RECENT
DEVELOPMENTS IN THE COURTS - PART V
(published December
2001)
The following survey represents some of the more significant recent court rulings around the nation affecting shipping lines generally.
Calculation Of Seaman's Maintenance
Hall v. Noble Drilling, Inc., 242 F.3d 582, 2001 A.M.C. 1099 (5th Cir. 2001)
Recently, the Fifth Circuit took up the subject of the maritime employer's maintenance obligation. Hall originated in southern Mississippi. Two injured seamen claimed expenses of $45.93 and $51.45 per day respectively. Their demands were based on the actual expenses they incurred while convalescing, including their home mortgages, food, telephone bills, satellite T.V., automobile expenses and miscellaneous items. The proof they submitted consisted largely of their own testimony along with an unscientific survey of the average room and board rates in the area. The shipowner had paid each seaman $21 per day prior to the trial. The court ultimately awarded one seaman $30.50 per day and the other $31.50 per day based upon a newly enunciated three part test. First, the court will look at the reasonable cost of food and lodging for a single seaman in the same locality. Second, the court will compare the seaman's actual expenses to the reasonable expenses. If the actual exceeds the reasonable, the court will award reasonable expenses. Third, if the actual expenses are inadequate to provide the seaman with reasonable food and lodging, then the seaman is entitled to a greater amount equal to the amount that the court determines is reasonable. This opinion represents a new approach to dealing with maintenance cases, and could very well be picked up by other federal courts outside the Fifth Circuit.
Supreme
Court Finds Cause Of Action For Wrongful Death Resulting From Negligence
Under General Maritime Law
Norfolk Shipbuilding & Drydock Corp. v. Garris, 121 S. Ct. 1927; 150 L. Ed. 2d 34; 2001 U.S. LEXIS 4125; 2001 A.M.C. 1817
Plaintiff alleged in her complaint in district court her son died as a result of injuries sustained while performing sandblasting aboard a vessel berthed in navigable waters of the United States. She further asserted the injuries were caused by the negligence of defendant and another, and sought damages under general maritime law. The district court dismissed the complaint for failure to state a federal claim for the categorical reason "no cause of action exists, under general maritime law, for death of a nonseaman in state territorial waters resulting from negligence." The Court of Appeals for the Fourth Circuit reversed, explaining although no court had yet recognized a maritime cause of action for wrongful death resulting from negligence, the principles codified in the Supreme Court's decision in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), supported the creation of such a claim. The Supreme Court affirmed the 4th Circuit opinion.
The High Court held that relevant federal statutory law providing remedies for injuries and death suffered in admiralty, such as the Jones Act, the Death on the High Seas Act and the Longshore and Harbor Workers' Compensation Act, do not preclude a negligence cause of action. Therefore, the Court concluded the cause of action for wrongful death based on negligence "is new only in the most technical sense," and general maritime law principles and the Moragne decision caused the court to recognize "what is already logically compelled by our precedents."
Enforcement Of Arbitration Clauses In POEA Contract
Lejano v. K.S. Bandak, et al., 2001 A.M.C. 1724 (E.D. La. 2000)
This case involved a POEA seaman trying to sue in the U.S. under the Jones Act. The case was commenced by the seaman and his wife in 1991 in Louisiana state court, which upheld the Philippine forum selection clause under the POEA contract and dismissed the action. The state court of appeal affirmed, as did the Louisiana Supreme Court. However, the Louisiana Supreme Court remanded the case to the trial court to retain jurisdiction in the event the plaintiffs could not gain access to a remedy in the Philippines. The seaman then filed an administrative claim in the Philippines before the National Labor Relations Commission ("NLRC"), but his claim was dismissed on the basis it was time-barred. Thus, plaintiff requested the Louisiana state court set a trial date. Meanwhile, the NLRC reversed itself and agreed to hear plaintiff's claim and referred it to a Philippine arbiter.
While the plaintiff was pressing for a trial in the Louisiana state court, the defendant removed the case to federal court under the Federal Arbitration Act ("FAA"), which generally enforces arbitration clauses in contracts. One section of that Act (section 1) says seamen's contracts are exempted from enforcement of arbitration clauses, but another section (section 2) says all maritime commercial contracts are covered. The FAA also says a case can be removed to federal court for enforcement of an arbitration provision at any time before trial.
The federal district court held that section 2 of the FAA controlled over section 1, the POEA arbitration clause was part of a foreign agreement required by a foreign sovereign, and thus enforceable, and dismissed the case in favor of arbitration in the Philippines. The court held the defendant was timely in removing the case to federal court some nine years after the U.S. lawsuit was initiated, based on the express provision of the FAA that removal is proper any time before trial.
This is an important precedent for a couple of reasons. First, it appears to be the first time a U.S. court has enforced an arbitration clause in a seaman's contract in a published decision. Second, and more importantly, it provides a new road map for transferring POEA cases into federal court and being dismissed in favor of arbitration in the Philippines. It is well known that federal courts are more receptive to enforcement of POEA forum selection clauses, but now there is apparently a second argument that federal courts should enforce the Philippine arbitration clause of the POEA contract (with the same result). The court relied in part on the International Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which the U.S. is a signatory. That Convention was codified by Congress at 9 U.S.C. sections 201 to 208, which is part of the FAA. The Court held the part of the FAA dealing with foreign arbitration contracts controls over the part of the FAA dealing with domestic arbitration contracts, which is where the exclusion for seamen's contracts is found.
