RECENT
DEVELOPMENTS IN THE COURTS - PART VIII
(Published April 2003)
The following survey represents some of the more significant recent court rulings around the nation affecting shipping lines generally.
Supreme Court Holds Excessive Punitive Damages Award Violates Due Process Clause of Fourteenth Amendment
State Farm Mutual Automobile Insurance Co. v. Campbell, 2003 U.S. LEXIS 2713 (December 11, 2002, Argued, April 7, 2003, Decided.)
In a
6-3 majority decision hailed as a victory for corporate defendants, the United
States Supreme Court set new, more restrictive limits on punitive damage awards
in civil litigation.
Plaintiff sued State Farm for refusing to settle a claim arising out of a fatal automobile accident and eventually exposing plaintiff to damages in excess of his policy limits. At trial, plaintiff's attorney was permitted to convince the jury that State Farm's conduct was part of a nationwide effort to reduce claims payments by refusing to settle cases. The Utah Supreme Court upheld the jury award of $1 million in compensatory and $145 million in punitive damages.
Writing for the majority, Justice Anthony Kennedy said the ratio of punitive damages to compensatory damages should rarely exceed single digits, and in many cases should not exceed compensatory damages at all. "Single digit multipliers are more likely to comport with due process, while still achieving the state's goal of deterrence and retribution, than awards in the range of 500 to 1 or, in this case, 145 to 1." Kennedy ruled that neither the defendant's wealth, nor its out-of-state conduct could be a factor in determining punitive damages. "A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business." "The wealth of a defendant cannot justify an otherwise unconstitutional punitive damage award."
Asbestosis Plaintiffs May Recover Mental Anguish Damages for Fear of Developing Cancer
Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003)
The United States Supreme Court held that former railroad workers exposed to asbestos and currently diagnosed with asbestosis may recover under the Federal Employers Liability Act ("FELA") for the mental anguish caused by fear of getting cancer. The Supreme Court also refused to make new law and deviate from the common law principle of joint and several liability.
Six former employees of the Norfolk & Western Railway Co. brought suit in the Circuit Court in West Virginia alleging defendant railway company negligently exposed them to asbestos, which caused them to contract the occupational disease asbestosis. As an element of their occupational disease damages, plaintiffs sought recovery for mental anguish based on their fear of developing cancer.
Before trial, defendant moved to exclude all evidence referring to cancer as irrelevant and prejudicial. The trial court denied the motion and plaintiffs placed before the jury extensive evidence relating to cancer, including expert testimony that asbestosis patients with smoking histories have a significantly increased risk of developing lung cancer. Of the six asbestosis claimants, five had smoking histories, and two persisted in smoking even after their asbestosis diagnosis. The jury also heard asbestosis patients have a one in ten risk of dying of mesothelioma, a fatal cancer of the lining of the lung or abdominal cavity. The trial court instructed the jury that "[A]ny plaintiff who has demonstrated that he has developed a reasonable fear of cancer that is related to proven physical injury from asbestos is entitled to be compensated for that fear as a part of the damages you may award for pain and suffering." Defendant's request to instruct the jury to apportion damages between defendant and other employers alleged to have contributed to an asbestosis claimant's disease was also denied.
The Supreme Court affirmed, noting that claims for pain and suffering associated with an actual physical injury are traditionally compensable. Each of the claimants presented with asbestosis, and the mental anguish they purportedly sustained on account of their objectively reasonable fear of cancer was a compensable component of their present injury. The Supreme Court rejected the position of the railroad that claimants should only be permitted to recover if they were actually diagnosed with cancer. Rather, the court held the claimant need only prove fear is genuine and serious.
In denying the railroad's request to apportion damages amongst other potentially liable parties, the Supreme Court also held that no decision made by the Court so much as hints that FELA mandates apportionment of damages among potentially liable tortfeasors. While the railroad cited to the modern trend of apportionment of damages amongst multiple tortfeasors, the Supreme Court noted that was not the rule when FELA was enacted, that many states retain joint and several liability, and that apportionment is largely a matter of statute and not a principle developed through the common law.
