| Notes from the Wheelhouse
Lawrence A. Arcell, Section Chair
As these observations are being penned, the Florida fiasco continues. Its ultimate result will no doubt impact one of the main achievements by AAJ in 2000the amendment to the Death on the High Seas Act. Although the amendments were limited to commercial aviation casualties, it was nonetheless a positive change. From the perspective of the Admiralty Law Section, the amendment remedied only half the problem created by DOHSA. The Act needs to be extended to maritime accidents. But any "fix" of the amended DOHSA to extend its reach to maritime actions will depend in large part on who is in the White House, although the 50-50 split in the Senate will also obviously affect the chances of further amending the Act.
The change in DOHSA was a significant achievement for AAJ, as the amendment eviscerated two narrow Supreme Court holdings which denied loss of society damages (Zicherman v. Korean Airlines Co., 516 US. 217 (1996)), and barred pre-death pain and suffering damages (Dooley v. Korean Airlines Co., Inc., 524 U.S. 116 (1998)). The amended Act allows recovery if the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States. Additional compensation for non-pecuniary damages for wrongful death of a decedent is recoverable. As discussed in this issue, the term "commercial aviation" has been broadly interpreted in at least one federal district court, enabling recovery of non-pecuniary damages.
This amendment, passed prior to the AAJ convention in Chicago, was historic. But extending DOHSA only to aviation casualties left maritime claimants with the harsh remedies of the old DOHSA. AAJ recognized this problem and, during the latter part of the legislative session prior to the elections, AAJ, through it Public Affairs Department, was active in enlightening Congress as to the need to extend the DOHSA amendments to maritime victims. At that time, AAJ president Richard Middleton reiterated AAJ s commitment to remedying the underlying cruelty of the DOHSA limits for maritime victims.
After the convention in Chicago, AAJ continued its efforts to further amend DOHSA in the Coast Guard Reauthorization bill. The Public Affairs Department was in almost daily contact with the Admiralty Law Section officers, seeking input and guidance on the applicable language for the bill. In turn, your officers turned to section members for their insight and opinions on various proposed amendments to DOHSA.
The Public Affairs Department also sought information from Admiralty Law Section members concerning cases where DOHSA negatively impacted victims of maritime negligence. Your response was outstanding in providing the information to AAJ.
Even with this herculean effort, the bill amending DOHSA eventually died due to opposition from the cruise line industry. Whether it returns in the future is uncertain.
What is certain, however, is that the effort to extend the DOHSA amendment to maritime victims proved the value of an active Admiralty Law Section. When I needed to call or email someone for insight as to a particular problem with legislative language, the response was immediate. If I requested a member call AAJ for any reason, you responded without hesitancy.
It is apparent that any change in DOHSA to extend the amendments to maritime victims will not be without significant input from the Admiralty Law Section. Your help during this year s endeavor to help maritime victims is proof of what former Admiralty Law Section chair Ted Willhite termed "the Section's legacy of mutual assistance." Only by pulling together can we, as a section, have continued viability and influence.
Finally, I want to recognize the tremendous job Stevan Dittman did as chair of this section, continuing the tradition of dedicated leadership which the Admiralty Law Section has been fortunate to have had for so many years.
Your continued input on any matter concerning admiralty law is vital. The section officers need your eyes and ears to keep AAJ informed and help protect the rights of maritime victims. One of the most important tools to further this goal is the Admiralty Law Section list server an important arena for members to swap ideas and information.
Whenever you want to contact one of the officers for any reason, do so. As one of AAJ s oldest active sections, our future vitality rests on our members continued concern with protecting the rights of victims.
Contemplating the 107th Congress
Susan Steinman, AAJ Public Affairs Department
At this writing, we still don t know the outcome of the Presidential election. However, it seems increasingly likely that the Republicans will control the White House. That being said, Public Affairs anticipates pushing for the inclusion of an expanded DOHSA remedy for maritime victims in the Coast Guard Reauthorization bill. Because Congress still needs to enact legislation to reauthorize the Coast Guard, there will be a legislative vehicle available and subject to amendment.
The Senate will be a much better environment for civil justice issues than what we experienced during the 106th Congress. Not many political pundits predicted that the Democrats would pickup four seats and lose only one incumbent, Senator Chuck Robb (D-VA). By far, the most important pickup for AAJ was the defeat of Senator Slade Gorton (R-WA), the person most responsible for killing DOHSA reform in the 105th and 106th Congresses.
Any DOHSA reform legislation must go through the Senate Commerce Committee where Senator Gorton tried to be the Senator from Boeing and Holland America. Public Affairs is also pleased that two more tort reformers, Senator John Ashcroft (R-MO) and Senator Spencer Abraham (R-MI), with seats on the Commerce Committee were defeated. Though the committee assignments are not final, we are hearing that the Democrats may gain as many as three seats on the Commerce Committee.
In the House, the Democrats had a net gain of one seat so tort reformer Representative Dennis Hastert (R-IL) will still be Speaker of the House. The difficulty in the House will be the new chairman of the House Transportation Committee, Representative Don Young (R-AK). (House Transportation Chairman Bud Shuster is term limited by House Republican Rules from serving another term as chairman.) Rep. Young is extremely close to the cruise industry and has a voting record in favor of tort reform.
We anticipate that Senator Wyden (D-OR) will want to push for maritime DOHSA reform. As you may recall, Senator Wyden s interest in this issue stems from a 1995 accident where an Oregonian family was run over by a Korean freighter on the high seas and left in the water to drown.
In the meantime, Section members should continue efforts to find another story to express the outrageous, out-dated result of the application of the DOHSA. Senator Wyden s constituents have settled their case, and the Public Affairs Department anticipates that a five year old case may not provide a compelling enough reason to rewrite the law. Please contact Sue Steinman at 800-424-275 x296 or susan.steinman@justice.org if you have a client with a compelling story.
AAJ would like to thank all the Admiralty Section members who contacted me last fall regarding their cases. In particular, the case information AAJ received from Bobby Delise, Alton Hall, and Mike Doyle was well received on the Hill. We look forward to working with Larry Arcell and the Admiralty Section officers and members in the upcoming months.
Recent Developments in Admiralty Law Practice and Procedure
Garris v. Norfolk Shipbuilding and Drydock Corp., 210 F.3d 209 (4th Cir. 2000) reh. en banc denied, 215 F.3d 420 (4th Cir. 2000).
Plaintiff employee of a subcontractor engaged in ship repair work was fatally injured and brought suit for negligence against the general contractor. Confronting the argument the Moragne wrongful death remedy is limited to unseaworthiness claims, the Fourth Circuit extended Moragne to recognize a negligence-based wrongful death claim under the general maritime law.
Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898 (5th Cir. 2000).
An explosion on a drilling barge killed two workers and injured four other individuals. The Coast Guard investigated the casualty, and based on evidence the Coast Guard had uncovered, OSHA issued a citation to Mallard. Mallard challenged OSHA's jurisdiction. The Fifth Circuit held that the "Coast Guard's comprehensive regulations and supervision of seamen's working conditions [results in] an industry-wide exemption [from OSHA] for seamen serving on vessels operating on navigable waters."
Morris v. Players Lake Charles, Inc., 761 So. 2d 27 (La. App. 3d Cir. 2000). A riverboat casino worker, who had been discharged, brought suit alleging Jones Act negligence, general maritime law unseaworthiness, and retaliatory discharge. She had injured her knee while refilling a slot machine on a riverboat casino. Vessel status was not at issue. The court found that facts did not exist to support the unseaworthiness claim, but held the worker did have a viable claim pursuant to the Jones Act and for wrongful discharge pursuant to the general maritime law.
Kilfoil v. Ullrich, 714 N.Y.S.2d 737 (N.Y.A.D. 2nd Dept. 2000).
Passengers who were injured when their boat was struck by another boat on navigable waters filed jury demand in their negligence and products liability action. The trial court struck jury demand. On appeal, addressing an issue of first impression, court held that plaintiffs were entitled to jury trial.
