Background:
Plaintiff, Orlando Ramirez, brought this action against employer and vessel owner American Pollution Control Corporation, AMPOL, pursuant to the Jones Act.

AMPOL hired Ramirez to work as a deckhand aboard the Recovery and shortly after, Ramirez hurt his neck, back, shoulder, elbow, and wrist when he slipped on a wet rubber glove lying on the floor of the ship's galley.

Evidence introduced at trial showed that the crew had just finished unloading groceries in the galley resulting in a floor cluttered with cardboard boxes. Several minutes before he fell, Ramirez had removed a wet rubber glove and thrown it in the trash.

The glove missed the trash and ended up on the floor; the Captain noticed the glove on the floor but failed to notify Ramirez. Ramirez opened the fridge and then tried to walk through the cluttered galley with his hands full.

Ramirez then slipped on his wet glove and Ramirez fell, hurting himself. Ramirez admitted to a significant history of neck and back injuries that he had omitted from the AMPOL job application.

The district court found AMPOL 60% liable for his injury, based on the Captain's failure to pick the glove up. Ramirez was found contributorily negligent for tossing his glove towards the trash can, attempting to step through the boxes with his hands full and misrepresenting his past injuries on the job application.

In determining damages, the District Court credited AMPOL's expert testimony that Ramire continuing neck and shoulder pain were caused by the natural aging process. The court calculated lost wages at $3,000, and therefore upon apportionment, awarded Ramirez with $1,800.

Ramirez appealed contesting the apportionment of fault arguing that AMPOL was solely responsible for the condition which caused the accident and also argued there was no casual link between his undisclosed medical history and injury suffered aboard the Recovery.

Issue:
Did the District Court err in finding Ramirez contributory negligent and for finding a link between his undisclosed medical history and injury he suffered aboard the Recovery?

Held:
Ramirez contended that AMPOL was solely responsible for creating the conditions which led to the accident. Ramirez pointed to evidence establishing that the Captain failed to notify him about the wet glove and therefore, created a safety hazard and that the cluttered condition of the galley was attributable to the Captain.

This Court found nothing to indicate the District Court erred in apportioning fault. Therefore, this Court affirmed the District Court's apportionment of fault.

Second, Ramirez contested the district court's finding that he was negligent in misrepresenting his medical history on the job application. Ramirez argued that the nondisclosure of his ailments did not cause the injury he suffered as a result of the fall.

The District Court found that Ramirez had sustained neck or back injuries on 5 separate occasions ranging from 1979 - 2004. None of these were disclosed by Ramirez. This Court found that this was enough for the District Court to conclude that Ramirez's injuries after the fall, were in large part, a reaggravation of his previous injuries.

Accordingly, this Court affirmed the ruling of the District Court.

Comment:
Where a seaman knowingly exposes himself to conditions of employment, while aware of an illness or disability, which makes those conditions unsafe to him may be found contributory negligent.

Steve Gordon

Background:
Before this Court was defendants', Cargill Incorporated, American Commercial Lines, motions for summary judgment.

Plaintiff, Carter McEuen, was  injured while opening a roll-top barge cover as a deckhand aboard the M/V Tom Edwards, owned and operated by Lower Illinois Towing Company.  Lower Illinois was McEuen's employer.

At the time of his injury, McEuen had almost 20 years of experience as a seaman.  Lower Illinois was engaged in the business of switching, cleaning, and fleeting barges for defendant American Commercial Barge lines and, on occasion, performed work for Cargill, including opening roll-top covers on barges at when Cargill was busy or had trouble rolling the covers themselves. Lower Illinois would directly bill Cargill for those services.

Roll-top barges can sometimes be problematic. The covers may come out of the tracks, making them difficult to roll, causing them to get stuck. The pins, holding the covers into place, sometimes fall down while the covers are being rolled back making them stop in their tracks.

