RECENT
DEVELOPMENTS IN THE COURTS - PART X
(Published February 2004)
The following survey represents some of the more significant recent court rulings around the nation affecting shipping lines generally:
Cargo Damaged By Freshwater Creates Triable Issue Under COGSA
American Home Assurance Co. v. Jamaica, 2003 U.S. Dist. LEXIS 23103 (S.D.N.Y. 2003)
Plaintiffs,
a cargo shipper and its insurer, filed a motion for summary judgment against
defendants, a vessel and a carrier. Defendants delivered a shipment of bathroom
fixtures from China to North Carolina. The fixtures were wet and damaged from
exposure to water when the shipment arrived. The shipment began its trip in
custody of plaintiff, before defendants inspected the container, confirmed
the seal number and received the container into their custody. Defendants issued
a clean bill of lading.
Neither party offered direct proof of precisely when and how the cargo was exposed to and damaged by freshwater. Each side proffered evidence that the cargo was not damaged while in its own control, and inferred that the cargo must have been damaged while in the other party’s control. Plaintiffs’ witnesses all concurred that once the cargo was loaded and the container sealed, the container appeared in good condition before and after its delivery to defendants. Defendants argued that precisely when the cargo was damaged was a material fact for trial.
The parties agreed that the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. §1300-1305 applied. Therefore, plaintiff had to establish a prima facie case for recovery by demonstrating the goods were damaged while in defendants’ custody. This burden is met by proving delivery of the goods to the carrier in good condition and outturn by the carrier in damaged condition. The burden then shifts to the carrier to show that the loss or damage falls within one of the exceptions. The parties only disputed the first element, since they agreed that the goods arrived wet and damaged in North Carolina. Therefore, the court found there was no genuine issue of material fact as to whether the cargo was wet and damaged at outturn.
The court granted summary judgment on the issue that the cargo was wet and damaged at outturn, but denied the motion as to whether plaintiff delivered the cargo to defendants in good condition. A clean bill of lading does not support a prima facie case for plaintiff. Defendant argued the court could not grant summary judgment for plaintiff because precisely where the cargo became wet remained unknown. Evidence of freshwater wetting, unlike seawater wetting, does not justify a presumption that the damage occurred at sea. Defendants argued freshwater damage did not occur after plaintiff transferred the cargo to defendants, and offered evidence about the low probability of freshwater accumulating.
Commandant Of The Coast Guard’s Interpretation of Rule 34(d) Entitled to NTSB Deference
Collins v. NTSB, 2003 U.S. App. LEXIS 25734 (D.C. Cir. 2003)
Petitioner Commandant of the Coast Guard found a vessel pilot failed to sound a warning signal prior to a collision with another vessel as required by the Convention on International Regulations for Preventing Collisions at Sea. The NTSB reversed the Commandant’s decision and the Commandant appealed.
The pilot contended that sounding a warning signal was futile because he knew that the other vessel’s maneuver would result in a collision. Rule 34(d) provides that five short rapid blasts on the whistle shall be given when one vessel sees another and is “in doubt” as to whether sufficient action is taken to avoid the collision. The Commandant affirmed the administrative law judge’s suspension of the pilot, by interpreting the words “in doubt” to mean uncertainty of what the other vessel is doing or when you think it is doing the wrong thing. The D.C. Court of Appeals found the latter part of the definition accurate and quoted a dictionary definition as “an inclination not to believe or accept” which it found to be “akin to the certainty of the negative.” NTSB reasoned that “doubt” denotes uncertainty, and excludes certainty of the negative.
The court maintained that it would be proper to give deference to the executive agency in this case and decided the Coast Guard was the proper executive agency as it is an expert in maritime safety. Because the Coast Guard’s interpretation of Rule 34(d) was reasonable, the NTSB should have affirmed its ruling. The case was remanded so the NTSB could consider the pilot’s other factual and legal arguments.