In re Weeks Marine, Inc., 2000 WL 1514792 (Tex. App.-San Antonio Oct. 11, 2000).
Vessel crew member brought Jones Act claim for injuries sustained in vessel collision with stationary object in water. Trial court entered pre-trial order compelling discovery of certain documents from vessel owner. Owner filed writ of mandamus. The Court of Appeals held that investigative and surveillance reports, photographs, and video tape were prepared in anticipation of litigation and were privileged as work product.
Garcia v. Bureau Veritas Quality Intern (North America), Inc., 99-3092 (La. App. 4th Cir. Oct. 4, 2000) 2000 WL 1585279.
Individual, as personal representative of estates of foreign crew members who perished during sinking of the M/V NAGOS off the coast of South Africa, filed action under both Jones Act and general maritime law against various defendants. The Court of Appeal held that individual lacked procedural capacity to bring action and Louisiana was improper venue for action. The decedents and their survivors are all foreign nationals. The named defendants are all foreign corporations. The only connection to Louisiana was that the purported personal representative of the decedents' estates happened to reside in Orleans Parish. The purported personal representative never met the decedents nor has she met their survivors; she was merely retained by plaintiff's counsel to file this suit.
Crane v. Department of Transp., Wash. App. Div. 1, 2000. No. 45258-4, 2000 WL 1468806.
Seaman employed by Washington State Ferries was diagnosed with hepatitis C after sticking her finger on a discarded diabetic's lancet while cleaning a ferry passenger cabin. Plaintiff Crane filed a negligence claim against the Washington State Department of Transportation alleging that she had contracted hepatitis C from the needle as a result of the State's failure to follow regulations regarding blood borne pathogens. Appeals court affirmed trial court's granting of State's motion for summary judgment claiming Crane had not met her burden of proof on causation.
Celebrity Cruises, Inc. v. Hitosis, (Fla. App. 3d Dist. 2000) 2000 WL 1251970.
Seaman brought personal injury action against cruise line for injuries suffered on vessel owned by line. Employment contract contained forum selection clause. On appeal, court held that forum selection clause was permissive, not mandatory and cruise line did not carry its burden of showing that forum designated in employment contract was adequate alternative forum for seaman's claims. A permissive jurisdiction clause, such as the one here, merely "provide[s] that there may be jurisdiction over such litigation in a particular forum."
Cabahug v. Text Shipping Co., Ltd., No. 98 CA 0786 (La. App. 1st Cir. 2000) 760 So. 2d 1243.
Injured seaman brought personal injury action against his employer and vessel's owner under the Jones Act arising out of his fall from ladder. Forum selection clause in seaman's contract of employment would not be enforced.
Nurkiewicz v. Vacation Break U.S.A., Inc., (Fla. App. 4th Dist. Nov. 22, 2000) 2000 WL 1727011.
Captain of sport fishing vessel filed claims against yacht club and others for back injury sustained while unloading cases of soda in vessel due to alleged unseaworthiness and negligence under Jones Act and for maintenance and cure. Plaintiff was the captain of a forty-eight foot sport fishing vessel which was provided for the use of owners of timeshare units. Plaintiff, as part of his job, was supposed to purchase sodas from supermarket and have them available on board for guests. He decided, for purposes of economy, to purchase the sodas from a warehouse store. At the supermarket, the sodas were sold in twelve-can packs and at the warehouse, in twenty-four can cases. As plaintiff was loading the twenty-four can cases, two at a time, into a hatch in the floor of the galley, he injured his back. Plaintiff alleged unseaworthiness and negligence under the Jones Act, 46 U.S.C. 688, contending that the defendant should have trained him to load heavy objects without injuring his back, should have given him a belt to protect his back, and should have had more easily accessible storage space. Court found the injury entirely the fault of the plaintiff.
LeBlanc v. Callais Enterprises Partnership, Inc., 767 So. 2d 823 (La. App. 5th Cir. 2000).
Plaintiff was the captain aboard the F/V Lady Charlotte, and the president of Lady Charlotte, Inc., owner of the boat. Plaintiff alleges that he was on his time off, and asleep, when the M/V Lady Deb struck the F/V Lady Charlotte in the Gulf of Mexico. He filed suit in state court alleging claims under the Jones Act and for unseaworthiness under general maritime law. In addition, he requested punitive damages. His wife asserted a claim for loss of consortium. Prior to the filing of this suit, Lady Charlotte, Inc. and Sunderland Marine filed suit in federal court for "loss of profits from said vessel [F/V Lady Charlotte] during the period of repairs, possible contingent liability, maintenance and cure, and miscellaneous expenses" arising out of the collision. Plaintiff, as an individual, intervened in the federal suit for "lost income" from shrimp sales while the F/V Lady Charlotte was down for repairs. All claims in the federal suit, including those filed by plaintiff, were settled in June 1997. On June 20, 1997, the federal court suit was dismissed, with prejudice. The state court suit was filed July 10, 1998. Defendants filed exceptions of no cause/right of action, alleging that plaintiff had no right of action because he executed a release; that he had no cause of action for punitive damages under general maritime law; and that plaintiff's wife had no cause of action because loss of consortium was not recoverable under the general maritime law by the wife of a Jones Act seaman. Defendant subsequently filed an exception of res judicata, arguing that plaintiff's release in federal court arose out of the same transaction and occurrence. All motions were granted. Appeal court found action alleging personal injuries by boat owner and captain was barred by doctrine of res judicata; settlement agreement and release in prior federal court suit operated to bar present action; and spouse's consortium claim was not recognizable cause of action.
Meitus v. Carnival Cruise Lines, Inc., (Fla. App. 3d Dist. Aug. 9, 2000) 2000 WL 1119048.
Cruise line, which had settled claim with employee for injury she suffered as result of alleged inappropriate medical treatment, sued doctors for indemnity based on alleged negligent medical treatment. Trial court granted partial summary judgment in favor of cruise line, concluding that doctors were obligated to indemnify cruise line for breach of warranty of workmanlike performance. Doctors appealed. District Court of Appeal reversed and remanded finding that genuine issue of material fact existed as to apportionment of fault of doctors in causing permanent injury to employee.
Hendricks v. Riverway Harbor Service St. Louis, Inc., 732 N.E.2d 757 (Ill. App. 5th Dist. 2000).
Deckhand on towboat who was allegedly injured in slip and fall on grain while pulling ratchet to attach barge sued towboat owner under Jones Act and general maritime law, seeking damages, maintenance, and cure. Following bench trial, court found deckhand to be 20 percent contributorily negligent and entered judgment awarding deckhand $844,689.26. Court of Appeal held trial court should not have assessed separate awards of damages for "disability/loss of normal life" and "pain and suffering," thereby warranting remand for new trial on damages.
Holley v. Transoceanic Cable Co., 702 N.Y.S.2d 242 (N.Y.A.D. 1 Dept. 2000).
Seaman entitled to wages while traveling from New York to his ship in U.S. Virgin Islands pursuant to union contract. Court denied defendant/employer's claim that port was not foreign. Union contract provided, in pertinent part, "[i]n American domestic ports, a seaman's pay shall start as of the day in which he reports for work aboard the vessel . . . [and] [w]ith respect to seamen joining a vessel in a foreign port, the seaman's pay and benefit contributions shall start as of the day of the departure flight to join the vessel."
Miller v. American Heavy Lift Shipping, ___ F.3d ___ (6th Cir. 2000) 2000 WL 1650534.
Administrator of the estates of five deceased seamen brought suit against various shipowners and operators, alleging survival and wrongful death claims under the Jones Act and general admiralty and maritime law. Subsequently, administrator filed amended complaints in each case. The Court of Appeals held that amended complaints, specifically alleging benzene exposure claims, related back to original complaints alleging that seamen's injuries were caused by exposure to "asbestos and hazardous substances other than asbestos."
