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
II. PERSONS ENTITLED TO RECOVER A. Seamen 2. Employed on "Vessel in Navigation"b. Status of Vessel
133. Vessels at dock or anchor
Vessel may be actually employed in navigation, although temporarily at anchor, or in dock, if it remains in readiness for another voyage. United States v Lindgren (1928, CA4 Va) 28 F2d 725, affd 281 US 38, 74 L Ed 686, 50 S Ct 207; Rogosich v Union Dry Dock & Repair Co. (1933, CA3 NJ) 67 F2d 377.
Ship is in navigation although docked if it remains in readiness for another voyage. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).
Mere fact that vessel is moored to wharf or structure does not mean that it is not in navigation. Whittington v Sewer Constr. Co. (1976, CA4 W Va) 541 F2d 427.
Vessel may actually be employed in navigation although temporarily in dock. Gonzales v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 3 F2d 168.
Vessel was not laid up in the sense that it was not in navigation when it was temporarily tied up because part of crew was on vacation, but there was sufficient crew to navigate vessel and she was in condition to go to sea. Alaska Dept. of Health v Alaska Industrial Board (1951, DC Alaska) 101 F Supp 171,.
Vessel tied to landing dock due to strike of certain unions, upon which crew remained, was vessel for purposes of 46 USCS Appx § 688. Mroz v Dravo Corp. (1968, WD Pa) 293 F Supp 499, affd (CA3 Pa) 429 F2d 1156.
Vessels have often been held to be "in navigation" even though moored to dock. Baker v Pacific Far East Lines, Inc. (1978, DC Cal) 451 F Supp 84.
Fact that barge was moored at time of accident is irrelevant to its status as vessel under Jones Act. Allen v Mobile Interstate Piledrivers (1985, Ala) 475 So 2d 530.
Tuna fisherman employed to go upon high seas and who was actually aiding in preparation for voyage when he was injured on vessel while it was moored at dock in harbor was seaman entitled to all benefits of 46 USCS Appx § 688 and state court had jurisdiction of action to recover for such injuries. Vojkovich v Ursich (1942) 49 Cal App 2d 268, 121 P2d 803, 1942 AMC 299.
134. Vessels laid up or removed from navigation
Where claimant was injured while "walking" vessel back and forth along wharf so that grain chutes could reach her hatches, and this moving men did by hand, vessel having no steam and being out of commission but having been towed by tugs to wharf to be filled with soya beans for storage, 46 USCS Appx § 688 was not available to claimant, vessel having been withdrawn from navigation. Hawn v American S.S. Co. (1939, CA2 NY) 107 F2d 999.
Even ships which are beyond question vessels in navigation when in service are not vessels in navigation when undergoing major construction work to fit them for navigation, or after decommissioning, when they are being prepared for storage. Hill v Diamond (1962, CA4 Va) 311 F2d 789.
Whether appellant, mechanic injured while helping to reactivate vessel which had captain and crew with voyage imminent, who was bound by articles, lived on vessel, and was subject to discipline of ship, was seaman on vessel in navigation was jury question, and district court, erred in disposing of case by summary judgment. Bodden v Coordinated Caribbean Transport, Inc. (1966, CA5 Fla) 369 F2d 273, 5 ALR Fed 668.
Former liberty ship used as floating fish processing plant, which had been tied to dock and not moved since 1975, and from which all navigational and propulsion equipment had been removed, was not "vessel in navigation" for purpose of Jones Act. Kathriner v Unisea, Inc. (1992, CA9 Alaska) 975 F2d 657, 92 CDOS 7880, 92 Daily Journal DAR 12852.
Vessel was not in navigation for purpose of Jones Act where, at time of plaintiff's death, it was in process of undergoing complete conversion and was not seaworthy. McKinley v All Alaskan Seafoods, Inc. (1992, CA9 Alaska) 980 F2d 567, 92 CDOS 9403, 92 Daily Journal DAR 15719, 1993 AMC 305.
Person employed on "laid-up fleet" of government ships, which were out of commission and withdrawn from navigation was not seaman for purposes of 46 USCS Appx § 688. Gonzales v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 3 F2d 168.
