September 2000 Issue

SEAMAN ORDERED TO WATCH VIDEO SHOWING WOMEN HAVING SEX WITH ANIMALS MAY BE ENTITLED TO MAINTENANCE AND CURE EVEN THOUGH SEAMAN MAY HAVE LIED ON PRE EMPLOYMENT PHYSICAL ABOUT PRIOR PROBLEMS WITH ALCOHOLISM AND VENEREAL DISEASE AND EVEN THOUGH NO PHYSICAL INJURY. DENIAL OF SUMMARY JUDGMENT AFFIRMED.

West v. Midland Enterprises,Inc. and Motor Vessel W.H. Dickhoner

No. 99-5982
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2000 U.S. App. LEXIS 23198; 2000 FED App. 0321P (6th Cir.)
August 9, 2000, Argued
September 14, 2000, Decided
September 14, 2000, Filed

OVERVIEW:

In the present case, West claims that, while working on the M/V Dickhoner, he was ordered by the captain to watch a pornographic videotape. West further testified that as a result[*10] of watching this videotape, he suffered emotional problems and had to undergo mental health counseling. Because West’s deposition testimony makes out a prima facie case for maintenance and cure, the district court properly denied ORCO’s motion for summary judgment.

West concedes that he did not give a full accounting of his[*12] medical history on his employment application, he argues that his less-than-candid responses regarding his history with alcoholism and venereal disease are so distant in time and so unrelated to his present injury that they should not bar recovery.

The defense that a seaman knowingly concealed material medical information will not prevail unless there is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.

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STATE COURT LAW SUIT NOT SUFFICIENT NOTICE TO OWNER TO START 6 MONTH TIME PERIOD RUNNING FOR FILING LIMITATION OF LIABILITY ACTION WHERE THE WRONG VESSEL NAMED.

BILLIOT versus DOLPHIN SERVICES, INC.. In Re: In the Matter of: DOLPHIN SERVICES, INC., As Owner Pro Hac Vice/Operator of the Spud Barge

No. 99 31009
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2000 U.S. App. LEXIS 21424
August 24, 2000, Decided

OVERVIEW:
Judgment vacated and case remanded because appellee’s original state court petition was not a sufficient written notice of claim since appellee had identified wrong vessel and had rejected appellants’ attempts to advise him of error until after time period for filing liability limitation action had passed.

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COMPLAINT THAT IS BROUGHT UNDER DIVERSITY AND THAT ASKS FOR JURY TRIAL AND ALSO STATES THAT IT IS AN ADMIRALTY AND MARITIME CLAIM IS PROPERLY IN ADMIRALTY AND REQUEST FOR JURY TRIAL CAN BE WITHDRAWN.

IN RE GRAHAM OFFSHORE, ETC.

CIVIL ACTION NO. 98-724 C/W 99-2951 SECTION: “J”(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 13173
September 5, 2000, Decided
September 6, 2000, Filed
September 6, 2000, Entered

OVERVIEW:

While it is certainly preferable to clearly and unambiguously invoke Rule 9(h), such express invocation is not necessary as long as the complaint contains a simple statement identifying the claim as an admiralty or maritime claim. Id. If such a statement is in the complaint, the plaintiff has sufficiently designated her claim so as to invoke[*7] the Admiralty side of the Court. Id. This is true even though plaintiff may at the same time request a jury trial

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MARINE EXPERT WITNESS TESTIMONY ALLOWED.

WILLIAMS. VERSUS McCALL’S BOAT RENTALS, INC

CIVIL ACTION NO. 99-1769 SECTION “T” (4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 12073
August 11, 2000, Decided
August 14, 2000, Filed
August 15, 2000, Entered

OVERVIEW:

The Plaintiffs wish to call Mr. Key, a marine expert, to testify on the duties and obligations of a crew boat captain, factors to consider before making a voyage, as well as the allegedly negligent decisions made by McCall’s captain. n1 McCall’s wants to exclude Mr. Key’s testimony on the basis that it will not benefit the finder of fact.

Fed. R. Evid. 702. According to the Advisory Committee Notes to Fed. R. Evid. 702, “whether a situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier.” Sorcic v. Sea Horse Marine, Inc., 1998 U.S. Dist. LEXIS 8175, No. 97-2092, 1998 WL 175897, at[*6] *1 (E.D.La. May 29, 1998).

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EVIDENCE OF DISABILITY INSURANCE PAYMENTS NOT ALLOWED ON A JONES ACT AND UNSEAWORTHINESS CLAIM BY A NON UNION SEAMAN EVEN THOUGH POLICY PURCHASED BY THE JONES ACT EMPLOYER.

