipped and fell on a wet floor on the Norwegian Crown. At the time of Simpson’s accident, the relationship between Steiner and NCL, including the parties’ obligations to Steiner’s employees, was governed by the Amended and Restated Concession Agreement which provided that Steiner must maintain the space it uses in a clean, orderly, and sanitary condition. However, the Agreement also provides that NCL is responsible for sweeping and polishing the floors. After his accident, Simpson sued Steiner and NCL in Florida state court to recover for the injuries he suffered. Prior to trial, Steiner settled the maintenance and cure claims against it. Less than three months after Steiner settled, and before the trial began, NCL reached its own settlement agreement and received a general release from Simpson. Subsequently, the case proceeded to a jury trial on Simpson’s remaining, unsettled claims for Jones Act negligence and unseaworthiness against Steiner. The jury then returned a verdict finding that Steiner was negligent and awarded Simpson $9,486,000 in damages. Thereafter, Plaintiffs and sued NCL for, among other things, indemnity and/or contribution for Maintenance and Cure and Personal Injury for damages paid to Simpson on behalf of Steiner. The Court granted NCL’s Motion for Summary Judgment because the agreement that governs the relationship between the concessionaire and NCL contains a provision that bars Plaintiffs from seeking contribution and/or indemnity from NCL for maintenance and cure paid to the concessionaire’s employee.
OUTCOME:
Defendant’s Motion for Summary Judgment was granted.
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ELEVENTH CIRCUIT COURT OF APPEALS AFFIRMED ENTRY OF SUMMARY JUDGMENT FINDING THAT A PLAINTIFF WAS NOT A SEAMEN UNDER THE JONES ACT WHERE HE SPENT LESS THAN TEN PERCENT OF HIS TIME PERFORMING JONES ACT WORK
William CLARK, Plaintiff–Counter Defendant, Appellant. v. AMERICAN MARINE & SALVAGE, LLC, Defendant–Counter Claimant, Appellee.
United States Court of Appeals, Eleventh Circuit.
Oct. 23, 2012.
PROCEDURAL POSTURE:
District Court granted summary judgment in favor maritime employer based on finding that plaintiff was not a seamen under the Jones Act. This appeal followed.
OVERVIEW:
This appeal presents the issue whether an employee who performs a variety of tasks, including marine repairs, with most of his work on land, but other work on water, qualifies as a seaman under the Jones Act, 46 U.S.C. § 30104, and general maritime law. The district court ruled that William Clark was not a seaman and entered summary judgment in favor of American Marine. American Marine provides commercial diving, welding, and repair services to shipowners in Mobile, Alabama. In January 2010, Plaintiff was hired to operate the company office, respond to business calls, prepare invoices, and perform most of the diving, welding, and vessel repair work for the company. Clark also cut the grass outside the office occasionally, and he performed repairs on a work barge owned by American Marine. American Marine owned two vessels, the work barge and a dive boat, but Clark did not reside or work primarily on either vessel. Clark kept a diary between January 1, 2010, and May 15, 2010, in which he recorded his daily tasks, hours, and mileage. The entries in Clark’s diary establish that he worked 768.5 hours for American Marine, and that he spent 159 hours repairing the work barge. The entries in Clark’s diary also establish that he spent 35.5 hours on a dive boat performing commercial dive work and 34.5 hours on the work barge performing repairs on Nathan Friedlander’s dock. On March 11, 2010, Clark recorded that he injured his right elbow when he climbed on board a boat after resurfacing from a dive. Clark filed a complaint for unseaworthiness and maintenance and cure, and for negligence, under the Jones Act. American Marine moved for summary judgment and argued that Clark did not qualify as a seaman because he had not worked a substantial amount of time in the service of a vessel in navigation, and that the 159 hours that he spent repairing the work barge “did not take him to sea or expose him to the perils of the sea … [and] did not give him, in nature, a substantial connection to a vessel in navigation.” The district court concluded that Clark did not qualify as a seaman because he “spent only 9.1 [percent] of his time performing Jones Act work.” Because the record established that Clark’s work had no substantial connection to a vessel in navigation, the Appellate Court affirmed.
OUTCOME:
Affirmed.
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IN SLIP AND FALL INCIDENT ONBOARD CARNIVAL VESSEL, DISTRICT COURT GRANTED SUMMARY JUDGMENT IN FAVOR OF CRUISE LINE WHERE PLAINTIFF FAILED TO PROVE ACTUAL OR CONSTRUCTIVE NOTICE OF ANY TRANSITORY SUBSTANCE IN THE LOCATION OF THE INCIDENT.
