RECENT
DEVELOPMENTS IN THE COURTS - PART XIII
(Published November 2006)
The following survey represents some of the more significant recent court rulings around the nation affecting shipping lines generally:
Plaintiff Entitled to Bring Claim Under Subpart C of ADA; No Negligence Per Se Under ADA for Personal Injuries
White v. NCL America, Inc., 2006 U.S. Dist. LEXIS 24756 (S. D. Fl. 2006)
Facts:
Plaintiff,
a disabled woman, brought suit under the ADA when she sustained injuries
after falling aboard defendant’s cruise ship. Her complaint
contained two counts: Count 1 alleged that nine barriers on the ship denied
access to disabled persons; Count 2 alleged that defendant’s failure
to provide her an accessible room was negligent per se under the
Americans with Disabilities Act, 42 U.S.C. § 12181, et. seq.
(“ADA”) and caused her injuries. Defendant filed
a motion to dismiss.
Holding:
Defendant relied on Spector v. Norwegian Cruise Line, Ltd., 125 S.Ct. 2169, 162 L.Ed.2d 97 (2005) in arguing for dismissal because plaintiff failed to sufficiently specify which portions of the ship were inaccessible. The court ruled it was unnecessary to rule on the question of international conflicts of barrier removals during the pleading stage of litigation. The court stated the nonexistence of regulations under Subpart D of the ADA does not, however, prevent claims under Subpart C governing removal of barriers. Thus defendant’s motion on Count 1 was denied.
Plaintiff also brought a negligence per se claim. To make a negligence per se case, plaintiff must demonstrate she is a person the ADA was designed to protect, that her injury is the type of injury the ADA is designed to protect against, and that her injuries are the proximate result of the defendant’s violation of the ADA. The court held that because the ADA was not designed to protect those with disabilities from personal injuries, plaintiff was unable to state a claim for per se negligence. The court refused to impose a per se duty on cruise ships for personal injuries based on the ADA.
Outcome:
Defendant’s motion denied in part, granted in part.
Arbitration Clause in Collective Bargaining Agreement Upheld in Claim for Unpaid and Penalty Wages
Lobo v. Celebrity Cruises Inc., 2006 U.S. Dist. LEXIS 43986 (S.D. Fl. 2006)
Facts:
Plaintiff, an Italian seaman, brought a claim for unpaid
wages and penalty wages under the Seaman’s Wage Act. Defendant cruise line moved to dismiss
for improper venue alleging the parties were compelled to arbitrate the dispute
pursuant to a written Collective Bargaining Agreement (“CBA”) and
pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (“the Convention”).
Holding:
Defendant argued the employment agreement incorporated
the CBA, which contained a written arbitration provision and that the agreement
must be enforced because it is subject to the Convention. The court relied
on Francisco v. Stolt Achievement Mt., 293 F.3d 270 (5th Cir. 2002) and Bautista
v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) to uphold the arbitration provisions
in the CBA. Noting this situation to be one of first impression, to
wit, the
applicability of the Convention to the Seaman’s Wage Act, the court continued
judicial vigilance in applying the Convention’s mandates. The court noted
that the presumption toward arbitration applies with special force in the field
of international commerce.
Outcome:
Defendant’s motion to dismiss plaintiff’s
complaint granted.
Arbitration Forum Selection Clause in Foreign Seaman’s Contract Supersedes State Anti-Forum Selection Statute
Dahiya v. Talmidge International, Ltd., et al., 931 So. 2d 1163; 2006 AMC 1463 (La. App. Ct. 2006)
Facts:
Plaintiff, a citizen of India, was injured during service
aboard a Singapore based vessel, and received medical treatment in Louisiana.
He filed suit in Louisiana district court and was awarded damages. Plaintiff’s
employment contract had an arbitration forum selection clause requiring all
disputes be resolved in either Singapore or India, pursuant to Indian law.
Holding:
The district court found that a Louisiana statute,
which nullified forum selection clauses in contracts of employment, preempted
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
(“the Convention”).
Defendants appealed, and the court agreed, reversing the judgment. The court
held that federal law supersedes state law that purports to nullify forum selection
clauses in employment contracts and vitiate an international treaty obligation
of the U.S.
