RECENT
DEVELOPMENTS IN THE COURTS - PART XII
(Published June 2005)
The following survey represents some of the more significant recent court rulings around the nation affecting shipping lines generally:
Supreme Court Rules ADA Applies To Foreign Flagged Cruise Ships - Sometimes
Spector v. Norwegian Cruise Line Ltd, 125 S. Ct. 2169 (2005)
Facts:
Plaintiffs
sued defendant for alleged discriminatory practices, policies, and procedures,
in addition to alleged failure to make physical modifications to defendant’s
ships. The district court ruled the ADA could be applied to a foreign cruise
ship in U.S. waters, but that the allegations concerning the structure of the
ship could not be sustained because specific regulations have not yet been
adopted for barrier removal on cruise ships. Both parties appealed to the Fifth
Circuit, which ruled the ADA could not be applied at all to foreign cruise
ships, even in U.S. waters, unless Congress amended the Act to so state.
Outcome:
In a 5-4 decision, a highly-divided Supreme
Court ruled that foreign-flagged cruise ships embarking in U.S. waters are
subject to liability to disabled passengers under the ADA for alleged discrimination
practices, policies and procedures. However, as to plaintiffs’ claims
regarding the structure of the
ship itself, the Court remanded the case for a determination whether the modifications sought are in conflict with international law or otherwise interfere with the ship’s internal affairs. While disability-rights advocates have publicly touted the Supreme Court’s decision as a victory, the ruling is viewed by industry insiders as largely favorable.
Although the Court held certain aspects of the ADA could apply, when it comes to the structure of the ship itself, permanent and significant changes cannot automatically be imposed by Title III, at least as currently written, because Congress has not clearly stated its intent to apply those provisions to a ship’s internal affairs. The Court found that a ship’s basic design and construction is deemed to be among its internal affairs. Under longstanding principles of statutory construction, legislation passed by Congress cannot be applied extraterritorially (i.e. outside the boundary the United States) unless Congress expressly provides for such application in the statute. When this rule is applied to a foreign flag vessel, it means that no federal legislation can be applied to the “internal affairs” of that ship, even while in U.S. waters, unless Congress first includes in the statute a clear statement of intent to apply the law in that manner.
Historically, the term “internal affairs” had been defined by the High Court to mean that a statute must implicate the foreign ship owner’s labor relations with its foreign crew before the required clear statement by Congress is triggered. In Spector, however, the Court expanded the definition of “internal affairs” to encompass a ship’s basic design and construction, stating that before legislation could govern such matters, Congress would need to clearly state its intent to apply the law to foreign vessels. There is no such statement contained in the ADA. Alternatively, the Court noted that to the extent any proposed modification of a ship’s structure was inconsistent with international law or operational safety, such modifications would not be deemed “readily achievable” anyway, as defined in the Act.
A lingering question left unanswered by the opinion is whether the pending DOT regulations addressing construction, alterations and barrier removal on cruise ships, when finally promulgated, can be applied at all to foreign vessels, and if so, to what extent. Even if the regulations are not inconsistent with international law and pose no threat to safety, they presumably would require permanent structural parameters in the design and construction of vessels, and if applied to foreign ships, would implicate their internal affairs. The Court was clear that such application of the ADA would “likely” require an amendment by Congress to specify application to foreign ships.
With regard to practices and policies there is also uncertainly about the reach of the Court’s decision. Spector involved ships that were based in the U.S. and alleged discrimination in ticket sales to Americans who boarded in U.S. ports. The decision uses language suggesting Title III’s prohibition on discrimination, even though applicable in some cases to foreign ships, is limited to U.S. waters, stating: “Except insofar as Title III regulates a vessel’s internal affairs . . . the statute is applicable to foreign ships in United States waters to the same extent that is applicable to American ships in those waters”. It seems no coincidence that the Court would twice in one sentence use such limiting words if it did not intend its holding to be limited to ships embarking or at least calling in the U.S. That limitation would mean alleged discrimination aboard ships whose itineraries do not include U.S. ports, even if the tickets are sold in the U.S., may not be covered by the ruling.
Although concern had been expressed that the decision could invite application of other U.S. laws to foreign ships generally, the ruling likely has no such effect. The scope of the decision involves only application of U.S. laws when foreign ships enter U.S. waters, not when they operate abroad. Spector stands for the proposition that federal statutes do not automatically apply to a foreign ship’s internal affairs, including its labor relations with foreign crew or basic design and construction, unless Congress first includes in the statute a clear statement requiring such application to foreign ships.