Court Rejected Shipowner's Petition For Limitation of Liability
Cape Fear, Inc. v. Martin, 312 F. 3d. 496; 2002 A.M.C. 2733 (1st Cir. 2002)
Under the Limitation of Liability Act, appellant sought limitation of liability after the capsizing of the vessel F/V CAPE FEAR resulted in the deaths of two crewmembers. The court in denying the limitation, reasoned that the containers loaded on board overloaded the ship, causing the ship to sail too low and capsize. The fact that the vessel was unseaworthy exposed appellant to strict liability.
The court found that CAPE FEAR's president and co-owner was fully aware of a stability analysis, which stated 120 containers was the appropriate number to transport. However, the vessel owner and the ship's captain transported up to 130 containers, after testing the weight and what "felt comfortable." This evidence ran contrary to the Limitation of Liability Act's language, as it demonstrated the vessel owner had both awareness and privity of knowledge of the unseaworthy condition.
Shipowner Must Demonstrate Non-Disclosed Prior Injury Was Material in Hiring to Withhold Maintenance and Cure
Britton v. U.S.S. Great Lakes Fleet, Inc., 302 F. 3d 812; 2002 A.M.C. 2664 (8th Cir. 2002)
Plaintiff allegedly sustained a back injury while employed as a deckhand for defendant shipowner. Following treatment with the shipowner's designated doctor, plaintiff returned to work and re-injured himself. In the course of litigation, it was discovered plaintiff had failed to disclose his entire medical history during his pre-employment physical. The court granted summary judgment on plaintiff's maintenance and cure claim in favor of the shipowner for plaintiff's failure to reveal a pre-existing back injury. However, the Court of Appeals for the Eighth Circuit reversed summary judgment finding the shipowner did not demonstrate the non-disclosed prior medical condition was material in its decision to hire the seaman.
The court acknowledged the exception that a shipowner may withhold maintenance and cure where the seaman intentionally misrepresents or conceals material medical facts plainly sought in a required preemployment medical inquiry, if the injury sustained on the shipowner's vessel is causally linked to the withheld medical condition. The shipowner presented evidence that had it known of the prior injury it would have conducted further examinations. Relying on the standard articulated in the decision of Wactor v. Spartan Trans. Corp., 27 F.3d. 347, 352 (8th Cir. 1994), the court found the nondisclosed information must be material such that the shipowner would not have hired the seaman had the complete medical facts been revealed. Accordingly, the court held that the evidence was insufficient to justify a summary judgment in favor of the shipowner.
Punitive Damages Held Unavailable for Non-payment of Maintenance and Cure
Cascio v. TMA Marine, Inc., 2002 U.S. Dist. LEXIS 22593 (E.D. La. 2002)
Plaintiff filed suit for personal injuries when he fell backwards into an uncovered manhole while performing his duties as a Jones Act seaman. Plaintiff claimed defendants were negligent under the Jones Act and general maritime law. Plaintiff also argued defendants' willful, wanton and outrageous conduct led to his injuries and that their refusal to pay maintenance and cure entitled plaintiff to punitive and exemplary damages under maritime law.
Defendants moved to dismiss plaintiff's claims for punitive damages. The court granted defendants' motion, finding as a matter of law that plaintiff was not entitled to punitive damages under the Jones Act or general maritime law even " . . . in cases of willful nonpayment of maintenance and cure under the general maritime law . . . and the Jones Act."
Court Resolves Ambiguities in Favor of Seaman and Awards Maintenance and Cure Retroactively
Gorum v. Ensco Offshore Co., 2002 U.S. Dist. LEXIS 21992 (E.D. La. 2002)
In June 2000, plaintiff sustained a knee injury while working aboard defendant's vessel. He continued to work light duty for a few days and after resuming heavy work, noted increased pain and swelling. Defendant referred plaintiff to a physician who returned plaintiff to light duty. Thereafter, plaintiff stopped working due to continuing complaints and defendant began paying maintenance and cure. Plaintiff then consulted with an orthopedic surgeon of his choosing who opined plaintiff had reflex sympathetic dystrophy and prescribed a knee brace and physical therapy. During the first few months of physical therapy plaintiff had increased swelling and underwent an MRI. Even though the MRI was interpreted by plaintiff's initial orthopedist as negative for knee pathology, he continued plaintiff on physical therapy. In December 2000, plaintiff obtained another second opinion from a second orthopedic surgeon, who recommended continued physical therapy and sympathetic blocks. Plaintiff underwent sympathetic blocks by a pain specialist, which provided plaintiff "significant benefit in terms of decreased swelling around the knee..."