On the day of the incident, Cargill had Lower Illinois help them open roll-top covers on their barge so that the cargo box could be filled with grain. While the roll-top barges were being loaded, grain and dust began to accumulate on the deck. Cargill employees testified that Cargill cleaned the barges after they were finished being loaded.

McEuen prepared to close the covers over the half of the Barge that had been filled and open the remaining covers. During this process, however,on e of the covers split and the covers became stuck.

McEuen went to the stern end of the barge, climbed onto the stuck cover and attached a cable to the lift ring using the same kind of hook and shackle device that had been used earlier to roll the covers from the bow end of the Barge. 

As he climbed down from the cover, he felt his knee pop. Despite this, McEuen finished rolling the covers and later returned in the afternoon to close all the covers.

McEun went to the doctor and ended up having to correct a tendon tear.

McEun brought this suit alleging Jones Act, maintenance and cure against his employer Illinois Southern. McEun brought claims of general maritime negligence and unseaworthiness against Cargill and American.

Issue:
Did this Court grant Cargill's and American's motions for summary judgment?

Held:
Cargill argued that McEuen cannot sustain an unseaworthiness claim against it because Cargill did not own or charter the barge in question. McEuen countered, arguing that Cargill owed him a duty of seaworthiness by virtue of its use and control of the barge. However, this Court recognized that the only way in which a party can acquire status as an owner is if the party is a demise, or bareboat, charterer.

This Court found that Cargill used the barge consistent with a time or voyage charter because the barge was only used for a "specific service" and Cargill did not assume exclusive possession, command, and navigation.

Accordingly, the action of unseaworthiness against Cargill, a time/voyage charterer, did not stand.

Second, Cargill argued that McEuen's negligence claim should not stand because it did not owe McEuen a duty of care. McEuen countered, arguing that Cargill knew roll-top covers were problematic, it was reasonably foreseeable McEuen would have to climb on top of the covers because some were not accessible by ladder and Cargill was responsible for preventing grain dust from accumulating on the barge's deck.

This Court found Cargill owed McEuen a duty of care. Cargill hired McEuen's employer to open roll-top covers on the barge and that Cargill was billed and paid for these services. By merely hiring Lower Illinois employees, knew they would be required to climb on top of covers in order to roll them and it was reasonably foreseeable someone would injure themselves. Cargill had a duty to keep the barge in a safe condition while it was being loaded. This Court denied Cargill's motion for summary judgment for McEuen's general maritime negligence claim.

American argued that the duty to provide a seaworthy vessel did not extend to seamen who are not member's of the vessel's crew. Because American never employed McEuen they did not owe him a duty of care or warranty of seaworthiness.

Comment:
The elements of maritime negligence are the same as general negligence. A plaintiff must establish:

(1) Defendant owed plaintiff a duty of care

(2) Defendant breached the duty

(3) The breach of duty caused plaintiff's injuries and

(4) The plaintiff sustained damages

Background:
Plaintiff, Brett Kurpiel, filed this action under the Jones Act alleging he sustained injuries while working for defendant, Calumet River Fleeting, Inc. Kurpiel alleged his injuries were a result of Calumet's negligence and unseaworthiness of their vessel.

Kurpiel was hired as a deckhand to work aboard Calumet's vessel. His duties included keeping decks clear, tying off barges, facing up to barges, properly stowing equipment, and basic vessel maintenance.

Kurpiel participated in a three-week training period with a more experienced deckhand before being allowed to work on his own. One the day of the alleged incident, weather conditions forced the vessel to find safe harbor and dock for the night instead of returning to Chicago.

Kurpiel described the weather conditions as changing from rain, to snow, then to ice, and finally to a near blizzard. While working the midnight to 6am shift, Kurpiel went to the wheelhouse to use his cellphone. Kurpiel fell asleep in the wheelhouse while waiting for the cell phone call and while watching the barges.

