UNITED STATES SUPREME COURT:

CHANDRIS, INC., v. Antonios LATSIS

HARBOR TUG AND BARGE COMPANY, v. John PAPAI et ux.

Deckhand was injured on one-day job obtained through union hiring hall, while painting tug, filed suit against employer, claiming negligence under the Jones Act. The United States District Court for the Northern District of California granted employer's motion for summary judgment, and deckhand appealed. The Ninth Circuit Court of Appeals, reversed and remanded, and employer petitioned for certiorari. The Supreme Court, Justice Kennedy, held that: (1) employee's prior work history with particular employer does not affect Jones Act seaman inquiry if employee was injured on a new assignment with the same employer; (2) in deciding whether there is an identifiable group of vessels of relevance for Jones Act seaman status determination, question is whether the vessels are subject to common ownership or control; (3) prior employments with independent employers should not be considered in determining Jones Act seaman status; (4) fact that union agreement classified worker as a "qualified deckhand," and a "satisfactory helmsman and lookout," did not give him claim to Jones Act seaman status; (5) deckhand did not establish substantial connection with fleet of vessels, so as to satisfy requirement for Jones Act seaman status, by virtue of his 12 prior employments with same employer over two and one-half month period before his injury; and (6) deckhand did not have a substantial connection with a fleet of vessels, where only connection among the vessels deckhand worked aboard previously was that each hired some of its employees from the same union hiring hall where it hired him.

Decided Jan. 9, 2002.

VELLA v. FORD MOTOR CO.

April 15, 1975

Jones Act seaman brought a suit for, maintenance and cure based on a severe blow to his head when it struck an electrical box. The seaman suffered from a vestibular disorder defined as damage to the balancing mechanism of the inner ear and that the disorder could not be cured by treatment. A jury awarded him maintenance and cure. The district court denied the shipowner's motion for judgment notwithstanding the verdict brought on the ground that the award was not within the permissible scope of maintenance and cure. The appellate court reversed. The United States Supreme Court reversed and held that in personal injury admiralty matters, maintenance and cure continued until such time as the incapacity was declared to be permanent. Denial of maintenance and cure when the seaman's injury, though in fact permanent immediately after the accident, was not medically diagnosed as permanent until long after its occurrence would have disserved and frustrated the combined object of encouraging marine commerce and assuring the well-being of seamen.

WALDRON v. MOORE-McCORMACK LINES, INC.

May 8, 1967, Decided

Jones Act seaman, a member of the shipowner's crew, was injured while uncoiling a heavy rope with one other man. He filed an action against the shipowner-employer claiming that assigning only two men to do a task that required three or four men constituted negligence and made the vessel unseaworthy. The trial court directed a verdict for the shipowner on the unseaworthiness issue and the jury found for the shipowner on the negligence issue. The appellate court affirmed, stating that the sailor could not recover without proof of negligence. The United States Supreme Court court reversed, finding that unseaworthiness liability was not dependent on negligence. The court found that, given the broad remedial purposes of the doctrine of unseaworthiness to protect seamen from dangerous conditions beyond their control, there was no justification to distinguish between the ship's equipment and its personnel. Even though the equipment was safe and sufficient, the court ruled that its misuse by the crew rendered the vessel unseaworthy, and that assigning too few men to the task caused both the men and the rope to be misused. The court allowed the sailor to present the unseaworthiness issue to the jury.

JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK CO. et al.

Decided February 22, 1995

The Chicago River flooded a freight tunnel under the river and the basements of many buildings, Plaintiff a corporation and other victims brought tort actions in state court against respondent Great Lakes Dredge & Dock Co. and Plaintiff Chicago. They claimed that in the course of pile driving from a barge into the river bed months earlier, Great Lakes negligently weakened the tunnel, which had been improperly maintained by the city. Great Lakes then filed this action, invoking federal maritime jurisdiction and seeking, inter alia, the protection of the Limitation of Vessel Owner's Liability Act. That Act would permit the maritime court to decide whether Great Lakes had committed a tort and, if so, to limit its liability to the value of the barges and tug involved if the tort was committed without the privity or knowledge of the vessels' owner. The Federal District Court dismissed the suit for lack of maritime jurisdiction, but the Court of Appeals reversed.

The United States Supreme Court held that the District Court has federal maritime jurisdiction over Great Lakes 's Limitation Act suit.