Holding:
Motion to dismiss reversed and remanded for further proceedings.
Editor’s Note: Kaye, Rose & Partners
was privileged to represent the International Council of Cruise Lines in
filing an amicus curiae brief in support of Norwegian Cruise Line in the
Spector case. Questions about the legal significance of the decision should
be directed to our San Diego office.
“Cruises-to-Nowhere” Qualify as Interstate Commerce and Entitled to Partial Tax Exemption
Florida Department of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954 (Fla. 4th DCA 2005)
Facts:
The Florida Department of Revenue wanted to tax respondent’s gambling
boats that are essentially “cruises to nowhere” because these boats
never touch a foreign port. Respondents argued the revenues were received in
foreign or interstate commerce and not intrastate, and therefore should qualify
for a partial exemption from the state taxing authority.
Holding:
Court held cruises to nowhere qualify for partial exemption from the state
taxing authority. The court reasoned these cruises are engaged in “foreign
commerce” and are not intrastate commerce. Petitioner’s claim that the United
States’ seaward boundary is twelve miles was rejected and found the United
States’ territorial sea is generally variable and cruises to nowhere do classify
as leaving the United States boundary by traveling more than three miles
offshore. The court concluded that a vessel does not need to stop in a foreign
port in order for interstate or foreign commerce to be involved.
Outcome:
Court held respondent qualified for the partial tax exemption and rejected
the First District Appellate Court’s decision that “cruises-to-nowhere” could
not be categorized as “foreign commerce” and were intrastate in nature.
No Jurisdiction Over London Insurer in Coverage Dispute by Hawaii Cruise Operator
Paradise Cruise Ltd. v. Lloyd’s Underwriters et al., Civil No. 04-00364 (D. Hi May 2005)**
Facts:
Plaintiff, a Hawaiian cruise operator and owner of STAR OF HONOLULU, purchased
an insurance policy from or through defendants providing for trade disruption
in effect for the 12- month period commencing May 2001. Plaintiff alleged
the 9/11 attacks constituted a peril covered by the policy, and the insurer,
located in London, refused to compensate plaintiff $2.4 to $3.8 million,
which it said was caused by the attacks and covered by the terms of the policy.
The insurer disputed jurisdiction and moved to compel arbitration. Insurer
admitted it was a British entity, having its principal place of business
outside of Hawaii, but explained the policy at issue was governed by English
law and contained a forum selection provision for the dispute to be resolved
in London.
Holding:
The U.S. District Court for the District of Hawaii granted insurer’s
motion to dismiss based on a lack of personal jurisdiction. The Court distinguished
prior precedent finding jurisdiction where an insurer had sent a policy to
the forum, received premiums from the forum and the insured was a resident
of the forum. It explained that in this case, plaintiff sought insurance in
London and that the London insurer did not mail nor solicit business in Hawaii.
Moreover, the policy expressly provided that English law would govern and that
all disputes would have to be resolved in a London forum.
Outcome:
The court dismissed for lack of personal jurisdiction over the London-based
insurer and stayed the remainder of the proceedings against the brokers pending
resolution of plaintiff’s claim in London.
Arbitration of Wage Disputes With Filipino Seamen Upheld
Lim v. Offshore Speciality Fabricators, Inc., 2005 U.S. Dist. LEXIS 4807 (5th Cir. 2005)**
Facts:
Defendant, a Louisiana corporation, employed plaintiff, a Philippine resident
and citizen, to work aboard a Vanuatu-flagged vessel. Plaintiff’s contract
was executed through the Philippine Overseas Employment Administration (“POEA”).
Plaintiff filed suit alleging defendant violated the Fair Labor Standards
Act (“FLSA”) by failing to pay minimum wage and overtime hours
to him and other seamen. Plaintiff’s first amended complaint made this
an opt-in collective action to which approximately 100 similarly-situated
Filipino seamen opted in. Defendant moved to dismiss arguing the seamen’s
wage claims were subject to a valid and enforceable forum selection clause
and mandatory arbitration agreement incorporated in their employment contracts.
Defendant argued the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the “Convention”) and federal law require arbitration
of wage disputes. Plaintiffs contended that arbitration of wage disputes
was not permitted under the FLSA and was contrary to Louisiana public policy
as evidenced by Louisiana state statute prohibiting employers’ use
of choice of forum and choice of law clauses in employment contracts.