Outcome:
Arbitration forum selection clause in contract upheld.
Forum Non Conveniens Prevents Seaman’s Action
Velasquez v. C.S.C.S. Int’l, N.V., 149 Fed. Appx. 881 (11th Cir. 2005)
Facts:
The district court dismissed his suit based on foreign
non conveniens. Plaintiff seaman, a Honduran citizen and resident employed
by the defendant, was injured aboard COSTA VICTORIA while lifting boxes of
wine. The defendant is a Netherlands Antilles company based in Curacao, Netherlands
Antilles and a wholly owned subsidiary of Carnival Corporation, a Panamanian
corporation with its principal place of business in Miami, Florida.
Holding:
The court held the action was properly dismissed because
United States law should not apply in a case where the alleged wrongful act
occurred on a foreign vessel in the Mediterranean Sea to a Honduran citizen.
In this case the forum non conveniens factors are satisfied: 1) an adequate
alternative forum is available; 2) public and private factors weigh in favor
of dismissal; and 3) plaintiff’s
suit can be reinstated in an alternative forum without undue inconvenience
or prejudice. See Leon v. Millon Air, Inc., 251 F.3d 1305 (11th Cir. 2001).
The fact that Carnival maintains its principal place of business in Miami,
Florida is insufficient to establish defendant as a company with a substantial
base of operations in the United States.
Outcome:
The court affirmed the district court’s order
dismissing the action for forum non conveniens.
Removal Attempt Unsuccessful Under Convention Requirements
Tuca v. Ocean Freighters, Ltd., 2006 U.S. Dist. LEXIS 16174 (E.D. La. 2006)
Facts:
A Romanian seaman brought suit for negligence and unseaworthiness
against his employer and vessel owner after he sustained severe and permanent
injuries when he was allegedly struck by a snapped line. Under general maritime
law and the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards defendant removed the case. Plaintiff moved to remand, arguing his claim,
falling under the Jones Act, was not removable without another basis for jurisdiction.
Holding:
The court ruled defendants could not remove the case
because they did not meet the first prong of the Lim test necessary to create
another basis of federal jurisdiction. To successfully remove a case the following
four requirements of the Convention must be satisfied: 1) the agreement to
arbitrate the dispute must be in writing; 2) the agreement must provide for
arbitration in the territory of a signatory to the Convention; 3) the agreement
to arbitrate arises out of a commercial legal relationship; and, 4) no party
is an American citizen. Here, the plain language of the seaman’s contract and subsequent agreements
did not incorporate an arbitration clause into plaintiff’s employment
contract. Therefore, defendants could not pass the four-part Lim test to create
a basis of federal jurisdiction other than the Jones Act.
Outcome:
The court granted plaintiff’s motion to remand.
Cruise Line Liable for Alleged Medical Malpractice of Doctor
Mack v. Royal Caribbean Cruise Lines, Ltd., 361 Ill.App.3d 856 (Ill. App. Ct. 2005), cert. denied, 2006 U.S. LEXIS 5907 (Oct. 2006)
Facts:
Plaintiffs, husband and wife, were passengers on defendant’s
cruise ship. The husband was allegedly injured in the pool area of the cruise
ship where he cut his foot. Plaintiffs brought a claim on behalf of husband
for negligence and negligent medical treatment based on a theory of vicarious
liability.
Holding:
In addressing plaintiffs’ medical negligence claim based on vicarious
liability the court rejected Barbetta and chose to follow the minority view
of Carlisle and Nietes. The court found that a passenger on a ship who falls
ill has no reasonable choice but to seek treatment from the onboard physician
and therefore has little control over the relationship. The court held medical
treatment should be considered a part of cruise line’s business because
a cruise line reaps the benefits of carrying onboard physicians by not having
to bear the costs of air rescues or other expensive costs of providing for
medical treatment of its passengers. The court further cited the benefit a
cruise line has in advertising the availability of a “hospital” onboard
to attract consumers. Moreover, the court found holding a cruise line vicariously
liable for negligent medical treatment was not unreasonable based on federal
maritime law’s willingness to impose vicarious liability on shipowners
for their onboard physicians’ negligence in treating crewmembers.