Workmen employed upon vessel definitely withdrawn from navigation, and relegated to ship's graveyard, are not seamen within meaning of Jones Act (46 USCS Appx § 688), because vessel is not engaged in navigation. Hunt v United States (1936, DC NY) 17 F Supp 578, affd (CA2 NY) 91 F2d 1014, cert den 302 US 752, 82 L Ed 581, 58 S Ct 271.
Workman hired to clear away rubbish from hold of vessel, when he was injured, was only civil employee of United States, and not seaman under 46 USCS Appx § 688 where vessel was one of series of vessels included in "laid-up fleet," not in navigation. King v United States (1938, DC NY) 22 F Supp 992.
Ship temporarily tied up because part of crew was on vacation, but having sufficient crew to navigate and in condition to go to sea, could not be considered laid up. Alaska Dept. of Health v Alaska Industrial Board (1951, DC Alaska) 101 F Supp 171.
Previously mothballed liberty ship which had been converted to floating factory was not vessel in navigation where vessel had no navigation or propulsion gear, had not been moved in three years nor had its owner any intention of moving it, and vessel was connected to shore by spring lines and anchor chains, permanent utility connections and access piers. Garcia v Universal Seafoods, Ltd. (1978, WD Wash) 459 F Supp 463.
135. Vessels under construction
Vessel under construction, in navigable waters but not fully completed or commissioned, is not in navigation for purposes of 46 USCS Appx § 688. Frankel v Bethlehem-Fairfield Shipyard, Inc. (1942, CA4 Md) 132 F2d 634, cert den 319 US 746, 87 L Ed 1702, 63 S Ct 1030.
Structure under construction, pursuant to nonmaritime contracts, is not vessel in navigation, never having been designed as vessel or intended to be used as vessel; fact that construction materials or subassemblies intended for incorporation may be afloat at sometime during construction process, does not make material or subassembly vessel. Hill v Diamond (1962, CA4 Va) 311 F2d 789.
Ship on final sea trial run, prior to delivery to buyer, was not yet in navigation for purposes of 46 USCS Appx § 688. Williams v Avondale Shipyards, Inc. (1971, CA5 La) 452 F2d 955.
Welder injured on uncompleted barge moored in slip could not sue employer-contractor under 46 USCS Appx § 688 on theory of unseaworthiness, or under general maritime law, where incomplete barge was not vessel in navigation. Hollister v Luke Constr. Co. (1975, CA5 La) 517 F2d 920 (disagreed with Hall v Hvide Hull No. 3 (CA5 La) 746 F2d 294, reh den, en banc (CA5 La) 753 F2d 1075 and reh den, en banc (CA5 La) 753 F2d 1075 and reh den, en banc (CA5 La) 753 F2d 1075 and (disagreed with Drake v Raymark Industries, Inc. (CA1 Me) 772 F2d 1007, CCH Prod Liab Rep P 10707, cert den (US) 90 L Ed 2d 675, 106 S Ct 1994 and (disagreed with by multiple cases as stated in May v Transworld Drilling Co. (CA5 Miss) 786 F2d 1261, cert den (US) 55 USLW 3235)) and cert den (US) 88 L Ed 2d 56, 106 S Ct 69).
Worker injured while constructing drilling rig on barge moored in navigable waters was not eligible to recover under Jones Act (46 USCS Appx § 688), where, although barge had been delivered to its ultimate user, it had not been placed in navigation for its intended purpose because its construction was not complete. Garret v Dean Shank Drilling Co. (1986, CA5 La) 799 F2d 1007.
Vessel not licensed for navigation at time of plaintiff's injury, though launched and afloat, not tested in sea trials and not delivered to owner until after injury, was not vessel "in navigation". Caruso v Sterling Yacht & Shipbuilders, Inc. (1987, CA11 Fla) 828 F2d 14.
Vessel might not be navigating if it is being moved from one place to another in unfinished state for sole purpose of completing such vessel. Gonzales v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 3 F2d 168.
Vessel launched and riding on navigable waters, but still under construction and unprepared for and incapable of navigation at time of injury was not vessel for purposes of 46 USCS Appx § 688. Jefferson v The SS Bonny Tide (1968, ED La) 281 F Supp 884.