Holding:
Although the district court denied dismissal and found the arbitration provisions
violated Louisiana law and public policy, the Fifth Circuit held the Convention,
which both the U.S. and Philippines have adopted, is federal law, and unless
an exception applies, the Convention requires the arbitration provision in
plaintiffs’ employment contracts be honored. With respect to plaintiffs’ claims
that the provision was null and void under the Convention because it violated
Louisiana law, the appellate court noted the Louisiana statute seeks to protect
Louisiana citizen- employees from being forced to litigate in a foreign forum
under foreign law, not Philippine citizens and residents from having to pursue
their claims in their home country. Nor could the Filipino plaintiff-seamen
rely on the FLSA to preclude arbitration as the FLSA does not by its own terms
or legislative history bar arbitration. As concluded by the appellate court,
it would be up to the Philippine arbitrators to decide whether the FLSA applied.
Outcome:
Order denying motion to dismiss vacated and case remanded to district court
for further proceedings consistent with the Court’s opinion that the
Convention should be enforced to compel arbitration.
Foreign Seaman’s Tort Claims Subject to Arbitration
Jane Doe v. RCCL, 2005 U.S. Dist. LEXIS 6582 (S.D. Fl. 2005)
Facts:
Plaintiff’s lawsuit arose from an alleged rape aboard the cruise ship
upon which she was employed. Plaintiff signed an employment contract providing
that claims arising from her employment would be arbitrated in the Philippines,
where she executed her agreement.
Holding:
The U.S. District Court for the Southern District of Florida followed the Bautista ruling and found that under the U.N. Convention on the Recognition and Enforcement
of Foreign Arbitral Awards and its U.S. implementing legislation, foreign
seamen must arbitrate claims, regardless of where they arose, in a foreign
country as per their employment contracts. Though she attempted to avoid
the contract’s terms by claiming she had never read the arbitration
clause, the court nevertheless determined the arbitration clause was enforceable
under the Foreign Arbitral Awards Act.
Outcome:
Summary Judgment for defendants granted.
Arbitration Waived When Not Promptly Enforced
Expofrut v. M/V Aconcagua, et al., 110 Fed. Appx. 224; 2004 U.S. App. LEXIS 20463 (3rd Cir. 2004)
Facts:
Shippers contracted with cargo company to deliver supplier’s fruit. Cargo
company allegedly failed to complete the required “cold treatment” procedure.
Shippers sued and demanded arbitration one year after filing the initial complaint,
extensive discovery by both parties and never showing an intent to arbitrate.
Holding:
On appeal court found plaintiff’s substantial delay in noticing defendants
of its intent to seek arbitration waived plaintiff’s right to arbitration.
Outcome:
Court affirmed trial court’s ruling.
Cruise Lines Strictly Liable for Crew Assaults on Passengers
Jane Doe v. Celebrity Cruises, Inc., et. al., 394 F.3d 891 (11th Cir. 2004) **
Facts:
Plaintiff passenger reported a crewmember raped her, and brought claims against
the cruise line, the owner of the vessel, the ship’s chandlers and
the ship’s catering service alleging negligence and counts of vicarious
or strict liability for sexual assault, battery, intentional infliction of
emotional distress and negligent infliction of emotional distress. In a pre-trial
ruling, the district court determined a cruise line, is strictly liable for
crewmember assaults on passengers. Following trial which concluded in favor
of plaintiff, the trial court sua sponte entered a F.R.C.P. 50(b) judgment
for defendants ruling plaintiff failed to prove any single defendant was
liable for the crewmember’s assault.
Holding:
The Circuit Court of Appeals held the trial court lacked the authority to enter
judgment for the defendants under rule 50(b) on a new ground not raised by
any party prior to submission of the case to the jury. The Court held a cruise
line is strictly liable for crewmember assaults on passengers during the
cruise. A common carrier’s strict liability to a passenger for crewmember
assaults during transit rests upon its special implied duty of protection
and safe transport that it owes through its employees to its passengers,
and not for the reason that the act is incident to a duty within the scope
of the crewmember’s employment. Kansas City S. Ry. Co. v. Willsie,
224 F. 908, 911 (8th Cir. 1915) (acknowledging “the absolute nature” of
the carrier’s duty to protect passengers from assaults by its employees
and stating that “the carrier is liable in such cases because the act
is violative of the duty and a breach of the obligation it owes through the
servant to the passenger, and not upon the idea that the act is incident
to a duty within the scope of the servant’s employment”). The
rationale employed for imposing strict liability on the employer is the carrier-passenger
relationship and the corresponding existence of an implied duty of protection
and safe transport free from assault by the carrier’s employees during
transit. In terms of tort liability, this becomes, in effect, a special non-delegable
duty owed by the carrier to the passenger.