Jaranilla v. Megasea Maritime Ltd., 2001 U.S. Dist. LEXIS 17233 (E.D. La. 2001)
Unfortunately, a short time later a different judge in the same federal court reached the opposite conclusion. Plaintiff, a POEA seaman, was injured as a result of an electrical explosion on the Maltese vessel, M/V KOUROS. He filed suit in Louisiana seeking damages pursuant to the Jones Act and general maritime law. The controlling POEA contract contained the usual clause requiring arbitration of all disputes before the Philippine National Labor Relations Commission. Defendants accordingly removed the action to Federal Court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. ¤201, arguing that the employment contract contained an international agreement to arbitrate and, therefore, the Convention governed the dispute.
The Jaranilla Court examined the legislative history of the relevant statute. Chapter One of Title IX of the U.S. Code is referred to as the Federal Arbitration Act ("FAA"). The FAA governs domestic arbitration, but specifically excludes contracts of employment of seamen. Chapter Two of Title IX of the U.S. Code contains the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and provides broader coverage than the FAA. The Convention applies to any award not considered domestic by the nation where enforcement is sought. It gives a nation the right to apply the Convention to legal relationships which that nation considers "commercial" under its national law. In reconciling the FAA and the Convention, the Court held that based on the plain language of the FAA and the Convention, in addition to the legislative history of the statutes, U.S. arbitration law specifically excludes seafarers' contracts of employment from the scope of commercial contracts. The Court found seafarers' contracts are not subject to the law of the Convention as they are not "commercial" in nature.
The Jaranilla Court agreed with the Lejano Court that the terms of the statutes were "clear and unambiguous," but reaches the opposite legal conclusion.
Federal Court Enforces Athens Convention Limitation And Enters Summary Judgment On Alleged Emotional Distress, Fraud And Breach Of Contract Claims
Wallis v. Princess Cruises, Inc. et al., United States District Court, Central District of California, Case No. 00-7239 (Decided August 14, 2001)**
Plaintiff's husband disappeared from the ship during a Mediterranean cruise and was believed to have fallen overboard from the balcony of his stateroom. At the time his disappearance was reported (over 4 hours after plaintiff first realized he was missing), the ship was already docked in Piraeus, Greece. The ship promptly notified local authorities who reportedly launched a vast search and rescue operation spanning several days. Decedent was found approximately one week after his disappearance when his body washed ashore on a Greek island. Plaintiff filed suit against the cruise line alleging: (1) wrongful death under the Death on the High Seas Act; (2) intentional infliction of emotional distress; (3) fraud in various marketing materials; and (4) breach of contract. In addition, plaintiff demanded a jury trial and sought punitive damages. Plaintiff initially sought recovery in excess of $100 million.
The cruise line filed a motion for summary judgment challenging plaintiff's claims, and her demand for jury trial and punitive damages. The defendant also sought to enforce the Athens Convention limitation in the passenger ticket contract, which under the pertinent 1976 Protocol, would limit recoverable damages to approximately $58,000. Plaintiff had alleged crewmembers and local Greek authorities mistreated her during the investigation following her husband's disappearance. The Court rejected plaintiff's emotional distress claim on the grounds the conduct surrounding the investigation did not rise to the level of outrageous and intentional conduct required to sustain a claim. Plaintiff's fraud claims were also rejected by the Court, as plaintiff failed to demonstrate any specific misrepresentation made by the cruise line, much less any evidence she had relied on such misrepresentations in purchasing her cruise. In her breach of contract claim, plaintiff alleged the cruise line breached the terms of the shipboard insurance policy she purchased through a third party. The Court found the cruise line was not a party to the insurance contract, and any and all disputes between plaintiff and the cruise lines were governed solely by the terms of the passage ticket contract.
The Court found there was a triable issue of fact relating to alleged negligent search and rescue efforts precluding entry of summary judgment on the entire case. The Court specifically opined plaintiff's claim was "tenuous," but noted it was unable to dispose of the claim on summary judgment. However, as only plaintiff's claim for wrongful death brought under DOHSA and federal maritime law remained, the Court held there was no basis for either a jury trial or punitive damages because neither is available under DOHSA. The Court also held plaintiff's DOHSA claim was subject to the limitation of the Athens Convention incorporated into the ticket contract. Plaintiff argued the Athens Convention limitation was unenforceable, alleging it was not reasonably communicated and was fundamentally unfair. The Court rejected plaintiff's arguments, finding numerous cases have enforced similar limitation clauses in both airline and cruise line contexts. The Court further held the limitation clause was conspicuous and timely communicated to plaintiff.
Seaman Can Recover Maintenance And Cure For Emotional Injuries Even When Not Accompanied By Physical Impact
West v. Midland Enterprises, Inc., 227 F. 3d 613 (6th Cir. 2000)
Plaintiff, a deckhand, sued the vessel, its owner and operator for negligence under the Jones Act, unseaworthiness and for maintenance and cure for psychological injuries as a result of being ordered by the vessel's captain to watch a bestiality videotape. The district court granted summary judgment for the defendants on plaintiff's claims for negligence and unseaworthiness, concluding that neither of these theories supported an award for emotional injuries when not caused by a physical impact. On plaintiff's claim for maintenance and cure, however, the district court concluded plaintiff was entitled to these benefits. Defendants filed an interlocutory appeal challenging the district court's denial of defendants' motion for summary judgment on the maintenance and cure claim.