LEWIS v. LEWIS & CLARK MARINE, INC.

Decided February 21, 2001

Plaintiff sued defendant in an Illinois County Court for personal injuries he suffered while working on defendant¿s ship. He did not request a jury trial. In anticipation of his suit, respondent had filed a complaint for exoneration from, or limitation of, liability in Federal District Court pursuant to the Limitation of Liability Act (Limitation Act or Act). Following the procedure for limitation actions set forth in Supplemental Maritime and Maritime Claims Rule F, the court approved a surety bond representing defendant¿s interest in the vessel, ordered that any claim related to the incident be filed with the court within a specified period, and enjoined the filing or prosecution of any suits related to the incident. Plaintiff, inter alia, moved to dissolve the restraining order, stating that he was the only claimant, waiving any res judicata claim concerning limited liability from a state court judgment, stipulating that defendant could relitigate limited liability issues in the District Court, and stipulating that his claim¿s value was less than the value of the limitation fund. The District Court recognized that federal courts have exclusive jurisdiction to determine whether a vessel owner is entitled to limited liability, but also recognized that the statute conferring exclusive jurisdiction over maritime and maritime suits to federal courts saves to suitors ¿all other remedies to which they are other wise entitled.¿ 28 U.S.C. § 1333(1). The trial court found two exceptions to exclusive federal jurisdiction under which a claimant may litigate his claim in state court¿where the limitation fund¿s value exceeds the total value of all claims asserted against the vessel owner, and where there is a single claimant. The trial court dissolved the injunction because Plaintiff met the first and, probably, second exceptions, and retained jurisdiction over the limitation action to protect the vessel owner¿s right should the state proceedings necessitate further federal court proceedings. In holding that the District Court abused its discretion in dissolving the injunction, the Eighth Circuit found that defendant had a right to seek exoneration from, not mere limitation of, liability in federal court; that because Plaintiff did not request a jury trial, he had not sought a saved remedy in state court; and that because there was no conflict between the saving to suitors clause and the Limitation Act here, there was no basis for dissolving the injunction.

United States Supreme Court held that because state courts may adjudicate claims like Plaintiff¿s against vessel owners so long as the owner¿s right to seek limitation of liability is protected, the Eighth Circuit erred in reversing the District Court¿s decision to dissolve the injunction.

AMERICAN DREDGING CO. v. MILLER

Decided February 23, 1994

After plaintiff was injured while working as a seaman on a tug operating on the Delaware River and owned by Plaintiff, a Pennsylvania corporation with its principal place of business in New Jersey, he filed this action in a Louisiana state court pursuant to the "saving to suitors clause," 28 U.S.C. § 1333(1), seeking damages under the Jones Act, 46 U. S. C. App. §688, and relief under general maritime law. The trial court granted Plaintiff's motion to dismiss under the doctrine of forum non conveniens, holding that it was bound to apply that doctrine by federal maritime law. The Court of Appeal affirmed, but the Supreme Court of Louisiana reversed, holding that a state statute rendering the doctrine of forum non conveniens unavailable in Jones Act and maritime law cases brought in state court is not pre-empted by federal maritime law.

Affirmed by the United States Supreme Court. In maritime cases filed in a state court under the Jones Act and the "saving to suitors clause," federal law does not pre-empt state law regarding the doctrine of forum non conveniens. Pp. 2-13.

DOOLEY, et al. v. KOREAN AIR

LINES CO., LTD.

Decided June 8, 1998

The Death on the High Seas Act (DOHSA) allows relatives of a decedent to sue for their own pecuniary losses, but does not authorize recovery for the decedent¿s pre-death pain and suffering. Plaintiffs, personal representatives of three passengers killed when Korean Air Lines Flight KE007 was shot down over the Sea of Japan , sued respondent airline (KAL) for damages for their decedents¿ pre-death pain and suffering.

United States Supreme Court held: Because Congress chose not to authorize a survival action for a decedent¿s pre-death pain and suffering in a case of death on the high seas, there can be no general maritime survival action for such damages. Before Congress enacted DOHSA, maritime law did not permit an action to recover damages for a person¿s death. In DOHSA, Congress authorized such a cause of action for certain surviving relatives in cases of death on the high seas, 46 U.S.C. App. §761, but limited recovery to the survivors¿ own pecuniary losses, §762. DOHSA¿s limited survival provision also restricts recovery to the survivors¿ pecuniary losses. §765.

