Because an offshore platform maintenance contractor’s worker was injured while on a boat not in contact with any platform, applying La. Rev. Stat. Ann. § 9:2780(A) as surrogate federal law to invalidate the MC’s indemnity clause in its contract with the platform owner to preclude a transportation contractor’s indemnity claim was reversed.
GRAND ISLE SHIPYARD INC; GRAY INSURANCE COMPANY, Plaintiffs-Appellees v. SEACOR MARINE, LLC, Defendant-Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 20086
September 22, 2008, Filed
The United States District Court for the Eastern District of Louisiana’s summary judgment to plaintiffs, an offshore platform maintenance contractor (MC) and its insurer, under 43 U.S.C.S. § 1333(a)(1) of the Outer Continental Shelf Lands Act and La. Rev. Stat. Ann. § 9:2780(A), invalided an indemnity clause in the MC/platform owner contract to preclude defendant transportation contractor’s (TC) indemnity claim. The TC appealed.
An MC employee’s allegation of being injured in a vessel owned by the TC formed the basis of the TC’s indemnity claim against the MC. But, the injury occurred while neither the employee nor the vessel were in physical contact with either the work platform or the employee’s residential platform. Thus, 43 U.S.C.S. § 1333(a)(1)’s situs requirement was not met for Louisiana law to apply as surrogate federal law. Section § 1333(a)(1) specifically excluded “a ship or vessel” used for transporting resources from the Outer Continental Shelf from being a potential situs under the Act. The Act’s general scope of coverage was determined principally by locale, not by the status of the person injured or killed. The vessel was engaged in ferrying passengers, an activity bearing a significant relationship to a traditional maritime activity. The accident occurred in close proximity to an offshore platform, but nothing suggested the employee was in actual physical contact with a platform at the time of his accident. The district court erred in concluding that the Act applied. By extension, it also erred in concluding that § 9:2780(A) applied as surrogate federal law to bar the indemnity claims.
The district court’s order invalidating the indemnity agreement was vacated and the case was remanded for additional proceedings.
Denial of defendant’s motion to vacate a maritime writ of attachment held by plaintiff was affirmed because funds that were the subject of an electronic funds transfer were property subject to a Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B attachment while they were in the hands of an intermediary bank.
CONSUB DELAWARE LLC, Plaintiff-Appellee, v. SCHAHIN ENGENHARIA LIMITADA, Defendant-Appellant, STANDARD CHARTERED BANK, Garnishee.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2008 U.S. App. LEXIS 20097
September 23, 2008, Decided
Defendant appealed from the judgment of the United States District Court for the Southern District of New York, denying its motion to vacate a maritime writ of attachment under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B held by plaintiff.
The district court properly held that funds that were the subject of an electronic funds transfer (EFT) were property subject to a maritime attachment while they were in the hands of an intermediary bank. New York law had no effect on the applicability of Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B to funds involved in EFTs while they were in the hands of intermediary banks. Because that rule was derived from federal law, there was no occasion to look for guidance in state law. Accordingly, the court affirmed the district court’s application of circuit precedent to the case, and its conclusion that the funds were seizable under the attachment order. Further, clauses in agreements between the parties providing for exclusive jurisdiction over disputes arising from those agreements in the courts of England did not preclude a maritime writ of attachment in the district court or divest the district court of jurisdiction to issue such a writ. A Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B attachment in no way interferes with the exclusive jurisdiction of the English courts to decide any matter arising out of the agreements.
The judgment of the district court was affirmed.
McCorpen defense barred seaman’s maintenance and cure claim but did not apply to seaman’s Jones Act negligence claim; however, seaman’s intentional concealment of prior injuries during preemployment screening could constitute contributory negligence that would diminish his recovery on the negligence claim in accordance with 45 U.S.C.S. § 53.
LEROY JOHNSON, Plaintiff – Appellee v. CENAC TOWING INC., Defendant – Appellant
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 20152
September 24, 2008, Filed
Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which awarded damages to appellee seaman under the Jones Act, 46 U.S.C.S. § 30104, for personal injuries the seaman sustained while working for the employer.
The seaman’s back injury occurred when he and a coworker were carrying a 175-pound hose, which the coworker dropped. The employer alleged that the seaman was not entitled to recover because he willfully concealed his prior back injuries during his preemployment screening. The court agreed with the employer as to the claim for maintenance and cure, which failed under the McCorpen defense due to the concealment. The court also held that it was possible that the seaman’s concealment constituted contributory negligence that would diminish his recovery in accordance with 45 U.S.C.S. § 53. The district court clearly found a connection between the concealment and the current injury. This required vacation of the district court’s award on the Jones Act negligence claim, as it was not clear that the district court fully considered the contributory negligence issue. However, the court held that the collateral source rule did not bar the seaman from recovering for medical expenses that were also paid by an employer-sponsored insurance plan because that plan was not a collateral source where it was designed only to cover non-work related injuries but payment was inadvertently made thereunder.
The court vacated the district court’s ruling on contributory negligence and remanded for consideration of that issue but otherwise affirmed the district court’s rulings.
Superior court denied a cruise line’s motion to dismiss an action a passenger filed under the CUTPA because the cruise line did not file its motion within 30 days of date it entered its appearance, or within 30 days of date service was returned. The court found that a forum selection clause the passenger accepted did not deprive it of jurisdiction.
Theresa Arute v. Carnival Corporation
SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF NEW HAVEN AT NEW HAVEN 2008 Conn. Super. LEXIS 2282
September 10, 2008, Filed
Plaintiff passenger filed an action against defendant cruise line, alleging that the cruise line was liable under the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110b, for injuries she sustained during a cruise. The cruise line filed a motion to dismiss the action, claiming that the court lacked jurisdiction under a forum selection clause the passenger accepted as part of her contract, and that the action was time-barred.
The passenger contracted with the cruise line for passage on a cruise, and she signed a contract which stated that she had to file any legal action she had against the cruise line in the U.S. District Court for the Southern District of Florida, or as to claims over which the federal court lacked subject matter jurisdiction, before a court located in Miami-Dade County, Florida. After she returned from the cruise, the passenger sued the cruise line in a Connecticut court, claiming that she was injured during the cruise, and the cruise line filed a motion to dismiss the lawsuit, claiming that the passenger’s action was time-barred and that the forum selection clause the passenger accepted prevented the court from exercising jurisdiction. The court denied the cruise line’s motion. The court found that it had jurisdiction over the action under the Federal Judiciary Act, 28 U.S.C.S. § 1333, because the passenger’s claims were subject to maritime law. Moreover, Conn. Gen. Prac. Book, R. Super. Ct. §§ 10-8 and 10-30 required the cruise line to file its motion within 30 days of the date service was returned, or 30 days of the date it entered its appearance, and it had not done so.
The court denied the cruise line’s motion because it was not filed within the time periods required by Conn. Gen. Prac. Book, R. Super. Ct. §§ 10-8 and 10-30.