Ninth Circuit holds that cruise line limitation of liability clause printed within passenger ticket, attempting to limit liability to the terms set forth in the Athens Convention, did not reasonably communicate a liability limitation and was therefore not enforceable.

BOBBIE JO WALLIS, in her individual capacity as Administrator of the Estate and Personal Representative of Joel Anderson Wallis, Deceased, for the benefit of Ervin B. Wallis, Helen Wallis, Joel Shannon Wallis, Stacy Trent Wallis, Jolie Amanda Wallis and Vallie Jo Wallis, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; FAIRLANE SHIPPING INTERNATIONAL CORPORATION, LTD.; PRINCESS CRUISE LINES, LTD., Defendants-Appellees.

No. 01-56700
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. LEXIS 20097; 2002 Cal. Daily Op. Service9829; 2002 Daily Journal DAR 11080
June 5, 2002, Argued and Submitted, Pasadena, California
September 24, 2002, Filed

PRIOR HISTORY:

Appeal from the United States District Court for the Central District of California. D.C. No. CV-00-07239-WJR. William J. Rea, District Judge, Presiding.

DISPOSITION:

Reversed in part, affirmed in part and remanded for further proceedings.

PROCEDURAL POSTURE:

Plaintiff, spouse of deceased passenger, appealed from an order of the United States District Court for the Central District of California granting defendants’, cruise line and related parties, summary judgment, except for the spouse’s Death on the High Seas Act (DOHSA), 46 U.S.C.S. §§ 761-767, claim, and limiting the cruise line’s liability in accordance with a clause printed on the back of the passenger’s ticket.

OVERVIEW:

The spouse brought an action against the cruise line for damages based on the death of her husband, who drowned off the coast of Greece after falling in an undetermined manner from the cruise line’s cruise ship. Upon review of the district court granted the cruise line’s motions for summary judgment, the court of appeals reversed the grant of partial summary judgment limiting recoverable damages, and held that a contract clause printed on a passenger’s that merely refers to the “Convention Relating to the Carriage of Passengers and Their Luggage by Sea’ of 1976 (Athens Convention)” does not reasonably communicate a liability limitation. Notably the court determined that it was unrealistic to assume the average passenger with no legal background would even attempt to analyze the conditions under which the Athens Convention would or would not apply. Further the court found that even if a passenger was motivated to undertake such effort, it would require some legal and financial sophistication, and that the ticket’s failure to provide an approximate monetary limitation did not meaningfully inform a passenger of a liability limitation, and was therefore unenforceable.

OUTCOME:

The district court’s grant of partial summary judgment limiting the cruise lines’ liability was reversed, and the district court’s grant of summary judgment in favor of the cruise line on the claim for intentional infliction of emotional distress was affirmed, and the case was remanded for further proceedings.

————————————–//—————————————-

Floating Fish Processing Factory which traveled between Seattle and Alaska twice each year is held to be a vessel in navigation for purpose of determining whether injured Fish Processing Factory worker was a Jones Act Seaman despite it being moored at the time of, and for several months prior to, the injury.

ARTHUR MARTINEZ, Plaintiff-Appellant, v. SIGNATURE SEA FOODS INC; LUCKY BUCK F/V, Official # 567411, her machinery, appurtenances, equipment and cargo, in rem, Defendants-Appellees.

No. 01-35768
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
303 F.3d 1132; 2002 U.S. App. LEXIS 18648; 2002 Cal. Daily Op. Service 9360; 2002 Daily Journal DAR 10500
July 8, 2002, Submitted
September 11, 2002, Filed

PRIOR HISTORY:

Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-00-01293-MJP. Marsha J. Pechman, District Judge, Presiding. Martinez v. Signature Seafoods, Inc., 170 F. Supp. 2d 1070, 2001 U.S. Dist. LEXIS 17889 (W.D. Wash. 2001).

DISPOSITION:

Reversed and remanded.

PROCEDURAL POSTURE:

In the course of his employment on a fish processing barge, plaintiff employee developed carpal tunnel syndrome. The employee filed a personal injury action, raising claims under the Jones Act and the federal maritime doctrine of unseaworthiness. Defendants moved for summary judgment. The United States District Court for the Western District of Washington granted the motion, finding that the employee lacked seaman status. The employee appealed.

OVERVIEW:

While also a fish processing factory, the vessel at issue was actually seaworthy. Specifically, the vessel was not permanently moored, and it had the ability to navigate the seas. The vessel had a transportation function, as it carried the fish processing plant, crew quarters, and incidental supplies between Seattle and Alaska twice each year. Even if the transportation function of the vessel was incidental to its primary purpose of serving as a floating fish processing factory, that fact did not preclude a finding that it was a vessel in navigation. Further, there was evidence that the barge was designed as a fish processing vessel which operated in and processes fish on the coasts of Alaska, Washington, Oregon, and/or California. The fact that it was designed to be transported among various fish processing sites raised a substantial factual issue about its status.

OUTCOME:

The judgment of the district court was reversed and the action was remanded for further proceedings.

————————————–//—————————————-

Summary Judgment for seaman’s employer reversed where injured seaman failed to disclose prior back injury which occurred shortly before he began working for employer but where injured seaman presented sufficient evidence to create a fact issue about whether the employer would hired him if he had fully disclosed the medical facts of his back injuries and that there was a shortage of available workers aboard the vessel.

Robert N. Britton, Appellant, v. U.S.S. Great Lakes Fleet, Inc., Appellee.