Outcome:
The district court reversed the entry of judgment for defendants and affirmed
the jury verdict for the plaintiff.
Editors note: Celebrity Cruises will seek review of this decision, a case
of first impression in the Eleventh Circuit, by the U.S. Supreme Court
Consortium Claims Precluded Under General Maritime Law
Frango v. Royal Caribbean Cruises, Ltd., 891 So. 2d 1208 (Fla. 3d DCA, Feb. 2, 2005)
Facts:
Plaintiffs, husband and wife, were passengers on defendant’s cruise ship.
As the wife was entering the lounge she turned her head to find her husband,
who was walking behind her. The automatic sliding doors that led into the ship’s
lounge closed on her. Plaintiffs brought a claim for negligence on behalf of
the wife and for loss of consortium on behalf of the husband. Defendant moved
for summary judgment against the husband’s loss of consortium claim on
the grounds general maritime law does not recognize claims for loss of consortium.
The trial court granted summary judgment against plaintiffs on both the wife’s
negligence claim and the husband’s claim for loss of consortium. Plaintiffs
appealed.
Holding:
On appeal, the court found the trial court erred in granting summary judgment
against the wife on her negligence claim because it could not agree that
by briefly stopping to look back at her husband, she was entirely responsible
for the accident. However, the court determined the trial court properly
granted summary judgment against the husband on his loss of consortium claim
because maritime law does not recognize a claim for loss of consortium to
non-seamen. In reaching its holding the court relied on the premise, articulated
in Norwegian Cruise Lines, Ltd. v. Zareno, 712 So. 2d 791, 793 (Fla. 3d DCA
1998), that a state court may apply state law to a maritime action so long
as there is no conflict with federal maritime law. Because Florida law recognizes
a claim for loss of consortium, the issue before the court was whether it
would conflict with federal maritime law. The court concluded it would, citing
to Amtrack “Sunset Ltd.” Train Crash in Bayou Canot, Ala.,
on Sept. 22, 1993, 121 F.3d 1421 (11th Cir. 1997), which held general maritime
law does not allow claims for loss of consortium to non-seamen, and Lollie
v. Brown Marine Serv., Inc., 995 F.2d 1565 (11th Cir. 1993), which held that “neither
the Jones Act nor general maritime law authorizes recovery for loss of society
or consortium in personal injury cases.”
Outcome:
Decision of trial court granting summary judgment in favor of cruise line on
husband’s loss of consortium claim affirmed on appeal. Case remanded
to trial court on issue of defendant’s liability for wife’s claim
Court Refuses to Toll Plaintiff’s Limitation Period After Filing in Wrong Forum
Lipford v. Carnival Corporation d/b/a Carnival Cruise Lines, 346 F. Supp. 2d 1276 (S.D. Fla. 2004)**
Facts:
Plaintiff was allegedly injured when she took a boat excursion while a guest
on defendant’s ship. The passenger contract between plaintiff and defendant
contained a forum selection clause which required all disputes between defendant
and its passengers be instituted in the United States District Court for the
Southern District of Florida within one year. Plaintiff filed her action in
state court and filed a second “cautionary complaint” in federal
court. The state court denied defendant’s motion to dismiss and held
the forum selection clause to be invalid and unenforceable. Defendant then
moved to dismiss the federal court action. Plaintiff responded with a motion
to stay the federal court case pending a resolution of the state court case.
Plaintiff sought to preserve the limitations period and her ability to return
to federal court to pursue her claims in the event the one year limitation
period expired and the state appellate court ruled the trial court had no
jurisdiction over the case.
Holding:
The court held the requested stay was indefinite and therefore unwarranted.
The court rejected plaintiff’s argument that the stay was necessary
to preserve her right to sue defendant within the one year limitation period.
The court reasoned that plaintiff could have avoided the risk of being time
barred by filing in federal court and ruled that plaintiff’s ability
to sue within the one year limitation period depended not on the court’s
granting of a stay but on the plaintiff’s own decision to sue in state
court.
Outcome:
Motion for stay denied. Case dismissed without prejudice.