Krummel v. Bombardier Corp., 206 F.3d 548 (5th Cir. 2000).
Plaintiff, who was injured while using a personal watercraft, sued watercraft manufacturer, alleging that the watercraft was unreasonably dangerous and that manufacturer failed to warn plaintiff of these dangers. Fifth Circuit reverses Judge Fallon and holds that evidence did not allow imposition of liability on manufacturer for failure to warn under either Louisiana Products Liability Act or Restatement (Third) of Products Liability, pursuant to requisite risk-utility analysis. Death on the High Seas Act
In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200 (2d Cir. 2000).
DOHSA not applicable to air crash in Long Island Sound as those waters were not beyond a marine league from the shore, therefore nonpecuniary damages available to plaintiffs. The Court of Appeals held that term "high seas" in DOHSA, which provides a wrongful death action for death "occurring on the high seas beyond a marine league from the shore," means those waters beyond the territorial waters of the United States.
Brown v. Eurocopter S.A., 111 F. Supp. 2d 256 (S.D. Tex. 2000).
Plaintiffs' husband and father were killed when his helicopter crashed into a fixed platform. Plaintiffs first sought to recover pursuant to state law as made applicable by OCSLA. The court ruled that DOHSA applied and held that nonpecuniary damages were not available. Thereafter, plaintiffs moved that the amended version of DOHSA, which allows nonpecuniary damages, would apply retroactively to the fatality. Interpreting the meaning of the statute's term "commercial aviation accident," in conjunction with federal aviation regulations, the court held that plaintiffs were entitled to recover nonpecuniary damages for loss of care, comfort, and companionship. Limitation of Liability Act
In re Complaint of Lewis & Clark Marine, Inc., 196 F.3d 900 (8th Cir. 1999), cert. granted, 120 S. Ct. 2193 (2000).
Vessel owner filed for limitation in Missouri federal district court. Plaintiff meanwhile filed a lawsuit in an Illinois state court approximately one week after the federal limitation action had been filed. Plaintiff did not demand a jury trial in state court, although he asserted a claim under the Jones Act. Thereafter, plaintiff filed a stipulation in federal court acknowledging the value of his claim was less than the amount of the stipulated value of the vessel in the limitation fund. As a result, the federal district court granted plaintiff's motion and entered an order dissolving its prior restraining order and staying the federal court action pending resolution of his state court lawsuit. Defendant appealed, arguing that the federal court had exclusive jurisdiction to adjudicate its right to limitation of liability and that the plaintiff's state court action was properly enjoined. The Eighth Circuit reversed, holding that the matter was properly within the exclusive jurisdiction of a federal admiralty court even though the claimant had stipulated to the adequacy of the limitation fund. Addressing the plaintiff's right to bring a claim in a state court pursuant to the "saving to suitors" clause, the court noted that plaintiff had waived his right to a jury trial in state court and that he had otherwise lacked "saved" remedies. Absent any conflict, no basis existed for applying the "adequate fund" doctrine, which provides an exception to exclusive federal jurisdiction over limitation proceedings. The United States Supreme Court granted the claimant's petition of certiorari. The case was argued and is under consideration.
In re: The Complaint of Gary Bernstein, 81 F. Supp. 2d 176 (D. Mass. 1999).
Plaintiff injured while being pulled in an inner tube behind a motorboat on Lake Winnisquam in New Hampshire. Suit was filed in state court, but the vessel-owner filed a limitation proceeding in a federal district court. The federal district court held that the historical navigability doctrine had been overwhelmingly rejected in favor of a modern standard and that the lake was not navigable. The federal court also held that the Limitation of Liability Act conferred independent jurisdiction over the case and denied a Motion to Dismiss.
Lady v. Neal Glasser Marine, Inc., 228 F.3d 598 (5th Cir. 2000).
Lady sued in Mississippi State Court against OMC seeking recovery for personal injury sustained in a collision between a Jet Ski and a Vessel. Lady was thrown from his Jet Ski and come in contact with the boats' moving propeller. The 5th Circuit held that althought the Federal Boat Safety Act and the Coast Guard Regulatory decisions did not expressingly preempt the plaintiffs' state court claim, implied conflict preemption procluded Ladys suit against OMC. Vessel Status
Davis v. Players Lake Charles River Boat, Inc., 74 F. Supp. 2d 675 (W.D. La. 1999).
Plaintiff was injured when she fell down a staircase on the riverboat. She had been drinking while on the vessel and was legally intoxicated. The court found the casino was not a vessel for purposes of admiralty jurisdiction. In particular, the court found that the movement of the vessel over navigable water was serving a purpose that was merely incidental to its primary function as a gambling facility, noting incredibility the defendant "is not operating a vessel in maritime navigation, but a casino that takes short trips over the water." The court also noted that gambling, as "the activity which gave rise to the plaintiff's injury," is "not substantially related to a traditional maritime activity." As a result, the court held that Louisiana state law governed, and it applied La. Rev. Stat. 9:2800.1, which exonerates those who serve alcoholic beverages from liability when those who consume the alcohol are injured. The court concluded that defendant had "no duty under Louisiana law to protect the guest from the consequences of his own intoxication and Louisiana does not recognize dram shop liability."
Stewart v. Dutra Const. Co., 230 F.3d 461 (1st Cir. 2000).
A dredge being used for tunnel construction was not a "vessel in navigation" subject to the Jones Act. The dredge was incapable of self-propulsion and typically was moved 30 to 50 feet every two hours through the use of anchors and cables. Dredging was deemed to be primarily a form of construction rather than navigation or transportation. Seaman Status
St. Romain v. Industrial Fabrication and Repair Service, Inc., 203 F.3d 376 (5th Cir.), cert. denied, 121 S. Ct. 53 (2000).
The Fifth Circuit revisited the "fleet" requirement for seaman's status. It held that an entity's mere "operational control" over a group of vessels did not qualify the fleet as an identifiable one under common control for purposes of affording seaman's status. In St. Romain, the plaintiff was assigned to decommission oil wells at various offshore platforms. Sometimes he worked from liftboats; sometimes he worked from fixed platforms. In any event, the liftboats from which he worked would transport supplies to the work site; they also provided galley and crew quarters for him and his coworkers and, on occasion, transported him to the worksite. The Fifth Circuit held that St. Romain was not permanently assigned to any single vessel in navigation. The fact that he had been assigned to eleven different liftboats that were owned by nine different companies and chartered by five different corporations prevented the boats from constituting a fleet of vessels under common ownership or control. His employer did not own any of the lifeboats. Accordingly, seaman's status did not exist.
DeShazo v. Baker Hughes Oilfield Operations, Inc., 2000 WL 798410 (E.D. La. 2000).
Plaintiff was injured on land while being transported from a job in the area of the Red Sea to Egypt. Plaintiff contended that he had been assigned to four jackup rigs located in the Red Sea. He was involved in a whipstock procedure, whereby he would assist in drilling new sources of oil from existing wells. In addition, he worked as a fishing tool supervisor, retrieving tools and broken pipes from well holes. He had also worked on land for several companies with whom his employer had contracted to perform services, but for several months before his accident, most of his work was performed on four jackup rigs. These rigs were owned by three different companies, all of which had contracted with the same company, Amoco, with whom plaintiff's employer had contracted. The court defined fleet as "an identifiable group of vessels under common ownership or control." Looking to St. Romain v. Industrial Fabrication and Repair Service, Inc., 203 F. 3d 376 (5th Cir.), cert. denied, 121 S. Ct. 53 (2000), and the Fifth Circuit's refusal to adopt an operational control test for seaman's status, the district court granted the defendant's Motion for Summary Judgment.
Wood v. SubSea Intern., Inc., No. 99-CA-1320 (La. App. 4th Cir. March 29, 2000) 766 So. 2d 563, writ denied June 16, 2000.
Dive tender was injured while performing his duties on fixed platform in Gulf of Mexico. He alleged Jones Act seaman status and filed claim against his employer for benefits under Jones Act. The Court of Appeal found that plaintiff was a Jones Act seaman.