No. 01-3567
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
302 F.3d 812; 2002 U.S. App. LEXIS 18437
June 10, 2002, Submitted
September 9, 2002, Filed

PRIOR HISTORY:

Appeal from the United States District Court for the District of Minnesota. Britton v. U.S.S. Great Lakes Fleet, Inc., 2001 U.S. Dist. LEXIS 17804 (D. Minn. Oct. 15, 2001).

DISPOSITION:

Reversed and remanded.

PROCEDURAL POSTURE:

In a maritime law case, plaintiff deckhand sued defendant employer, seeking recovery of maintenance and cure, and damages for negligence under the Jones Act and for unseaworthiness. The United States District Court for the District of Minnesota granted summary judgment in favor of the employer. The deckhand appealed.

OVERVIEW:

The district court held that (1) the deckhand’s failure to disclose to the employer a back injury the deckhand had suffered shortly before he began working for the employer precluded the deckhand from obtaining maintenance and cure; (2) the deckhand’s testimony about the number of available hands on deck at the time of his injury was insufficient to create an issue of material fact regarding his Jones Act and unseaworthiness claims; and (3) the deckhand failed to present evidence that the doctors who treated him committed malpractice. The appeals court disagreed. The deckhand presented sufficient evidence to create a fact issue about whether the employer would hired him if he had fully disclosed the medical facts of his back injuries. The deckhand’s testimony that a shortage of deckhands required him to perform work that was too strenuous for one person to manage, aggravating his back injury, was sufficient to create a material fact dispute regarding both his Jones Act and his unseaworthiness claims. Finally, the deckhand produced sufficient evidence to create an issue of material fact to allow his negligent assignment claim to survive summary judgment and proceed before a jury.

OUTCOME:

The court reversed the district court’s summary judgment and remanded the case for further proceedings.

————————————–//—————————————-

Seaman who failed to report injury aboard vessel still entitled to maintain claim of Jones Act negligence; however, seaman’s claim of emotional distress due to harassment without physical manifestation of those emotional injuries was dismissed.

KIM E. GARDNER VERSUS WATERMAN STEAMSHIP CORP.

CIVIL ACTION NO: 01-3224 SECTION: “J”(5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2002 U.S. Dist. LEXIS 17929
September 20, 2002, Decided
September 23, 2002, Filed; September 23, 2002, Entered

DISPOSITION:

Defendant’s motion for summary judgment granted in part. Plaintiff’s Jones Act claim for emotional injuries suffered as result of harassment dismissed.

PROCEDURAL POSTURE:

Plaintiff seaman’s complaint, brought under the Jones Act and General Maritime Law, alleged that she suffered emotional injuries as a result of harassment by her supervisor and co-employees, and a physical injury as the result of a slip and fall on the deck of defendant’s vessel, while working for the defendant owner. The seaman also sought maintenance and cure. The owner moved for summary judgment.

OVERVIEW:

The owner moved for summary judgment based on two arguments: (1) the seaman had failed to present any evidence of physical injury while working aboard the vessel; and (2) the seaman was not entitled to maintenance and cure because she intentionally concealed the fact that she was taking certain medications from her employer. While the court noted that the seaman’s deposition testimony that she was injured might not be overwhelming to a jury or translate into huge damages, it did represent a material fact issue which precluded summary judgment on the question whether the seaman suffered a physical injury as a result of a slip and fall on defendant’s vessel. The court further held that absent evidence of a physical manifestation of her emotional injuries the seaman could not recover under the Jones Act for damages due to harassment on the vessel. Accordingly, her Jones Act claim for compensatory damages for harassment was dismissed. Lastly, the court did not find that there was any intentional concealment or misrepresentation by the seaman as to the medication she was taking, and thus the owner had failed to satisfy the requirements of McCorpen to deny her maintenance and cure.

OUTCOME:

The vessel owner’s motion for summary judgment was granted in part. The seaman’s Jones Act claim for emotional injuries suffered as a result of harassment was dismissed. The motion was denied in all other respects.

————————————–//—————————————-

Summary Judgment granted against Seaman’s claim for Jones Act Negligence and Unseaworthiness where Seaman failed to respond to employer’s statement of uncontested facts which constituted an admission which negated the underlying alleged negligent and unseaworthy condition.

PETER AUKSTUOLIS, Plaintiff, v. HARRAH’S ILLINOIS CORP.,d/b/a HARRAH’S CASINO-JOLIET, Defendant.

Case Number: 99c3593
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2002 U.S. Dist. LEXIS 16680
September 3, 2002, Decided
September 5, 2002, Docketed

DISPOSITION:

Defendant’s Motion for Summary Judgment GRANTED.

PROCEDURAL POSTURE:

Plaintiff employee filed suit under the Jones Act, 46 U.S.C.S. app. § 688, and general maritime and admiralty laws against defendant employer to recover for an injury he sustained during his employment on board the employer’s gaming vessel. The employer moved for summary judgment.

OVERVIEW:

The crux of the employee’s allegation was that the straight-line configuration of the slot machines on the employer’s ship did not provide employees with adequate space to access the reserve compartment. However, by failing to respond to the employer’s supplemental U.S. Dist. Ct., N.D. Ill., R. 56.1 statement of uncontested facts, the employee admitted that the straight-line configuration of the machines had always offered adequate space for employees to access and service the inner workings of the machines. Thus, the employee’s willing or unwitting admission was equivalent to a withdrawal of his allegation that the employer was negligent. The employee’s allegation of the employer’s failure to maintain a seaworthy vessel was based on the same evidence used to support his allegation of the employer’s negligence under the Jones Act. Therefore, given the employee’s self-defeating admission, the court held that the evidence presented by the employee was insufficient to show that a reasonable jury could find that the employer’s vessel was unseaworthy.

OUTCOME:

The motion for summary judgment was granted.