JOSEPH VERSUS RIVER PARISHES CO., INC.

CIVIL ACTION NO. 00-0180 SECTION “A”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 11788
August 9, 2000, Decided
August 9, 2000, Filed, Entered

OVERVIEW:

Plaintiff’s left hand was crushed while making repairs onboard defendant’s ship, and he brought suit under the Jones Act, 46 U.S.C.S. § 588. Defendant moved for a partial summary judgment determination that disability insurance payments made to plaintiff as a result of the injury should be set-off against plaintiff’s prospective jury award, to preclude double recovery by plaintiff. Defendant argued that the disability insurance had been purchased to defray its potential liability. Plaintiff argued that the disability plan was a fringe benefit that contained no language indicating benefits pursuant to the disability plan should off set potential liability. The court held the policy generally fell under the collateral source rule, and evidence of the benefits could erroneously be used by a jury to reduce plaintiff’s recovery. Set-off was denied, based on policy language. The court also noted that the policy specifically contemplated a deduction for an award of maintenance, and reserved that issue for argument.

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ISSUE OF FACT WHETHER COCKTAIL SERVER AND BARTENDER ON A RIVERBOAT CASINO WAS A SEAMAN.

LARA v. HARVEYS IOWA MANAGEMENT CO., INC.

1-98-CV-90058
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA, WESTERN DIVISION
2000 U.S. Dist. LEXIS 11722
August 8, 2000, Filed

OVERVIEW:

Defendant riverboat casino sought summary judgment on plaintiff injured worker’s claims for damages under the Jones Act (Act), 46 U.S.C.S. § 688, asserting that plaintiff did not face the “perils of the sea” as a cocktail server and bartender, and thus was not a ” seaman” for purposes of the Act. The court found that there existed a genuine issue of material fact goingto plaintiff’s status as ” seaman. ” Given the representations made by defendant’s benefits representative, the fact that defendant’s return-to-work forms expressed its intention to treat plaintiff’s injury as falling within the Act, the fact that she was contributing to the function of the ship, the fact that the casino was a ” vessel in navigation,” and the fact that she spent most of her working hours on board the casino, a jury could have reasonably found that she was a maritime employee substantially connected in terms of duration and nature to a fully functioning gaming vessel.

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ADMIRALTY LAW GOVERNED EVEN THOUGH NOT PLED AS A BASIS FOR JURISDICTION.

KULESZA VS. SCOUT BOATS, INC.

CIVIL ACTION NO. 99-3488
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2000 U.S. Dist. LEXIS 11972
August 8, 2000, Decided

OVERVIEW:

The lawsuit arose out of a boating accident just off Shelter Island, New York. Shortly after third party defendants’ boat left a small harbor, plaintiff female lost her balance and was thrown out of the boat, along with the top of the chair she was gripping, which unexpectedly came off the post to which it was attached. Her arm was severed by the propeller. Plaintiffs initiated suit against several defendants. The jurisdictional basis for the complaint rested in diversity and all parties demanded a jury trial. Having reached the immediate pretrial phase of this litigation, the parties hit a stumbling block with respect to the applicable choice-of-law governing the dispute. Certain defendants asserted New York substantive law governed. Plaintiffs and defendant boat manufacturer sought the application of admiralty/maritime law, emphasizing that the basis of jurisdiction had no impact on the governing substantive law. The court followed the rule that, regardless of the basis of jurisdiction invoked by plaintiff, substantive admiralty law governed a dispute that fell within admiralty jurisdiction. The tort at issue undisputedly fell within that jurisdiction.

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SUMMARY JUDGMENT FOR DEFENDANT ON MAINTENANCE CURE DENIED EVEN THOUGH SEAMAN FAILED TO SUBMIT A RESPONSE.

RANDEAN HENRY VERSUS GULF DUMAR MARINE, INC.

CIVIL ACTION NO. 98-3497 SECTION “I” (3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2000 U.S. Dist. LEXIS 11786
August 4, 2000, Decided
August 4, 2000, Filed
August 7, 2000, Entered

OVERVIEW:

Plaintiff seaman failed to submit a response to the facts set forth in defendant ship owner’s motion for partial summary judgment; however, in the interest of justice, the court reviewed the record to determine whether defendant established a prima face case to entitle it to summary judgment. The court found that defendant failed to establish a prima facie case of maximum medical cure because the report from the physician was inconclusive and plaintiff’s lack of evidence to show that he had not reached maximum medical cure was immaterial. The court also found that the medical history form, on which plaintiff checked “no” for prior back injury but “yes” for prior surgeries and benefits, created a genuine issue of material fact about plaintiff’s intent to misrepresent or conceal precluding summary judgment on the basis of forfeiture.