Little v. Amoco Production, Co., 734 So. 2d 933, 938 (La. App. 1st Cir.), writ denied, 748 So. 2d 446 (La. 1999).
Jones Act seaman status limited to divers and those involved in "classical seaman's work." This decision is a limitation to the Louisiana Supreme Court's decision in Wisner v. Professional Divers of New Orleans, 731 So. 2d 200, 202 (1999).
Speer v. Taira Lynn Marine, Ltd. (S.D. Tex.).
Seaman, who was on a barge to learn to be a tankerman, was not a crew member of the vessel on which he suffered injury and, therefore, could not bring an unseaworthiness cause of action against the barge owner. The seaman's status was that of a licensee or invitee as to whom maritime law extends no warranty of seaworthiness, and the fact that the seaman may have engaged in tasks that might, if not a simulation, be undertaken by a vessel's crew, did not convert him into a member of that crew.
Cavin v. State, Fish and Wildlife Protection Div. of Dept. of Public Safety, 3 P.3d 323 (Alaska 2000).
Plaintiff worked as a state trooper for the Alaska Department of Public Safety, Fish and Wildlife Protection Division. He served patrol functions both on land and on the sea, the latter aboard vessels called the ENFORCER, the COURAGE, and smaller vessels assigned to work with them. The parties stipulated the sea-based work included patrolling on the State's vessels, where plaintiff was to enforce Fish and Game laws and conduct rescue missions. Plaintiff alleged that the COURAGE and the smaller vessels on which he worked had a propensity to pound on the waves and were therefore unseaworthy. Plaintiff filed suit against State, alleging claims of Jones Act negligence, general maritime negligence, unseaworthiness, and maintenance and cure. The trial court dismissed the case after a trial. The Supreme Court held that: (1) remand was required for reconsideration and additional findings addressing trooper's early years of service, for purposes of determining his status under the Jones Act; (2) trial court's failure to consider whether trooper qualified as a seasonal seaman required remand; and (3) assuming the trial court found no Jones Act liability on remand, trooper was entitled to have his unseaworthiness claim proceed to trial on issues of negligence and causation.
Joyner v. Ensco Offshore Oil Company, 2000 WL 341029 (E.D. La. 2000).
Plaintiff was a field service technician who worked on ninety-five assignments for his company, seventy-one of which were located at a well on land or at a well that terminated at a fixed offshore platform. His other twenty-four assignments were from jackups or floating rigs. He did not contribute to any navigational function on these jobs. He was injured on a platform adjacent to a moored jackup rig. It was undisputed that the jackup rig was a vessel, but the issue before the court was whether he contributed to its mission or whether he had a substantial connection to it. The court held that he did not contribute to the function of this vessel or the accomplishment of its mission because he merely slept on it. In addition, the court held that there was not common ownership over the vessels. Accordingly, because he was not a seaman, the court ruled that the defendant's removal of his lawsuit from a state court was proper and denied a Motion to Remand.
Richard v. Mike Hooks, Inc., Nos. 99-1631, 99-1632, 99-1633 (La. App. 3d Cir. 10/4/2000) 2000 WL 1470445.
Welder's helper sought benefits for injuries sustained while unloading truck. The Court of Appeal held that helper was seaman under Jones Act. The facts of this case are not disputed by the parties. Defendant is in the business of dredging and marine salvage. It owns five dredge boats, three boosters, seven large tugs, ten to twelve dredge tenders, four to five barges for each dredge, some welding barges, and some skiffs. From August 18, 1992, until March 1993, Richard worked as a welder's helper for defendant at its dockyard in Westlake, Louisiana. He was scheduled to work five days a week, nine hours a day, but often worked overtime and on weekends. He punched a clock when he arrived at or left the yard. Richard performed all of his work at the yard. As a tacker or welder's helper, he worked with a fitter or a fitter/welder. A portion of his work involved making repairs to and maintaining the vessels used in defendant's operations. Most repairs were required to maintain defendant's fleet of vessels were performed at the yard in Westlake. The vessels were docked at defendant's facility while the repairs or maintenance work was being performed. Richard's work included fabricating and changing mufflers, replacing portions of decks and motor mounts, and fabricating and changing the sides or bumper rails on the hulls of the vessels. He accompanied the fitter to whom he was assigned onto the vessels for the repairs or maintenance work. During repairs, Richard would go back and forth from the vessel to the shore to retrieve materials and supplies for the work being performed. Frequently, replacement parts were fabricated in the yard and brought onto the vessels for installation. Equipment was also fabricated and installed on the vessels simultaneously. A walkway from the shore to the vessels provided access for the employees to the vessels. Richard performed repairs or maintenance work on only stationary vessels that were docked at the yard. The only time he was on a vessel that was not stationary was approximately every month or so when he was required to get on a small boat to assist in moving dredge pipe that had been welded together in defendant's yard down an adjacent waterway. This would require anywhere from forty- five minutes to two hours. Richard never traveled to a working vessel to perform repairs, and he never ate or slept on a vessel. Richard's position also required that he do work around the yard, such as picking up scrap iron, unhooking pipe, and unloading barges. Expert Witnesses
Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606 (5th Cir. 1999).
This is not an admiralty case, but is worth reading because the Fifth Circuit rejected a Daubert challenge to a psychiatrist's testimony about post-traumatic stress disorder. In this Title VII case, plaintiff made a pendent Texas claim for intentional infliction of emotional distress. The psychiatrist testified that the plaintiff suffered from post-traumatic stress disorder and depression brought on by a co-employee's conduct. In rejecting the Daubert challenge, the Fifth Circuit said the following in two sentences that may provide a blueprint for admission of medical testimony. The court stated, "the district court.... did not deviate from that standard (Kumho). Dr. Harwell testified to his experience, to the criteria by which he diagnosed Skidmore, and to standard methods of diagnosis in his field."
Diefenbach v. Sheridan Transportation, (1st Cir. Oct. 6, 2000).
The second trial of this Jones Act claim resulted in a $900,000.00 jury verdict for plaintiff, who was a boatswain on an integrated tug and barge. He sustained a back injury while hauling in a spring line and pennant during the undocking of the vessel. Defendant challenged plaintiff's expert, claiming that the expert lacked the specific knowledge, training, and experience to assist the trier of fact in determining the validity of the plaintiff's claims. Defendant conceded that expert testimony was necessary to assist the jury because the case involved docking and undocking procedures for a complex vessel, and the equipment used on the vessel. Therefore, these subjects were beyond the scope of common knowledge. Defendant argued on appeal that the expert's "qualifications and opinions lacked Daubert reliability...." The First Circuit held defendant waived this objection because its failed to timely object at trial. In defendant's reply brief on appeal, it argued that it did not have "a scientific validity objection" to the expert's testimony, but rather the objection was based on "the complete lack of expert qualifications possessed by the witness in relation to the issues on which his opinions were offered." The First Circuit addressed the only objection raised, an objection to the expert's specific knowledge, training, and experience - in other words his qualifications, finding the expert, a 1973 Maine Marine Academy graduate, was well qualified based on his skill, training, education, and knowledge. The expert had taken courses in seamanship, rigging, booming, cargo-handling, mooring, and engineering, and had worked his way through the ranks to employment with the second largest towing company in the country. The expert had served as a captain on a vessel that was used as a school ship, and he taught others how to handle and lift such lines and equipment. This case points out the need for a specific objection on Daubert "scientific validity" grounds, rather than a general objection to the expert's qualifications.
Gibbs v. General American Life Ins. Co., 210 F.3d 491 (5th Cir. 2000).
Since many admiralty cases are tried to the court without a jury, this case is in the "worth-reading" category. The Fifth Circuit held that the Daubert factors were not as essential in a case where the district judge sits as a trier of fact in place of a jury. The court held that the district judge properly admitted the testimony of a Texas Department of Public Safety polygraph examiner.