Vessel with respect to which plaintiff was hired as "able seaman" on day before his injury was not in navigation where, although vessel was afloat at time of injury, (1) vessel was reconstructed vessel which had not yet had sea trials, (2) only skeletal crew had been assembled as of day of injury, (3) delivery of completed vessel by contractor and acceptance by owners and insurers had not yet occurred, and (4) all efforts of crew members were designed to place vessel "in navigation." Bohlinger v Allied Tankships, Inc. (1985, ED Va) 613 F Supp 161.
136. Vessels undergoing repair
Person employed on transoceanic liner, and engaged in keeping liner in repair during lengthy periods when it is confined to berth, is member of crew of liner, and thus entitled to recover for personal injuries in action under 46 USCS Appx § 688 notwithstanding that liner is never in transit during his employment. Senko v La Crosse Dredging Corp. (1957) 352 US 370, 1 L Ed 2d 404, 77 S Ct 415, reh den 353 US 931, 1 L Ed 2d 724, 77 S Ct 716.
Vessel was in navigation for purposes of 46 USCS Appx § 688 where it was undergoing rehabilitation preparatory to Coast Guard inspection in anticipation of returning to service after having been withdrawn from navigation because inoperable. Butler v Whiteman (1958) 356 US 271, 2 L Ed 2d 754, 78 S Ct 734. (not followed Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067)).
Instruction was improper in Jones Act action where it precluded jury, in determining whether plaintiff-engineer had performed substantial part of his work on vessel on which he had sailed from U.S. to Germany and back, from considering 6-month period during which vessel was in drydock for refurbishment in Germany on ground that vessel was out of navigation during such period. Chandris, Inc. v Latsis (1995, US) 132 L Ed 2d 314, 115 S Ct 2172, 95 CDOS 4499, 95 Daily Journal DAR 7769, 17 BNA OSHC 1257, 1995 AMC 1840.
Ship in drydock for repairs, awaiting new business, is vessel in navigation for purposes of 46 USCS Appx § 688. Hawn v American S.S. Co. (1939, CA2 NY) 107 F2d 999.
If shown to be in preparation and readiness for voyage on navigable waters, ship undergoing repairs in drydock is considered as being in navigation for purposes of 46 USCS Appx § 688. Carumbo v Cape Cod S.S. Co. (1941, CA1 Mass) 123 F2d 991 (disagreed with Offshore Co. v Robison (CA5 La) 266 F2d 769, 75 ALR2d 1296 (disagreed with Johnson v John F. Beasley Constr. Co. (CA7 Ill) 742 F2d 1054, cert den (US) 84 L Ed 2d 328, 105 S Ct 1180 and (disagreed with Barrett v Chevron, U.S.A., Inc. (CA5 La) 781 F2d 1067))).
Although uncompleted vessel has yet to take her place in commerce and navigation and become "vessel" under 46 USCS Appx § 688, vessel which has been commissioned and taken into navigation and commerce remains in that status even when coming into dock and undergoing certain repairs. Frankel v Bethlehem-Fairfield Shipyard, Inc. (1942, CA4 Md) 132 F2d 634, cert den 319 US 746, 87 L Ed 1702, 63 S Ct 1030.
Steamer having new engine installed was vessel for purposes of 46 USCS Appx § 688. Keymon v Tennessee Towing Co. (1961, CA6 Tenn) 296 F2d 785.
Vessel being returned to service in navigation on which injured worker had been employed to aid in repairs was in navigation for purposes of 46 USCS Appx § 688. Bodden v Coordinated Caribbean Transport, Inc. (1966, CA5 Fla) 369 F2d 273, 5 ALR Fed 668.
Ships withdrawn from navigation and undergoing relatively major repairs by persons possessing skills not usually found among seamen are not vessels in navigation. Delome v Union Barge Line Co. (1971, CA5 Tex) 444 F2d 225, cert den 404 US 995, 30 L Ed 2d 547, 92 S Ct 534.