Outcome:
Motion to dismiss denied. Plaintiffs were allowed pursue
their claims against defendant for medical negligence. [The court also held
the forum selection clause in plaintiff’s ticket was not enforceable.]
No Duty to Make Independent Medical Staff Available for Depositions
In re Carnival Corp., 2006 Tex. App. LEXIS 2751 (Tex. App. 2006)
Facts:
Plaintiff passenger alleged cruise line failed to provide
medical care for her mother during a cruise. Plaintiff brought actions against
the defendant cruise line for negligence, breach of contract, breach of warranty,
deceptive trade practices, and fraud. Instead of attempting substituted service,
plaintiff noticed the doctor and nurse for deposition through defendant. Defendant
filed a motion to quash. Plaintiff moved for “death penalty” sanctions
under Texas law for the company’s failure to produce nurse. The trial
court granted plaintiff’s motion, and ordered defendant’s pleading
be stricken and a judgment in favor of plaintiff on all liability issues be
entered. Defendant sought mandamus relief from the order.
Holding:
The Court of Appeals of Texas held the trial court
abused its discretion in imposing “death penalty” sanctions against
Carnival. Under the holding of Barbetta, medical personnel, as independent
contractors, are not subject to control of the cruise line. Thus, the cruise
line did not have a duty to compel their attendance at depositions. Hence,
the imposition of death penalty sanctions was not just.
Outcome:
The Court conditionally granted the petition for writ
of mandamus and directed the trial court to vacate the order.
Statutory Tolling Not Applicable for Complaint Filed Upon Age of Majority
Harts v. Carnival Corporation, 2005 U.S. Dist. LEXIS 15416 (S.D. Fla. 2005)
Facts:
Plaintiff passenger, 17 years old at the time of the
incident, was allegedly sexually assaulted and raped by one of the ship’s crew. Almost two years
after the incident, plaintiff filed a civil action against defendant based
on negligence. Defendant moved for summary judgment on the basis that plaintiff’s
claim was time-barred because plaintiff failed to file her lawsuit within one
year of her injury and further failed to give notice of her claim within 185
days of the incident as required by the passenger ticket contract. Plaintiff
argued the time limitations were inapplicable to her because she was a minor
at the time of the alleged incident. Plaintiff urged the court to apply the
three-year statute of limitations for maritime torts to her case. Defendant
countered by arguing that its Guest Ticket Contract legally shortens the statutory
limitation period from three years to one year. Furthermore, defendant argued
since plaintiff was no longer a minor, she may not take advantage of the applicable
statutory tolling provisions.
Holding:
The court found that, upon reaching the age of majority,
plaintiff achieved the capacity to act on her own behalf. She no longer fit
into one of the three categories under 46 U.S.C.S. App. § 183b(c) of incompetents, minors, and
deceased individuals with no legal representative. The court determined plaintiff
was not a minor (or incompetent person or deceased individual) when she filed
her original complaint and was therefore not protected by 46 U.S.C.S. App. § 183b(c).
Accordingly, the limitations periods in the Guest Ticket Contract applied to
time bar plaintiff’s claim.
Outcome:
Defendant’s motion for summary judgment granted.
Statute Governing Contracts with Minors Does Not Abrogate Shortened Statute of Limitations
Doe v. Carnival Corp., 167 Fed. Appx. 126 (11th Cir. 2006)
Facts:
Plaintiff brought action against defendant cruise line
alleging she was sexually assaulted by a crewmember aboard a cruise when she
was seventeen years old. Defendant filed a motion for summary judgment arguing
plaintiff’s claims
were time-barred because she filed suit two years after her alleged incident.
The United States District Court for the Southern District of Florida granted
defendant’s motion for summary judgment. Plaintiff appealed. On appeal,
the only issue was whether or not plaintiff’s complaint was time-barred.
