Florida Judgment in Favor of NMMA

December 27, 2012

The Daily Business Review reports that Florida's Third District Court of Appeals in a ruling dated December 19th affirmed  a summary final judgment in favor of the National Marine Manufacturers Association.

The recreational boat industry trade group, a participant in the 2008 Miami International Boat Show, parked several tractor trailers on a lot owned by the city of Miami Beach under a temporary license and use agreement signed with the city's housing authority. On February 7, 2008, David Collins entered the lot, climbed under a parked trailer and fell asleep. A truck driver for the association, who didn't know anyone was under the trailer, hitched it to his truck and pulled out, running over and fatally injuring Collins.

Collins' mother, Constance Ryan, sued the trade group and the truck driver, alleging he was negligent in failing to "check around and under the tractor-trailer so as to avoid striking a pedestrian in the vicinity." However, a toxicology report determined Collins' blood alcohol level was 0.21, nearly three times the legal limit for drivers. That finding triggered a winning defense.

Under Florida law, anyone "owning or controlling an interest in real property" cannot be held liable for injuries to a trespasser who was legally under the influence of alcohol. The question was: Did the association have an owning or controlling interest? Ryan contended it did not because the agreement with the city was nominally a license. The association asserted it did because the intent of the agreement made it effectively a lease.

"Our argument was that although it was labeled a license, the essence of the document and what they [the housing authority] purported to do was to grant a short-term lease to National Marine," said Rafael De la Grana, who worked on the appellate brief with James K. Clark of Clark, Robb, Mason, Coulombe & Buschman in Miami. "It therefore was entitled to avail itself of the immunity given by the statute."

Miami-Dade Circuit Judge David C. Miller agreed and ruled for National Marine. On appeal, Emas, who wrote the opinion, Salter and Senior Judge Alan Schwartz affirmed. In a special concurrence, Schwartz wrote: "On the ground that as a matter of law, no one is liable for the accident but the decedent, I join in affirmance."

If you are unable to access the opinion here or wish to reach me for any reason, you may do so by writing to me at mov@chaloslaw.com.

Passenger Safety Rules Likely to Change Due to Costa Concordia

December 12, 2012

The IMO has been looking at passenger safety at its latest sessions – and according to new rules on cruise ship safety to emerge from IMO MSC91, it seems that in light of the Costa Concordia, passenger safety drills must take place before or straight after the ship departs.

At its meeting last month, the IMO’s maritime safety committee approved draft amendments to chapter III of the Safety of Life at Sea (SOLAS) Convention to require newly embarked passengers to be put through muster immediately, instead of “within 24 hours” as the current regulations require for ships whose passengers will remain on board for more than 24 hours. If 24 hours is a long time in politics – it can be a lifetime in shipping – and when the Concordia grounded, it was clear that change was needed. The draft amendments will now be circulated for consideration, with a view to being adopted at the next session, MSC 92, in June 2013, and could enter into force at the end of 2014.

The preliminary investigation into the Concordia loss has recommended several revisions to SOLAS, which include: additional guidance on common elements to be included in passenger muster and emergency instructions; recommending that the nationality of each person on board is recorded; guidance on lifeboat loading for training purposes; and for companies owning and/or operating passenger ships to require the ship’s master to ensure that changes to the voyage plan are consistent with company policies.

The committee has also called for a review of the way that emergency instructions are disseminated and communicated on board passenger ships and that access to the bridge should be limited to those with operational or related functions during periods of restricted manoeuvring, or while manoeuvring in conditions that the master or company bridge procedures and policy deems to require increased vigilance.

If you are interested in contacting me, you may do so by writing to me by email atmov@chaloslaw.com.

Prior Opinions Precluding Arbitration of Seaman's Suits Continue

December 04, 2012

In ESTIBEIRO v. CARNIVAL CORPORATION, 23 Fla. L. Weekly Fed. D375a (S.D. Fla.Oct. 2, 2012) (J.Seitz), the Southern District of Florida has again found that an arbitration clause in a seaman's employment contract, which required that the arbitration of claims must be held in Bermuda, unless the Bermuda venue provision is found legally unenforceable, was valid and enforceable. A seaman had brought his Jones Act claims and claims for maintenance and cure against his cruise ship employer, alleging he sustained damage to his heart muscle as result of an alleged failure to administer medication in a timely manner after he suffered a heart attack while working on cruise ship. The plaintiff brought the case in federal court, alleging that the amendment to the Jones Act which deleted the statute's venue provision rendered the Bermuda forum selection clause unlawful and contrary to public policy. The district court disagreed and found that the arbitration clause was neither substantively nor procedurally unconscionable.