By authorizing only certain surviving relatives to recover damages, and by limiting damages to those relatives¿ pecuniary losses, Congress provided the exclusive recovery for deaths on the high seas. Plaintiffs concede that their action would expand the class of beneficiaries entitled to recovery and the recoverable damages; but Congress has already decided these issues and, thus, has precluded the judiciary from expanding either category. DOHSA¿s survival provision confirms the Act¿s comprehensive scope by expressing Congress¿ considered judgment on the availability and contours of a survival action in cases of death on the high seas. Congress has simply chosen to adopt a more limited survival provision than that urged by Plaintiffs. Indeed, Congress did so in the same year that it incorporated a survival action similar to the one Plaintiffs seek into the Jones Act, permitting seamen to recover damages for their own injuries. In the exercise of its maritime jurisdiction, the Court will not upset the balance Congress struck by authorizing a cause of action with which Congress was certainly familiar but nonetheless declined to adopt. Affirmed.

SARATOGA FISHING CO. v. J. M. MARTINAC & CO. et al.

Decided June 2, 1997

In East River S. S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, this Court held that an maritime tort plaintiff cannot recover for the physical damage a defective product causes to the "product itself," but can recover for physical damage the product causes to "other property." The parties here agree that the "product itself" consists at least of a ship as built and outfitted by its original manufacturer and sold to an initial user. Respondent J. M. Martinac & Co. built the fishing vessel the M/V Saratoga, installing a hydraulic system designed by respondent Marco Seattle Inc. Joseph Madruga, the Initial User, bought the ship new, added extra equipment, used the ship, and resold it to Plaintiff Saratoga Fishing Co., the Subsequent User, who used it until it caught fire and sank. In this maritime tort suit against respondents, the District Court found that the hydraulic system had been defectively designed and awarded Saratoga Fishing damages, including damages for the loss of the equipment added by Madruga. The Ninth Circuit reversed, holding that the added equipment was part of the ship when it was resold to Saratoga Fishing, and, for that reason, the equipment was part of the defective product that itself caused the harm.

The United States Supreme Court held: Equipment added by the Initial User before he sold the ship to the Subsequent User is "other property," not part of the product that itself caused physical harm. This Court held in East River that an injury to the defective product itself, even though physical, was a kind of "economic loss," for which tort law did not provide compensation. 476 U. S., at 871. Reasoning that "[c]ontract law, and the law of warranty in particular, is well suited" to setting the responsibilities of a seller of a product that fails to perform its intended function,  the Court found that, given the availability of warranties, the courts should not ask tort law to perform a job that contract law might perform better. The Ninth Circuit's holding that recovery should be denied for added equipment because the Subsequent User could have asked the Initial User for a warranty creates a tort damage immunity beyond that set by any relevant tort precedent. Had the ship remained in the Initial User's hands, the added equipment's loss could have been recovered in tort, and there is no suggestion in state or federal law that these results would change with a subsequent sale. Indeed, other things being equal, a rule that diminishes liability because of resale would diminish a basic incentive of defective product tort law: to encourage the manufacture of safer products. East River provides an unsatisfactory answer to the question why a series of resales should progressively immunize a manufacturer from liability for foreseeable physical damage that would otherwise fall upon it, since the Subsequent User does not contract directly with the manufacturer, and it is likely more difficult for a consumer to offer the appropriate warranty on used products. While nothing prevents a user/reseller from offering a warranty, respondents have not explained why the ordinary rules of a manufacturer's tort liability should be supplanted merely because the user/reseller may in theory incur an overlapping contract liability. The holding here does not affect East River's rule that it is not a component part, but the vessel--as placed in the stream of commerce by the manufacturer and its distributors--that is the "product" that itself causes the harm. Nor does the holding impose too great a potential tort liability upon a manufacturer or a distributor. It merely maintains liability, for equipment added after the initial sale, despite the presence of a resale by the Initial Reversed.

NORFOLK SHIPBUILDING & DRYDOCK CORP. v. GARRIS

Decided June 4, 2001

In her complaint filed in the District Court, respondent alleged that her son died as a result of injuries sustained while performing sandblasting aboard a vessel berthed in the navigable waters of the United States . She further asserted that the injuries were caused by the negligence of Plaintiff and another, and prayed for damages under general maritime law. The District Court dismissed the complaint for failure to state a federal claim, stating that no cause of action exists, under general maritime law, for death resulting from negligence. The Fourth Circuit reversed, explaining that although this Court had not yet recognized a maritime cause of action for wrongful death resulting from negligence, the principles contained in Moragne v. States Marine Lines, Inc., 398 U.S. 375, made such an action appropriate.