Defendant presented evidence that it sent each ticket holder a contract upon
purchase that contained a limitations period for the filing of suits based
on personal injuries sustained aboard the ship. The limitations period on plaintiff’s
ticket was for one year from the time she sustained the injury. Plaintiff filed
the action more than one year from the date of her injury; and, more significantly,
more than one year from the date of her eighteenth birthday, when she reached
the age of majority. Plaintiff did not contest that she, or someone acting
on her behalf, lacked notice of the one-year statute of limitations embodied
in the ticket. Rather, plaintiff argued that the contract was not effective
to bind her, because she was a minor at the time of execution of the contract
and at the time of her injury. She argued 46 U.S.C.S App. § 183b(c) is
a partial codification of the common law, which historically did not enforce
contracts against minors. In effect, plaintiff argued that § 183b(c) is
not a tolling provision, but rather renders the contractual statute of limitations
inoperative, therefore leaving the three-year federal admiralty law statute
of limitations as the operative provision.
Holding:
The 11th Circuit disagreed with plaintiff’s interpretation of the statute
holding that 46 U.S.C.S. app. §§ 183b(c) did not abrogate the contractually
shortened statute of limitations, but rather simply tolled its operation until
plaintiff is no longer a minor or a guardian is appointed. Section 183b(c)
merely tolls the operation of the shortened statute of limitations during the
time that the party was a minor. Thus, §§ 183b(c) tolls the operation
of the contractually shortened statute of limitations until plaintiff reached
the age of majority. Since plaintiff waited more than a year from that date,
the district court correctly held that the action was barred by the statute
of limitations.
Outcome:
District Court’s order affirmed.
Manner of Cruise Ticket Delivery Renders Contract Unenforceable
Casavant v. Norwegian Cruise Lines, 829 N.E.2d 1171 (Mass. App. Ct. 2005)
Facts:
Plaintiffs purchased tickets from defendant for a cruise
that was scheduled to depart from Boston harbor on September 16, 2001. In light
of the terrorism attacks of September 11, 2001, plaintiffs were fearful of
going on the cruise, and sought to reschedule. Defendant denied plaintiffs’ request. Plaintiffs
commenced litigation in Massachusetts seeking to recover payment for the cruise
they attempted to reschedule. Defendant filed a motion to dismiss based on
the forum selection clause as delineated in the passenger ticket contract.
It was discovered that the cruise line did not provide the customers with information
concerning the forum selection clause until close to one year after the original
booking, two months after full payment was made, and approximately 13 days
before sail date. Defendant admits it mailed the ticket on August 27, 2001
and that plaintiffs received it approximately one week later. The trial court
entered judgment dismissing the complaint and denying plaintiff’s motion
for reconsideration. Plaintiffs appealed.
Holding:
The appellate court concluded that the manner and means
of the delivery of the terms of the contract for passage did not fairly allow
plaintiffs the option of rejecting the contract with impunity. Also, because
of the limited time frame allotted, plaintiffs could not accept the ticket
as a binding contract since they wanted to reschedule their cruise, under controlling
federal maritime law and Massachusetts contractual law. Thus, the Florida-dictated
forum selection clause was not enforceable. The appellate court also found
fundamental error in the manner in which the trial court handled the cruise
line’s motion
to dismiss which included extra material concerning the forum selection clause
and thus, it should have been treated as summary judgment motion.
Outcome:
Judgment of trial court reversed; plaintiffs allowed
to bring claim in Massachusetts state court.
Forum Non Conveniens Statute Held Not Applicable in Forum Selection Motion
Assiff v. Carnival Corp. d/b/a Carnival Cruise Lines, 930 So.2d 887 (Fl. 3rd DCA 2006)
Facts:
Plaintiff was injured while a passenger aboard defendant’s cruise ship,
and filed a complaint for damages in the Florida state court. Attached to the
complaint was the passenger ticket contract, which contained a forum selection
clause requiring all claims be filed in the United States District Court for
the Southern District of Florida in Miami. Defendant’s motion to dismiss
based on forum selection was granted. Plaintiff appealed, contending the matter
should have been transferred, not dismissed.