The appellate court held that plaintiff had made a prima facie case for maintenance and cure based on testimony he developed emotional problems and had to undergo mental health counseling after he was ordered by the captain to watch the pornographic tape. The court found the cases cited by defendants precluding a seaman from recovering damages for emotional injuries that are not accompanied by physical impact did not address a claim for maintenance and cure, and therefore did not control the decision.
Defendants also argued on appeal that because plaintiff admitted he brought his own pornographic videotapes on board the vessel, conduct which violated the vessel's rules, he should be barred from receiving maintenance and cure on equitable grounds. The court found that plaintiff's violation of the vessel's rules by bringing his own pornographic materials on board was irrelevant, however, because the pornographic materials that allegedly caused him to sustain mental problems were brought onto the vessel by the captain. Moreover, plaintiff's videotapes "only featured human performers, whereas [the captain's] videotape had barnyard animals as co-stars." There was, therefore, no causal link between plaintiff's violation of the vessel's rules and the alleged injuries.
U.S. Supreme Court To Hear ADA Claim Involving Obsessive Compulsive Disorder
Memorial Hospitals Association v. Humphrey, 151 L. Ed. 2d 7; Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001)
Plaintiff sued her former employer under the Americans With Disabilities Act ("ADA") and its California counterpart, the Fair Employment and Housing Act ("FEHA"), for failure to reasonably accommodate her disability and for wrongful termination. Plaintiff appealed from summary judgment for Memorial Hospitals. Plaintiff worked as a medical transcriptionist from 1986 until her termination in 1995. Plaintiff's performance was excellent and consistently exceeded company standards. However, in 1989, plaintiff began to develop Obsessive Compulsive Disorder ("OCD"), which interfered with her attendance. Plaintiff requested a work-at-home position to accommodate her OCD. Her request was denied based upon her earlier absenteeism and tardiness warnings. Plaintiff was eventually fired after a series of warnings.
At the trial level, summary judgment was granted for Memorial Hospitals, finding defendant had attempted to make a reasonable accommodation. The 9th Circuit reversed, holding there was a triable issue of fact as to whether plaintiff would have been able to perform the essential duties of her job with the accommodation of a work-at-home position. The Court further held an employer must consider each request for reasonable accommodation, and if a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. As long as a reasonable accommodation available to the employer could have plausibly enabled a disabled employee to adequately perform his job, an employer is liable for failing to attempt that accommodation. An employer need not make an accommodation if it poses an undue hardship. If an employer rejects a proposed reasonable accommodation and offers no practical alternatives, then a court may find the employer wrongfully discharged the employee because of the disability.
Defendant's petition for certiorari was granted by the U.S. Supreme Court.
ADA
Plaintiff Could Not Demonstrate "Injury In Fact" And Therefore Lacked Standing
To Sue Cruise Line
Suzanne Deck v. American Hawaii Cruises, Inc., 121 F. Supp.2d 1292, 2001 A.M.C. 1653 (Ha. 2000)
Plaintiff embarked on a seven-day cruise aboard defendant's cruise ship S.S. INDEPENDENCE on February 15, 1997. Plaintiff thereafter sued the cruise line for alleged violations of the Americans with Disabilities Act ("ADA"), Hawaii's disability statute, false advertising, and unfair/deceptive trade practices. Plaintiff filed a motion for summary judgment seeking a determination of liability as to her ADA claim, and defendant filed a counter motion to dismiss or in the alternative for summary judgment on plaintiff's claims under the ADA, arguing plaintiff's ADA claims should be dismissed because she failed to allege the requisite colorable threat of imminent harm.
The Court in addressing defendant's motion noted plaintiff has the burden of establishing she has standing to raise the claims asserted. In an attempt to meet that burden, plaintiff introduced evidence that she would like to take a cruise on defendant's ship in the future. However, she was unable to commit to a particular date for a future cruise because of her mother's health situation, and her own financial difficulties. The Court was not persuaded by that evidence and found plaintiff failed to show her threat of future harm was more than conjectural, i.e., she did not show she faced a real and immediate threat of future harm. A plaintiff does not have standing to sue for injunctive relief under the ADA by merely alleging a defendant has a policy and practice of discriminating against disabled persons in general. Because plaintiff's threat of future harm was merely hypothetical, the Court granted the defense motion to dismiss the case, with prejudice.
ADA Claim Held Subject To Forum Selection Clause
Moeller v. Cruiseship Centers, et al., U.S.D.C. Case No. 00-03260 PJH (N.D. CA 2001) (Publication in A.M.C. pending)**
A disabled plaintiff sued defendants for alleged violations of the Americans With Disabilities Act ("ADA"). Defendant cruise line, Holland America Line-Westours, Inc., brought a motion for dismissal pursuant to the Washington forum selection clause contained in the plaintiff's passenger ticket contract. Although the plaintiff submitted medical evidence that she was unable to travel to Washington due to her disability, the Court found the evidence insufficient to sustain her heavy burden of proof and ruled the forum selection clause was nevertheless enforceable. The Court then ordered the case transferred.
Editor's Note: This ruling is significant because it conflicts with a prior published ruling of the same court rendered by a different judge. In Walker v. Carnival, 107 F. Supp. 2d 1135 (N.D. CA 2000), both plaintiffs submitted medical evidence they were unable to travel to Florida due to their disabilities in order to pursue their claims. The plaintiff in the above-captioned action claimed the same thing, but the court found the evidence lacking.