Forum Non Conveniens Applied in Foreign Seamen’s Jones Act Suit
Tananta et. al v. Cruise Ships Catering and Services Int’l, N.V. et. al., 2004 Fla. App. LEXIS 19661; 2005 AMC 449 (Fla. 3d DCA 2004)
Facts:
Five foreign seamen filed claims for Jones Act negligence, unseaworthiness
and maintenance and cure against foreign defendants in Miami-Dade County,
Florida. Each claimant had few, if any, ties to Florida. Some of the seamen
came through Miami for pre-employment medical screenings and executed their
employment contract there. Certain of the seamen also received medical care
in Miami only after retaining local counsel. The vessels on which the seamen
served and the corporate entities behind them had equally sparse connections
to the United States and to Florida. The trial court denied the defendants’ motion
to dismiss on forum non conveniens grounds. On appeal, a three-judge panel
of the district court reversed and the motion to dismiss was granted. This
decision was subsequently upheld by the Court of Appeals en banc.
Holding:
The Court held Florida has the right to apply its own state law procedures
in determining the venue of foreign seamen cases as opposed to federal standards.
Just as state courts are not bound by the venue requirements set forth for
federal courts in deciding admiralty cases, they are not bound by the federal
common law rule of forum non conveniens. In the instant action, under the
forum non conveniens standards adopted by the Florida Supreme Court and codified
in the Florida Rules of Civil Procedure, the four part test for dismissing
an action on the ground that a satisfactory remedy may be more conveniently
sought in another jurisdiction had been met: An adequate alternative forum
existed in the plaintiffs’ foreign home countries; a balance of the
private interests of the parties weighed in favor of the defendants and public
interests dictated that Florida taxpayers should not be billed for a case
which occurred in foreign waters to a non- U.S. plaintiff working for a foreign
employer merely using a Florida benefits administrator; and there was no
undue inconvenience or prejudice to plaintiffs because defendants agreed
to accept service and waive statute of limitations defenses in the plaintiffs’ home
countries. The court concluded by reiterating, “Nothing in our law
establishes a policy that Florida must be a courthouse for the world, nor
that the taxpayers of the state must pay to resolve disputes utterly unconnected
with the state’s interests.”
Outcome:
The Court ordered the dismissal of each seaman’s case.
Maintenance and Cure Award Reversed for Plaintiff’s Willful Concealment
Brown v. Parker Drilling Offshore Corporation, 396 F. 3d 619 (5th Cir. 2005)
Facts:
Seaman sued defendant employer to recover for back injury allegedly sustained
while working on defendant’s vessel. Prior to working for defendant,
plaintiff injured his back on two prior occasions and was terminated by a
former employer for falsely reporting an on the job accident, filing a false
accident claim and failing to disclose a prior back injury on a medical questionnaire.
Two months after he was fired by his former employer, plaintiff applied for
and obtained employment with defendant after checking “no” on
a medical questionnaire which asked whether he had “Past or Present
Back and Neck Trouble.” While working for defendant, plaintiff reported
back pain and completed an accident report. Defendant’s investigation
concluded plaintiff had willfully concealed his prior back injuries and defendant
thereafter withheld maintenance and cure payments. A jury rendered a verdict
for plaintiff. The trial court denied defendant’s motion for judgment
as a matter of law and for new trial. Defendant appealed.
Holding:
The court ruled the jury erred when it found plaintiff had not willfully concealed
his prior back injuries and that the employer had been unreasonable in withholding
maintenance and cure benefits. The court found that three elements of “willful
concealment” were established by a preponderance of the evidence. First,
the court found plaintiff’s misrepresentation or concealment of medical
facts was intentional because he knew he had been fired by a previous employer
for denying he had “back trouble” on a previous medical questionnaire.
Second, the court found the misrepresentation or concealment was rendered
material by virtue of the employer’s specific medical question which
is rationally related to the applicant’s physical ability to perform
his job duties. Third, the court found a causal link existed between plaintiff’s
preexisting injury and his injury in the lawsuit because they were both in
the same location of the lumbar spine. Finally, the court held the jury erred
in finding it was unreasonable for defendant to withhold benefits because
defendant’s refusal was based on a reasonable defense - that plaintiff
had willfully concealed his medical condition.
Outcome:
Jury’s verdict was vacated and the matter dismissed with prejudice.
Vessel Owner Liable for Actions of Inebriated Crew
Hasty v. Trans Atlas Boats, Inc., 389 F. 3d 510 (5th Cir. 2004)
Facts:
An intoxicated seaman boarded the ship M/V ROXANNE T. The Captain ordered him
to his cabin to "sleep it off." The seaman soon thereafter initiated
a fight with another seaman. The Captain fired the aggressor seaman, who
initially refused to disembark. After he disembarked the fired seaman snuck
back onto the ship and began to fight again with the other seaman. A third
seaman, plaintiff, was standing nearby and intervened. Plaintiff was punched,
fell, and broke his leg.