When he woke up he walked down back the steps leading to the wheelhouse, slipped on the last stair, fracturing his ankle. Kurpiel signed a statement in which he stated he did not know if he slipped or just turned his ankle. Kurpiel also stated there were rails on both sides of the steps and all six steps had non-skid paint on them. The area was well lit and that the wheelhouse stairs had been salted and taken care of by the other deckhand running the earlier shift.

Kurpiel also stated it was a "freak accident" and did not think it could be avoided. However, during his deposition, Kurpiel turned around and stated the stairs had not been shoveled or salted. He did confirm, however, that it was the responsibility of the deckhand to do so and that he was four hours into his shift when he fell on the stairs.

Kurpiel also testified, during his deposition, that the captain mentioned to him ice creepers (non-skid shoe-wear) were available for his use.

Calumet filed this Motion for Summary judgment in response to Kurpiel's action.

Issue:
Did this Court grant defendant employer's motion for summary judgment?

Held:
In his signed post-accident statement, Kurpiel admitted that all six steps had non-skid on them, the area was well lit, wheelhouse stairs had been salted, the crew checked the stairs and surrounding areas, post-accident, and found that they were still "ok" from the salting and his fall was a "freak occurrence".

Kurpiel then changed course in his deposition, but did mention the captain told him ice creepers were available. The Court found that Kurpiel's statement "freak accident" severely damaged his case.

Also, this Court recognized Kurpiel failed to provide any evidence that established that ice creepers were required or that their use would have prevented the accident.

During his deposition, Kurpiel stated he never complained about conditions aboard the vessel prior to his injuries and that his actions, with respect to the condition of the boat, were not reasonable.

Ultimately, this Court did not find any source of factual evidence to support Kurpiel's negligence or unseaworthiness claim.

Accordingly, this Court granted Calumet's motion for summary judgment.

Comment:
To the extent that a party's statement in an affidavit contradict his deposition testimony, Courts do not consider the affidavit in ruling on summary judgment motions.

However, Kurpiel's post deposition affidavit claim that he was unaware of any ice creepers although during prior deposition, he admitted that the Captain offered him a pair of creepers.

Accordingly, based on the deposition, Kurpiel failed to present any evidence suggesting Calumet's negligence or any unseaworthy condition aboard the vessel.

Steve Gordon

Background:
Before this Court is an action pursuant to the Limitation of Liability Act. Defendant, Julio Angel Velez, filed a motion to dismiss MLC's Limitation claim arguing that the accident did not invoke the court's admiralty jurisdiction because the accident did not occur aboard MLC's vessel.

In order to board the vessel from the marina, Velez had to descend a metal ramp which is not attached permanently to the land or the vessel. The ramp leads to a floating dock, which must be traversed to access the steps to the vessel.

Velez was to embark on a fishing expedition on the date of his injury. Unfortunately, Velez fell due to an alleged "slippery" premises and ramp.

MLC Fishing filed a Limitation of Liability action and Velez filed this motion to dismiss.

Issue:
Did this Court dismiss MLC's Limitation of Liability action because Velez did not injure himself while aboard MLC's vessel therefore, removing admiralty jurisdiction?

Held:
This Court recognized that if the ramp, where Velez fell, is part of the vessel, F/V Capt Mike, then there is a connection with maritime activity thus placing this action within the court's admiralty jurisdiction.

The determinative question is whether the ramp is considered part of the Capt Mike. In Dobrovich v. Hotchkiss (14 F.Supp.2d 232 (D.Conn.1998), the Connecticut court faced the question whether a ramp leading to floating docks, which must crossed to reach the location where the ship is moored should be considered an extension of the land.

The Court in Dobrovich found that the ramp was not a gangway. MLC argued Dobrovich is distinguishable because the ramp in that case was permanently affixed to the land while the ramp which Velez slipped on was not.

None of the cases MLC relied upon considered a ramp the equivalent to a gangway for the purpose of admiralty jurisdiction or the Limitation of Liability Act.

