Recent Personal Injury and Car Accident News and Cases related to Hawaii
On June 29, 2015, the Hawaii Supreme Court rendered its decision in the case of St. Paul Fire and Marine Ins. Co. v. Liberty Mutual Insurance, Hi. Sup. Ct. Case No SCCQ-14-0000727 (June 29, 2015). This case arose out of a wrongful death personal injury case handled by this office which resulted in a $4.1 million verdict in favor of our clients - even though Liberty Mutual, the primary liability insurer, never offered anything even close to its policy limits of $1 million. St. Paul - who had to pay our clients everything recovered in excess of the initial $1 million - claimed that Liberty Mutual committed bad faith towards it by failing to settle within its $1 million policy limits. The Hawaii Supreme Court agreed and found that an excess insurer has claims for bad faith against a primary insurer.
JONES ACT- TABLE OF CONTENTS
The Jones Act
I. IN GENERAL C. Applicability to Foreign Ships, Seamen, and Occurrences 1. In General
Provisions of 46 USCS Appx § 688 are applicable to foreign events, foreign ships, and foreign seamen, only in accordance with usual doctrine and practices of maritime law; and, that process has been duly served and necessary parties are before court of United States is not persuasive factor in determining whether application should be given to 46 USCS Appx § 688 since jurisdiction of maritime cases in all countries is so wide and nature of its subject matter so far-flung that there would be no justification for determining law of controversy simply on basis that local jurisdiction of parties is obtainable. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.
Decisional process of arriving at conclusion on subject of application of 46 USCS Appx § 688 involves ascertainment of facts or groups of facts which constitute contacts between transaction involved in case and United States, and then deciding whether or not they are substantial; each factor is to be weighed and evaluated only to end that after each factor has been given consideration, rational and satisfactory conclusion may be arrived at on question of whether all factors present add up to necessary substantiality, and each factor, or contact, or group of facts must be tested in light of underlying objective, which is to effectuate liberal purposes of 46 USCS Appx § 688. Hellenic Lines, Ltd. v Rhoditis (1970) 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731, reh den 400 US 856, 27 L Ed 2d 94, 91 S Ct 23.
46 USCS § 688(b) denies relief under Jones Act and under general maritime law to widow of foreign diver whose death occurred in oil and gas related accident in foreign territorial waters. Camejo v Ocean Drilling & Exploration (1988, CA5 Tex) 838 F2d 1374.
Applicability of 46 USCS Appx § 688 is choice of law problem and depends upon sufficiency of contacts between transaction involved in case and United States. Lascaratos v S/T Olympic Flame (1964, ED Pa) 227 F Supp 161, 1965 AMC 310.
46 USCS Appx § 688 should not be applied in suit by alien against foreign shipowner where contacts with United States are of incidental importance. Poulos v SS Ionic Coast (1967, ED La) 264 F Supp 237.
Even though suit under 46 USCS Appx § 688 is between foreigners, it can still be within jurisdiction of United States District Court; question of whether jurisdiction should be exercised is not arbitrary one, but one of reviewable, sound discretion. Camarias v M/V Lady Era (1969, DC Va) 318 F Supp 379, affd (CA4 Va) 432 F2d 1234.
41. Congressional intent
Jones Act (46 USCS Appx § 688) contains no clearly expressed intention of Congress to legislate for alien seamen who have signed articles aboard foreign ship. The Paula (1937, CA2 NY) 91 F2d 1001, cert den 302 US 750, 82 L Ed 580, 58 S Ct 270.
It is extremely unlikely that Congress meant to exclude from Jones Act (46 USCS Appx § 688) aliens who, in every sense that matters, are American seamen merely because they have not been naturalized. Gambera v Bergoty (1942, CA2 NY) 132 F2d 414, cert den 319 US 742, 87 L Ed 1699, 63 S Ct 1030.