In March 2001, nine months after the injury, plaintiff's initial orthopedist opined plaintiff had reached maximum medical improvement ("MMI") and ordered a Functional Capacity Evaluation ("FCE"). At the FCE plaintiff was able to perform heavy lifting. In May 2001, the pain specialist saw plaintiff and stated he was doing "extremely well" without any apparent discomfort. On May 21, 2001, plaintiff's initial orthopedist saw him and reported plaintiff's swelling had decreased and he could return to heavy labor. In a letter to defendant dated May 28, 2001, the pain specialist noted plaintiff had reached MMI and was being treated only for pain control. Based on this finding, defendant ceased paying maintenance and cure.
Plaintiff hired an attorney and was seen by various specialists, two of whom opined plaintiff had not reached MMI. The issue at trial was whether defendant owed plaintiff maintenance and cure from the date payments ceased through the date of trial based on the opinions of the various doctors on whether he had reached MMI. The Court found that the testimony of those doctors simply raised doubts as to plaintiff's entitlement to maintenance and cure, and relied on the Supreme Court's ruling in Vaughan v. Atkinson, 369 U.S. 527 (1962) that ..."when there are ambiguities or doubts [as to a seaman's right to receive maintenance and cure], they are resolved in favor of the seaman". The Court found plaintiff had not reached MMI and awarded plaintiff maintenance and cure from the date defendant had discontinued payments. Plaintiff's claim for punitive damages and attorney's fees was denied.
Plaintiff's Allegation of Fundamental Unfairness Due to Advanced Age and Inability to Travel Insufficient to Defeat Forum Selection Clause
Ferketich v. Carnival Cruise Lines, 2002 A.M.C. 2956 (E.D. Pa. 2002)
A 75-year-old plaintiff brought suit against defendant in Pennsylvania after sustaining injuries from a trip and fall. Plaintiff's ticket contract, received by her travel agent 16 days prior to departure and by plaintiff seven days prior to departure, contained a forum selection clause mandating suit be filed in Florida. Defendant moved to dismiss for lack of personal jurisdiction and/or for improper venue, or in the alternative, to transfer the case to the Southern District of Florida. The court found the subject forum selection clause to be dispositive and did not address whether the court could exercise personal jurisdiction over defendant.
On appeal plaintiff argued that because she received her ticket seven days prior to departure and would have forfeited the entire cost of the ticket had she cancelled upon receipt, defendant provided inadequate notice of the ticket conditions. Moreover, plaintiff claimed that because of her age and difficulty traveling, the designated forum posed a serious inconvenience.
The court dismissed plaintiff's argument that the provision would violate "fundamental fairness". The court held that plaintiff constructively received her ticket upon receipt by her travel agent, as travelers are charged with notice of ticket provisions even when someone else acts in the capacity of their agent. Relying on the fact that plaintiff had constructive notice of the ticket provisions 16 days prior to departure, the court found plaintiff would have incurred a $350 cancellation fee rather than a forfeiture of the total ticket price of $1605.
The court also found that although plaintiff was 75-years old, the inconvenience was not severe enough to demonstrate that litigating in Florida would "be so manifestly and gravely inconvenient" that she would be deprived of her day in court. As such, the court granted defendant's motion to transfer the case to the Southern District of Florida pursuant to the forum selection clause.
California Enforces Germany Forum Selection Clause
Intershop Communications v. The Superior Court of San Francisco, 104 Cal. App. 4th 191 (Cal. App. 1st 2002)
The issue in this case was whether the forum selection clause appointing Hamburg, Germany as the place of jurisdiction had mandatory or permissive effect. The court concluded the language in the choice of law and forum selection clause of the contract was mandatory, thereby reversing the trial court's holding that the language constituted permissive language. The court held a "forum selection clause is presumed valid and will be enforced unless the plaintiff shows that enforcement of the clause would be unreasonable under the circumstances of the case."
