Where A Putative Owner Of A Vessel Entered Into A Demise Or Bareboat Charter Sufficient To Render Another Entity The Owner Pro Hac Vice Of The Vessel, It Was The Owner Pro Hac Vice That Is Liable For A Wage Penalty To A Seaman
TERRY J. WILLIAMS, Plaintiff-Appellant-Cross-Appellee, -v.-WILMINGTON TRUST COMPANY, Defendant-Appellee-Cross-Appellant, AMERICAN SHIP MANAGEMENT LLC, APL LIMITED, JIM LONDAGAN, Capt., NEPTUNE ORIENT LINES, LTD. And M/V APL KOREA, her engines, boilers, generators, tackle, equipment, apparel, appurtenances, etc. in rem, Defendant-Appellees
Docket Nos. 02-9452(L), 02-9455(XAP)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
345 F.3d 128; 2003 U.S. App. LEXIS 19931; 8 Wage & Hour Cas.2d (BNA) 1882
August 25, 2003, Argued
September 25, 2003, Decided
Plaintiff appeals from a judgment of the United States District Court for the Southern District of New York (Martin, J.) granting summary judgment on plaintiff’s claim for penalties under the seaman’s wage statutes, 46 U.S.C. §§ 10313, 10504 (2000). We affirm on the alternative ground that the defendant, the nominal owner of the vessel, had given over control and operation of the vessel to another entity, such that the defendant was not an “owner” as that term is used in the wage penalty statute.
Decision of magistrate judge in appeal number 02-9455 (XAP) reversed. Judgment of District Court in appeal number 02-9452(L) affirmed.
Plaintiff sailor alleged that he demanded and did not receive timely payment for his work aboard defendant vessel, and that defendant nominal owner was liable for the wage penalty under 46 U.S.C.S. §§ 10313, 10504. The owner moved to dismiss arguing that it was not an owner. The magistrate judge denied the motion. The United States District Court for the Southern District of New York granted the owner summary judgment. The parties appealed.
The district court accepted the owner’s argument its clerical errors fell within a statutory safe harbor for late payments having substantial cause. The instant court did not decide whether the owner’s argument, which was accepted by the district court, was correct. If the owner was not the master or owner, it was not liable for a wage penalty. The instant court found that where a putative owner of a vessel entered into a demise or bareboat charter sufficient to render another entity the owner pro hac vice of the vessel, it was the owner pro hac vice that was liable for a wage penalty. There was no real dispute that defendant management company was in complete and exclusive possession, command, and navigation of the vessel. There was no evidence that anyone other than the company took any action in response to notices, and the owner did not pay the mortgage bills it received. Therefore, any reasonable finder of fact would have had to conclude that the owner was not the owner of the vessel. The magistrate judge erred in determining that the owner was an owner subject to penalties under the seaman’s wage statutes. The owner was entitled to summary judgment on that basis.
The decision of the magistrate judge was reversed. The judgment of the district court was affirmed.
Commericial Diver Who Spent Only Five Percent Of His Time Working Aboard Vessels And Who Did Not Regularly Spend Days Or Weeks At A Time Working, Eating, Or Sleeping Aboard Vessels Was Not A Jones Act “Seaman”.
RICHARD LANDRY VERSUS SPECIALTY DIVING OF LOUISIANA, INC.
CIVIL ACTION NO. 02-1746 SECTION “K” (5)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2003 U.S. Dist. LEXIS 17586
September 25, 2003, Decided
September 26, 2003, Filed; September 26, 2003, Entered
Landry v. Specialty Diving of La., Inc., 2002 U.S. Dist. LEXIS 21483 (E.D. La., Nov. 4, 2002)
Defendant’s Motion for Summary Judgment GRANTED.
Plaintiff diver brought an admiralty suit against defendant employer to recover damages under the Jones Act and general maritime law for wrist injuries that were allegedly due to the employer’s negligence. The employer moved for summary judgment on the grounds that no genuine issue of material fact existed as to the diver’s alleged seaman status.
The diver claimed that he was injured while working above water from a small barge to restore a pile on a bridge. In granting summary judgment for the employer, the court held that the diver could not satisfy the second prong of the Chandris test for determining seaman status, which required the seaman’s connection to a vessel to be substantial in both duration (temporal prong) and nature (functional prong). The diver did not allege a substantial connection to a vessel or an identifiable group of vessels under defendant’s ownership and control. The diver worked only five percent of his time aboard vessels owned or controlled by the employer. This was not enough to satisfy the guideline that a worker who spent less than approximately 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman. An exception for divers did not apply because, unlike the plaintiff in the Louisiana case establishing the exception, the diver did not regularly spend days or weeks at a time working, eating, and sleeping on vessels, thus being exposed to the same hazards as other seamen. Further, he worked only 53 percent of his time aboard any sort of vessel.
The court granted the employer’s motion for summary judgment.
Cruise Ship Operator, Which Is A Common Carrier, Is Not Vicariously Liable For The Intentional Torts Of Crew Members Aboard Its Vessels Which Are Not Employees Of The Cruise Ship Operator But, Rather, Are Employees Of A Catering Company. Additionally, Catering Company, Which Is Not A Common Carrier, Is Not Vicariously Liable For The Intentional Torts Of Its Employees.
JANE DOE, Plaintiff, vs. CELEBRITY CRUISES, INC., et al., Defendants.
Case Number: 00-2523-CIV-MARTINEZ
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2003 U.S. Dist. LEXIS 17573
September 22, 2003, Decided
September 23, 2003, Filed
Doe v. Celebrity Cruises, 145 F. Supp. 2d 1337, 2001 U.S. Dist. LEXIS 8111 (S.D. Fla., 2001)
Defendants’ Motion for Judgment as Matter of Law GRANTED. Prior judgment VACATED and judgment ENTERED for Defendants.