Congressional purpose of Jones Act (46 USCS Appx § 688), to benefit American seamen, would not be served were courts to encourage hiring of foreign seamen in American ports in preference to alien seamen, by holding ship owners liable to American but not to foreign seamen. Kyriakos v Goulandris (1945, CA2 NY) 151 F2d 132.
One of purposes of Jones Act (46 USCS Appx § 688) is to afford indirect protection to American passengers whose well-being is entrusted to crew members, therefore United States has interest in extending law to protect vessel's foreign crew members from injuries which might, in turn, affect safety of American citizens. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.
42. Factors considered
Basic criteria upon which to determine 46 USCS Appx § 688 jurisdiction as affected by nationality of seaman, vessel owner, or place of injury are: (1) place of wrongful act; (2) law of flag; (3) allegiance or domicil of injured person; (4) allegiance of defendant ship owner; (5) place of contract; (6) inaccessibility of foreign forum; and (7) law of forum. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.
Factors to be considered in determining whether particular shipowner should be held liable under Jones Act (46 USCS Appx § 688) include place of wrongful act, law of flag, allegiance or domicile of injured seamen, allegiance of defendant shipowner, place where contract of employment is made, inaccessibility of foreign forum, and law of foreign forum; these factors are not exhaustive and shipowner's base of operations is another factor of importance in determining whether Act is applicable. Hellenic Lines, Ltd. v Rhoditis (1970) 398 US 306, 26 L Ed 2d 252, 90 S Ct 1731, reh den 400 US 856, 27 L Ed 2d 94, 91 S Ct 23.
In determining whether contacts in given case are "substantial" courts have given consideration to place of wrongful act; law of the flag; allegiance or domicil of injured party; allegiance of ship owner; place where contract of employment was made; inaccessibility of foreign forum; law of forum; and ship owner's base of operations. Moncada v Lemuria Shipping Corp. (1974, CA2 NY) 491 F2d 470, cert den 417 US 947, 41 L Ed 2d 667, 94 S Ct 3072 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).
There are seven relevant choice of law factors: (1) place of wrongful act; (2) law of ship's flag; (3) allegiance or domicile of injured seaman; (4) allegiance of shipowner; (5) place where shipping articles were signed; (6) inaccessibility of foreign forum; (7) law of forum; underlying purpose for identifying and weighing factors is not to effectuate liberal purposes of 46 USCS Appx § 688, but to determine whether § 688 should be applied. De Mateos v Texaco, Inc. (1977, CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449.
Seven-factor list of criteria set forth in Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921, for making Jones Act choice of law determinations was not intended to be exhaustive. Pereira v Utah Transport, Inc. (1985, CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253.
Jones Act does not apply to case in which Honduran seaman working for Panamanian corporation operated from Greece on Liberian ship operated by british corporation was injured in Canadian waters and treated in England and Honduras. Gutierrez v Diana Invest. Corp. (1991, CA6 Mich) 946 F2d 455, 1992 AMC 741.
There are seven factors to be considered in determining whether crewmen are entitled to bring action under 46 USCS Appx § 688; they include: place of wrongful act, law of the flag, allegiance or domicle of injured, allegiance of defendant shipowner, place of contract, inaccessibility of foreign forum, and law of forum; although tests set out by these factors is not a mechanical one it nevertheless provides framework within which to determine applicable body of law. Re Lidoriki Maritime Corp. (1975, ED Pa) 404 F Supp 1402.
Determination of subject matter jurisdiction under 46 USCS Appx § 688 turns on qualitative substantiality of contacts between transaction involved and United States; among contacts to be considered are place of wrongful act, law of flag, allegiance and domicile of injured seaman, allegiance of owner, place of contract of employment, inaccesability of foreign forum, law of forum, and shipowner's base of operations. Hazell v Booth S.S. Co. (1977, SD NY) 436 F Supp 561, adhered to (SD NY) 444 F Supp 85.