Court Refuses To Extend Admiralty Jurisdiction To Salvage Claim Arising On Land-locked Water
Historic Aircraft Recovery Corp. v. Wrecked and Abandoned Voight F4u-1 Corsair Aircraft, 2003 U.S. Dist. LEXIS 22209 (U.S.D.C. 2003)
The court granted the State of Maine’s Motion to Dismiss for Lack of Jurisdiction after concluding there was no jurisdiction to resolve a dispute over the excavation of two World War II artifact airplanes located in a lake within Maine. Plaintiff, Historic Aircraft Recovery Corporation (“HARC”) located the planes and sought to recover them from Sebago Lake located entirely in the state of Maine. HARC sought to invoke the laws of salvage under the court’s admiralty jurisdiction. Maine filed a Motion to Dismiss and the court had to resolve the threshold question whether claims for salvage rights and title to military aircraft submerged in an intrastate body of water fall within the admiralty jurisdiction of the court. The court rejected both Maine and HARC’s arguments for jurisdiction and formulated its own test.
The court rejected Maine’s theory for the application of the admiralty jurisdiction test laid out in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995). A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. The court, in rejecting this theory, stated that Sebago Lake is a lake located entirely within the State of Maine and a vessel cannot navigate from Sebago Lake into the open sea. The court rejected the connection requirement stating that what caused the planes to land in the lake was unrelated to traditional maritime activity.
The court also rejected plaintiff’s argument holding that salvage claims do not inherently fall under admiralty jurisdiction. Under plaintiff’s theory, the court ruled this would extend admiralty jurisdiction past its boundaries, because any body of water could be subject to admiralty jurisdiction. The court concluded that the aircraft (which unintentionally came to rest in an non-navigable body of water) was not within the admiralty jurisdiction and therefore not subject to a salvage claim.
State Law Controls Regulation Of Marine Insurance
Carney Family Investment Trust v. Insurance Company of North America, 2004 U.S. Dist. LEXIS 120 (Md. Dist. Ct. 2004)
Plaintiff owned a yacht that caught on fire. The yacht was insured by defendant. After rejecting defendant’s settlement offer, plaintiff filed suit in the United States District Court for the District of Maryland seeking declaratory judgment as to defendant’s breach of contract, and actual damages, double or treble damages, and attorney’s fees, alleging unfair claims settlement practices under Massachusetts law. Defendant filed a motion to dismiss the damages claim alleging that federal admiralty law applied to the issues of punitive damages and attorney’s fees generally, and that accordingly, Massachusetts law could not be applied.
Relying on the Supreme
Court’s
decision in Wilburn Boat Company,
the court noted there was no judicially established federal admiralty rule
governing marine insurance warranties. The court thus decided to look to applicable
state law in determining whether plaintiff could prevail on its damages claim
and denied defendant’s motion
to dismiss.
Title III Of The Americans With Disability Act Held Inapplicable To Foreign Passenger Ships In U.S. Waters
Spector v. Norwegian Cruise Line, Ltd., 2004 U.S. App. LEXIS 340 (5th Cir. 2004)
Plaintiffs took cruises originating in the Port of Houston, Texas, and traveled to foreign ports of call. The ships sailed under the Bahamian flag. Plaintiffs filed suit asserting they were discriminated against in violation of Title III of the Americans With Disabilities Act (“ADA”).
Plaintiffs alleged that physical barriers on the ships denied them access to: (1) emergency evacuation equipment and emergency evacuation-related programs; (2) facilities such as public restrooms, restaurants, swimming pools, and elevators; and (3) cabins with balconies or windows. They further alleged they were charged a premium for their four handicapped-accessible cabins and the assistance of crew members. Companion plaintiffs alleged they were discriminated against and denied access to the ship’s facilities because of their “known association” with the plaintiffs.
The trial court held the ADA could be applied to foreign-flag vessels embarking passengers in U.S. waters, but ruled the ADA’s barrier removal provision could not form the basis for a suit for injunctive relief until the federal regulatory agencies publish accessibility standards specific to ships. On appeal, the Fifth Circuit noted there is no indication, either in the statutory text or in the ADA’s extensive history, that Congress intended Title III to apply to foreign-flag cruise ships. Accordingly, the appellate court ruled the ADA could not be applied to foreign ships at all, unless or until Congress amends the Act to so state. The court therefore never reached the issue concerning the lack of cruise- ship-specific accessibility standards, though it commented in a footnote the regulatory agencies were remiss in failing to adopt regulations.