Henry v. Gulf Dumar Marine, Inc., 2000 WL 1140493 (E.D. La. 2000).
This case involved a successful challenge to the Plaintiff's liability expert, a retired Coast Guard officer who specialized in marine safety with 18 years experience in investigation of marine casualties. Plaintiff sued under the Jones Act and general maritime law for personal injuries he sustained from a fall down a flight of stairs on the vessel. The fall occurred when the plaintiff took a break from painting duties and allegedly was overcome by paint fumes. The expert's report indicated the vessel did not have adequate ventilation, respiratory, and personal protective equipment, the stairway had an inappropriate handrail, worn non-skid tape, no non-skid application at the bottom, and the top step had an unequal rise to the deck. The expert concluded that paint exposure "caused dizziness and other physical impairments, which alone or in combination with the stairway, could cause the accident... " The expert concluded that these deficiencies constitute negligence and unseaworthiness. Defendant challenged the expert's qualifications to render an opinion on the paint fumes toxicity or protective measures needed when working with paint. Defendant also said the testimony was not reliable because the expert did not change his opinion after viewing the vessel and finding the handrail and steps in better condition than what he originally assumed in his report. Finally, defendant argued the testimony would not assist the trier of fact because the evidence and issues would not be beyond the average juror's understanding and the testimony included impermissible legal conclusions. There was no evidence the expert had any expertise in toxicology or protective measures required for working with paint. The expert's conclusions about paint fumes as a cause of the plaintiff's injury was based on non-applicable OSHA regulations and the MSDS sheets on the paint. The district court found: 1) the "expert testimony is not needed for a jury to understand the material," citing a Texas state court case that excluded the expert's testimony about violation of federal maritime boating regulations; 2) the expert's testimony about the lack of proper protective gear "inconclusive" because the vessel produced a "respirator-type mask," and the expert felt the capabilities of the mask required "further review"; 3) inadmissible the expert's causation testimony about paint fumes, the lack of proper ventilation, or the lack of protective equipment; 4) the expert's testimony about the safety aspects of the vessel's stairwell "not reliable or relevant"; 5) the expert had failed to account for finding the stairwell in a different condition from what he originally assumed in his preliminary report; and 6) the expert did not state any scientific, technical, or other specialized analyze or basis for his conclusions. The district court found no basis for a pre-trial Daubert hearing, and held that the expert could not testify to an impermissible legal conclusion of unseaworthiness and negligence.
St. Martin v. Mobil Exploration & Producing U.S. Inc., 224 F.3d 402 (5th Cir. 2000).
Plaintiff sued Mobil for money damages because of the deterioration of a Louisiana marsh. Plaintiff's owned nearby property and alleged Mobil's failure to maintain canals caused erosion and other damage to the fresh water marsh ecosystem on their property. Plaintiffs were awarded damages of $240,000.00. On appeal, Mobil challenged the expert testimony of a Louisiana State University professor of wildlife who had studied marshland ecology extensively. The expert had published over 130 scientific articles on wetlands and wildlife management and had worked with the federal and state government in such capacities as planning and evaluating development programs for marsh wildlife refuges and as a refuge and research biologist. Defendant's Daubert challenge was rejected. Although the expert was not a hydrologist, the Fifth Circuit held that the expert's expertise in marsh ecology, along with his personal observation of the property, qualified him to testify as an expert. Even though a hydrologist might be better trained in certain aspects relevant to the case, plaintiffs' expert was sufficiently qualified to testify about marshland ecology. The Fifth Circuit added, "the Daubert factors are non-exclusive and need not be rigidly applied in every case," citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
Williams, et al. v. McCall's Boat Rentals, Inc., et al., 2000 WL 1154602 (E.D. La. 2000).
Defendant filed Daubert challenge to the plaintiffs' safety expert. Plaintiff, a crane operator aboard drilling rig, was injured during a regularly scheduled crew change. Plaintiff left Venice, Louisiana on a McCall vessel headed to the rig and sat in the cabin during the voyage. He alleged that he sustained back injuries during the voyage because of bad weather and sea conditions. Defendants challenged the testimony of a marine expert who planned to testify on the duties and obligations of the crew boat captain, factors considered before making a voyage, and on the allegedly negligent decisions made by McCall's captain. Defendants did not dispute the expert's qualifications to serve as an expert witness. The challenge was based on Peters v. Five Star Marine Service, 898 F.2d 248 (5th Cir. 1990), a case in which the Fifth Circuit affirmed the exclusion of expert testimony as to whether it was reasonable for the employer to instruct his employees to manually move equipment on the deck of a boat during high seas. More specifically, McCall argued that the expert's testimony was not "scientific" or "technical" beyond the knowledge of the ordinary juror and therefore would not assist the trier of fact. Plaintiff argued the expert's testimony should be allowed because the topics of the expert's opinions were not within the knowledge and experience of average lay persons. The court denied the Defendant's Motion In Limine challenging the expert's testimony. Maintenance and Cure
Frederick v. Kirby Tankships, Inc., 205 F.3d 1277 (11th Cir. 2000).
The Eleventh Circuit joins what it deemed to be the majority of circuit courts that had found that when a collective bargaining agreement fixes a daily maintenance rate, a court should honor it, holding "the broad labor policies which undergird federal labor law, as well as the nature of the collective bargaining process, require adherence to the CBA." Where a CBA fixes a maintenance rate, the CBA applies even if the seaman spent substantially more for maintenance."
Sims v. Wood Towing Co., 757 So. 2d 783 (La. App. 5th Cir. 2000), writ denied, 767 So. 2d 41 (La. 2000).
Defendant contended plaintiff's alleged failure to disclose his prior medical condition led to a forfeiture of maintenance and cure. The plaintiff, however, had worked previously for the defendant, and two of the several prior injuries that plaintiff supposedly had failed to disclose involved accidents with the defendant. These incidents were reported in defendant's own records. Accordingly, plaintiff had not forfeited his right to maintenance and cure.
Duarte v. Royal Caribbean Cruises, Ltd., 761 So. 2d 367 (Fla. App. 3d Dist. 2000) rehearing denied July 19, 2000.
Plaintiff seaman was receiving maintenance and cure at the time she was seriously injured in an automobile accident, because she had yet to obtain maximum medical recovery. The Court of Appeal found that under such a situation, a seaman is still in the service of the ship and thus entitled to maintenance and cure for the additional injuries incurred.
Nurkiewicz v. Vacation Break U.S.A., Inc., (Fla. App. 4Th Dist. 2000) 2000 WL 1727011.
Punitive damages not available under maintenance and cure. 905(b) Negligence
Gravatt v. City of New York, 53 F. Supp. 2d 427-29 (S.D.N.Y. 1999), reversed on other grounds, 226 F.3d 108 (2d Cir. 2000).
Plaintiff was a dock builder employed by a construction contractor to repair a fender system on a city-owned bridge. Plaintiff's employer chartered a crane barge and a materials barge for the job. The Plaintiff's duties required him to spend nearly all of his time working directly on the fender system on the bridge. He spent less than one (1%) percent of his time on the barges. The employer was the statutory owner of the barges. Plaintiff was injured in a loading/unloading operation on the materials barge. Plaintiff's foreman negligently instructed plaintiff to do work in violation of the employer's safety policies. Plaintiff and his wife sued the employer under 905(b). The Second Circuit reversed, finding that the employer was negligent in his capacity as employer, not in its capacity as vessel owner. The court found that the materials barge, the crane barge, and anybody present at the bridge repair site were not engaged in vessel duties at the time of the accident.
Feurtado v. Zapata Gulf Marine Corp., No. 99-CA-1510 (La. App. 4th Cir. 1/12/2000) 751 So. 2d 379, rehearing denied Feb. 15, 2000.
