TRIAL COURT CORRECTLY ENFORCED FORUM SELECTION CLAUSE IN CRUISE LINE’S CONTRACT BECAUSE IT SATISFIED BOTH PRONGS OF THE REASONABLE COMMUNICATIVENESS TEST: (1) PHYSICAL CHARACTERISTICS OF CONTRACT WERE CONSPICUOUS AND CLEAR; AND (2) CONTRACT EXPLICITLY AND UNAMBIGUOUSLY STATED WHERE LAWSUITS HAD TO BE FILED.
JACK OLTMAN, BERNICE OLTMAN, and SUSAN OLTMAN, Appellants, v. HOLLAND AMERICA LINE USA, INC., and HOLLAND AMERICA LINE, INC., Respondents.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2006 Wash. App. LEXIS 1956
September 11, 2006, Filed
During a cruise, appellants, a husband and his mother (passengers), contracted a gastrointestinal disease. They and appellant wife filed a lawsuit against respondent cruise line in King County Superior Court (Washington), alleging, inter alia, negligence, breach of contract, and fraud in the inducement. On summary judgment, the trial court dismissed the suit based on the forum selection clause in the cruise line’s contract. The family appealed.
OVERVIEW: The cruise line’s ticket required passengers to file lawsuits in the United States District Court for the Western District of Washington in Seattle within one year of injury. The passengers contended that Washington law governed the validity of the forum selection provision in the contract. The appellate court disagreed. Unlike Nunez, the passengers were not employees and were not covered by the Jones Act and because their injury occurred on board the cruise ship, it was a case in admiralty, and federal law governed the enforceability of the forum-selection clause. Applying the Wallis analysis, the appellate court held that the cruise line’s forum selection clause satisfied both prongs of the reasonable communicativeness test. First, the physical characteristics of the contract were conspicuous and clear. Second, the cruise ship contract explicitly and unambiguously stated where lawsuits had to be filed and meaningfully informed passengers of the terms and conditions of the contract. The passengers failed to meet their burden of showing under either a de novo or an abuse of discretion standard that the cruise line’s forum selection provision should not have been enforced.
The trial court’s dismissal of the lawsuit was affirmed.
WIFE DID NOT RAISE ISSUE OF MATERIAL FACT ON PROXIMATE CAUSE IN WRONGFUL DEATH CLAIM AS SHE FAILED TO PRODUCE MORE THAN A SCINTILLA OF EVIDENCE ON CAUSE-IN-FACT, AND TRIAL COURT CORRECTLY GRANTED COMPANY’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT.
SHEILA R. HICKS, Appellant v. CAPTAIN ELLIOTT’S PARTY BOATS, INC., Appellee
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2006 Tex. App. LEXIS 8193
September 19, 2006, Judgment Rendered
Texas District Court granted summary judgment in favor of appellee boating company on appellant wife’s negligence claim related to the death of her husband. The wife appealed.
The wife claimed that the trial court erred by granting the company’s traditional motion for summary judgment, granting the company’s no-evidence motion for summary judgment, and denying her motion for new trial. The appellate court found that the testimony of a captain and another passenger concerned the standard of care and the alleged breach of that standard. Most of the wife’s doctor’s testimony addressed the standard and breach. Such testimony was not evidence of proximate cause. At best, the doctor stated that the husband’s chances of survival would have been greatly increased. This fell short of presenting more than a scintilla of evidence that the captain and crew’s actions, or lack thereof, were the cause-in-fact of the husband’s death. The wife failed to meet her burden to raise an issue of material fact on the element of proximate cause. The trial court could not properly consider the doctor’s supplemental affidavit that was filed with the motion for new trial as it was not before the trial court at the time it granted summary judgment. The appellate court would not consider it on appeal.
The judgment was affirmed.
SUMMARY JUDGMENT FINDING THAT PLAINTIFFS’ DECEDENT WAS A JONES ACT SEAMAN AT THE TIME OF HIS DEATH WAS IMPROPERLY GRANTED BECAUSE THE MANUFACTURERS OF AN ANCHOR THAT ALLEGEDLY CAUSED THE DEATH HAD THE BURDEN OF PROOF ON SUMMARY JUDGMENT UNDER FED. R. CIV. P. 56 AS TO THEIR DEFENSE IN SEEKING LEGAL BENEFIT FROM A DETERMINATION OF DECEDENT’S STATUS.