The Walker decision is sometimes read to stand for the proposition that a forum selection clause cannot be enforced in an ADA case as a matter of public policy. This new ruling suggests the Walker decision is limited to its facts. Indeed, the judge in Walker applied the factors set forth in the seminal case Shute v. Carnival, 499 U.S. 585 (1991), and decided (despite an earlier published ruling in the same case to the contrary) plaintiffs had ultimately met their burden of showing they could not litigate their claims in Florida. The second Walker decision contains language about the important public policy considerations involved in determining whether to enforce a forum selection clause in a civil rights suit, but the forum selection clause was not enforced solely because the judge concluded plaintiffs would have no remedy if he enforced the clause, due to their inability to travel, and thus the public policy interests in enforcing the ADA would be undermined.
The second Walker decision even cites to the original published opinion, discussing the enforceability of forum selection clauses generally. ["The Court [previously] concluded that plaintiffs' other arguments notwithstanding, the forum selection clause had been 'reasonably communicated' . . . and was therefore valid and enforceable. That analysis remains unchanged. Accordingly, that portion of our previous order is reaffirmed and will not be reported here." 107 F. Supp. 2d 1135, 1138 (2000).] The Judge deciding the Moeller case properly relied on the first Walker opinion to bolster her opinion that forum selection clauses are generally enforceable, even in ADA cases.
Forum Selection Clause Upheld Even When Claim In Proper Forum Time Barred
Watanabe v. Royal Caribbean Cruises, Ltd., 2001 Cal.App. LEXIS 2654 (Nov. 28, 2001) (Request for publication in A.M.C. pending)**
The Second Appellate District for the Court of Appeal of California affirmed the lower court' s dismissal of plaintiffs' personal injury and property damage action based on the ticket contract forum selection clause, even though plaintiffs would likely be time barred from refiling in the proper forum. Plaintiffs allegedly lost over $50,000 in property when abandoning ship after the vessel struck a reef. One of the plaintiffs, who was elderly, was allegedly forced to stand for seven hours at an emergency station. She claimed she suffered a detached uterus as a result, requiring surgery. Plaintiffs alleged the cancellation and forfeiture provisions of the ticket contract were manifestly unjust and also claimed the trial court abused its discretion by failing to stay the action and ensure plaintiffs had a remedy in Florida, rather than dismissing the case.
The Appellate Court rejected plaintiffs' argument the cancellation and forfeiture provisions were unjust. The Court noted forum selection clauses have been upheld despite cancellation deposit losses, citing with approval Walker v. Carnival Cruise Lines, Inc., (N.D. Ill. 1987) 681 F.Supp. 470, 477-79. The Court relied heavily on the fact plaintiffs themselves had made no effort to obtain the ticket contract or the cruise brochure before the time their ticket contracts were mailed to their travel agent, even though they had booked the cruise one year in advance and were aware of the cancellation provision at that time. The Court also rejected plaintiff's argument the trial court had abused its discretion by failing to stay the action and ensure plaintiffs would be able to pursue their action in Florida, noting the heavy burden imposed under federal maritime and California law on claimants seeking to void forum selection clauses.
The Court emphasized that plaintiffs, not defendant, bore legal responsibility for the fact a Florida action would likely be time barred. Plaintiffs had explored a Florida filing by consulting counsel there who was unwilling to take the matter on a contingency basis. Plaintiffs also waited until the last possible time to file their action in California. The Court noted plaintiffs "gambled they could obtain a settlement without filing," and plaintiffs "alone were responsible for the running of the Florida statute." The Court then clarified that accepting plaintiffs' argument "would permit all similarly situated plaintiffs to avoid forum selection clauses by refusing to file in the selected forum, and waiting to file in their preferred forum until the limitations period was about to or had run in the selected forum," compelling California courts to hear the action since the action was timely filed in California. The court refused to "sanction such a volitional end-run around forum selection clauses."
Employer's Duty To Accommodate Disabled Employee Arises Even Though Employee Fails To Request Accommodation
William Downey v. Crowley Marine Services, Inc., 236 F. 3d 1019 (9th Cir. 2001)
Plaintiff Downey was a marine operations engineer with defendant when he was diagnosed with multiple sclerosis ("MS") in 1993. Upon learning of his illness, plaintiff immediately informed his supervisors and explained that he would keep them informed of his progression. Between 1993 and 1994, plaintiff performed his job duties without experiencing any MS-related symptoms. However, in 1995 his symptoms began to manifest and plaintiff was hospitalized on several occasions and took several medical leaves of absence. By the fall of 1995, plaintiff's neurologist wrote to defendant stating her belief that plaintiff would never be able to return to his position. Plaintiff, on the other hand, in October 1995 submitted an "intent to work" form, which was required by all seasonal workers that wished to return the following season.
In early 1996, plaintiff's disability payments ended and he was forced to seek withdrawal of funds from his 401(k) account. However, defendant informed plaintiff that in order to do so, he would have to resign. As such, plaintiff resigned in February 1996. He then filed suit against defendant alleging failure to accommodate and wrongful termination under the Washington Law Against Discrimination, Wash. Rev. Code Section 49.60.180. Plaintiff also claimed intentional and negligent infliction of emotional distress. After the dismissal of plaintiff's wrongful termination and emotional distress claims, the Western District Court of Washington granted summary judgment in favor of defendant on plaintiff's failure to accommodate claim. This ruling was reversed upon appeal.