Determination whether to apply Jones Act to injuries sustained by American citizen on board foreign vessel includes consideration of place of wrongful act, law of flag, allegiance of domicile of injured person, allegiance of defendant shipowner, place of contract, inaccessibility of foreign forum, law of forum, and base of operations of defendant. Jones v The Vessel Nair (1984, SD Cal) 586 F Supp 507, corrected (SD Cal) 612 F Supp 414.
43. --Substantial contacts
Test for applicability of Jones Act (46 USCS Appx § 688) is based upon substantiality of contacts between accident and United States; "substantiality" is defined as something more than minimal and something less than preponderant. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207, and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485); Moutzouris v National Shipping & Trading Co. (1961, SD NY) 194 F Supp 468; Voyiatzis v National Shipping & Trading Corp. (1961, SD NY) 199 F Supp 920; Pandazopoulos v Universal Cruise Line, Inc. (1973, SD NY) 365 F Supp 208.
46 USCS Appx § 688 jurisdiction exists only where there are substantial contacts between transactions involved in case and United States, with substantiality to be determined on absolute scale and not by comparing or balancing presence of certain contacts with absence of others. Moncada v Lemuria Shipping Corp. (1974, CA2 NY) 491 F2d 470, cert den 417 US 947, 41 L Ed 2d 667, 94 S Ct 3072, and (disagreed with on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).
Law of forum, 46 USCS Appx § 688, does not become factor in choice of law process simply because jurisdiction over parties had been obtained by American court; conclusion that 46 USCS Appx § 688 or other American law is applicable to maritime case involving foreign elements is warranted only if, as result of its search, court discovers more than minimal nexus between claim and American forum; contacts found need not be preponderant, but must be substantial. Pandazopoulos v Universal Cruise Line, Inc. (1973, SD NY) 365 F Supp 208.
Applicability of Jones Act (46 USCS Appx § 688) depends on substantiality of contacts of controversy with United States. Manlugon v A/S Facto (1976, SD NY) 419 F Supp 550.
Lack of any substantial connection in any of factors in 46 USCS Appx § 688 prevents action in United States' courts by Honduran seaman injured on Liberian ship owned by Liberian shipowner. Flores v Central American S.S. Agency, Inc. (1984, SD NY) 594 F Supp 735.
44. --Weighing and balancing of factors
Of elements to be considered in determining whether Jones Act (46 USCS Appx § 688) applies in particular circumstance, law of flag, place of injury, place where Seaman's contract was made and inaccessibility of foreign forum have been accorded relatively little importance and allegiance of parties, shipowner's base of operations have been accorded greatest significance. Koupetoris v Konkar Intrepid Corp. (1976, CA2 NY) 535 F2d 1392.
Where connection between injury and parties involved is at least as closely identified with United States as with foreign country, Jones Act (46 USCS Appx § 688) is to be applied. Farmer v Standard Dredging Corp. (1958, DC Del) 167 F Supp 381.
Jones Act (46 USCS Appx § 688) is not to be applied to suit by alien seaman against foreign shipowner where contacts with United States are of incidental importance as against foreign contacts and services rendered by seaman pursuant to balancing test employed to determine applicability of Jones Act, where 2 tests of weighing factors and grouping contacts are equated. Shahid v A/S J. Ludwig Mowinckels Rederi (1964, SD NY) 236 F Supp 751.
In determining whether to apply Jones Act to injuries sustained by American citizen on board foreign vessel, law of flag is more important than most other factors; test is not mechanical one; where links to United States are weak and interest of another sovereign are substantial Jones Act is not applicable. Jones v The Vessel Nair (1984, SD Cal) 586 F Supp 507, corrected (SD Cal) 612 F Supp 414.
In making choice of law determination with respect to applicability of Jones Act in drilling rig cases, place of wrong, domicile of injured person, and place where contract was made take on greater significance then other factors; corporate base of operations is considered of less significance then base of day-to-day operations. Sherrill v brinkerhoff Maritime Drilling (1985, ND Cal) 615 F Supp 1021.