Injured port captain brought negligence action under Jones Act and LHWCA against owners of vessel and cleaner of vessel's fuel tank after he slipped and fell while inside tank. The Court of Appeals found plaintiff was a "repairman" under the LHWCA 905(b) and could not recover damages from defendants
Meyers v. Mr. Crosby, Inc., No. 00-CA-63 (La. App. 5th Cir. May 17, 2000) 761 So. 2d 766.
Employee brought admiralty/general maritime suit against well owner and others after he was injured when he slipped and fell between two barges as he was performing workover operations of well. Summary judgment reversed because fact issues existed as to whether employer was acting as independent contractor. Punitive Damages
Rutherford v. Mallard Bay Drilling, L.L.C., 2000 WL 805230 (E.D. La. 2000).
Plaintiff was a floorhand employed on an inland drill barge in Louisiana state waters. He participated in the transfer of drill pipe from a barge to the drilling rig. During this operation, a crane broke from its pedestal, causing a load of five inch drill pipe to strike him. Rutherford filed suit asserting a claim under 905(b) and the general maritime law, seeking damages as a result of the drilling rig owner's negligence as well as Parker Drilling's negligence in requiring him to work in a dangerous condition with a crane that was known to be defective. The court held that it was irrelevant whether plaintiff asserted a claim for punitive damages under the general maritime law or pursuant to 905(b), finding that a 905(b) claim was in essence a general maritime law claim. Finding that Gaudet permitted longshoremen injured in territorial waters to recover nonpecuniary damages, the court held that punitive damages were also available.
In re: Horizon Cruises Litigation, 101 F. Supp. 2d 204 (S.D.N.Y. 2000).
Passengers on a pleasure cruise contracted Legionnaires' Disease and sued Celebrity Cruises for negligence, fraud, and breach of contract. The cruise line filed third party claims against the manufacturer of an allegedly defected whirlpool spa filter. Plaintiffs moved to amend their complaints to add punitive damages claims. First, the district court held that the claims were within the court's admiralty jurisdiction. Second, after reviewing the history of punitive damages in admiralty and Miles v. Apex Marine Corp., the district court acknowledged the split of authority on the availability of punitive damages, noting that Congress did not prescribe remedies for the wrongful deaths of nonseafarers in territorial waters and had not passed the law limiting the scope of relief for injured passengers. The anomalies between Jones Act seamen, plaintiffs under DOSHA coverage, and passengers such as the plaintiffs did not justify contracting remedies otherwise available to the passengers whose claims had not been addressed by Congress. The Plaintiffs were permitted to amend and claim punitive damages.
Motts v. M/V GREEN WAVE, 210 F.3d 565 (5th Cir. 2000).
The Fifth Circuit found DOHSA applied to a negligent act that was committed on land but which resulted in injury on the high seas and therefore reversed an award of punitive damages as well as an award of nonpecuniary damages.
Calhoun v. Yamaha Motor Corp., 216 F.3d 338 (3d Cir. 2000).
The availability of punitive damages in maritime cases continues to be acknowledged in specific factual and legal settings by a number of courts. In Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996), the United States Supreme Court held that in certain circumstances state wrongful death remedial schemes can apply for maritime claims. The Court did not address the issue of punitive damages, but it did not foreclose their availability. The Third Circuit subsequently ruled in that case that punitive damages would be allowed if state law permitted them. The court then held that the law of Puerto Rico, and not that of Pennsylvania, was applicable; Puerto Rican law prohibited punitive damages.
Juno Marine Agency, Inc. v. Taibl ex rel. Taibl, 761 So. 2d 373 (Fla. App. 3d Dist. 2000) rehearing denied July 26, 2000.
Punitive damages available for survivors of worker who was killed when, while working nearby for another employer, he attempted to rescue member of vessel crew from hold of vessel while it was moored at Government Cut in Miami-Dade County. Because plaintiff died on Florida territorial waters in an accident covered neither by the Jones Act, the LHWCA, nor the DOHSA, his survivors were entitled to supplement their maritime remedies with those available for wrongful death under Florida law.
Gravatt v. City of New York, 53 F. Supp. 2d 427-29 (S.D.N.Y. 1999), reversed on other grounds, 226 F.3d 108 (2d Cir. 2000).
Nurkiewicz v. Vacation Break U.S.A., Inc., (Fla. App. 4th Dist. 2000) 2000 WL 1727011.
Punitive damages not available under maintenance and cure. Maritime Jurisdiction
In re Complaint of Lewis & Clark Marine, Inc., 196 F.3d 900 (8th Cir. 1999), cert. Granted, 120 S. Ct. 2193 (2000).
See description above in LIMITATION OF LIABILITY
Young v. Players Lake Charles, L.L.C., 47 F. Supp. 2d 832 (S.D. Tex. 1999).
Several Texas residents were traveling on I-10 in Louisiana when they were struck by a vehicle driven by a man who was legally intoxicated. This individual had been drinking for several hours aboard THE PLAYERS III, a riverboat casino in Lake Charles, La., where he had been gambling. Evidence revealed he had received several "comps" from the casino, some of which were used to purchase drinks. The collision resulted only a short time after he had left the boat. Plaintiff contended that the defendant casino was negligent because it had continued to serve a person that it knew or should have known was intoxicated. The first issue before the court was whether admiralty jurisdiction existed. The court applied the traditional two-pronged test of Grubart v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534 (1995) and found it was indisputable that the negligent conduct serving excessive alcohol aboard the vessel occurred on navigable waters. The court also found that a substantial relationship with traditional maritime activity existed because the casino vessel regularly transported passengers over navigable waters.
Defendants contended, however, that substantive Louisiana state law as opposed to maritime law applied. The reason for this was that Louisiana has an anti-dram shop law, which essentially absolves a server of alcohol from liability caused by an intoxicated person. The court rejected this argument, finding that the general maritime law had adopted fundamental principles of negligence law. The court held that federal maritime law applied. In a policy-related statement, the court stated that "[i]f Louisiana wants to establish shoreside casinos and insulate their liability, that is solely Louisiana's business. But, where navigable ships in Louisiana are going to entice residents of Texas and other states to flock in huge numbers to their casinos to drink too much and return home in a murderous condition, the general maritime law should and does afford the endangered public with a ready and wholly appropriate remedy."
LeBlanc v. Cleveland, 198 F.3rd 353 (2d Cir. 1999).
Two men suffered injuries when their kayak was struck by a motorboat on the Hudson River. They filed suit in federal district court and invoked federal maritime jurisdiction. Defendants argued the Hudson River was not "navigable in fact" at the location where the accident took place and that therefore jurisdiction did not exist. The Second Circuit held that a waterway is navigable for purposes of jurisdiction only if it is currently being used or is capable of being used as "an interstate highway for commercial trade" by customary means of traveling on water. Defendants claimed natural and artificial obstructions prohibited commerce at the collision situs. The court agreed, finding that the existence of several dams along the Hudson River had rendered that portion of the river non-navigable for purposes of jurisdiction.
Matthews v. Howell, 753 A.2d 69 (Md. 2000), 2000 A.M.C. 2067.
Maritime jurisdiction existed for drowning death on pleasure craft. Plaintiffs were invited by defendant on board his boat, a 38-foot, 1984 Wellcraft Scarab. All parties consumed variety of alcoholic drinks for a number of hours. En route back to marina, defendant operated the boat from the helm on the starboard (right) side, while plaintiffs were standing on deck. Weather conditions were bad: the wind had increased, the water had gotten choppy, and it was dark. While traversing the Chesapeake Bay near Greenbury Point, the boat had been traveling at a planing speed of about forty knots. At some point, defendant abruptly throttled back thereby slowing the boat. He then said he wanted to take a quick swim, and dove into the Bay, jumping from the seat at the helm. Defendant did not ask anyone to take the helm or to post watch. One plaintiff went into the water immediately after defendant and drowned. Drowning victim's estate and survivors brought wrongful death and survivor negligence action against owner of boat upon which victim was guest at time of her drowning.
Curran v. Fisherman Marine Products, Inc., No. 2000-CA-0099 (La. App. 4th Cir. Nov. 15, 2000) 2000 WL 1716503.