Finding an employer's duty to accommodate its handicapped employees arises even though an employee fails to request an accommodation, the appellate court held that defendant's duty to accommodate plaintiff was triggered the moment it first learned plaintiff's MS interfered with his ability to perform his job. Irrespective of plaintiff's preference to continue working as a marine operations engineer, the Court held that once defendant knew plaintiff's illness interfered with his present job duties, it had a duty to locate and identify available jobs to accommodate his condition. The Court found genuine issue of material facts remained as to other jobs available to plaintiff and that the district court improperly granted summary judgment in favor of defendant.
Death On The High Seas Act Limitation Upheld
Neville Motts, et al. v. M/V GREEN WAVE; Central Gulf Lines, Inc.; LMS ShipManagement, Inc., 210 F. 3d 565, 2000 A.M.C. 1521 (5th Cir. 2000)
Decedent, the chief engineer on a merchant vessel, was severely injured during an accident on the ship while at sea. Decedent's care was delayed due both to the location of the ship when the accident occurred, and the alleged failure of the ship's captain to relay pertinent information regarding decedent's medical condition and availability of evacuation methods. Shortly after decedent received shoreside treatment for his injuries, he died of a heart attack. Decedent's estate sued the shipowner under the Jones Act and general maritime law for negligence and unseaworthiness, and the management company under Texas state law, or in the alternative, general maritime law.
The trial court found in favor of the seaman's estate and awarded damages. However, the circuit court reversed the portion of the judgment awarding certain non-pecuniary damages against LMS ShipManagement, Inc., finding that because decedent's injury and appellant's negligence occurred while on the high seas, the federal Death on the High Seas Act preempted appellee's state law and general maritime claims; thus the award of the non-pecuniary damages was improper. The court otherwise affirmed the trial court's judgment with respect to defendant Central Gulf Lines.
Passenger Carrier Not Liable For Negligence Of Independent Contractors Pursuant To Terms Of Passage Ticket Contract
Speris v. Princess Cruises, Inc., Case No. CV 00-4095, U.S. District Court Central District of California (2001)**
Plaintiffs George and Catherine Speris embarked on a 15-day cruise on board SKY PRINCESS on March 1, 1999. On the thirteenth day of their cruise, plaintiffs were allegedly injured while riding a tour bus during a shore excursion in New Zealand. Plaintiffs filed suit 13 months later against Princess for the alleged negligent acts of the tour provider and bus operator, whom they alleged were "agents" of the cruise line. Plaintiffs also claimed negligence for the alleged substandard medical attention they received aboard the vessel. Princess moved for summary judgment on five grounds: 1) plaintiffs' claim was time-barred; 2) Princess was not liable for the negligent acts of independent contractors; 3) Princess had no warning or notice of any dangerous conditions with respect to the subject tour; 4) the shipboard medical staff aboard the vessel were independent contractors; and 5) plaintiffs sustained no damages proximately caused by the alleged medical negligence.
Relying on general maritime law and the litany of cases cited by Princess in its motion, the U.S. District Court for the Central District of California granted the motion for summary judgment in its entirety. Specifically, the court held: 1) plaintiffs were bound by the terms of their ticket contract as several days notice was a reasonable time period for them to become acquainted with its provisions; 2) Princess was not legally responsible for the acts of independent contractors as it had no right of control as to the means of completing the contracted work; 3) ship companies like Princess are not vicariously liable for the alleged negligence of shipboard doctors because the relationship between a passenger and a physician is not only a traditional activity over which a cruise line has no control, but a cruise ship is not in the business of providing medical services to its passengers; and 4) a negligent act in and of itself is not actionable unless it results in injury to the plaintiffs.
Henderson v. Carnival Corp., 125 F. Supp. 2d 135 (S.D. Fla. 2000)
Plaintiffs were passengers aboard a Carnival cruise ship when they purchased tickets from Carnival for a catamaran excursion in St. Lucia. During their excursion, the catamaran struck a coral reef injuring plaintiffs. Plaintiffs filed suit, alleging that Carnival owned and operated the subject catamaran, which bore the Carnival insignia. Carnival filed a motion for summary judgment, claiming plaintiffs' claims were barred by both the disclaimer in their cruise ticket contract and the alleged injuries were caused by the acts of a third party independent contractor.
Upon hearing the arguments of all parties, the U.S. District Court for the Southern District of Florida granted Carnival's motion, holding Carnival did not own or control the subject excursion. The court further stated plaintiff was unable to offer competent evidence showing a genuine issue existed as to Carnival's alleged ownership of the catamaran. In addition, the Court held the disclaimer in the ticket contract to be valid, citing Dubret v. Holland America Line Westours, Inc., 25 F. Supp. 2d 1151, 1153 (W.D. Wash. 1998) (wherein the court rejected plaintiffs' claim that bus tour personnel who identified themselves as "representatives" of cruise line were ostensible agents, where brochure and tickets of tour excursion stated bus transportation was provided by independent contractors). As such, plaintiffs' attempts to circumvent the terms of the ticket and brochure disclaimers were denied and summary judgment was granted.
Federal Court Denies Class Certification Of Passengers In Shipboard Fire, Along With Request For Jury Trial
John Neenan and Andrea Neenan v. Carnival Corporation, 199 F.R.D. 372 (S.D.Fla. 2001)**
On September 16, 1999, a fire started in the cruise ship TROPICALE's engine room. Although the ship's fire fighting teams and emergency systems were able to extinguish the blaze, the incident disabled the ship's main propulsion system. Plaintiffs filed a class action complaint on behalf of all passengers alleging the fire disabled not only the ship's engines, but its sanitary systems as well. Plaintiffs additionally alleged damage to their personal property and discomfort and nausea throughout the voyage.