The Courts have generally not defined specifically what a gangway is. However, the Courts have inquired into whether the vessel owner owed the plaintiff a duty of care with respect to the gangway that was not owned nor controlled by the vessel owner.

This Court did not extend admiralty jurisdiction by defining a gangway as including a ramp separated from the vessel by floating docks.

Accordingly, this Court dismissed MLC's action for Limitation of Liability holding no admiralty jurisdiction existed on a gangway leading from the land to floating docks.

Comment:
In order for a Limitation of Liability action to proceed the court must have admiralty jurisdiction over the underlying action.

The Courts have consistently held that a gangway, leading from the land to floating docks, was not considered part of a vessel. Typically, when a gangway connects a vessel to the land, the inquiry shifts to whether the vessel owner or charterer has a duty to maintain the gangway. If so, then the action will likely fall within the court's admiralty jurisdiction.

This action however, dealt with a gangway connecting land to floating docks, not to the vessel itself.

Steve Gordon  

Background:
Plaintiff, Pan Quan Ru, filed this action under the Jones Act, general maritime law, and the savings to suitor's clause asserting negligence, unseaworthiness, and seeking general and punitive damages.

Quan Ru alleged injuries while working aboard the tugboat CONDOR owned and operated by Seabulk Towing Services (another defendant). When Quan Ru tried to cast off the tug lines on the stern the messenger line belonging to the CONDOR caught Quan Ru's leg resulting in the amputation of his leg.

Quan Ru filed this action in Louisiana state court for the injuries he sustained while working aboard the vessel M/V Ikan Sepat owned and operated by Sepat Shipping and PACC Ship Managers.

Defendants removed the cause to the District Court for the Eastern District of Louisiana pursuant to federal question jurisdiction on the basis that the Convention on the Recognition of Foreign Arbitral Awards governed the dispute as two documents entered into between the parties contained purported agreements to arbitrate.

Quan Ru filed a Motion to Remand contending that no valid arbitration agreement existed in either the collective bargaining agreement or the employment contract at issue.

The Court denied Quan Ru's first Motion to Remand without prejudice finding that the CBA contained an arbitration agreement that did not apply to Quan Ru individually. However, the Court found at that the employment agreement may have been subject to arbitration under the Convention.

Quan Ru denied actually signing the employment agreement but eventually both parties stipulated on the record that the evidence supported the conclusion that Quan Ru's signature was valid.

Quan Ru now urges this  Court to grant his second Motion to Remand on the basis that the artbitration clause is unenforceable.

Issue:
Did this Court find the arbitration clause in the employment agreement unenforceable?

Held:
Quan Ru argued that the clause is unenforceable and therefore he is not subject to arbitration because, under Chinese law the arbitration clause is unenforceable, enforcing the arbitration agreement would deny Quan Ru statutory remedies guaranteed under United States law and the employment agreement, containing the arbitration clause, is at odds with the relevant CBA and is therefore, void under Chapter 2 of the Federal Arbitration Act.

This Court found that the Chinese law assertion, made by Quan Ru, required analysis and interpretation of Chinese law beyond this Court's limited inquiry. Moreover, this Court found that Chapter 2 allowed for an affirmative defense but this Court found that four factors, under Francisco (discussed below) were met.

Finally, this Court found that US law favors arbitration as a matter of public policy and that the agreement should be enforced despite the fact it denies Quan Ru of statutory remedies available under US law.

Comment:
The Court examined four factors laid out in Francisco.

These four factors determine whether an arbitration agreement is enforceable. Under this inquiry the court MUST compel artibtration:

1. There is an agreement in writing to arbitrate the dispute

2. The agreement provides for arbitration in the territory of a Convention signatory

3. The agreement arises out of a commercial legal relationship and

4. A party to the agreement is not an American citizen.

Because these four factors were met, the arbitration clause was enforceable.

Steve Gordon