ROY MUDRICK; CAROL MUDRICK, Plaintiffs-Appellants, VERSUS CROSS SERVICES INC.; CROSS LOGISTICS INC.; CROSS RENTALS INC.; SES BOATS INC., FORMERLY KNOWN AS CROSS EQUIPMENT LTD.; THE INVESTMENT GROUP INC., FORMERLY KNOWN AS CROSS EQUIPMENT INC.; CROSS ARMATURE AND ELECTRIC INC.; CROSS EQUIPMENT INC.; CROSS EQUIPMENT LTD., Defendants-Appellees.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2006 U.S. App. LEXIS 23805
September 19, 2006, Filed
Plaintiffs appealed a decision of the United States District Court for the Southern District of Texas, which granted summary judgment for defendant manufacturers in plaintiffs’ claims of wrongful death, negligence, and other claims alleging that a cable on the manufacturers’ stern anchor caused their son’s death while he was working on a barge. The district court found that the claim was barred because the decedent was a Jones Act seaman.
The district court found that survivors of a Jones Act seaman, such as plaintiffs, could not recover non-pecuniary damages from non-employer third parties. On review, the court vacated the summary judgment because the district court did not apply the correct legal standard governing summary judgment on an issue as to which the moving party, the manufacturers, bore the burden of proof. The manufacturers sought legal benefit from a determination that the decedent was a Jones Act seaman; thus, they bore the burden of proof on that issue, rather than plaintiffs. The district court provided sparse discussion of plaintiffs’ objections to the accuracy of the decedent’s timesheets and gave no explanation to support its determination that, under the circumstances of the case, the percentage of time the decedent spent working in connection with a vessel was enough to establish conclusively his status as a seaman.
The court vacated the summary judgment and remanded for reconsideration.
EMPLOYER WAS AWARDED SUMMARY JUDGMENT ON CLAIM FOR LOSS OF FUTURE WAGE EARNING CAPACITY CLAIM UNDER 46 U.S.C.S. APP. ¤ 688, AS SEAMAN DID NOT SHOW DIAGNOSABLE INJURY THAT LIMITED FUTURE EARNING CAPACITY. HIS COMPLAINT OF FOOT PAIN, GIVEN HIS DOCTOR’S TESTIMONY THAT HE HAD NO INJURY THAT LIMITED ACTIVITIES, WAS INSUFFICIENT FOR JURY TO FIND FOR HIM.
EUGENE HAYES, Plaintiff, v. INLAND LAKES MANAGEMENT, INC., Defendant.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
2006 U.S. Dist. LEXIS 67218
September 13, 2006, Decided
Plaintiff seaman filed suit against defendant employer under the Jones Act, 46 U.S.C.S. app. ¤ 688, claiming restitution for impairment of future wage earning capacity and for past lost wages in excess of $75,000. The employer filed a motion for partial summary judgment with respect to the seaman’s claims for compensatory damages for loss of future wage earning capacity.
While working aboard a vessel, the seaman’s feet were scalded after a ball valve on a hose opened and sprayed his feet with superheated steam. His family doctor determined that the seaman was medically unfit for employment. Seven months after the accident, the doctor cleared the seaman to return to full-duty work without restrictions. Once the doctor cleared the seaman to return to work, the seaman chose to retire from work aboard the vessel. He claimed that he chose to retire due to a shooting pain in his left foot. The doctor noted the pain, but stated that the pain did not change his release of the seaman for full-duty work. The court held that the employer was entitled to summary judgment on the seaman’s claim for loss of future earning capacity because the seaman failed to make any showing of a current diagnosable injury that limited his future earning capacity. The seaman’s complaint of foot pain, which was revealed two days before the doctor’s deposition, was not sufficient to compel the doctor to change his diagnosis, refer the seaman for other treatment, or place any restrictions on his activities. The seaman’s claim was insufficient evidence for a jury to find for him.
The court granted the employer’s motion for partial summary judgment with respect to the seaman’s claim for loss of future earning capacity. The court denied the employer’s request for a credit for the amount paid to the seaman for past wage loss.