In the present case, many of the structural changes required to comply with Title III would be permanent, investing the statute with extraterritorial application as soon as the cruise ships leave domestic waters. Plaintiffs tried to rely on an earlier decision of the Eleventh Circuit in Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (11th Cir. 2000), reh’g denied, 284 F.3d 1187 (11th Cir. 2002). In Stevens, the court found Title III of the ADA does apply to those aspects of cruise ships (restaurants, retail stores, health spas, etc.) that qualify as public accommodations. Id. at 1241. Further, since Congress did not exclude coverage of foreign-flag cruise ships while in domestic waters, the court reasoned the ADA must apply to them.
The conflict between the rulings of the Fifth and the Eleventh Circuits likely renders the issue ripe for resolution by the U.S. Supreme Court. Meanwhile, the plaintiffs in Spector have petitioned for a rehearing en banc.
Federal Removal Proper Where Outer Continental Shelf Lands Act (“OCSLA”) Confers Jurisdiction
Bolden v. Superior Energy Servs. L.L.C., et. al., 2003 U.S. Dist. LEXIS 21589 (E.D. La. 2003)
Plaintiff sued defendant oil platform employer in state court asserting a Jones Act claim, and alternatively a general maritime claim under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 905(b). Plaintiff also sued the oil company, Exxon, for platform negligence. Exxon removed alleging the Outer Continental Shelf Lands Act (“OCSLA”) conferred jurisdiction on federal court. Plaintiff filed a motion for remand.
The court’s first inquiry was whether defendant met its burden that plaintiff had no reasonable possibility of establishing a Jones Act claim against his employer. To maintain a cause of action under the Jones Act, plaintiff must be a seaman. Land-based workers are not seamen and have no claims for Jones Act negligence. A land-based maritime worker’s recourse against his employer lies with LHWCA, a no-fault worker’s compensation scheme. The Supreme Court has established a two-part test to determine seaman status. First, plaintiff’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and second, the plaintiff must have a connection to a vessel in navigation that is substantial in duration and nature.
The court held that fixed platforms are man-made islands and are not vessels
for Jones Act purposes and thus plaintiff was not a Jones Act seaman. The court
found that although plaintiff spent 50 to 70 percent of his work time aboard
the lifeboats and supply vessel he was not hired to man the lifeboats or serve
as a member of the lifeboat crew. Plaintiff also failed to establish that he
had a
permanent or substantial connection to a vessel or a fleet of vessels. Remand
was therefore not required by the
Jones Act.
Plaintiff’s sole remedy against his employer lies with LHWCA. Section 905(b) of the LHWCA allows a non-seaman to bring a general maritime claim against a vessel owner and his employer. However, the Court noted plaintiff had no claim against his employer pursuant to 905(b) since he was not injured aboard his employer’s vessel. Plaintiff was injured aboard Exxon’s fixed platform, and therefore plaintiff’s 905(b) claim was fraudulently pled. Since plaintiff’s claims against his employer were fraudulently pled, Exxon was not required to bring the employer in to join in the removal.
Once the court determined that the Jones Act and 905(b) claims did not require remand, the court next determined whether it had original jurisdiction. Pursuant to OCSLA, district courts have original jurisdiction over claims arising out of or in connection with any operation conducted on the outer continental shelf which involves exploration, development, or production of the minerals of the subsoil and seabed. If the employee’s injuries would not have occurred but for his work aboard the platform, then the claim arises under OCSLA and is removable because it presents a federal question. Plaintiff’s case was properly removed to federal court pursuant to OCSLA since his employment as a wireline operator furthered mineral production on the shelf.
Summary Judgment Granted To Defendant Owner/ Employer In LHWCA Case
Stewart v. Dutra Construction Company, Inc., 2003 U.S. App. LEXIS 18239 (1st Cir. 2003)
Plaintiff was hired to
maintain the mechanical systems of a dredge. He spent the majority of his
time aboard
the dredge, though occasionally was required
to perform maintenance tasks aboard a scow used in conjunction with the dredge.
After the scow’s engine malfunctioned, defendant hired an independent
contractor to repair it. Defendant arranged
for several of its employees, including plaintiff, to assist in the repairs.
On the day of the incident, plaintiff and the independent contractor were working
on the engine. Plaintiff was perched above a hatch and fell through when the
dredge’s crew moved the scow. The employee filed an action under the
Longshore and Harbor Workers’ Compensation Act. The trial court granted
the employer’s motion for summary judgment.