Holding:
Plaintiff’s appeal was based upon the Florida
forum non
conveniens statute
(Florida Statutes Section 47.122), which plaintiff contends authorized transfer
of the action. The court disagreed, noting the trial court dismissed the case
based upon the forum selection clause in the passenger ticket contract. Plaintiff
also contended the action was removable pursuant to 28 U.S.C. § 1441 (2005).
The appellate court again disagreed; stating the specific circumstances required
for a removal under the statute did not exist.
Outcome:
Judgment of dismissal affirmed.
Contract Limitation of Liability Terms Depend on Voyage Itinerary, Not Location of Injury
Henson v. Seabourn Cruise Line Limited Inc., 410 F. Supp. 2d 1246 (S.D. Fla. 2005)
Facts:
Plaintiff was a passenger aboard defendant’s cruise ship, which traveled
from Canada to New York and made two other stops in U.S. ports. Plaintiff claims
the life vest he was required to wear during a muster drill impeded his vision
and he fell down a spiral staircase. Plaintiff disembarked the ship in a Canadian
port immediately following his injury and never traveled to any port of the
United States. Plaintiff filed suit against defendant alleging negligence for
failure to promulgate lifeboat drill safety regulations. The passenger ticket
contained a limitation of liability clause. Plaintiff contended the limitation
was null and void was disallowed under 46 U.S.C.S. App. § §183c.
Defendant alleged the limitation applied because the ship was flagged in the
Bahamas, a signatory to the Athens Convention, which limited the liability
of a common carrier to a specified amount. Defendant sought summary judgment
on the issue of damages.
Holding:
The court followed the ruling of the United States
Court of Appeals for the Eleventh Circuit, which held that with regard to vessels,
liability limitations were expressly prohibited by §§ 183c. The court held that such precedent
was binding even when an injury occurred in a foreign port, provided that the
itinerary which was the subject of the contract included ports in the United
States. The court further explained that the validity of the contract term
rests not on the geographic location of the plaintiff when he is injured, but
upon the itinerary included in the contract for voyage. The ticket contract
containing the reference to the Athens Convention encompassed the entire voyage,
which included stops at Boston, Newport, Rhode Island, and New York. Thus,
plaintiff’s recovery of damages was not limited by the ticket contract.
Outcome:
Motion for summary judgment denied.
Repair of Defective Bar Stool Not Spoliation of Evidence
Hickman v. Carnival Corp., 2005 U.S. Dist. LEXIS 26219 (S.D. Fla. 2005)
Facts:
Plaintiffs sought damages for injuries allegedly sustained
while using a bar stool aboard defendant’s ship. Plaintiffs alleged defendant engaged in
spoliation of evidence by repairing the defective bar stool soon after the
incident occurred. Plaintiffs moved pursuant to Federal Rules of Civil Procedure
Rule 37(c) to strike defendant’s answer and/or affirmative defenses.
Holding:
The court found there was no spoliation of evidence.
The court premised its decision on three factors. First, plaintiffs failed
to show they would be unable to make their case without the presence of the
allegedly defective bar stool. Second, plaintiffs admitted there was no evidence
of bad faith, a necessary prerequisite for spoliation, on the part of defendant
in making the repair. Third, plaintiffs failed to show defendant had a legal
or contractual duty to preserve the evidence, apart from the mere possibility
defendant might be sued. There was no claim for “immediate and deliberate” repair
of a defective situation. The court noted such a claim would eviscerate Evidence
Rule 407 and create liability when accidents occur due to the failure to clean
up or repair a defective situation.
Outcome:
Plaintiffs’ motion to strike denied.
Captain’s Incident Report Drafts Not Protected by Work-Product Doctrin
Otal Invs., Ltd. v. Capital Bank Public Ltd. Co. (In re Otal Invs., Ltd.), 2005 AMC 1926 (S.D.N.Y 2005)
Facts:
A collision occurred among three vessels. Twenty-three
minutes after the collision, a non-lawyer representative of the owner of one
of the vessels received a telephone call from the ship. In anticipation of
litigation, he requested that a statement of facts be prepared by the ship’s
captain. A few hours later, the captain typed a statement of facts. The representative
discussed it with a lawyer, and then telephoned the captain and requested clarification.
On his copy, the representative made some handwritten notations. The captain
typed a revised statement, on which the representative made a handwritten notation.