Plaintiff has the burden of demonstrating that the "contractually-selected forum would be unavailable or unable to accomplish substantial justice or that no rational basis exists for the choice of forum." Neither inconvenience nor the additional expense of litigating in the selected forum is to be considered, except when the result would be contrary to public policy.
Though plaintiff argued California public policy would be adversely affected by litigating in Germany, the court noted that plaintiff no longer had a claim in securities law, making the point moot. Plaintiff also argued provisions of the California Labor Code would be violated if not argued in California. However, plaintiff did not include this argument in his complaint and he failed to show how the code would be violated at all. Plaintiff next argued the forum selection clause was an adhesion contract. The court noted a contract of adhesion is still a valid and existing contract and will be upheld as long as the contracting party has notice of the selected forum. Finally, plaintiff argued defendants waived their right to enforce the forum-selection clause "by their conduct in demurring to plaintiff's complaint." However, the court concluded "[d]efendants could not waive the forum selection clause by failing to assert it against noncontract claims to which it did not apply."
Florida Appellate Court Enforces Forum Selection Clause
Clark v. Norwegian Cruise Line, Ltd., 2003 Fla. App. LEXIS 2876 (Fla. 2d DCA 2003)
Plaintiff passengers brought suit against defendant cruise line for negligence after plaintiff slipped and fell on a wet deck during the mandatory lifeboat drill. Plaintiff and her husband filed suit in Pinellas County, Florida although the forum selection clause in the ticket contract required all suits be brought in Dade County, Florida. Defendant filed a motion to dismiss the case or transfer the case to Dade County, which was denied by the trial court. Defendant appealed.
In reversing, the appellate court held that the majority of jurisdictions have found that the forum selection clause in the form cruise ticket that plaintiffs received shortly before their cruise departure is enforceable. As such, the appellate court agreed with the reasoning of the U.S. Supreme Court in Shute v. Carnival, 499 U.S. 585 (1991) and found that plaintiffs cannot argue the warnings on their ticket were insufficient to notify them of the contract terms which would apply, even if they had never read the contract.
Plaintiffs argued the forum selection provision should be unenforceable because they would have incurred a cancellation penalty at the point they received their passage contract, had they chosen to reject the contract due to the forum selection clause. The court disagreed, finding that the time frame which remained for plaintiffs to reject the offer to cruise (in this case, approximately twenty-four hours) was not too short a time frame that they could not have cancelled the cruise with impunity.
The court found no factual or legal basis to distinguish this case from Shute or the majority of cases enforcing forum selection clauses and ordered the case transferred to Dade County for trial.
28 U.S.C. § 1404(a) Provides the Appropriate Venue Analysis for Federal Courts Evaluating Forum Selection Clauses
Elliott, et al. v. Carnival Cruise Lines, et al., 231 F. Supp. 555 (S.D. Tex. 2002)
Plaintiffs embarked on a five-day cruise aboard defendant's vessel. Prior to arrival at the first port of call, defendant announced the ship was having engine problems and would not make its other scheduled stop. Due to frustration of the anticipated itinerary, plaintiffs ended their cruise and flew home to Texas. Plaintiffs then brought suit in the District Court for the Southern District of Texas seeking class certification and relief for alleged damages resulting from the terminated cruise. Relying on the forum-selection clause contained in plaintiffs' ticket contract, defendant filed a motion to dismiss or in the alternative, to transfer to the Southern District of Florida.
The court held that when a federal court sitting either in diversity or in admiralty must decide whether to enforce a forum-selection clause when venue is otherwise proper, 28 U.S.C. §1404(a) governs the court's decision. Because §1404(a) allows a transfer, not dismissal, defendant's motion to dismiss was denied. In considering the motion to transfer, the court looked to the language of §1404(a) which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The factors considered by the court are the availability and convenience of witnesses and parties, the location of counsel, the location of pertinent books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted, and the plaintiffs' choice of forum."
After finding the subject forum-selection clause valid, the court weighed the venue factors under ¤1404(a) and found the forum-selection clause weighed heavily in favor of transfer. The court found that although plaintiff argued at least 21 known witnesses resided in Texas and plaintiffs were residents of Texas, these factors did not overcome the presumption created by the forum-selection clause that Florida is a more convenient forum, especially in light of the Supreme Court's justification for forum-selection clauses in form passage contracts. As such, defendant's motion to transfer was granted.