Holding:
The Court held plaintiff's case could proceed against the vessel owner because:
(1) The Captain violated the company's zero-tolerance alcohol policy by allowing
the belligerent seaman on the vessel that morning; and (2) The Captain left
the ship unguarded which allowed the inebriated seaman to re-enter the vessel.
The Court dismissed plaintiff's unseaworthiness count because plaintiff failed
to introduce evidence that the intoxicated seaman possessed a "wicked
disposition, a propensity to evil conduct, [or] a savage and vicious nature." Boudoin
v. Lykes Bros. S.S. Co., 348 U.S. 336, 340, 99 L. Ed. 354, 75 S. Ct. 382,
385 (1955).
Outcome:
The appellate court allowed plaintiff's negligence claim to go to the jury
but expressly stated that it had no opinion on its ultimate resolution.
Pennsylvania Rule Rejected in Jones Act Suit
Poulis-Minott v. Smith, 388 F. 3d 354 (1st Cir. 2004)
Facts:
Plaintiff was Captain of the 44-foot fishing vessel, F/V KATINA ASHLEY. The
Coast Guard received a distress call from the Vessel's Emergency Position
Indicating Radio Beacon (EPIRB). The vessel was never found and it was never
determined what happened to it, or whether the Captain had any opportunity
to access the lifesaving gear before he drowned. Plaintiff (personal representative
of the Captain's estate) sued and sought the application of the Pennsylvania
Rule which would have shifted the burden to the defendant to disprove the
causation necessary to make a claim of Jones Act negligence or a claim of
unseaworthiness.
Holding:
In order for the court to implement the Pennsylvania Rule, the plaintiff must
establish that the defendant: (1) breached a statutory duty; and (2) that
breach is relevant to the casualty in question. Pan American Grain Mfg. Co.,
Inc. v. Puerto Rico Ports Authority, 295 F. 3d 108, 115-16 (1st Cir. 2002).
Plaintiff stated there were numerous violations (including the life raft
being overdue for an inspection, the life jackets lacked lights, and the
hydrostatic release on its EPIRB had been overdue for servicing) that justified
the Pennsylvania Rule application. The Court declined to apply the rule because,
as the Supreme Court stated 130 years earlier, "if it clearly appears
the fault could have had nothing to do with the disaster, it may be dismissed
from consideration." The S.S. Pennsylvania v. Troop, 86 U.S. (19 Wall.)
125, 136, 22 L. Ed. 148 (1873). In this case, there was no showing by plaintiff
there was a reasonable possibility that compliance with regulations would
have avoided the loss of life. Plaintiff's failure to prove causation led
the Court to uphold the lower court's granting of summary judgment.
Outcome:
District Court's Order granting defendant's Motion for Summary Judgment affirmed.
Summary Judgment Granted in Jones Act Case
Munizaga v. ASM, Case No. NC041016 (Los Angeles Superior Court, May 2005)**
Facts:
Plaintiff, a crewmember employed as a Third Cook/General Utility aboard the
container vessel PRESIDENT KENNEDY, alleged he slipped and fell after mopping
an interior deck. Plaintiff claimed his fall resulted because the
deck was unreasonably slippery after he mopped it with a solution of Mr. Clean
and water and because the ship was rolling in heavy weather. Defendant contended
that as a matter of law, it could not be found liable because plaintiff could
not meet his burden in providing evidence that the employer was negligent or
that the vessel was unseaworthy. Plaintiff filed his own declaration that attested
triable issues of fact existed as he was unaware the deck was unreasonably
slippery, he had a standing order to mop the deck, and no one stopped him from
doing so even though he contended work had stopped elsewhere on the ship. He
also supplied an expert declaration supporting that the interaction of the
cleaning products made the deck unreasonably slippery.
Holding:
The Court sustained defendant's objection to plaintiff's declaration in that
plaintiff, who had always required his testimony to be translated, supplied
a declaration in English contrary to the Evidence Code Rules. The Court also
sustained objection to many of the points raised by plaintiff and also found
the expert declaration was without foundation. Without any probative evidence
by plaintiff, the Court granted summary judgment and dismissed.
Outcome:
Summary judgment granted in Jones Act and unseaworthiness case where plaintiff
failed to proffer admissible evidence supporting allegations.