The documents were produced by the vessel; however, there was dispute whether
they were admissible under the work-product doctrine rule.
Holding:
The district court held the work-product doctrine under
Federal Rules of Civil Procedure 26(b)(3) did not apply to the statements.
Whether the vessel’s
owners did or did not anticipate litigation, they had business reasons for
obtaining a statement from their captain to decide whether to take any measures
with respect to the captain, and with respect to the vessel. The court found
that if the prospect of litigation had not existed, the captain would still
have created the Statement of Facts and the revised Statement of Facts in essentially
the same way. To the extent the captain’s statement to another party
was similar to the drafts he wrote one day earlier, the owner had no reason
to preclude the drafts. To the extent it was dissimilar, the other parties
showed “substantial need” and “undue hardship” within
the meaning of Rule 26(b)(3).
Outcome:
Vessel interests ordered to produce all four documents
for opposing counsel’s
review.
Court Orders Additional Maintenance on Pre-Trial Motion to Compel
Connors v. Iqueque U.S.L.L.C., et al., 2005 AMC 2154 (W.D. Wash. 2005)
Facts:
Plaintiff, a maritime engineer, began to experience
chest pains aboard ship, which continued shoreside. His treating physician
diagnosed a mild heart attack and plaintiff underwent surgery. After plaintiff
was diagnosed, defendants paid plaintiff unearned wages and cure for eight
months. Defendants stopped paying maintenance and cure after the eight months,
and plaintiff filed a motion to compel additional maintenance and cure payments.
Plaintiff argued his heart attack was a result of his duties on board defendants’ ships.
Defendants argued plaintiff’s heart attack stemmed from a pre-existing
condition that he intentionally concealed when he sought employment with defendants.
Holding:
The court recognized the Supreme Court, while cautioning
against exceptions that would delay or invite litigation over maintenance and
cure, has never adopted a standard by which to review pretrial motions seeking
the same. This court opted for a “flexible” approach instead of
the more rigid standards required by Rule 56. In doing so, the court found
that plaintiff had set forth enough evidence supporting each element of his
claim for maintenance and cure and ordered the defendants to pay maintenance
for an additional nine-month period.
Outcome:
Motion to compel granted in part, denied in part; defendants ordered
to pay additional maintenance at a rate double that of the contract.
Non-Owner Employer Not Liable for Unseaworthiness or Cure
Watson v. Oceaneering International, Inc., 387 F. Supp. 2d 385 (D. Del. 2005)
Facts:
Plaintiff seaman experienced severe epigastric pain while
at sea, a condition which worsened after he left the ship. The employee’s treating physician
concluded all of his medical complications were a direct and proximate result
of his original shipboard illness and the employer’s failure to promptly
and properly respond to the medical emergency. Plaintiff brought an action
against defendant based on negligence under the Jones Act, maintenance and
cure, unseaworthiness for failure to have trained medical personnel onboard
to promptly and properly respond to plaintiff’s emergency, and on behalf
of plaintiff’s wife for loss of consortium. Defendant employer filed
a motion for summary judgment. Defendant argued the claim for unseaworthiness
should be dismissed as such a claim could only be brought against the owner
of the vessel - who was not named.
Holding:
The court held that when the vessel owner and the employer
are separate entities, only the owner is liable for unseaworthiness and cure
and only the employer is liable for Jones Act negligence. The court determined
that the plaintiff did not set forth sufficient facts to find defendant was
the owner or owner pro hac vice and therefore could not hold it liable for
unseaworthiness, maintenance or cure.
Outcome:
Motion granted as to plaintiff’s unseaworthiness
claim and loss of consortium; denied as to the Jones Act negligence claim.
Employer Obligated to Pay for Cure, But Not Punitive Damages
Frost v. Teco Barge Lines, 2005 U.S. Dist. LEXIS 11795 (S.D. Ill. 2005)
Facts:
Plaintiff seaman filed an admiralty complaint against
defendant barge company under the Jones Act, to recover damages for personal
injuries sustained in the course and scope of her employment. In addition to
the plaintiff’s
motion for cure, she sought punitive damages and attorney’s fees. Plaintiff
claimed she suffers from work-related back injuries. Despite her doctor’s
recommendations for treatment, the defendant refused to fulfill its cure obligation.