The statutory no-fault compensation payments provided by the LHWCA are considered exclusive and in place of all other liability of such employer to the employee. Therefore, employees covered by the LHWCA are statutorily barred from suing their employers for injuries incurred in the course of their employment. However, the employee can still sue the vessel owner as a third party if his injury was caused by the negligence of the vessel. In this case the same entity is both employer and vessel owner. Thus, the question becomes whether the defendant’s alleged acts of negligence were committed in its capacity as an employer (for which it is immune from tort liability under §905(a)) or as an owner (for which it may be held separately liable under §905(b)).
The court found that part of the employee’s duties was to assist with supporting maritime chores in addition to the pursuit of his construction trade. At the time of the incident, plaintiff was performing a task contemplated by the terms of his employment and thus defendant was liable only in its capacity as longshore employer.
Triable Issue Whether Shipowner Breached Turnover Duty To Stevedore
Lincoln v. Rekston Management, et al., 2003 U.S. App. LEXIS 26314 (4th Cir. 2003)
Plaintiff longshoreman sustained multiple injuries when his right leg went through deck boards. The district court granted defendant ship management’s motion for summary judgment after finding plaintiff did not provide sufficient evidence that defendant breached its turnover duty to plaintiff.
The turnover duty is owed by shipowners to longshoremen under 33 U.S.C. §905(b) and has two components. First, the shipowner must provide a workplace so that an experienced stevedore is able, while exercising reasonable care, to carry out his duties with reasonable safety to persons and property. The second component requires the shipowner to warn the stevedore of any hazards on the ship or with respect to its equipment, including hazards that are known or should be known in the exercise of reasonable care.
On appeal, the Fourth Circuit Court of Appeals determined that for plaintiff to defeat summary judgment, he must show there was a latent defect in the deck, that the shipowner knew or should have known of the defect in the exercise of reasonable care, and that the shipowner breached its duty by failing to discover or warn the stevedore of the defect. The court considered plaintiff’s witnesses’ deposition testimony and the affidavit of the Captain. The court was particularly troubled by a statement from defendant’s expert that “to expect the officers and complement of the [vessel] to perform detailed inspections of deck boards and deck gratings as suggested by [plaintiff’s expert] would be both impractical and unreasonable.” After considering the evidence in the light most favorable to plaintiff, the court determined that the vessel might have been negligent in the vessel’s maintenance, upkeep, and inspection and reversed the lower court’s order granting summary judgment.
Federal Forum Selection Clause Upheld In COGSA Case
Continental Insurance Co. M/V ORSULA, et al., 2003 U.S. App. LEXIS 26288 (7th Cir. 2003)
In three consolidated cases, plaintiff insurer Continental, as subrogee of a steel owner, brought an action in Illinois against defendant shippers under the Carriage of Goods by Sea Act (“COGSA”) to recover damage to steel during a voyage. Each bill of lading contained a provision that Burns Harbor (Indiana) be designated as the port of discharge and that suit must be brought in the “United States District Court having admiralty jurisdiction at the ... USA port of discharge...to the exclusion of any other Court or forum.”
Continental challenged two aspects of the district court’s dismissal of the Illinois suit: (1) that any action had to be brought in Indiana, and (2) the suit should have been transferred to the Northern District of Indiana as opposed to being dismissed.
The court rejected both challenges and reasoned that in admiralty cases, forum-selection clauses are routinely upheld and should be enforced “unless enforcement is shown by the resisting party to be unreasonable under the circumstances.” The court found enforcement to be reasonable in light of the fact that there was nothing ambiguous or unclear about the contractual provision.
Continental argued the district court’s dismissal of the suit was a clear abuse of discretion relying on 28 U.S.C. §1406(a) which reads: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” The Circuit Court of Appeals found there was nothing ambiguous about the forum selection clause and dismissal was therefore proper.
Editor’s Note: This ruling is significant because of the effect of a dismissal rather than transfer of the case. By upholding the dismissal, the plaintiff would be required to institute a new action and could be time-barred, whereas a transfer of the action does not implicate the statute of limitations. This decision strengthens the argument that an action filed in the wrong forum, in contravention of a clearly worded forum selection clause, should be dismissed and does not toll the statute of limitations.