Plaintiff passenger sued defendants, a cruise ship operator, a cruise ship owner, a catering company, and the ship, for damages associated with an alleged sexual assault by a crew member on the passenger. The matter went to trial and a jury found that the crew member committed a sexual battery on the passenger. Defendants filed a post-verdict motion for judgment as a matter of law.
The matter went to trial on the issue of strict liability against defendants for the alleged intentional torts by the crew member for intentional infliction of emotional distress, sexual assault, and sexual battery. The jury awarded the passenger one million dollars and attributed 25 percent of the responsibility to the cruise ship operator, the cruise ship owner, the catering company, and the ship. The court found that it was bound by the law of the case doctrine with regard to the judge’s opinion, and the opinion was not clear error. The court would not make credibility determinations regarding the passenger’s testimony and the jury could have reasonably found that the passenger was more credible than the crew member. However, there was an issue as to whether any defendant was a common carrier for purposes of vicarious liability for the intentional torts of the crew member. Only the cruise ship operator was a common carrier, but it was not the crew member’s employer. None of the other defendants were common carriers. As such no defendants could be held vicariously liable for the intentional torts of the crew member.
Defendants’ motion for judgment as a matter of law was granted. The judgment was vacated and judgment was entered in favor of defendants.
Where Seaman Who Was Injured On U.S. Naval Ships Sues Employer, Not Government Ship Owner, And Then Later Adds Government As A Defendant And Dismisses Employers After The Statute Of Limitations Had Run, Seaman’s Claims Against Government Are Dismissed.
EDWARD ARTHUR v. UNITED STATES OF AMERICA
CIVIL ACTION NO. 02-2931
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2003 U.S. Dist. LEXIS 18050
September 15, 2003, Decided
September 15, 2003, Filed; September 16, 2003, Entered
Arthur v. United States, 2003 U.S. Dist. LEXIS 15494 (E.D. Pa., Aug. 12, 2003)
Court’s Order of August 12, 2003 was vacated; Motions of defendant United States to dismiss claims of plaintiff was granted in part and denied in part.
Plaintiff seaman filed a complaint under the Jones Act, 46 U.S.C.S. § 688, and the Suits in Admiralty Act, 46 U.S.C.S. § 741 et seq., against defendant employers for injuries suffered on four United States Naval Ships. Defendant United States was added and the employers were dismissed. The government’s motion to dismiss, based on the limitations period of 46 U.S.C.S. § 745 and improper venue, was granted in part. Reconsideration was sought.
The seaman claimed negligence, unseaworthiness, and failure to pay maintenance and cure. On reconsideration, the court held § 745 was not jurisdictional. But, the seaman should have known that the last ship was a government ship when he was injured, when suit was filed, and as of a status conference over a month before the claim was time barred. The employers’ motions for summary judgment argued the only remedy was against the government. The motion to add the government was filed over three months after the limitations period had expired on the negligence and unseaworthiness claims, and almost three months after the summary judgment motion. Relation back under Fed. R. Civ. P. 15(c)(3)(B) was improper. All negligence and unseaworthy claims were barred. Maximum cure as to three of the injuries was reached more than two years prior to either filing suit or adding the government. The maintenance and cure claims for those injuries were barred. As further treatment was needed for the last injury, maximum cure for that injury had not been reached. That claim was not barred. The government had not timely submitted the last ship’s location, thus failing to show that venue was improper.
The prior order was vacated. The government’s motion to dismiss the claims for negligence and unseaworthiness was granted. The claims for maintenance and cure were also dismissed, except for the seaman’s claim for his injury on the last ship, which was viable only for the period beginning two years prior to the date of the filing of the motion to amend to add the government. The government’s motion to dismiss for improper venue was denied.
Ship’s Captain And Mates Have A Duty To Evaluate And Anticipate The Likelihood Of Problems Associated With The Landing On Shore Which Could Have Posed A Hazard For The Deckhands On Shore Trying To Retrieve The Heaving Line When Thrown From The Ship.
SEAN GEORGE VERSUS THE DELTA QUEEN STEAMBOAT CO.
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
2001-1902 (La.App. 4 Cir, 09/10/03);
854 So. 2d 476; 2003 La. App. LEXIS 2531
September 10, 2003, Decided
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 99-11572, DIVISION “C-6”. Honorable Roland L. Belsome, Judge.
Appellant deckhand was awarded damages under the Jones Act and general maritime law for the injuries suffered while he was employed by appellee steamboat company occasioned in the course and scope of his work while assisting in the mooring of the boat. The Civil District Court, Orleans Parish, Division “C-6” (Louisiana) awarded, inter alia, general damages of $450,000 and special damages of $797,889. The company appealed.
Although the trial court may have used the incorrect case law and articulated the negligence standard inartfully, the factual findings were more than adequate to support the lower court’s determination of negligence on the part of the company. The captain and mates had a duty to evaluate and anticipate the likelihood of problems associated with the landing; i.e., the possibility of mud being soft underneath, which could have posed a hazard for the deckhands on shore trying to retrieve the heaving line when thrown from the ship. An alternative method existed that would have been safer for the deckhands given the condition of the recently-dried mud on the bank, which information was readily available to the captain and mates of the vessel. The crew was familiar with the stage method in which a mooring line was walked down to shore. It seemed that the captain and mates might have opted for that method to avoid the possibility of injury to the deckhands if they got stuck in the riverbank mud. The deckhand had no comparative negligence; his actions were consistent with those of deckhands on shore retrieving heaving lines to secure the boat. The trial court committed no reversible error.
The judgment of the trial court was affirmed.