Defendant argued that because the plaintiff’s doctors’ recommended
treatment plan would not cure her underlying conditions; it was therefore only
palliative and not curative, which is beyond an employer’s cure obligation.
Holding:
The court granted in part and denied in part the plaintiff’s motion.
Cure and maintenance are rights, under maritime law, given to seamen as incidents
of their employment. See Mullen v. Fitz Simmons & Connell Dredge & Dock
Co., 191 F.2d 82, 85 (7th Cir. 1951). A shipowner must pay maintenance and
cure for any illness or injury aggravated or manifested while the seaman was
working under the ship’s service. See Stevens v.
McGinnis, Inc., 82 F.3d
1353, 1357-58 (6th Cir. 1996). The court here held the medical treatment was
clearly related to the work injury and aimed to resolve pain and facilitate
healing. The plaintiff was entitled to cure because the treatments recommended
are well-accepted. However, the plaintiff was not entitled to an award of attorney’s
fees because the defendant’s failure to pay was not willful. Also, the
plaintiff was not entitled to a punitive award. The Seventh Circuit followed
the rulings of the Fifth and Ninth Circuits, which have held punitive damages
are not available to seamen for their employer’s willful failure to pay
maintenance and cure.
Outcome:
The court granted plaintiff’s motion for cure in part. The defendant
was ordered to comply with cure obligations in regards to the seaman’s
medical treatment.
Foreign-Flagged Vessel/Personnel’s Criminal Violation(s) under MARPOL Subject to Enhanced Sentencing Only When Violations Occur in U.S. Ports or Waters
United States of America v. Noel Abrogar, Case No. 06-1215 (3rd Cir. 2006)
Facts:
Action was brought against defendant for failing to keep
an accurate “oil
record book” in violation of 33 U.S.C. §1908(a) and the 1973 International
Convention for the Prevention of Pollution from Ships (“ MARPOL” Protocol)
which regulates the prevention of pollution by oil from ships. Defendant, a
citizen of the Philippines, served as the Chief Engineer on a Panamanian-flagged
ship managed by a Japanese company, and was responsible for maintaining the
ship’s oil record books. In 2005, Coast Guard inspectors conducted a
port-control inspection of the ship to determine compliance with MARPOL requirements.
Its investigation revealed defendant knowingly allowed and approved of discharge
of oil sludge and other oil contaminated waste into the ocean by other crewmembers,
Defendant himself continued to make false entries in the oil record book and
intentionally failed to record the improper discharges. Defendant eventually
admitted to his knowledge of the improper discharges and his falsification
of the oil record book and pled guilty to one charge of
failing to maintain accurate oil record books. According to the Pre-Sentence
Report, plaintiff’s charge provided for
a “base offense” level. The report also recommended
a six-level enhancement called “Specific Offense Characteristics” which
provides for enhancement if the offense results in an “ongoing, continuous
or repetitive discharge, release, or emission of a pollutant into the environment.” The
district court accepted the enhancement and sentenced defendant to one-year
imprisonment, followed by three years of supervised release. Defendant appealed,
specifically challenging the six-level enhancement.
Holding:
The appeals court reviewed the district court’s interpretation of the
sentencing guidelines de novo. The government argued the sentence enhancement
was proper as the repeated discharges directed by, and knowingly allowed by
defendant were “‘relevant conduct’ vis-à-vis his offense
of failure to maintain an accurate oil record book.” In determining
relevant conduct under the guidelines, the court had to define defendant’s “offense
of conviction”. The court agreed with defendant’s contention that
Congress did not make every violation under MARPOL by every person a crime
under U.S. law. The court determined that Congress made the §1908(a) criminalization
of MARPOL violations applicable to U.S. ships, wherever located, and foreign
ships while (1) in the “Navigable waters of the United States,” (2)
in the “exclusive economic zone of the United States” and (3) when
at a port or terminal in the United States. Taking that criteria into consideration,
this court determined Congress and the Coast Guard created criminal liability
for a foreign vessel and personnel only for those substantive violations of
MARPOL that occur in U.S. ports or waters; the terms of the act and its regulations
exclude from criminal liability the failure to maintain an accurate oil record
book by foreign vessels outside U.S. waters. As such, the court determined
that since of none of the illegal discharges occurred in navigable waters of
the U.S. none of defendant’s offenses were the “relevant conduct” the
six-level enhancement seeks to punish.