Forum Non Conveniens Dismissal Granted
Rodriguez v. Cruise Ships Catering and Service Int’l, N.V. et al., 2003 U.S. Dist. LEXIS 24150 (S.D. Fla. 2003)
Plaintiff, a Peruvian seaman, filed suit against defendants alleging claims under the Jones Act and for unseaworthiness arising aboard a cruise ship. Plaintiff also sought to garnish funds from one of the defendants, a Florida company. The court decided a choice of law question preliminarily. The court ruled that of the eight factors the court applies when determining a question regarding the choice of law, seven of the eight factors weighed against applying United States law to the dispute. These factors included the place of the wrongful act, the law of the ship’s flag, the allegiance or domicile of the plaintiff, the allegiance of the shipowner, the lack of an employment contract signed within the U.S., the law of the forum, and the base of operations. Based on the totality of the circumstances of these factors, the court concluded that the application of U.S. law to this dispute would be inappropriate.
The court dismissed the case on forum non conveniens grounds because: (1) an adequate alternate forum existed, and (2) the private and public factors supported dismissal. The defendants agreed to submit to the jurisdiction of either Italy, Peru, or the Netherlands Antilles. The court found that private factors supported dismissal because ease of proof, accessibility to witnesses and records all weighed in favor of dismissal. Lastly, the court determined that public factors supported dismissal because “ The habitual generosity of American jurors is not a reason to try the case here.”
Bautista v. Cruise Ships Catering and Service International, et al., 2003 U.S. Dist. LEXIS 24142 (S.D. Fla. 2003)
This action was brought by a Colombian seaman against Italian and Netherlands Antilles’ companies for injuries sustained while working aboard an Italian flagged vessel. The complaint alleged claims under the Jones Act and for unseaworthiness. The complaint also sought to garnish funds from a Florida company. The vessel in question did not frequently visit the United States. The alleged injury occurred on October 16, 2000 while the ship was in port in Italy. He was treated on the ship, in Italy, and in his native Colombia. Defendants moved to dismiss on grounds of forum non conveniens. The court first examined the issue of choice of law. If United States law was applicable, the court would not have been able to dismiss the case on forum non conveniens grounds. If, however, foreign law was applicable, then the court could exercise discretion in determining whether a forum non conveniens dismissal was appropriate.
Applying the eight choice of law factors, the court concluded the first factor did not weigh in favor of litigation in the United States because the alleged wrongful act occurred in Italy. Second, the law of the flag of the vessel is Italian. Next, the allegiance or domicile of the injured seaman was Colombia. The allegiance of the shipowner factor does not favor U.S. law because the vessel is owned by either an Italian or Netherlands Antilles corporation. The fifth factor does not weigh in favor of U.S. law either; there was no evidence that plaintiff entered into an employment contract in the United States. In fact, it does not appear that plaintiff had even visited the United States. The court noted that, “In today’s climate of worldwide economies and the internet, there are few companies that have no connection with the United States. However, such a connection alone is insufficient to justify the United States’ becoming the court for all tort disputes in the world. In this case, the major connection to the United States is the law practice of plaintiff’s attorneys.”
The fact that a plaintiff chose to file suit in a particular forum normally weighs in favor of U.S. law; however, a weaker presumption applies when the case is brought by a foreign plaintiff, as is the case here. Further, it appeared that plaintiff can sue in other foreign fora; defendants have stipulated to jurisdiction in either Colombia, Italy, or the Netherlands Antilles. Finally, when examining the base of operations factor, the court had to consider whether a substantial relation that would justify the application of U.S. law existed. The mere fact that the bulk of a company’s profits comes from U.S. pockets is insufficient alone to warrant the application of U.S. law. The vast majority of the passengers and marketing came from outside the United States. Accordingly, weighing all of the choice of law factors, the court found the application of U.S. law was not appropriate.
Next, in conducting a forum non conveniens analysis, the factors pertaining to the private interests of the litigation include: the relative ease of access to sources or proof, availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. The public factors bearing on the question include the administrative difficulties flowing from court congestion, the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness in burdening citizens in an unrelated forum with jury duty.
The court noted that several alternate forums could afford plaintiff some type of remedy, and contrary to plaintiff’s affidavits, the court did not conclude that Colombian courts are incapable of providing their citizens with justice.