Of course, this case follows on the Eleventh Circuit's opinion which reinforced its prior adherence to the enforceability of arbitration provisions in seamen's contracts, which significantly limited the effect of its prior decision invalidating such clauses where they precluded a seaman from seeking recovery under a statutorily defined remedy. In Lindo v. NCL (Bahamas) Ltd., 652 F.3d 1257 (11th Cir. 2011), a 2-to-1 panel decision held that arbitration provisions were enforceable even as to statutory claims, such as those arising under the Jones Act.

Previously, the Eleventh Circuit had followed the Fifth Circuit's earlier recognition of the validity of such provisions in Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005). Subsequently, however, the court cast some doubt on the ultimate enforceability of such clauses in its later opinion in Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), a case which I blogged on previously and received some rather interesting commentary.Thomas refused to give effect to an arbitration agreement which would have precluded the plaintiff's statutory Seaman's Wage Act claim by requiring the application of Panamianian law. In a lengthy opinion in Lindo, the majority sought to harmonize its prior decisions.

Estibero now gives some additional guidance. The Plaintiff in Estibero invited the district court to   follow Thomas and find that the arbitration clause is unenforceable as against public policy. The district court refused to do so for three reasons. First, the court found that Thomas is distinguishable from the instant case. Second, the court found that Thomas is of limited precedential value. Third, the court found that the plaintiff failed to make a showing that his remedies under Bermuda law are inadequate. The court gave a clear roadmap of what a plaintiff would have to show in meeting his burden that the remedies in the foreign forum are inadequate.

If you are interested in receiving a complete copy of this decision or wish to reach me, please feel free to contact me atmov@chaloslaw.com.

11th Circuit Affirms Judgment For Stevedores

December 28, 2012
A $3.5 million jury verdict against Miami-Dade County and a declaration that a county ordinance regulating stevedores was unconstitutional were affirmed Friday morning by the U.S. Court of Appeals for the Eleventh Circuit. The decision means that Florida Transportation Service Inc., which complained it was unfairly denied a permit to operate at the Port of Miami in 2003, 2004 and 2005, will collect a total $4 million in damages from the county.

 "The permitting practices did not further, but if anything rather disserved, the county's purported purposes and benefits," said the opinion by U.S. Circuit Judge Frank Hull, Senior Judge Emmett Ripley Cox and U.S. District Judge Donald Walter of Louisiana sitting by designation.

 U.S. District Judge Adalberto Jordan (who now sits in the Eleventh Circuit) in Miami ruled in 2008 that the ordinance on stevedores interfered with interstate commerce. Jordan ruled the county ordinance guaranteed work for the nine existing stevedore companies but kept others out.

Judge Adalberto Jordan
Picture Obtained from Daily Business Review Dec. 28, 2012

The appellate court's 83-page opinion "demonstrates without question that Judge Jordan correctly analyzed the legal issues and that the county's conduct in protecting existing stevedores from outside competition violated the U.S. Constitution," said Coffey Burlington partner Jeffrey Crockett, who represented Florida Transportation.

Florida Transportation, a non-union company, first attempted to obtain a permit in 1999 and finally received one for 2011 after prevailing at the 2010 jury trial. A key piece of evidence at the 10-day trial was a letter from the Southeast Florida Employers Port Association to the port saying that giving a new company a permit would result in "destructive competition."

The Southeast Florida Employers Port Association represents nine unionized companies whose workers belong to the International Longshoremen's Association.

The appellate court's opinion is 83 pages long. It essentially agreed with Judge Jordan that the county's conduct in protecting existing stevedores from outside competition violated the U.S. Constitution. If you are interested in receiving a copy of the decision or wish to reach me, you may do so by email at mov@chaloslaw.com.