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DENIED WHERE FACTS ARE DISPUTED BECAUSE THE COURT MUST DRAW ALL REASONABLE INFERENCES IN FAVOR OF THE NON-MOVING PARTY.
HOWARD SANDERS VERSUS DIAMOND OFFSHORE DRILLING, INC. AND DIAMOND OFFSHORE MANAGEMENT COMPANY
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 68509
September 22, 2006, Decided
This matter comes before the Court on motion for summary judgment filed by Diamond Offshore Drilling, Inc. and Diamond Offshore Management Company (collectively “Diamond”).
Plaintiff was a roustabout aboard its semi-submersible drilling rig, the OCEAN AMERICA. On or about April 29, 2005 Sanders was assigned to work for the crane crew in the pipe rack area, moving pipe from the drill floor to the pipe rack. Sanders worked wrapping slings from the crane onto nine joints of pipe, and then after the crane moved the pipe to the deck, using a pry bar to remove the slings so the pipes would lie flat. The next morning Sanders awoke with neck pains. He reported his injury to his supervisor several days later and was subsequently treated for neck injury. Diamond argues that because Sanders cannot point to any specific act or incident which caused his neck pain, he cannot prove that the injury occurred during the pipe move. Diamond points out that because Sanders admitted to working on jobs other than the pipe move on the day in question and because he initially told his supervisor that he may have slept wrong on his neck, that he will therefore be unable to prove that he was injured while working with the crane crew. Diamond also argues that even if Sanders could prove that he injured his neck while working on the pipe rack, this injury was merely a result of overexertion, which is not compensable under the Jones Act. Diamond correctly asserts that mere claims of overexertion, or claims for injuries from “too much – not too dangerous – work,” are not compensable under the Jones Act or general maritime law. However, Sanders alleges that lack of assistance – not an overload of work – caused his injury, and, as stated above, an understaffed crew is a cause of unseaworthiness. It is debatable whether it was too physically taxing or whether it just took too long, and there is conflicting evidence on whether Sanders really was working alone the whole day. However, it is not the court’s job to interpret the meaning of a witness’s words or decide which witness is telling the truth on a motion for summary judgment. The court must draw all inferences in favor of the non-moving party. For these reasons the Court denies Defendant Diamond’s motion for summary judgment on Plaintiff’s claims of Jones Act negligence and general maritime unseaworthiness because a reasonable jury could find that there should have been two men performing the pipe rack job, and that this inadequate crew was the cause of Sanders’s neck injury.
Having considered the record, the memoranda of counsel and the law, the Court finds that summary judgment is denied on Plaintiff’s Jones Act negligence and general maritime unseaworthiness claims.
WHETHER IT WAS REASONABLE FOR SHIP’S CAPTAIN TO LEAVE AN EXTENSION CORD ON THE FLOOR WHERE SOMEONE MIGHT TRIP OVER IT IS A QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT. YET, WHERE PLAINTIFF DID NOTHING MORE THAN DENY THAT AN UNATTENDED EXTENSION CORD LEFT ON THE FLOOR WAS SIMPLY AN ISOLATED ACT, THE DEFENDANT VESSEL WAS ENTITLED TO SUMMARY JUDGMENT ON THE UNSEAWORTHINESS CLAIM.
PETER GROGAN VERSUS JEWEL MARINE, INC.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 64637
September 11, 2006, Decided
Before the Court are two motions: (i) the defendant’s motion for summary judgment and (ii) the plaintiff’s motion to sever his maintenance and cure claim.