United Kingdom Held Adequate Alternative Forum In Jones Act Case
Oyuela v. Seacor Marine, Inc., et al., 2003 U.S. Dist. LEXIS 18859 (E.D. La. 2003)
Plaintiff, a Honduran citizen, was injured aboard ship and brought suit alleging Jones Act negligence and unseaworthiness. He later amended the complaint to bring claims under Nigerian, British, and French law. The court was required to make a choice of law determination. Though the court had jurisdiction over two parties, the court questioned its jurisdiction over a Bahamian entity.
The court was prepared to find that: (1) Plaintiff served one of the Bahamian entities’ corporate officers while within the forum state; (2) the Bahamian entity had sufficient minimum contacts with the forum because a company officer worked there; and (3) the Bahamian entity did not maintain corporate existence independent of the other two defendants. The court nevertheless ruled that forum non conveniens considerations favored dismissal of the action. Accordingly, the court granted defendant’s motion to dismiss for forum non conveniens provided: (1) the shipping company submitted to juris-diction in the United Kingdom; and (2) plaintiff initiated appropriate proceedings within 120 days of the dismissal order.
The court found an alternative forum existed in the United Kingdom and private factors favored dismissal because many of the defendants’ personnel records and witnesses were located in the United Kingdom. Additionally, there were choice of law and forum selection clauses contained in the employment contracts. The court also found that public factors favored dismissal because no substantive American law remained to be applied. Because the legal system of the United Kingdom was available and provided similar remedies, the court ruled that the controversy should be resolved there.
Bareboat Charterer Is “Vessel Owner” For Purposes Of Wage Statutes
Williams v. Wilmington Trust Company, et al., 2003 U.S. App. LEXIS 19931 (2d Cir. 2003)
A crewmember alleged he did not receive timely payment for his work aboard defendant’s vessel. Defendant moved to dismiss arguing it was not the owner. The magistrate judge denied the motion. The United States District Court for the Southern District of New York granted defendant’s summary judgment on plaintiff’s claims for penalties under the seaman’s wage statutes, 46 U.S.C. § § 10313, 10504 (2000). The Second Circuit affirmed on alternate grounds.
Both plaintiff and defendant agreed that Wilmington Trust Company was only a nominal owner of the vessel. Wilmington simply held title to the ship in order to qualify it for certain subsidies available solely to U.S. flagged vessels. Wilmington then leased the vessel to another entity (“Lessee”), which exercised at least some degree of control over the ship and managed its daily operations. Lessee at times also subleased the ship on a voyage-by-voyage basis back to the foreign beneficiaries of Wilmington Trust.
The court decided not to determine whether Wilmington was negligent in failing to timely pay plaintiff since Wilmington was not the master or owner of the vessel and thus could not be liable for a wage penalty. Wilmington’s bareboat charter with Lessee made Lessee the “owner pro hac vice.” “It has long been recognized in the law of admiralty that for many, if not most purposes, the bareboat charterer is to be treated as the owner, generally called the owner pro hac vice.” The court noted there are circumstances where the nominal owner could still be held liable; i.e., where the bareboat charterer is not subject to suit in the United States and the owner is just taking advantage of the benefits of United States law.
Order Requiring Payment Of Maintenance And Cure For Permanent Brain Injury
Petition of RJF International Corporation for Exoneration From or Limitation of Liability, Civil and Maritime, 2004 U.S. App. LEXIS 188 (1st Cir. 2004)
Plaintiff crewmember fell from a yacht and struck his head on a dock. He spent between 7 and 10 minutes underwater before being rescued, at which time he sustained anoxic brain injury from lack of oxygen, which resulted in significant loss of cognitive and functional abilities. Defendant yacht owner paid significant sums for maintenance and cure during plaintiff’s hospitalization. Plaintiff’s doctors’ opined plaintiff would benefit from inpatient specialized treatment that could result in cognitive improvement. Based on defendant’s medical expert’s conclusion that plaintiff suffered from permanent conditions beyond a shipowner’s responsibility under the maintenance and cure doctrine, defendant refused to pay for the specialized treatment. Plaintiff’s guardian filed a motion to compel payment and defendant petitioned to terminate maintenance and cure obligations.
The district court denied defendant’s motion, finding plaintiff had not yet reached a point of “maximum medical recovery”, and “further rehabilitation would be more than simply palliative, and would improve his medical condition.” On appeal, defendant argued: 1) the district court misread the law because it ordered maintenance and cure for someone who “now suffers from brain damage and associated symptoms that are clearly permanent”; 2) the district court erred because the contemplated rehabilitation was directed in part to coping with muscle spasticity and contractions, which according to defendant are “mere symptoms of permanent brain injury”, and 3) the maintenance and cure award should be curtailed because plaintiff was eligible for Medicare.