Violations of Federal Sexual Assault Statutes May Be Applied Extraterritorially
U.S.A. v. Neil, 312 F. 3d 419 (9th Cir. 2002)
Defendant was a crewmember aboard a cruise ship when he admitted to touching the breasts and buttocks of a minor child. The ship was in Mexican territorial waters at the time of the incident. Defendant was convicted of violating a federal statue which prohibits sexual contact with a minor and this appeal ensued.
A grand jury charged defendant with three counts of sexual contact with a minor and violation of 18 U.S.C. §2244(a)(3). Before trial, defendant filed a motion to dismiss for lack of jurisdiction since the crime took place in Mexican territorial waters and therefore, the United States did not have extraterritorial jurisdiction over the crime. The district court denied his motion and defendant conditionally pled guilty to two of the three counts, but reserved the right to appeal the district court's denial of his motion.
On appeal, the Ninth Circuit undertook a two-part inquiry to determine whether extraterritorial jurisdiction was appropriate. First, the court looked for an indication from Congress that the statute was intended to be applied extraterritorially. The court stated the statute invokes the "special maritime and territorial jurisdiction of the United States." Title 18, Section 7(8) of the United States Code defines this more fully as "to the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States." Since the contact between defendant and his victim, a United States national, took place aboard a foreign vessel which departed from and arrived in the United States, the statute clearly applied.
The Ninth Circuit then looked to the operation of 18 U.S.C. §2244(a)(3) to determine whether the exercise of extraterritorial jurisdiction complies with principles of international law. The court held that two principles of international law permit extraterritorial jurisdiction: the territorial principle and the passive personality principle. The territorial principle allows the United States to assert jurisdiction when acts performed outside of its borders have detrimental effects within the United States. The court found that the criminal act occurred at sea but ended in the United States and the victim was a United States citizen and that this was enough for extraterritorial jurisdiction under the territorial principle. The court also found that the passive personality principle would grant extraterritorial jurisdiction. Under this rule, a state may, under certain circumstances, assert jurisdiction over crimes committed against U.S. nationals. Since 18 U.S.C. §2244(a)(3) authorized extraterritorial application, the court held the passive personality principle would grant the same.
Vessel Owner Not Liable for Unpaid Wages Incurred During the Course of Bareboat Charter Agreement
Madeja v. Olympic Packers, LLC, 310 F. 3d 628; 2002 A.M.C. 2608 (9th Cir. 2002)
Defendant, Olympic Packers, was the legal owner of a ship chartered to Interisland Maritime Services, Inc. (IMAR) under a bareboat charter agreement which required IMAR to be responsible for all operations, crew, maintenance, repair, and insurance costs during the charter period. IMAR hired a crew and dispatched the vessel on several voyages before going bankrupt. As a result, each crewmember was fired, but asked to stay onboard for four more days until a representative from a subsidiary corporation of defendant Olympic could reach the vessel. All but one of the crew stayed aboard and worked under the direction of Olympic's representative for a few weeks. Olympic and its subsidiary subsequently refused to pay the crew for this additional work. The crew filed in personam against Olympic and arrested the vessel in rem for unpaid wages, penalty wages, and wrongful discharge.
At trial, the district court found the vessel liable in rem for wages due under the IMAR bareboat charter agreement, but ruled the vessel was discharged because Olympic had paid the plaintiffs' unpaid wages. The district court also held that Olympic was liable in personam for wages due during the post-IMAR charter period and as a result, awarded compensatory damages and prejudgment interest from the date the wages were due. Plaintiffs' claims for attorneys' fees, wrongful termination, and penalty wages were denied. Plaintiffs appealed.