The United States Supreme Court held:  The general maritime cause of action recognized in Moragne¿for death caused by violation of maritime duties, ¿is available for the negligent breach of a maritime duty of care. Although Moragne¿s opinion did not limit its rule to any particular maritime duty, Moragne¿s facts were limited to the duty of seaworthiness, and so the issue of wrongful death for negligence has remained technically open. There is no rational basis, however, for distinguishing negligence from unseaworthiness. Negligence is no less a maritime duty than seaworthiness, and the choice-of-law and remedial anomalies provoked by withholding a wrongful death remedy are no less severe. Nor is a negligence action precluded by any of the three relevant federal statutes that provide remedies for injuries and death suffered in maritime: the Jones Act, the Death on the High Seas Act, and the Longshore and Harbor Workers¿ Compensation Act. Because of Congress¿s extensive involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further development to Congress. The cause of action recognized today, however, is new only in the most technical sense. The general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury. Affirmed.

Miles v. Apex Marine Corp. (89-1158), 498 U.S. 19 (1990)

Decided November 6, 1990

Plaintiff Miles, the mother and administratrix of the estate of a seaman killed by a fellow crew member aboard the vessel of respondents docked in an American port, sued Apex in District Court, alleging negligence under the Jones Act for failure to prevent the assault and breach of the warranty of seaworthiness under general maritime law for hiring a crew member unfit to serve. After the court ruled, that the estate could not recover the son's lost future income, the jury found that the ship was seaworthy but that Apex was negligent. Although it awarded damages on the negligence claim to Miles for the loss of her son's support and services and to the estate for pain and suffering, the jury found that Miles was not financially dependent on her son and was therefore not entitled to damages for loss of society. The Court of Appeals affirmed the judgment of negligence by Apex. As to the general maritime claim, the court ruled that the vessel was unseaworthy as a matter of law, but held that a nondependent parent may not recover for loss of society in a general maritime wrongful death action and that general maritime law does not permit a survival action for decedent's lost future earnings.

1. There is a general maritime cause of action for the wrongful death of a seaman. The reasoning of Moragne v. States Marine Lines, Inc., which created a general maritime wrongful death cause of action, extends to suits for the death of true seamen despite the fact that Moragne involved a longshoreman. Although true seamen, unlike long- shoremen, are covered under the Jones Act provision creating a negli-gence cause of action against the seaman's employer for wrongful death, Moragne, recognized that that provision is preclu- sive only of state remedies for death from unseaworthiness and does not pre-empt a general maritime wrongful death action. The Jones Act evinces no general hostility to recovery under maritime law, since it does not disturb seamen's general maritime claims for injuries resulting from unseaworthiness, and does not preclude the recovery for wrongful death due to unseaworthiness created by its companion statute, the Death On the High Seas Act (DOHSA). Rather, the Jones Act establishes a uniform system of seamen's tort law. As the Court concluded in Moragne, that case's extension of the DOHSA wrongful death action from the high seas to territorial waters furthers rather than hinders uniformity in the exercise of maritime jurisdiction. There is also little question that Moragne intended to create a general maritime wrongful death action applicable beyond the situation of longshoremen, since it expressly overruled The Harrisburg, 119 U.S. 199.

2. Damages recoverable in a general maritime cause of action for the wrongful death of a seaman do not include loss of society. This case is controlled by the logic of Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, which held that recovery for nonpecuniary loss, such as loss of society, is foreclosed in a general maritime action for death on the high seas because DOHSA, by its terms, limits recoverable damages in suits for wrongful death on the high seas to "pecuniary loss sustained by the persons for whose benefit the suit is brought" (emphasis added). Sea- Land Services, Inc. v. Gaudet, 414 U.S. 573, which allowed recovery for loss of society in a general maritime wrongful death action, applies only in territorial waters and only to longshoremen. The Jones Act, which applies to deaths of true seamen as a result of negligence, allows recovery only for pecuniary loss and not for loss of society in a wrongful death action. See Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 69-71. The Jones Act also precludes recovery for loss of society in this case involving a general maritime claim for wrongful death resulting from unseaworthiness, since it would be inconsistent with this Court's place in the constitutional scheme to sanction more expansive remedies for the judicially-created unseaworthiness cause of action, in which liability is without fault, than Congress has allowed in cases of death resulting from negligence. This holding restores a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.