The appellate court affirmed, holding the testimony of plaintiff’s doctors was straightforward that further long-term and cognitive improvement was still possible and supported an award of maintenance and cure in aid of permanent improvement short of a complete cure. With regard to defendant’s argument that its maintenance and cure obligation should be curtailed because plaintiff was eligible for Medicare, the court held it was raised only in a closing brief intended to sum up the district court hearing and did not raise any new issues.
Crewmember Required To Undergo Vocational Rehabilitation Evaluation By Employer’s Expert
Wilks v. EPIC Marine, LLC, 2003 U.S. Dist. LEXIS 18106 (E.D. La. 2003).
Plaintiff filed a complaint for damages under the Jones Act and general maritime law, which included a claim for disability. During the pendency of his claim, plaintiff underwent a vocational evaluation at the request of his counsel.
To complete the evaluation, the licensed rehabilitation counselors reviewed medical records, plaintiff’s deposition, and personnel records from the shipowner, as well as information on plaintiff’s background, work history, and medical history. They also administered the Woodcock-Johnson III Tests of Achievement. In completing their analysis, the counselors also took into consideration statements plaintiff made during his interview.
Defendants demanded plaintiff undergo further evaluation by their own experts. Plaintiff objected citing Federal Rule of Civil Procedure 35(a) and In re Falcon Workover Co., 186 F.R.D. 352 (E.D. La. 1999). The court noted that Rule 35(a) would have originally precluded this type of evaluation; however, the rule had been amended in 1991, and now extends to “include other certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who may be well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute.”
The court further noted that In re Falcon was clearly distinguishable, in that plaintiff’s vocational rehabilitation experts included observations they made during the interview and testing in their report. The court assumed these individuals’ observations factored into their analysis and formed at least a partial basis for their conclusions. Thus, defendants’ experts should have the same opportunity to examine plaintiff in person.
Law Firm Disqualified From Suing Defendant It Previously Represented
Parker v. Rowan Companies, Inc., 2003 U.S. Dist. LEXIS 21588 (E.D. La. 2003)
Plaintiff sued under the Jones Act and general maritime law for injuries arising on defendant’s mobile offshore drilling unit. Defendant moved to disqualify plaintiff’s counsel because the same firm had represented defendant for fifteen years in over 70 cases, primarily defending Jones Act and unseaworthiness claims.
In rendering its decision the court relied on ethical canons from the Eastern District of Louisiana, the ABA’s Model Rules of Professional Conduct, the ABA’s Model Code of Professional Responsibility, and the Louisiana State rules of conduct. In addition to the ethical standards, the court also considered the public interest and the litigants’ rights.
The court applied the substantial relationship test which requires a party seeking to disqualify opposing counsel on grounds of prior representation to establish an actual attorney-client relationship between the moving party and the attorney he seeks to disqualify, and a substantial relationship between the subject matter of the former and present representations. The two concerns of the substantial relationship test are the duty to preserve confidences and the duty of loyalty to a former client. The disqualification rule not only protects an attorney’s former clients from the use their own information against them, but also fosters “the frank exchange between attorney and client and preserves the climate of trust and confidence necessary for the attorney-client relationship to exist.”
The court held that plaintiff’s case was substantially related to matters in which the same firm previously represented defendant, and that relevant confidential information was disclosed during the former period of representation.
Florida Third DCA Certifies Issue Of Cruise Line Liability For Medical Malpractice For Review By Florida Supreme Court
Darce Carlisle v. Carnival Corporation, Fla. 3d DCA Case No. 3D01-1518; 2003 Fla. App. LEXIS 12794 (Fla. 3d DCA 2003)**
In the October 2003 issue of Cruise & Carrier Legal Update we reported the Florida Third District Court of Appeals held carriers can be vicariously liable for the negligence of shipboard medical staff. On February 4, 2004, the Third DCA denied the shipowner’s motion for rehearing, but certified “as a matter of great public importance the question of whether a cruise line should be vicariously liable for the medical malpractice of a ship’s doctor.” The court has thus passed the case onto the Florida Supreme Court to decide whether to grant certiorari and review the case.