The U.S. Court of Appeals for the Ninth Circuit held that a vessel owner is not liable in personam for wages owed by a bareboat charterer to its crew, even though ownership of the vessel reverted back to Olympic upon IMAR's bankruptcy filing. Olympic acted reasonably in concluding that it was not liable in personam for IMAR's wrongful discharge of the plaintiffs. The court further held that the vessel was not liable in rem for statutory penalty wages stemming from the late payment of IMAR-period wages since Title 46 §10313(g) of the United States Code imposes liability only on the vessel's master or owner. As Olympic was not the "owner" of the vessel during the IMAR charter period, the vessel was not liable in rem for penalty wages accrued during that period. The Court also held that Olympic was not liable for statutory wage penalties stemming from the post- IMAR charter period because there was "no discrete, specific, or imminent voyage planned in the post-IMAR charter period" as contemplated by 46 USC §10313(f) which provides for penalties only when seamen are not promptly paid "[a]t the end of a voyage." The Court further held the vessel master was statutorily ineligible for penalty wages as he was the master of the vessel and never relinquished his authority over the vessel during the applicable period.
Interpretation of 46 USC §183b Tolls Contractual Limitations Period for Minors
Gibbs v. Carnival Cruise Lines, 314 F. 3d 125; 2003 A.M.C. 179 (3d Cir. 2002)
While accompanying his parents on a cruise in 1998, Christian Gibbs sustained second degree burns on his feet when he stepped onto the hot surface of a deck. After discussing pre-suit settlement with the cruise line, the Gibbses retained counsel who wrote to the cruise line in 1999 advising of their intent to file suit. However, the legal action was not commenced until 2000.
46 USC §183b entitles maritime carriers to impose contractual limitations on the time to bring a lawsuit to no less than one year as long as the language of the ticket contract meets a standard of reasonable communicativeness. The Gibbses did not contest the validity of the limitation period, but contended that since Christian Gibbs was a minor, 46 USC §183b(c) applied, and allowed a three-year period in which to appoint a legal representative. Once a representative is appointed, the one-year limitation would then commence.
At the trial court level, the parties both agreed with the general principles stated above, but disagreed as to when the minor's mother was appointed legal guardian for purposes of litigation. The cruise line argued the appointment occurred when it received correspondence from plaintiff's counsel advising that they had been retained by the mother as "Guardian ad Litem." However, plaintiffs contended the letter had no legal effect and under New Jersey law, a parent shall be deemed guardian ad litem in negligence actions only upon the filing of a pleading. The district court agreed with the cruise line and dismissed the action.
On appeal to the Third Circuit Court of Appeals, the court ruled that the question of when a legal representative is appointed is governed by Federal Rule of Civil Procedure 17. Under Rule 17, federal courts are to look to the law of the minor's domicile. Under New Jersey law and thus Rule 17 analyses, no legal representative had been appointed for the minor until the Gibbses commenced suit, which was within the three-year time period under 46 USC §183b(c). Accordingly, the district court's decision was reversed.
Editor's Note: In a footnote to the case, the court noted that although defendant had raised its forum selection clause as an alternative reason for dismissal at the trial court level, the validity of the forum selection clause was not raised on appeal. However, the court noted, should the district court choose to enforce the forum selection clause, the minor would still have the opportunity to re- file his claim in Florida and New Jersey's state law on the appointment of guardians ad litem would still be relevant under Fed. R. Civ. P. 17(b)
One-Year Time Limitation For Commencing Suit In Passenger Ticket Contract is Enforceable
Angel v. Royal Caribbean Cruises, Ltd., 2002 U.S. Dist. LEXIS 22440 (S.D. Fla. 2002)
Plaintiff's uncle won a contest for a cruise for two aboard defendant's vessel. Plaintiff and his uncle received their tickets by mail two weeks prior to the departure date. The tickets contained a one-year statute of time limitation clause for commencing suit.
During the cruise plaintiff fell overboard. He was rescued by the U.S. Coast Guard and returned to the vessel. Two years post-incident, plaintiff filed suit alleging defendant's negligence resulted in personal injuries. Defendant filed a motion for summary judgment based upon the one-year time limitation contained in the passenger ticket contract. Plaintiff argued he did not purchase the ticket in question and should therefore not be bound by its terms. Plaintiff further argued he did not have time to read the terms of the contract.
The court used the two-prong analysis set forth in Shankles v. Costa Amatori, S.p.A., 722 F.2d. 861, 866 (1st Cir. 1983), to determine if plaintiff had reasonable notice of the terms of the agreement. The court must look to:
- the physical characteristics of the ticket contract, and
- the passenger's purchase and subsequent retention of the ticket contract.