Crewman on shrimping vessel owned by Alabama company brought personal injury action against company. Plaintiff claimed Louisiana jurisdiction based on: annual purchases or acquisition of Louisiana commercial fishing licenses over seventeen (17) years for multiple shrimping vessels; 12 to 16 sales of catches of shrimp to Louisiana companies in the period 1988-1996; three purchases of supplies, groceries, repair items and fuel in Louisiana between 1993 and 1995; and, shrimping in Louisiana waters by each of defendant's vessels once or twice a year since 1978. Court found insufficient minimum contacts and that company did not have systematic and continuous contacts with Louisiana necessary to support general jurisdiction.
Rand v. Hatch, 762 So. 2d 1001 (Fla. App. 3d Dist. 2000) rehearing denied Aug. 16, 2000.
Patient and her husband filed tort claim against cruise ship physician and nurse, alleging negligence for failure to properly diagnose wife's blood sugar level and render proper medical treatment. Because claim fell under general maritime law, rather that state law, plaintiffs did not have to comply with mandatory pre-suit screening requirements of Florida's Medical Malpractice Act. Limitations of Actions
Wagner v. Apex Marine Ship Management Corp., 100 Cal. Rptr. 2d 533, 83 Cal. App. 4th 1444, Cal. App. 1st Dist. (2000), as modified on denial of rehearing, 84 Cal. App. 4th 670C (2000).
Seaman who was diagnosed with asbestosis brought action against maritime defendants under the Jones Act. Trial court granted defendants' motion to dismiss. The Court of Appeal held that seaman's discovery that he suffered from asbestos-related disease did not trigger running of statute limitations on Jones Act claims regarding separate and distinct asbestos-related diseases caused by the same exposure to asbestos. The sole issue on appeal is whether a plaintiff's discovery of one asbestos-related disease triggers the running of the statute of limitations on all separate and distinct asbestos-related diseases caused by the same exposure to asbestos.
Riley v. Louisiana I-Gaming, 1999 WL 125748 (La. App. 5th Cir. 1999).
Plaintiff, a passenger who tripped over a buckle in a rug at the entrance of a riverboat casino, filed claims pursuant to both maritime law and state law. Defendant moved for summary judgment, seeking dismissal of the general maritime negligence claim. Of significance was the fact that the plaintiff filed suit within the three-year limitation period for maritime claims but outside the one-year period for Louisiana state law claims. The Louisiana Court of Appeal held state law claims were filed within the one-year period but in an improper venue. The casino owner was not served until seventeen months later, after the one-year statute of limitation period had expired. Accordingly, the court held that the state law claims had expired under Louisiana law. In addition, because plaintiff had failed to produce any evidentiary support to demonstrate that the defendant had actual or constructive knowledge of the dangerous condition, summary judgment was appropriate in favor of the vessel owner under the maritime law.
In re Complaint of Ross Island Sand & Gravel, 226 F.3d 1015 (9th Cir. 2000).
Mattson, an employee of Ross Island, was injured while aboard a vessel and sued in state court under the Jones Act and the general maritime law. This case involves the "single claimant exception" under the Limitation Of Liability Act. Mattson failed to stipulate to the adequacy of the limitation fund, expressly required before the stay can be lifted. Therefore, the Ninth Circuit affirmed the district court's denial of the motion to dissolve the injunction.
Moreno v. Grand Victoria Casino, 94 F. Supp. 883 (N.D. Ill. 2000).
Riverboat casino worker, who had been discharged, brought suit alleging negligence and unseaworthiness under the Jones Act and the general maritime law respectively as well as for retaliatory discharge. She had injured her knee while refilling a slot machine on a riverboat casino. Vessel status was not at issue. The court found that facts did not exist to support the claim based upon unseaworthiness, but held that the worker did have a viable claim pursuant to the Jones Act and for wrongful discharge pursuant to the general maritime law. Jones Act Remedies
Green v. Alaska Nat. Ins. Co., No. 99-C-2844 (La. App. 4th Cir. March 29, 2000) 759 So. 2d 165, writ denied June 2, 2000.
Plaintiff alleged "new" tort of interference with medical treatment or violation of criminal statute forbidding intentional and willful interference with physician in the performance of their duties. Plaintiff seaman was seen by a physician of his choosing for his injuries, who recommended back and neck surgery. The plaintiff also was seen by a physician chosen by defendant employer's insurer. Insurer's doctor initially concurred in the recommendation for back surgery but not in the recommendation for neck surgery. At that point, according to the allegations of the petition, the insurer sent "several documents and records" to plaintiff's doctor including copies of medical records from the Veterans Administration. Also, the insurer sent the same Veterans Administration medical records, plus a surveillance videotape of the plaintiff, to the insurer's doctor. After receiving these materials, the insurer's doctor withdrew his recommendation for surgery. Plaintiff did not allege that: the insurer obtained the medical records in any improper way; the medical records were false, incomplete or misleading; the medical records contained any unusually private information or were anything other than routine medical records; the medical records or any information from them was disclosed to any persons other than the two physicians who were examining and evaluating the plaintiff; the videotape was obtained in any improper way; the videotape was false, incomplete or misleading; the videotape or any information from it was disclosed to any person other than the insurer's doctor to examine and evaluate the plaintiff; and there was not an invasion of privacy.
Plaintiff alleged that the insurer's sending the Veterans Administration medical records to plaintiff's doctor and sending the Veterans Administration medical records plus the surveillance videotape to the insurer's doctor constitutes a tort of "interference with medical treatment" and that, because the doctors are located in New Orleans, venue is proper in New Orleans slate court.
The Court of Appeal held that petition did not allege facts sufficient to show that the insurer committed possible new tort of interference with medical treatment or violation of criminal statute forbidding intentional and willful interference with physician in the performance of their duties.
West v. Midland Enterprises, Inc., 227 F.3d 613 (6th Cir. 2000).
Plaintiff deckhand alleged that he suffered psychological injuries as a result of being ordered to watch a pornographic videotape containing bestiality by his captain. Plaintiff filed suit for negligence under the Jones Act, for breach of the duty to provide a seaworthy vessel, and for maintenance and cure. The Court of Appeals found plaintiff could recover for maintenance and cure without showing physical impact and his claim was not barred by fact that he had brought aboard pornographic videotape involving human performers.
Nielsen v. Northbank Towing, Inc., No. 99 CA 1118, (La. App. 1st Cir. July 13, 2000) 768 So. 2d 145.
Employer's failure to evacuate dive crew from sinking barge constituted actionable negligence under Jones Act. Diver, who was forced to abandon sinking vessel and swim to life raft in 30-35 foot seas and stay in raft for hours, brought action against employer pursuant to Jones Act and general maritime law. Trial court found employer negligent and awarded $350,000 in general damages for post-traumatic stress disorder, $96,148 in past lost wages, $429,681 in future loss of wage earning capacity, and $90,443 in loss of fringe benefits.
Domonter v. C.F. Bean Corp., No. 99-CA-1204 (La. App. 5th Cir. April 25, 2000) 761 So. 2d 629, rehearing denied.
Seaman filed injury claim under Jones Act, for unseaworthiness, and for maintenance and cure against vessel owner following alleged work injury on dredge. On appeal, court found that: (1) evidence was sufficient to find that vessel owner's improper placement of burlap created unseaworthy condition and constituted negligence; (2) damages award for past wage loss would be reduced by seaman's proportion of fault, but not for seaman's medical expenses, or cure; (3) evidence was sufficient to support finding that seaman failed to seek work and, thus, justified reduction of damages award for future lost wages by 60%.
Wiora v. Harrah's Illinois Corporation, 68 F. Supp. 2d 988 (N.D. Ill. 1999).