Dennis M. WEINER, Plaintiff, v. CARNIVAL CRUISE LINES, Defendant.
United States District Court, S.D. Florida.
Oct. 22, 2012.
PROCEDURAL POSTURE:
This matter came before the Court on the Defendant’s Revised Motion for Summary Judgment.
OVERVIEW:
In August 2010, the Plaintiff, Dennis Weiner, was a passenger aboard Carnival Valor. On or about August 16, 2010, Weiner and his wife were taking a walk along the promenade deck of the Valor, near the Java Cafe coffee shop, when Weiner, who was wearing flip flops, slipped but did not fall. Weiner allegedly sustained injuries to his right foot and Achilles tendon when he slipped. This accident, and Weiner’s resultant injury, was allegedly caused by the presence of a “foreign substance” on the tile floor. According to Weiner’s wife, however, “if there was a liquid on the floor right there, you could not have seen it, because [the floor] was shiny.” Although Weiner described in deposition that his foot “hydroplaned” and that his “flip-flop slipped on something,” no water or other liquid substance was found by him, his wife, or any crew member aboard the ship in the moments immediately after the accident. Weiner concedes that he did not notice any “foreign substance” on the floor before the accident occurred or in the moments immediately after he slipped. Weiner immediately after the accident was unable to identify any “foreign substance” or liquid on the floor in the area where he slipped, even after she and Weiner’s wife checked the floor together. Nor was anything observed on the floor by the crew member manning the coffee bar adjacent to where Weiner’s accident occurred. Carnival states that its crew members routinely, and on a regular basis, observed and inspected the subject area, and Weiner has offered no evidence to rebut this claim. The Court held that Carnival is entitled to summary judgment because Weiner has failed to adduce any evidence that Carnival had actual or constructive notice of the alleged “foreign substance,” or wet spot, on the promenade deck’s tile flooring. Absent such, the court held Carnival cannot be held liable for Weiner’s injuries because Weiner failed to create an issue of fact as to whether Carnival had a duty to warn of a dangerous condition.
OUTCOME:
Summary Judgment was granted in Defendant Carnival’s favor
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WHERE CRUISE SHIP PASSENGER BECAME PARALYZED WHILE ON A SHORE EXCURSION IN MEXICO, DISTRICT COURT DENIED MEXICAN DEFENDANTS’ MOTIONS TO DISMISS FOR FORUM NON CONVENIENS AND LACK OF PERSONAL JURISDICTION.
Michael BELIK, Plaintiff, v. CARLSON TRAVEL GROUP, INC. d/b/a Singlescruise.com, et al., Defendants.
United States District Court, S.D. Florida, Miami Division.
Oct. 1, 2012.
PROCEDURAL POSTURE:
THIS CAUSE came before the Court on several foreign Defendants Combined Motion to Dismiss the Plaintiff’s Complaint Pursuant to the Forum Non Conveniens Doctrine and Motion to Dismiss for Lack of Personal Jurisdiction. These Defendants moved to dismiss the Complaint based on the doctrine of forum non conveniens. They argue: (1) United States maritime law does not apply to Plaintiff’s claims against them; and (2) Mexico would be a more appropriate venue for the litigation against them.
OVERVIEW:
Plaintiff Belik is a New York resident who took a cruise upon Carnival Cruise Lines’ ship Valor in April 2010. Belik purchased his ticket for the cruise from Carnival’s agents, the SinglesCruise Defendants, which contract with Carnival to funnel passengers to Carnival. The SinglesCruise Defendants marketed and sold to Belik a port-of-call excursion in Cozumel, Mexico known as the “Cozumel Beach Party!” The event, which was held at the Señor Frogs Restaurant in the port of Cozumel within sight of the Valor, Party!” was promoted to include a rooftop waterslide directly into the ocean, with “plenty of music and drinks to keep us partying the day away!” On April 9, 2010, Belik dove into the water from the seawall on numerous occasions, and on his final dive, hit his head on the ocean floor, resulting in tetraplegia. Utilizing various negligence theories, Plaintiff filed suit against the cruise line and several foreign defendants, based in Mexico, who moved to dismiss the matter for lack of personal jurisdiction and forum non conveniens. The district court noted that it is well established that a case shall not be dismissed on forum non conveniens grounds if, in a case brought under the Court’s admiralty jurisdiction, United States maritime law is applicable. See Szumlicz v. Norwegian Am. Line, Inc., 698 F.2d 1192, 1195 (11th Cir.1983). The Court found that admiralty jurisdiction applied and also found that Defendants failed to satisfy their heavy burden in opposing plaintiff’s chosen forum.
OUTCOME:
The district court denied Defendants Motion.
