Seaman's Contract Doesn't Always Require Arbitration

May 07, 2012

In THOMAS HINES v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D225a (S.D. Fla. Mar. 29, 2012), a United States crew member who was injured on board cruise ship sued his employer cruise line, alleging claims of Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, failure to treat, and seeking wages and penalties. The seaman sued in Florida state court and Carnival removed the case to federal court.

Judge Martinez of the U.S. District Court for the Southern District of Florida found that the federal court lacked jurisdiction over the case because the fourth jurisdictional requirement under 9 U.S.C. section 202 of a commercial relationship that has some reasonable relationship with one or more foreign states is not met where employee's Seafarer's Agreement contains no reference to performance abroad or in any foreign country, choice of law clause was also neutral, the plaintiff has alleged that he has not performed any employment duties on foreign soil, terms of agreement and work performed is largely associated with United States, employment agreements in effect at time of crew member's personal injuries were executed within United States, and subject agreements require payment to plaintiff in United States dollars. The Court further found that the country corresponding with flagged vessel is not persuasive in determining a relationship to a foreign state. The Court reasoned that Section 202 instructs courts to disregard foreign corporate status of a U.S. based company in deciding whether the relationship is international. In addition, the Court found that activity in international waters does not satisfy a relationship with one or more foreign states and because the fourth jurisdictional requirement of Convention on the Recognition and Enforcement of Foreign Arbitral Awards was not met, case was not removable and had to be remanded to state court.

This case, along with Matabang v. Carnival Corp., 630 F. Supp. 2d 1361 (S.D. Fla. 2009), stands for the proposition that seaman's employment agreements do not create a “relationship involv[ing] property located abroad, or [having] some other reasonable relation with one or more foreign states”, Matabang, 630 F. Supp. 2d at 1367, when the performance contract between the parties contains no reference to performance abroad or in any foreign state apart from the arbitration clause.

If you are interested in receiving a full copy of this decision, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com. 

Who Decides Damages in a Seaman's Personal Injury Action

April 29, 2012

In Clausen v. Icicle Seafoods, Inc., Case No. 85200-6 (Mar. 15, 2012) (en banc), the Washington Supreme Court was asked to decide on an appeal involving a maritime claim for maintenance and cure whether, under federal maritime law, a judge, instead of a jury, awards attorney's fees following the jury award of compensatory and punitive damages in favor of an injured seaman against the employer for willful failure to pay maintenance and cure. Respondent Dana Clausen worked on board Appellant Icicle Seafoods' Bering Star as second engineer when he sustained injuries. Respondent encountered persistent difficulties in getting Icicle and its adjuster Spartan, to meet its obligation to pay him maintenance and cure during his recovery. Icicle paid Respondent $20 per day to cover lodging, utilities, and meals. Respondent resorted to living in a recreational vehicle with a leaking roof and with no heat, air conditioning, running water, or toilet facilities. Additionally, Icicle delayed or refused to pay for treatment that Respondent's doctors recommended. In a report to Icicle, Spartan confirmed that Respondent's injuries were likely career-ending. Icicle filed suit in federal court against Respondent to terminate Respondent's right to maintenance and cure. Respondent filed the present action and Icicle's suit in federal court was dismissed. Respondent sought damages for Icicle's negligence under the Jones Act (46 U.S.C. 30104), unseaworthiness of the Bering Star, and wrongful withholding of maintenance and cure. The jury found Icicle negligent under the Jones Act, and that Icicle was callous or willful and wanton in its failure to pay maintenance and cure. Upon review, the entire Washington Supreme Court concluded that under federal maritime law, the trial court calculates an attorney's fee award related to a maintenance and cure action, and the punitive damages award as determined by the jury here, based on the callous or willful and wanton withholding of maintenance and cure, was proper. 

A link to the complete Clausen decision can be found here: =>http://law.justia.com/cases/washington/supreme-court/2012/85200-6-0.html

If for some reason, you are unable to utilize the link to this decision, please feel free to contact me at miamipandi@comcast.net or mov@chaloslaw.com and I would be more than happy to send you a copy of the decision.