3. A general maritime survival action cannot include recovery for decedent's lost future earnings. Even if a seaman's personal cause of action survives his death under general maritime law, the income he would have earned but for his death is not recoverable because the Jones Act's survival provision limits recovery to losses suffered during the decedent's lifetime. Since Congress has limited the survival right for seamen's in- juries resulting from negligence, this Court is not free, under its maritime powers, to exceed those limits by creating more expansive remedies in a general maritime action founded on strict liability. Affirmed.

________________

Summary-person injured on plank of ship and fell on the dock due to the owner's failure to provide a hand rope or railing extending along either side of the gangplank to the shore end, in failing to have the plank flush with the dock or taper off to the level of the dock, and in failing to give warning of the step. The ship owner file an exception to libel contending that this isn¿t under admiralty jurisdiction.

Petitioner was a passenger on the steamship 'Admiral Peoples' on her voyage from Wilmington, Cal., to Portland, Or. While disembarking at Portland, petitioner was injured by falling from a gangplank leading from the vessel to the dock. Allegedly, upon instructions from one of respondent's officers, libelant proceeded along the plank, and as she reached its lower end, being unaware of the step and having no warning, she fell from the plank and was 'violently and forcibly thrown forward upon the dock in such manner as to cause the injuries.

Whether the injuries sustained by the Plaintiff on the plank of the ship, which threw her to the dock comes under admiralty jurisdiction? Yes, the gangplank was a part of the vessel. It was a part of the vessel's equipment, which was placed in position to enable its passengers to reach the shore. It was no less a part of the vessel because in its extension to the dock it projected over the land. Thus, while libelant was on the gangplank, she had not yet left the vessel.

Neither the short distance that she fell, nor the fact that she fell on the dock and not in the water, alters the nature of the cause of action which arose from the breach of duty owing to her while she was still on the ship and using its facility for disembarking.

Reason-Jurisdiction in cases of tort depends upon the locality of the injury. It does not extend to injuries caused by a vessel to persons or property on the land. Where the cause of action arises upon the land, the state law is applicable.

_______________

Deluth Superior Excursions, Inc. v. Makela

Summary-car hits man on land, but the wrong which caused the driver to hit him was done on the vessel where he became intoxicated. The ship owner wants to come under admiralty jurisdiction to limit their liability, but the district court says this isn¿t under admiralty jurisdiction. REVERSED

Negligence alleged--the defendants inadequately supervised the passengers aboard the Flamingo, who consequently became illegally intoxicated, and they failed to provide a safe means of exit for these passengers.

Joseph Makela was struck and seriously injured by a car while crossing Harbor Drive in Duluth, Minnesota. The driver of the car was allegedly intoxicated. Both Makela and the car's driver had

just disembarked from a three hour privately chartered "booze cruise" on the S.S. Flamingo around the Duluth-Superior harbor.

Whether the alleged wrong is related to traditional maritime activity? Yes, carrying passengers for hire is undoubtedly a traditional maritime activity, and suits in tort for personal injuries to passengers are clearly included in admiralty jurisdiction

There is little question that the wrongs allegedly committed by the vessel took place on navigable waters. The district court held, however, that vessel failed to show the requisite relationship between these wrongs and traditional maritime activities. The district court based its holding on the conclusion that inadequate supervision, illegal intoxication, and failure to provide a safe exit are not traditional maritime acts.

The admiralty and maritime jurisdiction of the United States shall extend to and include all cases

of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.

Test to determine if under admiralty jurisdiction is:

"Whether the alleged wrong is related to traditional maritime activity?"

_______________

Summary-Filipino seaman who was injured while in international waters off the coast of Florida while serving aboard a Norwegian vessel brought suit in Louisiana seeking recovery under the Jones Act, general maritime law, and federal maritime law.