The court dismissed plaintiff's first argument that he did not purchase the ticket or negotiate its terms. The court, citing Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1010 (D. Haw. 1992) also found no merit to plaintiff's second argument that he did not have time to read the terms of the contract. "A party cannot avoid the effect of contractual provisions to which he is a party by simply choosing not to read the contract." Therefore, the court held plaintiff's action was time- barred and granted defendant's motion for summary judgment.
Florida Trial Court Dismisses Seaman's Unseaworthiness Suit as Fraud on the Court
Castro v. Seabulk International, Inc. f/k/a/ Hvide Marine, Inc., Case No.: 01 017819 05 (Circuit Ct. Broward Co. Fl.)**
Plaintiff seaman claimed a back injury aboard M/V STRONG PATRIOT while carrying an electric motor with another crewmember. Plaintiff alleged the ship suddenly shifted while loading cargo containers which caused the weight of the motor to injure his back. Plaintiff brought suit against the vessel's crewing agent, seeking Jones' Act negligence, unseaworthiness, and maintenance and cure damages. Plaintiff's prior litigation history included two similar suits against shipowners for back injuries.
Plaintiff testified in deposition for the instant lawsuit that following therapy for a prior accident aboard GLOBAL MARINER, he had no further back pain, nor did he experience any back pain on any of the interim vessels he served prior to STRONG PATRIOT. Additionally, prior to joining STRONG PATRIOT, plaintiff completed a pre-employment statement of physical condition and denied prior "Back Pain/Ache or Injury." In his January 22, 2002 deposition for the GLOBAL MARINER-related incident, plaintiff testified his back pain from that incident was still present throughout his assignment to STRONG PATRIOT and was so intense he was forced to leave another vessel just two months before joining STRONG PATRIOT. Plaintiff retained the same firm for his lawsuits against Seabulk and the owner of GLOBAL MARINER. A number of other of plaintiff's falsehoods were uncovered through discovery and incorporated in a motion to dismiss for fraud upon the court. Florida courts are historically intolerant of litigants who are guilty of fraud or misconduct in the prosecution of a civil proceeding and routinely dismiss suits in which plaintiffs use the courts they have subverted to achieve their ends. Case law applicable to the district of the trial court holds dismissal for fraud upon the court is proper where the plaintiff lied about "matters that bore directly on the issue of damages," such as "prior involvement in personal injury litigation, prior similar injuries, past medical treatment, criminal history, employment status and income." Desimone v. Old Dominion Ins. Co., 740 So. 2d. 1233, 1234 (Fla. 4th DCA 1999). In light of plaintiff's repeated lies under oath which went directly to the heart of his back injury claim, the trial court dismissed the matter with prejudice.
New Trial Ordered Where Expert Witness Testimony Lacked Foundation
Susan Stowers v. Carnival Corporation, 834 So. 2d. 386 (Fla. 3d DCA 2003)**
Plaintiff brought a maritime personal injury action alleging she slipped and fell while on defendant's ship. Defendant appealed an adverse verdict at trial and successfully obtained a new trial because the trial court improperly permitted, over defendant's objections, an expert witness to offer testimony based on unconfirmed facts.
Plaintiff injured her leg and ankle when she slipped and fell on a granite step. She alleged she slipped after walking through soapy liquid on carpet, then walked through dry carpet before reaching the granite step. Defendant sustained a fractured leg which required surgery and the placement of metal hardware.
Plaintiff's case was largely based on expert witness testimony that soapy liquid remained on her shoe as she walked on dry carpet which was transferred to the granite step, causing her to slip and fall. Defendant objected to the testimony regarding the transfer of an unknown, soapy substance and the dry carpet's ability to absorb and/or wick the purported liquid. The trial court allowed the testimony, despite the fact that the expert admitted he did not know the carpet composition and did not perform any tests on the carpet. The expert also admitted he had no education or training concerning carpet.
The appellate court held that to be admissible, an expert's opinion must be based on valid underlying data which has a proper factual basis. As plaintiff's expert admitted he did not know the composition of the carpet, had not tested the water-absorbing properties of the carpet and did not attempt to recreate the incident, he clearly did not establish the existence of valid underlying data upon which to form his opinions. The case was reversed and remanded for a new trial.