The Court in addressing plaintiffs' motion for class certification noted that the initial burden of establishing the propriety of class certification rests with the advocates of the case. In that regard, a court may certify a class when its proponents satisfy all the requirements of Fed. R. Civ. P. 23 (a) and at least one of the alternatives of Rule 23(b). In ruling the plaintiffs lacked the commonality requirement of Rule 23(a) the court discussed the 11th Circuit's decision in Kornberg v. Carnival Cruise Lines, 741 F.2d 1332 (11th Cir. 1984), which also involved a class action seeking damages for failure of TROPICALE's sanitary system over a decade earlier. The Court concluded that the alleged problems on the ship in Kornberg, just as in the instant case, created different causes of action for each passenger as not all passengers sustained the same discomfort and inconvenience. As such, the class lacked commonality. Furthermore, the Court held plaintiffs failed to meet the requirement of Rule 23(b)(3) that common questions of law or fact predominate over individual ones. In concluding its opinion and denying plaintiffs' motion for certification, the Court wrote: "In its attempt to determine whether defendant caused harm to its passengers, the court would drown in a rogue wave of highly case-specific factual issues."
In a separate opinion, 2001 U.S. Dist. LEXIS 1233 (S.D. Fla. 2001), the court addressed Carnival's motion to strike plaintiffs' request for a jury trial. The court held that since plaintiffs' only basis for jurisdiction was under admiralty, plaintiffs were not entitled to a jury trial pursuant to Federal Rules of Civil Procedure 38(e). Plaintiffs alternatively argued for an advisory jury, which the Court denied, holding plaintiffs were unable to present any argument which the Court found persuasive enough to warrant deviating from the practice of trying claims in admiralty without a jury.
Fifth Circuit Finds Physical Contact Necessary To Sustain Claim Of Sexual Harassment Under the Jones Act
Toni Martinez v. Bally's Louisiana, Inc., dba Bally's Casino Lakeshore Resort, 244 F. 3d 474 (5th Cir. 2001)
Plaintiff worked aboard defendant's gambling ship. She filed suit under the Jones Act claiming sexual harassment, vilification and infliction of mental distress by her supervisor, who allegedly used foul language, called her names, and threw keys, papers, pens and pencils at her. It was undisputed the supervisor did not physically touch her.
Defendant filed a motion for summary judgment on the ground that plaintiff had no available remedy under the Jones Act because her claim stated purely emotional, non-physical injury and that such claims, unaccompanied by claims for physical injury, were not viable under the Jones Act. The District Court granted defendant's motion. In evaluating the evidence, the Court properly held that plaintiff failed to claim any physical injury, and no evidence on the record demonstrated such injury. For a sexual harassment claim to be compensable under the Jones Act, the plaintiff must prove, inter alia, physical injury.
The appellate court affirmed the decision, finding the trial court did not err in holding plaintiff failed to raise a material issue of physical injury and thus could not recover under the Jones Act for her alleged emotional injuries in the absence of physical manifestations.
Previous Settlement Agreement With A "No Return To Work" Clause Enforceable Under Maritime Law
Sea-Land Service, Inc. v. Pedro Sellan, 231 F. 3d 848, 2001 A.M.C. 305 (11th Cir. 2000)
Appellant Sellan, a chief steward for Sea-Land, was injured at sea and declared permanently unfit for duty. His doctor subsequently determined Sellan had reached maximum medical cure, and a settlement was negotiated for current expenses and for payment for degradation of his entire work- life, in exchange for a release from liability should he ever work for Sea-Land in the future. The settlement agreement contained two clauses relevant to any future work. In exchange for a lump sum payment from Sea-Land, Sellan agreed not to work, sail or navigate in any capacity aboard Sea-Land vessels. In addition, he agreed that if for any reason he were to re-engage in service aboard any Sea-Land vessel, he would do so at his own risk, and not look to Sea-Land should he sustain another injury while working for Sea-Land.
Four years later, Sellan began working aboard a Sea-Land ship. Within months, he allegedly re-injured himself. Pointing to the settlement agreement Sea-Land disclaimed liability and sought judgment in its favor. Sellan sought to have the settlement agreement set aside, contending that a common carrier could not exempt itself from liability. The District Court found the agreement was valid and that Sellan was bound by its terms. Sellan sought review, claiming the agreement violated the Federal Employers' Liability Act (FELA), 45 U.S.C.S. ¤¤ 51-60, which is incorporated by reference into the Jones Act. The Appellate Court held the agreement was a valid settlement of a present claim of total disability for sea duty and was an enforceable agreement under the FELA. Consequently, Sea-Land was not responsible for appellant's injuries, and he was precluded from pursuing the new injury claim.
Enforceability of Seamen's Releases
Joseph Orsini v. O/S SEABROOKE O.N., et. al., 247 F. 3d 953 (9th Cir. 2001)
Plaintiff was allegedly injured while working as a seaman aboard a crab fishing vessel in Alaska. After receiving treatment by a shoreside physician's assistant, whom he thought was a doctor, plaintiff was diagnosed with carpal tunnel syndrome and given a limited work release. Upon returning to the ship and advising his supervisor that he was not fit for duty, plaintiff agreed to "call it even" if his supervisor agreed to pay his earned wages and future medical bills for the injury. As such, a release was drafted, pursuant to which plaintiff was entitled to earned wages, future medical bills for the injury, travel home and $500 in exchange for his release of all claims.