Jones Act (46 USCS Appx § 688) does not apply to foreign seamen's claims against employer, where seamen were possibly exposed to HIV virus through contaminated hepatitis vaccine--manufactured and distributed in India--while working on drilling rig on continental shelf off Indian coast, because only connection to U.S. here is employer's partial allegiance to U.S.; Indian substantive law should apply. Marriott v Sedco Forex Int'l Resources (1993, DC Mass) 827 F Supp 59, 1993 AMC 2949, summary op at (DC Mass) 21 M.L.W. 3214.
45. --Considerations of comity
Jones Act should be held inapplicable to suits involving foreign events since such suits may cause ill will among foreign nations and may saddle foreign shipowners with responsibilities which they have no means of anticipating. O'Neill v Cunard White Star, Ltd. (1947, CA2 NY) 160 F2d 446, cert den 332 US 773, 92 L Ed 358, 68 S Ct 56.
Considerations of comity and international law pervade question of applicability of Jones Act (46 USCS Appx § 688) where American interests register ships under foreign flags of convenience, and are delicate and competing considerations of policy to be dealt with by congressional investigation and enactment rather than through judicial legislation. Markakis v Liberian S/S The Mparmpa Christos (1958, DC NY) 161 F Supp 487.
Application of Jones Act (46 USCS Appx § 688) on basis of slight American contact holds danger of possibility of retaliatory lawsuits with attendant odious consequences, since jurisdiction would also lie in many foreign nations having rules quite different from those prevailing in domestic courts, and there would thus be danger of multiplicity of forums with increased danger of divergent results. Mpampouros v S.S. Auromar (1962, DC Md) 203 F Supp 944.
International stability and principle of comity would be defeated if American courts were to impose different standard for each member of ship's crew dependent upon his nationality. Shahid v A/S J. Ludwig Mowinckels Rederi (1964, SD NY) 236 F Supp 751.
46. Procedural considerations
District Court's dismissal of action brought by Honduran seaman under 46 USCS Appx § 688 for lack of jurisdiction was improper where court relied exclusively upon defendant's affidavits and where defendant's answers to interrogatories directed at requisite jurisdictional factors were outstanding and overdue. Blanco v Carigulf Lines (1980, CA5 Ala) 632 F2d 656.
Dismissal of Scottish deep-sea diver's claim upon determination that foreign law was applicable is confusion of subject matter jurisdiction with forum non conveniens doctrine where court did not address whether diver was seaman under § 688, whether court had power to determine claims, or whether valid cause of action was stated. Nicol v Gulf Fleet Supply Vessels, Inc. (1984, CA5 La) 743 F2d 289 later proceeding (CA5 La) 743 F2d 298, 40 FR Serv 2d 196.
In 46 USCS Appx § 688 action involving injury sustained in American port by foreign seaman aboard foreign vessel in course of voyage beginning and ending in foreign country, appropriate course is for federal district court to deny § 688 claim on mertis, but this denial of § 688 claim on merits leaves court free to consider whether, with due regard to doctrine of forum non conveniens, it should take jurisdiction and apply relevant foreign law. Volkenburg v Nederland-Amerik. Stoomv. Maats (1963, DC Mass) 221 F Supp 925, 1964 AMC 53, affd (CA1 Mass) 336 F2d 480, 1964 AMC 1958, 8 FR Serv 2d 34.13, Case 12.
Nicaraguan law applied in case of Nicaraguan seamen hired under Nicaraguan contracts to work aboard shrimping vessels and injured in Nicaraguan waters; consideration of which jurisdiction would afford more generous recovery was not valid consideration. Solano v Gulf King 55, Inc. (2000, CA5 Tex) 212 F3d 902.
JONES ACT- TABLE OF CONTENTS
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