Lejano, a Filipino seaman, was working aboard the M/V BANDAK in the straits of Florida after sailing from Mobile, Alabama. Mr. Lejano was working on a suspended scaffold when a rope broke which had been holding the scaffold, resulting in his falling approximately thirty feet to the deck below. At the time of the accident, the M/V BANDAK was located in international waters, and was owned and operated by defendant, K.S. Bandak. Mr. Lejano suffered severe injuries as a result of the accident, including quadriplegia and brain damage. Mr. Lejano was hospitalized for a few months in a hospital in Miami, Florida. He was subsequently transferred to a hospital in the Republic of the Philippines in February, 1992, where he was hospitalized for an additional 10 months.

Whether the forum selection clause, contained in a collective bargaining agreement between the union and the seaman is enforceable? Yes, the forum selection provision of the employment contract is not adhesive, neither is it affected by fraud, undue influence, or overweening bargaining power. It repeats the provision of the employment contract between Mr. Lejano and defendant repeats the language of the forum selection provision in the collective bargaining agreement. The employment contract also specifically states that a claim arising from the contract is to be brought in either Norway or the Philippines, subject to application of Norwegian's law.

Whether this court should require him to file in either of these forums if during the pendency of his case in the courts of this state, his claims have prescribed in both Norway and the Philippines, and he will be deprived of his day in court? Yes, the trial court has assured protection of Mr. Lejano's "day in court" by staying the matter for six months, during which time Mr. Lejano is to file suit in either Norway or the Philippines. The trial court also stated in its Judgment that "if the plaintiffs can show that the defendants are attempting to frustrate their efforts to pursue this claim in a foreign forum, this Court will proceed to adjudicate this claim applying Philippine or Norwegian law." Therefore, Mr. Lejano does have safeguards against the loss of his day in court based on any claims of prescription.

Reason-Mr. Lejano is a member of the collective bargaining unit represented by a union, while defendant/shipowner is a member of the collective bargaining unit represented by Norwegian govt. The forum selection clause is the result of negotiations between the Philippine Seamen's union and the Norwegian government.

Forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be unreasonable under the circumstances." Bremen v. Zapata Off-Shore Co.

The Supreme Court, Johnson, J., held that:

1. courts of Louisiana sitting in admiralty should examine validity and enforceability of forum selection clauses in accordance with federal law and standards;

2. forum selection clause which required that Filipino seaman bring suit in Norway or the Philippines was enforceable;

3. forum selection clause which provided that suit "may" be brought in either Norway or the Philippines was mandatory, and not permissive; and

(4) Statutes precluding forum selection clauses in transactions or interactions between out-of-

state, professional telephone solicitors and Louisiana residents does not forbid forum

selection clauses as against public policy as they relate to maritime.

_______________

A Filipino seaman was injured while in international waters off the coast of Florida brought suit in Louisiana seeking recovery under the Jones Act, general maritime law, and alternatively under law of Philippines or Norway.

Whether the court should have declined to exercise that jurisdiction and require Mr. Valdez to bring his claim in the Philippines or Norway as provided in the overseas employment contract? No, Carlos Valdez has shown that enforcement of this provision against him, who was not a member of AMOSUP (the union), who was not aware of the CBA (collective bargaining agreement), and who did not receive the compensation paid regular crewmembers would be overreaching, unreasonable and unjust, the trial court correctly found that the forum selection clause was not enforceable under federal law.

Reason-Mr. Valdez, unlike Mr. Lejano, was not a member of the Philippine union that was a party to the collective bargaining agreement (hereafter CBA) from which the POEA contract was derived. He was not a veteran seaman. In fact, he had never been to sea before he joined the Vestri in Philadelphia where he executed the shipping articles, his contract of employment with the ship. The CBA between Peder Smedvig Singapore PTE, Ltd. and the union provides that it will be applicable to Filipino officers who are members of the Union. Mr. Valdez was not an officer, he was a cadet. The CBA provides that cadets are excluded from paying union dues. Unlike the officers to whom the CBA was applicable a cadet received a stipend rather than the compensation paid a regular salaried crewmember. Mr. Valdez was required to execute an affidavit in Manila attesting to his understanding of this difference between the compensation paid him and regular crew members. Attached to the CBA is an appendix which lists the union members in the Vestri crew; Carlos Valdez' name does not appear on that list. Mr. Valdez testified that he had no knowledge of any collective bargaining agreement.

The forum selection clause contained in the overseas employment contract was not enforceable against Mr. Valdez under the law of the United States, the Philippines, or Norway.

A forum selection clause should be enforced absent a clear showing that enforcement would be unreasonable and unjust, or that the clause is invalid for such reasons as fraud or overreaching.