Non-Resident Defendants Subject to Personal Jurisdiction in Florida

April 24, 2012

In KITROSER v. HURT,  37 Fla. L. Weekly S237a (Fla. Mar. 22, 2012), the Fourth District Court of Appeals (50 So. 3d 62 (Fla. 4th DCA 2010)) issued an application for review of its decision certifying an issue of great public importance to the Florida Supreme Court, to wit, 

WHERE AN INDIVIDUAL, NON-RESIDENT DEFENDANT COMMITS NEGLIGENT ACTS IN FLORIDA ON BEHALF OF HIS CORPORATE EMPLOYER, DOES THE CORPORATE SHIELD DOCTRINE OPERATE AS A BAR TO PERSONAL JURISDICTION IN FLORIDA OVER THE INDIVIDUAL DEFENDANT?

The Florida Supreme Court  held that "[w]here an individual, nonresident defendant commits negligent acts in Florida, whether on behalf of a corporate employer or not, the corporate shield doctrine does not operate as a bar to personal jurisdiction in Florida over the individual defendant." The Supreme Court noted that the plaintiff alleged without controversion that while the defendant's employees were personally in Florida, each engaged in some form of negligent conduct, either by training or supervision which contributed to a death. The defendant's employees did not contest that they were in Florida, nor did they contest that they engaged in some form of conduct, training, or supervision of another employee in Florida. As a result, the Florida Supreme Court that "[t]he corporate shield doctrine, therefore, is inapplicable and does not exclude the [defendant's] employees from the exercise of personal jurisdiction by Florida courts."

This decision is important, as there are various decisions in Florida which suggest "that nonresident corporate defendants will not be subject to Florida's long-arm statute despite acting tortiously in Florida because their acts were performed on behalf of corporate employers." These decisions include Radcliffe v. Gyves, 902 So. 2d 968 (Fla. 4th DCA 2005), and Snibbe v. Napoleonic Society of America, 682 So. 2d 568 (Fla. 2d DCA 1996). The Florida Supreme Court specifically disapproved these decision to the extent they may so suggest. 

If you are interested in receiving a complete copy of this decision, please feel free to contact me atmiamipandi@comcast.net or mov@chaloslaw.com.

Derecktor Shipyard Improvements Coming by October 2012

April 18, 2012

I have received the latest information from Doug Morrison, Business Development Manager for Derecktor of Florida. He has advised that Derecktor has some onsite improvements/new travel lift (820 ton) that should be up and running around the Ft Lauderdale Boat Show. The city has also started dredging the Dania Cut to 17’ for completion around February of next year. Below is a brief bit of the Derecktor Florida yard which includes background, services & current capabilities.

Doug's message goes on to explain: "Derecktor Florida has 40 years of experience with service, repair and refit work. The location covers more than 17 acres along the Dania Cut Off Canal, less than 1 mile from the Port Everglades entrance. As South Florida’s most complete marine repair facility, Derecktor Florida caters mainly to power, sail and sportfish yachts and acts as a pole of attraction in the busy Florida waters for a large fleet of cruising and racing yachts in need of repairs or major refits.

Services Include:

• Propulsion/Auxiliary: service and repair, all makes
• Shaft & Prop: Alignment, repair, ABS approved, stainless steel clad welding of shafts
• Custom metal fabrication: Aluminum, stainless steel, titanium, bronze, ABS certified welders
• Custom Joinery work: Award-winning cabinetry shop, all interior, teak decking, all woods
• Composite work: Carbon fiber, epoxy, polyester, vacuum-bagging, high-tech cores
• Paint/Finish: Brightwork, topsides, superstructure, non-skid, bottom paint, US Paint (Awlgrip), International, Ameron, Pettit, and Dupont (Imron)
• Rigging: Standard, Running and Hardware

Facility Site:

17+ acres

Out-of-water shed space:

40,000 sq. ft. (3,720m)

Dockage space:

4,000 ft. (1,220m)

Slips/Dockage:

26 covered slips
23 uncovered slips
46 storage garages

Power:

480 volt 3 phase
208 volt single and 3 phase
110 volt single phase

Lifts:

600-ton elevator platform w/rail
transfer system
150-ton Travelift
60-ton Travelift

Cranes:

35 ton crane

Vessel length:

185' maximum

Vessel beam:

34' maximum (10.4m)

Draft:

14' maximum (4.3m)

Height:

Power lines over Dania Cutoff
Canal at 120' (36.6m)"

If you want more information, you can reach Doug at mobile: 954 319 6650, office: 954 920 5756 x 116 or by email at morrisond@derecktor-florida.com or you can read more on Derecktor's website at www.derecktor.com.