Peter Grogan, a deckhand employed by Jewel Marine, claims that he was injured on July 10, 2005 while working aboard the M/V CRYSTAL CLEAR when he tripped over an orange extension cord (one-quarter inch in diameter) and fell down a stairway. Claiming that he hurt his neck, arm, and back in the fall, Grogan sued Jewel Marine for maintenance and cure, and for damages for Jones Act negligence and unseaworthiness of the vessel. Jewel Marine contends that Grogan was solely responsible for the incident because the extension cord was conspicuous and in the same location as when he had walked through the wheelhouse and stepped over the cord just moments before returning there, before he tripped. Grogan, however, responds that accepting defendant’s argument that the extension cord was conspicuous does not undermine Jewel Marine’s negligence in leaving the extension cord on the floor or failing to rope off the work area. Whether it was reasonable for Captain Carter to leave the extension cord on the floor where someone might trip over it is a question of fact precluding summary judgment. There is no duty to instruct an experienced seaman on matters within common sense, or to remind him of what he already knew or should have known. However, contributory negligence does not bar recovery under the Jones Act. Further, a ship is seaworthy if it is reasonably fit for its intended use. An isolated personal negligent act of the crew” is not enough to render a ship unseaworthy. Instead, there should be evidence of “a congeries of acts.” The only evidence Grogan offers of the ship’s unseaworthiness consists of the extension cord that Captain Carter left unattended in the wheelhouse for less than ten minutes. At most, the condition stems from “an isolated personal negligent act of the crew” and not the ship’s unseaworthiness. Grogan has done nothing more than deny that the unattended extension cord left on the floor was simply an isolated act of Captain Carter. Because Grogan has not presented any evidence that would suggest that the M/V CRYSTAL CLEAR was unseaworthy, Jewel Marine is entitled to summary judgment on the plaintiff’s general maritime law claim.
The defendant’s motion for summary judgment is GRANTED in part and DENIED in part. The plaintiff’s unseaworthiness claim is hereby dismissed.
SUMMARY JUDGMENT GRANTED WHERE THERE IS AN ABSENCE OF GENUINE FACTUAL ISSUES AND WHERE PLAINTIFF DOES NOT DENY SUCH AN ABSENCE.
DANA LOPEZ VERSUS MAGNOLIA INDUSTRIAL FABRICATORS, INC., ET AL
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 69327
September 26, 2006, Decided
Before the Court is Defendant Gulf Crane Services, Inc., “Gulf Crane,” Motion for Summary Judgment.
Plaintiff filed suit in this Court on February 11, 2005, seeking damages for injuries he allegedly sustained when he slipped down the steps of the jack-up rig, MOPU VIII. Plaintiff asserts Gulf Crane was negligent in four ways. First, in failing to discover the hazardous condition created by one or more of the cranes located aboard the MOPU VIII. Second, in failing to warn Plaintiff or others aboard MOPU VIII about the hazard created by the leaking crane. Third, in failing to properly maintain the crane aboard the MOPU VIII, which failure caused or greatly contributed to the leak that created a hazardous condition on the MOPU VIII. Last, in failing to remedy the hazardous condition created by the leaking crane when they knew or should have known of the hazardous condition. Plaintiff opposes Gulf Crane’s Motion for Summary Judgment. However, Plaintiff gives no evidence in support of his opposition. Instead, Plaintiff notes “that after reviewing all the facts, testimony, and law contained in defendant’s Motion for Summary Judgment…[I]t appears as though defendant Gulf Crane Services, Inc., correctly represents a substantial portion of the testimony, facts and law in this matter.” Defendant Gulf Crane asserts there is no evidence pointing to negligence on its part. Second, Gulf Crane argues that any fluid leaked from the crane was not due to an act or omission of Gulf Crane, but instead was due to an accumulation of rain water, a problem of which the plaintiff was aware of prior to the date of the accident. Third, Gulf Crane argues that the crane leak cleanup was completed before the Plaintiff’s accident, and thus could not have contributed to the fall. Last, Gulf Crane highlights that the accident took place on the heliport deck, one deck above the crane leak, and thus they argue the physical layout of the rig precludes finding that the crane leak was a cause of Plaintiff’s fall. Gulf Crane has identified portions of the record which highlight the absence of genuine factual issues. Therefore, the burden shifts to the non-moving party, the Plaintiff in this case, to come forward with “specific facts” showing a genuine factual issue for trial. In this instance, Plaintiff has not come forward with any specific facts raising a material issue. Indeed, Plaintiff does not contest any of Defendant Gulf Crane’s “material facts as to which there is no genuine issue to be tried.” Therefore, this Court finds the evidence, when viewed in the light most favorable to Plaintiff, shows no genuine issue as to any material fact, and that summary judgment should be granted in favor of Defendant Gulf Crane.
Defendant Gulf Crane’s Motion for Summary Judgment is GRANTED.