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ACTION FOR DEATH OF SEAMAN TIME BARRED IF AT THE TIME OF THE SEAMAN’S DEATH HIS OWN CLAIM WOULD HAVE BEEN TIME BARRED.

METH v. A. H. BULL & CO.; ISTHMIAN LINES INCORPORATED; PENN SHIPPING COMPANY; VICTORY REAL ESTATE DEVELOPMENT CORPORATION, Successors-in-Interest to MT. VERNON TANKER COMPANY and MT. WASHINGTON TANKER COMPANY, C.A.

No. 99C-05-260
ASB SUPERIOR COURT OF DELAWARE, NEW CASTLE
2000 Del. Super. LEXIS 249
December 10, 1999, Submitted
August 21, 2000, Decided

OVERVIEW:

In 1992, plaintiffs’ decedent, a 61-year-old naval yard worker who smoked for 25 years before quitting 11 years before, was diagnosed with mesothelioma. He sued defendants, alleging the disease resulted from exposure to asbestos during his employment. The complaint was dismissed in 1994 for lack of jurisdiction. He died in 1996. In 1999, plaintiffs brought a wrongful death and survival action against defendants, for negligence and unseaworthiness, based on asbestos exposure. Defendants moved for partial summary judgment. The motion was granted, because plaintiffs’ claims were time-barred by the three-year statute of limitations under the Jones Act, 46 U.S.C.S. § 688, which incorporated the Federal Employer’s Liability Act, 45 U.S.C.S. § 51-60, and under the general maritime law statute of limitations, based on the claims having accrued in 1992 and thus having expired before decedent died.

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POEA AGREEMENT FOR PHILIPPINE SEAMAN DID NOT REQUIRE SUIT BE BROUGHT IN PHILIPPINES AND FORUM NON CONVENES DID NOT APPLY WHERE SEAMAN RECEIVED EXTENSIVE MEDICAL CARE IN THE U.S.

CELEBRITY CRUISES, INC., GALAXY CRUISE SERVICES, a division of CELEBRITY CATERING SERVICES PARTNERSHIP, and APOLLO SHIP CHANDLERS, INC., Appellants, vs. NOEL HITOSIS, Appellee.

CASE NOS. 3D00-769, 3D99-3051
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2000 Fla. App. LEXIS 11345
September 6, 2000, Opinion Filed

OVERVIEW:

Appellee’s employment form purported to vest the Philippines’ grievance machinery with exclusive jurisdiction over employment contract disputes. However, it also stated that “this procedure shall be without prejudice to any action that the parties may take before the appropriate authority.” The court held that the quoted clause permitted the pursuit of other remedies in other jurisdictions. Thus, it failed to mandate that the designated forum was the only forum in which appellee could seek relief. Accordingly, the clause was merely permissive. Because the clause did not limit the available for a, the trial court properly declined to dismiss the action based on the forum selection clause. The trial court also properly denied appellants’ forum non convenes dismissal motion because appellants were American companies with headquarters in Miami-Dade county; appellants provided extensive medical treatment to appellee in Miami; and that the medical witnesses were located in Miami.

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PUNITIVE DAMAGES AVAILABLE IN RELATION TO MAINTENANCE AND CURE CLAIM.

NURKIEWICZ v. VACATION BREAK U.S.A.,INC., RESORT YACHTS OF AMERICA, INC., and SERENITY YACHT CLUB, INC.

CASE NO. 4D99-3198
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
2000 Fla. App. LEXIS 11016
August 30, 2000, Opinion Filed

OVERVIEW:

The trial court granted summary judgment to defendants in plaintiff’s action alleging negligence and unseaworthiness under the Jones Act, 46 U.S.C.S. § 688, and for maintenance and cure. Plaintiff’s claims arose from an incident in which plaintiff injured his back while loading cases of soda into the galley of a ship. The court affirmed the grant of summary judgment on the negligence and unseaworthiness claims. The court found that the injury was entirely the fault of plaintiff. Plaintiff was captain of the vessel, and plaintiff made the decision to buy sodas in cases, to store them inside a hatch, and to load the cases two at a time. The court reversed the grant of summary judgment on the maintenance and cure claims. The court held that an employer was liable for both curative and palliative treatment until a seaman had reached maximum medical cure. The court found that defendants did not establish that the plaintiff had reached that stage, and accordingly there were material issues of fact on the issue of whether plaintiff was entitled to benefits. The court held that plaintiff was entitled make a claim for punitive damages in relation to the claim for maintenance and cure.