According to plaintiff, after the release was drafted but before he signed it, he was given three options: 1) sign the release and get off the ship; 2) stay on the ship and work one more trip until replaced; or 3) find a place to stay shoreside and find his own way home. He was then approached by his fellow crewmembers who told him to sign the release as it was unfair to make them pick up the slack for his inability to work without limitation. Without consulting an attorney, plaintiff signed the release the following day in the presence of four witnesses and returned home.
Upon his arrival, plaintiff was examined by an orthopedic surgeon and was diagnosed as having ulnar nerve entrapment at the right elbow. Surgery was recommended. The ship's insurance company requested a second opinion with a neurological surgeon who confirmed that surgery was necessary. However, payment of the surgery was not authorized and plaintiff retained an attorney. Suit was filed against O/S SEABROOKE in rem and the ship's owner for the recovery of maintenance, cure, unearned wages and damages for negligence under the Jones Act and unseaworthiness.
In response to plaintiff's complaint, Seabrooke moved for summary judgment, contending plaintiff executed a valid release barring his claims. The district court agreed, dismissing plaintiff's complaint with prejudice. The Ninth Circuit Court of Appeals reversed the district court's decision, holding that Seabrooke did not meet its burden in establishing the enforceability of the release. Relying on the U.S. Supreme Court decision in Garret v. Moore-McCormack Co., 317 U.S. 239, 87 L. Ed. 239, 63 S. Ct. 246 (1942), the Ninth Circuit applied a two-part test in determining the enforceability of plaintiff's release: 1) whether the release was executed freely, without deception or coercion; and, 2) whether it was made by the seaman with full understanding of his rights.
Finding that his fellow crewmembers coerced him into signing the release by urging him it would be unfair for them to "pick up the slack," the Ninth Circuit held that some degree of coercion existed. In addition, the court held that the other options presented to plaintiff were not viable and thereby forced him into signing the release. As such, the first part of the Garret test was not met.
As to whether plaintiff had a full understanding of his rights, the Court looked at three elements: a) whether adequate consideration was provided in the release; b) whether the medical advice available to plaintiff showed he had a full understanding of his rights; and, c) whether the legal advice available to plaintiff showed he had a full understanding of his rights. Finding plaintiff was never told of his rights to maintenance, cure, transportation home, or the possibility of claims for negligence and unseaworthiness, the Court held the release invalid. The court based its decision, not on general contract principles, but on principles of admiralty law, finding the duty the shipowner owed to the unrepresented seaman with regard to the release to be analogous to the duty owed by a fiduciary to a beneficiary.
Petty v. Odessa Vessels, 115 F. Supp. 2d 768 (S.D. Tex. 2000)
Plaintiff seaman was serving as a chief engineer aboard defendant's vessel when he was injured while fighting a shipboard fire. Following the incident, he received eight months of maintenance and cure benefits before defendant offered a settlement, whereby maintenance and cure would end and plaintiff would release defendant from liability for all claims stemming from the incident. Plaintiff was not represented by counsel when the settlement was offered, nor was there counsel present when he executed the release. Plaintiff thereafter sued defendant for personal injuries and defendant filed a motion for summary judgment asserting the release signed by plaintiff entitled it to judgment as a matter of law. Plaintiff, in response, asserted he did not have the mental capacity to enter into the release as he was taking multiple prescription medications when he signed it. In addition, plaintiff claimed defendant coerced him into signing the release as he was told doing so was the only way he could receive further medical treatment. Finding the existence of numerous facts supporting plaintiff's claims, the U.S. District Court for the Southern District of Texas, Galveston Division, denied summary judgment.
Collective Bargaining Agreement Trumps Average Or Actual Wages
Jose Antonio Cabrera Espinal v. Royal Caribbean Cruises, Ltd., Celebrity Cruises, Inc., 253 F. 3d 629 (11th Cir. 2001)
Plaintiff was involved in two cases with defendants' cruise lines in which he claimed he was entitled to his actual monthly salary as sick wages instead of the guaranteed minimum set forth in his contract. The district court found for plaintiff in the first case and defendant appealed. The district court entered summary judgment for defendant in the second case and plaintiff appealed. The two cases were consolidated on appeal.
Plaintiff worked aboard defendants' ships as a tip-earning employee under an at-will employment contract governed by a collective bargaining agreement ("CBA"). After plaintiff injured his back during the course of his employment, defendant paid him the amount guaranteed by contract - sick wages and specified tips. Plaintiff claimed he was entitled to his average or actual monthly tips for the 112 days provided for in the CBA. The district court agreed with plaintiff and found that he was entitled to actual tips for 112 days, rather than the amount guaranteed in the contract.
The Eleventh Circuit reversed the district court, reasoning that although "a shipowner's liability for maintenance and cure is among the most pervasive and should not be defeated by narrow or restrictive distinctions, . . . the remedies provided for in maritime law may be altered although not abrogated by collective bargaining agreements". The panel asserted that it would enforce CBA provisions unless contrary to the law because the "CBA represents a mutual agreement encompassing a wide range of issues for which some provisions will result in greater protection [for a covered employee] while others will result in less". The CBA at issue (and any CBA), "represents a series of trade-offs between an employer and employees reaching a mutually satisfying agreement."
The Appellate Court concluded that nothing in the maritime law prevents setting sick wages below the average tip income received, and held that the CBA governed in its entirety for the amount and duration of sick wages to be paid.