District Court was entitled to conclude as matter of law that vessel upon which repair worker was injured was not "in navigation" at time of injury where vessel had been turned over to repair firm by Navy some two years earlier, ship's captain and crew were not aboard vessel, repair work being performed included major structural changes for which bill exceeded $ 25 million, and during at least portion of period ship's engine and propellors were inoperable. Wixom v Boland Marine & Mfg. Co. (1980, CA5 La) 614 F2d 956.
Dredge undergoing routine repairs preparatory to engaging in regular dredging operations is vessel in navigation for purposes of 46 USCS Appx § 688. Early v American Dredging Co. (1951, DC Pa) 101 F Supp 393.
Jones Act (46 USCS Appx § 688) claim of amateur alchemist who tried to turn mercury into gold by baking it in potato must fail, where alchemist sustained injuries from breathing mercury vapors escaping from very hot oven in unventilated space in galley of drydocked vessel, because no case law supports proposition that practice of alchemy is within duties of seaman who is acting as caretaker aboard bottomless boat under Jones Act. McClendon v Omi Offshore Marine Service (1992, ED Tex) 807 F Supp 1266.
Welder's Jones Act (46 USCS Appx § 688) claim against employer will not be denied summarily, where accidents causing injuries occurred while welder was working on drill ship that was undergoing substantial repairs and performing sea trials, because jury needs to determine contested facts before it can be said whether employee was "seaman" on vessel "in navigation." Slaydon v Sonat Offshore Drilling, Inc. (1993, SD Tex) 818 F Supp 1009.
Where vessel had been raised from bottom, and master was helping mechanic remove salt deposit and sea water from engine, and master and mechanic testified that vessel could have gone to sea at time of injury, vessel was in navigation and master was entitled to recover under 46 USCS Appx § 688 for injuries sustained after slipping on oil and falling into drive shaft, which was uncovered for repairs. Barrell v Brown (1972) 261 Or 463, 495 P2d 733.
137. Seasonal repairs and laying-up
One engaged in reconditioning sight-seeing motorboats which were laid up on shore for winter was not "seaman" for whose accidental death action could be brought under Jones Act (46 USCS Appx § 688); there was no vessel engaged in navigation at time of decedent's death. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374.
Employee of defendant company, which operated boats on river during summer season, was not seaman for purposes of 46 USCS Appx § 688 while engaged in repairing boats hoisted on blocks prior to beginning of summer season. Desper v Starved Rock Ferry Co. (1952) 342 US 187, 96 L Ed 205, 72 S Ct 216, reh den 342 US 934, 96 L Ed 695, 72 S Ct 374, 1952 AMC 12.
Jones Act was inapplicable where vessel was in winter quarters, withdrawn from navigation, and was not "placed in the service of navigation" until 2 weeks after claimant's injury. Seneca Washed Gravel Corp. v McManigal (1933, CA2 NY) 65 F2d 779.
Claimant was not entitled to sue under 46 USCS Appx § 688 for injuries suffered while engaged in preparation of vessel for winter idle period, which work was not maritime in nature. Antus v Interocean S.S. Co. (1939, CA6 Ohio) 108 F2d 185.
No action would lie under 46 USCS Appx § 688 where injury occurred aboard excursion steamer operated only during summer months, at time when she was withdrawn from navigation and tied up for winter at owner's wharf. Nelson v Greene Line Steamers, Inc. (1958, CA6 Ky) 255 F2d 31, cert den 358 US 867, 3 L Ed 2d 100, 79 S Ct 100.
Vessel which, at time of accident, had been laid up for winter and was in process of being fitted out for coming sailing season was in navigation where many tasks typically accomplished during lay-up period could well be accomplished at sea without interruption to regular scheduling for major repairs. Noack v American S.S. Co. (1974, CA6 Ohio) 491 F2d 937.
Vessel in process of being prepared for customary winter lay-up was in navigation. Sweeney v American S.S. Co. (1974, CA6 Ohio) 491 F2d 1085.
Crew member injured while performing mechanical work on vessel moored for "winter lay up" without its regular crew, without Coast Guard certification to sail, and without its engine in operating condition is not seaman employed on vessel in navigation for purpose of Jones Act. Boyd v Ford Motor Co. (1991, CA6 Mich) 948 F2d 283, petition for certiorari filed (Feb 3, 1992).
JONES ACT- TABLE OF CONTENTS
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