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.

(2) The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee's contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

_______________

Bremen made an agreement to tow a drilling rig from Louisiana to Italy. The contract contained a forum-selection clause providing for litigation of any dispute in London. When the rig under tow was damaged in a storm, Zapata instructed Bremen to tow the rig to Tampa, the nearest port of refuge. There, Zapata brought suit in admiralty against petitioners. Bremen invoked the forum clause in moving for dismissal for want of jurisdiction and brought suit in the English court, which ruled that it had jurisdiction under the forum-selection clause.

Whether the forum selection clause included in the contract submitted by Bremen, which contained a provision that any dispute arising must be treated before the London Court of Justice is enforceable? Yes, the London Court of Justice was a part of the contract, the clause was prima facie valid and was to be honored by the parties and enforced by the courts in the absence of some compelling and countervailing reason making enforcement unreasonable.

Whether Bremen waived his initial motion to dismiss by filing an action to limit its liability without the District Court's having ruled on their initial motion to dismiss or stay Zapata's action pursuant to the forum clause? No, Bremen had no other prudent alternative but to protect itself by filing for limitation of its liability. Its action in so doing was a direct consequence of Zapata's failure to abide by the forum clause of the towage contract. There is no basis on which to conclude that this purely necessary defensive action by Bremen should preclude it from relying on the forum clause it bargained for.

1. Much uncertainty and possibly great inconvenience to both parties could arise if a suit could

   be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left

   to any place where the Bremen or Zapata might happen to be found. The elimination of all

   such uncertainties by agreeing in advance on a forum acceptable to both parties is an

   indispensable element in international trade, commerce, and contracting. There is strong

   evidence that the forum clause was a vital part of the agreement, and it would be unrealistic

   to think that the parties did not conduct their negotiations, including fixing the monetary

   terms, with the consequences of the forum clause figuring prominently in their calculations.

2. Indeed, it cannot even be assumed that it would be placed to the expense of transporting its witnesses to London. It is not unusual for important issues in international admiralty cases to be dealt with by deposition. Both the District Court and the Court of Appeals majority appeared satisfied that Bremen could receive a fair hearing in Tampa by using deposition testimony of its witnesses from distant places, and there is no reason to conclude that Zapata could not use deposition testimony to equal advantage if forced to litigate in London as it  bound itself to do. Nevertheless, to allow Zapata opportunity to carry its heavy burden of showing not only that the balance of convenience is strongly in favor of trial in Tampa (that is, that it will be far more inconvenient for Zapata to litigate in London than it will be for  Bremen to litigate in Tampa), but also that a London trial will be so manifestly and gravely inconvenient to Zapata that it will be effectively deprived of a meaningful day in court, we remand for further proceedings.

_______________

A. A seaman's entitlement to wages and provisions begins when the seaman begins work or when specified in the agreement for the seaman to begin work or be present on board, whichever is earlier.

B. Wages are not dependent on the earning of freight by the vessel. When the loss or wreck of the vessel ends the service of a seaman before the end of the period contemplated in the agreement, the seaman is entitled to wages for the period of time actually served. The seaman shall be deemed a destitute seaman under section 11104 of this title. This subsection applies to a fishing or whaling vessel but not a yacht.

C. When a seaman who has signed an agreement is discharged improperly before the beginning of the voyage or before one month's wages are earned, without the seaman's consent and without the seaman's fault justifying discharge, the seaman is entitled to receive from the master or owner, in addition to wages earned, one month's wages as compensation.

D. A seaman is not entitled to wages for a period during which the seaman--

1. unlawfully failed to work when required, after the time fixed by the agreement for the seaman to begin work; or

2. lawfully was imprisoned for an offense, unless a court hearing the case otherwise directs.

E. After the beginning of the voyage, a seaman is entitled to receive from the master, on demand, one-half of the balance of wages earned and unpaid at each port at which the vessel loads or delivers cargo during the voyage. A demand may not be made before the expiration of 5 days from the beginning of the voyage, not more than once in 5 days, and not more than once in the same port on the same entry. If a master does not comply, the seaman is released from the agreement and is entitled to payment of all wages earned. Notwithstanding a release signed by a seaman under section 10312 of this title, a court having jurisdiction may set aside, for good cause shown, the release and take action that justice requires. This subsection does not apply to a fishing or whaling vessel or a yacht.