Waitress who had been employed on a riverboat casino sued her employer for invasion of privacy, intentional infliction of emotional distress, and sex discrimination. The court held that she was a seaman pursuant to the Jones Act and ruled that jurisdiction existed over her invasion of privacy and intentional infliction of emotional distress claims. Despite the existence of jurisdiction, however, her invasion or privacy and intentional infliction of emotional distress claims were not deemed by the court to be cognizable under the Jones Act. Release
Sea-Land Service, Inc. v. Sellan, ___ F.3d ___, (11th Cir. 2000) 2000 WL 1597516.
Release enforced against seaman. Vessel owner brought action against injured seaman seeking judgment declaring that agreement settling claims arising from back injury precluded seaman from pursuing state court action seeking damages on account of second back injury. The Court held that agreement, stating that owner would not be liable for any injury that seaman might suffer upon being re-engaged on one of owner's vessels, did not violate section of Federal Employers' Liability Act rendering void any contract intended to enable common carrier to exempt itself from FELA liability. The release said in pertinent part, "in addition to, and as an integral part of, the above referenced Release of All Rights, and in consideration of total payments equaling Three Hundred Sixty Four Thousand Five Hundred and 00/100 Dollars ($364,000.00), the parties have agreed that Mr. Sellan will not work, sail and/or navigate, and/or seek to sail, navigate or work, in any capacity, including shore relief, aboard vessels owned, managed, and/or operated by Sea-Land Service, Inc., and/or any of its affiliates and/or subsidiaries, in the future. It also recited that "However, if for any reason, including oversight or consent, Mr. Pedro Sellan is able to re-engage in service aboard a vessel owned, managed and/or operated by Sea-Land Service ... then he shall do so at his own risk, and the company will bear no responsibility for an illness and/or injuries he may suffer while in service "
Coto v. J. Ray McDermott, S.A., (La. App. 4th Cir. Oct. 25, 2000) 2000 WL 1618339.
The Court held that: (1) videotape of manager's presentation to seamen concerning settlement offer and of their reaction to releases raised genuine issues of material fact, and (2) the adequacy of consideration for the releases of claims involved questions of fact precluding summary judgment.
Wreglesworth ex rel. Wreglesworth v. Arctco, Inc., (Ill. App. 1st Dist. 2000) 2000 WL 1459778.
Minor suffered injuries while riding on personal watercraft. Minor's mother executed release in settlement of claims previously asserted against owner of watercraft, and administrator of estate of its operator, who died in accident. The release's language included a release of "any other person, firm or corporation" from liability with respect to accident. The Court found the release unenforceable with respect to minor's claims, since it had not been approved by probate court and since the release did not specifically identify manufacturers, it did not apply to them under Illinois law.
Borden v. Phillips, 752 So. 2d 69 (Fla. App. 1st Dist. 2000).
Release between personal representative of decedent who drowned while taking offshore scuba diving training and defendant boat owner, captain and personal association certifying diving instructors was valid. The court found federal admiralty statute, 46 U.S.C. App. 183c, voiding certain releases between owners of vessels transporting passengers, would not apply to invalidate diver's release of boat's owner and captain from liability and exculpatory clause in release was enforceable to release owner, captain, and association from liability. Before participating in the class, decedent executed a document entitled "PADI Standard Safe Diving Practices Statement of Understanding" and "LIABILITY RELEASE AND EXPRESS ASSUMPTION OF RISK". The court explained its decision as follows: "Whether the decedent's death was related to the operation or maintenance of the Manta Ray, or solely to scuba diving, is a close question. Unlike an incident in which a passenger falls overboard or suffers injuries from negligent maintenance, the decedent intentionally departed the Manta Ray to dive. This activity, scuba diving, was not dependent on his passage in the Manta Ray. Further, decedent ceased being a passenger when he entered the water. That the crew was allegedly negligent when it failed to respond to decedent's signal did not involve the operation or maintenance of the Manta Ray, but was related solely to the activity of scuba diving, and therefore admiralty law does not apply to invalidate the release. The release expressly states that the decedent "understands and agrees" that none of the "Released Parties" "may be held liable or responsible in any way for any injury, death, or other damages to me [decedent] or my family, heirs, or assigns that may occur as a result of my [decedent's] participation in this diving class or as the result of the negligence of any party, including the Released Parties, whether passive or active." The release also states: the decedent intends to exempt and release Appellees from all liability or responsibility whatsoever ... "HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE." Preemption
Young v. Players Lake Charles, L.L.C., 47 F. Supp. 2d 832 (S.D. Tex. 1999).
See MARITIME JURISDICTION.
Rand v. Hatch, 762 So. 2d 1001 (Fla. App. 3d Dist. 2000) rehearing denied Aug. 16, 2000.
Patient and her husband filed tort claim against cruise ship physician and nurse, alleging negligence for failure to properly diagnose wife's blood sugar level and render proper medical treatment. Because claim fell under general maritime law, rather that state law, plaintiffs did not have to comply with mandatory pre-suit screening requirements of Florida's Medical Malpractice Act.
Clements v. Gamblers Supply Management Co., 610 N.W.2d 847 (Iowa 2000) rehearing denied May 15, 2000.
Ship captains employed by a management company for a riverboat casino in Marquette, Iowa, brought an action against the employer, seeking damages for retaliatory discharge. Trial court dismissed claims. On appeal, the Iowa Supreme Court held that captains' state law wrongful termination cause of action claims were not preempted by federal maritime law.
Juno Marine Agency, Inc. v. Taibl ex rel. Taibl, 761 So. 2d 373 (Fla. App. 3d Dist. 2000) rehearing denied July 26, 2000.
Worker was killed when, while working nearby for another employer, he attempted to rescue member of vessel crew from hold of vessel while it was moored at Government Cut in Miami-Dade County. Widow brought maritime-wrongful death action against vessel owners. Because plaintiff died on Florida territorial waters in an accident covered neither by the Jones Act, the LHWCA, nor the DOHSA, his survivors were entitled to supplement their maritime remedies with those available for wrongful death under Florida law, including a claim for punitive damages.
Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699 (Fla. App. 3d Dist. 2000) rehearing denied May 31, 2000.
Florida deceptive trade practices act was not displaced by maritime law where cruise ship passengers brought action against cruise lines alleging deceptive trade practice involving collection of "port charges." Enforcement of Florida law prohibiting deceptive and unfair trade practices against cruise lines would not work material prejudice to the characteristic features of the general maritime law, or interfere with its proper harmony and uniformity, and law was thus not displaced by maritime law, where cruise lines had their national headquarters within Florida, passenger tickets specified Florida as the forum for litigation, and the state had a substantial interest in preventing deceptive and unfair trade practices. Choice of Law
Solano v. Gulf King 55, 212 F.3d 902 (5th Cir. 2000).
Nicaraguan seamen brought ten separate actions against United States corporations to recover for personal injuries they allegedly sustained while serving aboard United States-flagged shrimping vessels in Nicaraguan territorial waters. Under choice of law analysis, all claims were dismissed. The court found all that actions were governed by law of Nicaragua rather than law of United States, based in part on seamen s Nicaraguan citizenship, residence, place of employment, and place of injury. Each plaintiff was hired in Nicaragua to work aboard one of the Gulf King vessels engaged in shrimping operations exclusively in Nicaraguan territorial waters; plaintiffs were paid with Nicaraguan currency in Nicaragua for their work aboard the vessels; all original payroll and employment records pertaining to their service aboard the vessels originated in Nicaragua; all decisions concerning Plaintiffs' employment aboard Gulf King vessels were made in Nicaragua; injuries all occurred within twelve nautical miles of the Nicaraguan shoreline; all vessels involved in these cases have been located in Nicaragua since 1994 and have not returned to the United States or conducted fishing operations outside Nicaraguan territorial waters at any time relevant to the suits; the vessels have not been operating under general maritime principles of international commerce, but rather were operating under license, regulations and control of the Nicaraguan government; although each vessel is documented under the laws of the United States and flies the American flag, each vessel flies the Nicaraguan flag above the American flag, in accordance with Nicaraguan law. | 