Court Rejects "Physical Manifestation" Requirement For Negligent Infliction Of Emotional Distress
John Hutton and Mary Hutton, individually and on behalf of all those similarly situated, v. Norwegian Cruise Line Limited, 144 F. Supp. 2d 1325 (S.D. Fla. 2001)
Plaintiffs filed a class action negligence suit on behalf of 1,744 passengers for injuries sustained when NORWEGIAN DREAM collided in the English Channel with the cargo ship EVER DECENT. The named plaintiffs were sleeping in their cabin at the time of the incident when the ships collided. After the collision they went up to their muster stations where they observed the cargo ship burning. Defendant sought summary judgment against the named plaintiffs and any other class members who failed to demonstrate a non-trivial physical manifestation of an emotional injury under the maritime "zone of danger" test.
The issue before the court on summary judgment was whether the "zone of danger" test for negligent infliction of emotional distress included an additional prong requiring a physical manifestation of an alleged emotional injury. There was competing case law about whether the zone of danger test included a physical manifestation requirement in maritime law. In denying defendant's motion, the court rejected the physical manifestation requirement. Thus, plaintiffs with meritorious emotional distress claims could recover even in the absence of a physical manifestation.
California Court Grants Judgment For Defendant At Close Of Jones Act Trial
Smith v. Royal Caribbean Cruises, Ltd., Case No. NC 029092 (Los Angeles Superior Court, Nov. 6, 2001)**
Plaintiff, a cleaner on VIKING SERENADE, alleged he developed a heart condition when his superior verbally berated him. Shortly after this alleged incident, the ship doctor determined at a routine annual physical exam that plaintiff had an enlarged heart and high blood pressure, and referred him shoreside for examination and treatment. Plaintiff was given high blood pressure medication and declared fit for duty by the attending shoreside physician. After being back on duty two weeks, he complained of chest pains resulting from carrying passengers' heavy luggage, and was again referred shoreside for further examination and treatment. Based on doctor's advice that he not engage in work requiring lifting more than 20 pounds, plaintiff was declared not fit for duty and his employment with Royal Caribbean ceased.
Plaintiff filed suit under the Jones Act for unseaworthiness and maintenance and cure. He alleged the cruise line was negligent and the ship was unseaworthy because of his supervisor's alleged verbal abuse, and Royal Caribbean's subsequent requirement, after it was made aware of his heart condition, that he continue to work in a capacity requiring him to carry passengers' luggage. Plaintiff's demand before trial was $250,000, reduced from $300,000.
At the close of plaintiff's case, the Court granted judgment to defendant on all of plaintiff's claims. With respect to the Jones Act and unseaworthiness claims, the Court ruled plaintiff had failed to establish that the alleged incident of verbal abuse, or the subsequent continued employment of plaintiff in a capacity requiring him to carry heavy luggage, caused or exacerbated plaintiff's heart condition. With respect to the maintenance and cure claim, the Court ruled plaintiff had failed to present medical evidence that he suffered a heart condition "in the service of the ship".
Asymptomatic Plaintiffs Exposed To Asbestos Who Fail To Show Benefit From Medical Examination Cannot Recover
In re Marine Asbestos Cases, 265 F.3rd 861 (9th Cir. 2001)
This consolidated appeal involved 174 separate but virtually identical civil actions brought by seamen who formerly worked aboard the S.S. INDEPENDENCE, the S.S. CONSTITUTION, or both ships. The plaintiffs claim to have been exposed to asbestos in the course of employment on board the vessels. None of the plaintiffs had been diagnosed with any asbestos-related medical condition. Plaintiffs sought recovery in the form of a court-supervised medical monitoring program that would provide each plaintiff with a single baseline medical examination.
The question addressed on appeal was whether, as a matter of law, a seaman can recover the type of medical monitoring requested for claims under the Jones Act, unseaworthiness or maintenance and cure. Courts have recognized the availability of monitoring damages for plaintiffs who have not yet developed symptoms of a disease, provided such monitoring is shown to have a medically beneficial effect. Abaun v. Gen. Elec. Co., 3 F.3d 329 (9th Cir. 1993). Nonetheless, the district court granted summary judgment for the defendants on all claims. The Ninth Circuit Court of Appeals affirmed the district court's ruling because "plaintiffs have not shown they will benefit from a single baseline examination where no abnormalities are yet apparent."
Captain Jumps Overboard, Court Finds Typical Maritime Activity To Sustain Admiralty Jurisdiction
Lawrence Matthews, et al. v. Stephen K. Howell, 359 Md. 152; 753 A. 2d 69; 2000 A.M.C. 2067 (Ct. App. Md. 2000)
Two couples decided to take a personal pleasure boat down the Chesapeake Bay to see the Orioles game. On the way, everyone imbibed alcoholic beverages. After the game the two couples indulged in further libations and returned to the boat where they continued drinking. Soon they were intoxicated and motoring across the Bay at approximately 40 knots. Suddenly, the "captain" announced he wanted to swim. Without warning, he turned off the engines and jumped into the bay. However, the boat was still drifting, and his chosen location for swimming was the shipping channel. Because of the abrupt stop, one of the guests was tossed overboard. The "captain" made no attempt to rescue his guest, and sadly the guest drowned. Decedent's widower sued. The defense argued that maritime law did not apply because the "captain" was not engaged in a maritime activity at the time the injury occurred, i.e., he was swimming. The trial court granted summary judgment for the defense. The Appellate Court reversed, holding the actions surrounding decedent's drowning bore a substantial relationship to traditional maritime activity.
** Denotes cases handled by Kaye, Rose & Partners, LLP