Outcome:
Court vacated defendant’s sentence and remanded
case to district court for re-sentencing.
Contracting Physicians Owe Duty of Care to Seaman
Khung Thi Lam v. Global Med. Sys., et al., 111 P.3d 1258 (Wash. Ct. App. 2005)
Facts:
Decedent seaman became ill while on a vessel shoreside
in the Bering Sea. The owner of the vessel contracted with defendants to provide
medical consultation services to owner’s vessels. The Seattle physicians recommended treatment
but did not believe his condition warranted the expense of diverting the ship
from its course. Decedent’s widow sued defendants and the Seattle doctors
for wrongful death and medical negligence under the Death on the High Seas
Act (“DOHSA”). Defendants filed for summary judgment on the grounds
that DOHSA preempted state wrongful death or survival causes of action and
the doctors owed no duty of care to the decedent. The trial court agreed and
granted summary judgment for the doctors. The widow appealed. Defendants argued
they did not owe a duty of care to decedent; the only duty of care came from
the shipowner, who had a non-delegable duty to care for a seaman who may fall
ill.
Holding:
In a case of first impression in Washington, the Court
of Appeals held the physicians and their employer did owe a duty of care to
the seaman, as they had contracted to provide medical consultation. The court
further held that Washington law, specifically the Washington medical malpractice
statute, was the proper source for the underlying standard of care for a DOHSA
claim. The appellate court further noted that turning to state law for the
definition of standard of care posed no threat to uniformity as to DOHSA.
Outcome:
Judgment of trial court reversed. Matter remanded to decide whether duty
was breached.
Shipper Had Duty to Warn of Risky Cargo
In re M/V DG Harmony and Consolidated Cases, 394 F. Supp. 2d 649 (S.D.N.Y. 2005)
Facts:
Container ship DG HARMONY caught fire off the coast of
Brazil. The ship burned for three weeks and most of its cargo was destroyed
or damaged. The vessel itself was declared a constructive total loss and eventually
scrapped. Some eighteen lawsuits were filed by cargo, vessel, and other interests.
All claims were settled except for those of certain interests against defendant
shipper, the manufacturer of calcium hypochlorite hydrated (“cal-hypo”).
Ten of the containers aboard the ship contained 120 drums each of cal-hypo,
manufactured and shipped by defendant. Plaintiffs argued the cal-hypo decomposed
and self-heated, resulting in “thermal runaway,” and the fire that
followed. The shipper denied liability, arguing plaintiffs were unable to prove
the origin and cause of the fire. Shipper also argued the cal-hypo was not
defective, it had no duty to warn, and, even assuming such a duty existed,
the duty was not breached. Shipper further argued even if the fire did originate
in the containers containing cal-hypo, the crew failed to properly stow the
cargo because it recklessly placed the containers next to heated fuel oil bunkers.
Holding:
The district court found the cal-hypo clearly qualified as “goods of
an inflammable, explosive, or dangerous nature” under the Carriage of
Goods by Sea Act (“COGSA”) 46 U.S.C.S. §§ 1304(6), and
that plaintiffs did not have actual or constructive pre-shipment knowledge
of the true nature of the cargo or the full extent of the danger presented.
Accordingly, the court held the shipper was in a better position to perform
due diligence as to the true nature of the shipped goods and applied strict
liability to hold shipper liable under COGSA. The court further held plaintiffs
proved their failure to warn and negligence claims where the shipper had a
duty to provide a warning that would have fully informed vessels and others
in the distribution chain of all risks involved in shipping cal-hypo in the
manner in which it was shipped, and that the shipper breached this duty.
Outcome:
Judgment entered in favor of plaintiffs