F. At the end of a voyage, the master shall pay each seaman the balance of wages due the seaman within 24 hours after the cargo has been discharged or within 4 days after the seaman is discharged, whichever is earlier. When a seaman is discharged and final payment of wages is delayed for the period permitted by this subsection, the seaman is entitled at the time of discharge to one-third of the wages due the seaman.

G. When payment is not made as provided under subsection (F) without sufficient cause, the master or owner shall pay to the seaman 2 days' wages for each day payment is delayed.

H. Subsections (F) and (G) do not apply to a fishing or whaling vessel or a yacht.

1. This section applies to a seaman on a foreign vessel when in a harbor of the United States. The courts are available to the seaman for the enforcement of this section.

Griffin signed an employment contract with Oceanic agreeing to work as a senior pipeline welder on board their vessel operated in the North Sea. The contract specified that petitioner's employment would extend "until December 15, 1976 or until Oceanic's 1976 pipeline committal in the North Sea is fulfilled, whichever shall occur first." The contract also provided that Oceanic would pay for transportation to and from the worksite, but if Griffin quit the job prior to its termination date, or if his services were terminated for cause, he would be charged with the cost of transportation back to the U.S. Oceanic reserved the right to withhold $137.50 from each of petitioner's first four paychecks "as a cash deposit for the payment of his return transportation in the event Griffin should become obligated for its payment."

On March 6, 1976, Griffin flew from the United States to Antwerp, Belgium, to report for work on Oceanic¿s Lay Barge berthed in the Antwerp harbor for repairs. On April 1, 1976, petitioner suffered an injury while working on the deck of the vessel. Two days later he underwent emergency surgery in Antwerp. On April 5, petitioner was discharged from the hospital and went to Oceanic¿s Antwerp office and provided a physician's statement that he was not fit for duty. Williams refused to acknowledge that petitioner's injury was work-related and denied that respondent was liable for medical and hospital expenses, maintenance, or unearned wages. Williams also refused to furnish transportation back to the United States, and continued to retain $412.50 in earned wages that had been deducted from petitioner's first three paychecks for that purpose. Griffin returned to his home at his own expense. He was examined there by a physician who determined that he would be able to resume work on May 3, 1976. On May 5, Griffin began working as a welder for another company.

In 1978 he brought suit against respondent under the Jones Act, and under general maritime law, seeking damages for respondent's failure to pay maintenance, cure, unearned wages, repatriation expenses, and the value of certain personal effects lost on board respondent's vessel. Griffin also sought penalty wages for respondent's failure to pay over the $412.50 in earned wages allegedly due upon discharge. The District Court found for petitioner and awarded damages totalling $23,670.40.

Whether the District Court erred in allowing Griffin to be compensated for the penalty wages set out in the statute, only for the time which he was unemployed? Yes, Griffin is entitled to recover the penalty wages of the statute for each and every day from when they are due until paid, regardless of how non-equitable the penalty wages may seem. The District Court obviously did not assess double wages "for each and every day" during which payment was delayed, but instead limited the assessment to the period of petitioner's unemployment. Nothing in the language of the statute vests the courts with the discretion to set such a limitation.

Reason-The penalty wages are in the nature of punitive remedies to authorize awards that may be out of proportion to actual injury; such remedies typically are established to deter particular conduct, and the legislature not infrequently finds that harsh consequences must be visited upon those whose conduct it would deter.

Pursuant to statute requiring certain masters and vessel owners to pay seamen promptly after their discharge and authorizing seamen to recover double wages for each day that payment is delayed without sufficient cause, district court had no discretion to limit period during which wage penalty was assessed, but imposition of penalty was mandatory for each day that payment was withheld and could not be limited to period of seaman's unemployment.

Pursuant to statute requiring certain masters and vessel owners to pay seamen promptly after their discharge and authorizing seamen to recover double wages for each day that payment is delayed without sufficient cause, district court's entry of judgment for back pay will not toll running of penalty period unless delays beyond that date are explained by sufficient cause.

A defense attorney could have used the "theory of latches" and questioned why the plaintiff waited so long to bring this action?

50% of the world's vessels fly flags of convenience. Virtually all bulk carriers fly flags of convenience. 85% of the ships that enter the Mississippi River are bulk carriers. These bulk carriers are in terrible shape and are on an average of over 20 years old.

Penalty wages are now called delay wages.

_______________

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.