Cruise Passenger Awarded $21 Million in Sliding Door Mishap

A U.S. District Court jury in Seattle awarded $21.5 million in damages to an Illinois man who suffered a brain injury after being struck in the head by a glass sliding door on the M/S AMSTERDAM.  The plaintiff was traveling with his wife and daughter on the first leg of their around-the-world cruise.  Plaintiff initially reported a facial contusion and chipped tooth.  He was later diagnosed with a concussion and post-concussion syndrome.  Plaintiff asserted that since the injury he began suffering from vertigo and seizures.  Plaintiff argued that there have been dozens of other injuries related to sliding doors in the Holland America fleet due to faulty sensor settings that allowed the doors to open and close faster than normal.  United States District Judge Barbara Rothstein allowed the jury to review evidence of 16 other incidents causing injury, including broken hips and back injuries, to passengers and crew members.  Plaintiff’s experts testified that the sensors were adjusted to open at the last moment and close after half a second of inactivity, which was against the manufacturer’s recommendation.  Plaintiff averred that this was done in order to save on air-conditioning.  Accordingly, the jury awarded plaintiff $5 million in compensatory damages and $16.5 million in punitive damages.

Hausman v. Holland America Line-USA, et al

A Case of Sexual Harassment?

Plaintiff, Valerie Russo, sued her employer, APL Marine Services, Ltd. and Captain James Londagin for sexual harassment, sexual discrimination, retaliation, negligence and unseaworthiness after her employment was terminated. The case arose out of a failed romantic relationship between Russo and Capt. Londagin. The two met in 2004 when Russo was serving as chief cook aboard the M/V APL KOREA. Over the next eight years, Russo made eleven voyages aboard the APL KOREA. In 2011, while serving together, they began a consensual sexual relationship. On completion of the voyage, their relationship continued on land. In late 2012 Russo signed up to serve aboard the APL KOREA to be with Capt. Londagin for its December 4, 2012 voyage to Japan. At the beginning of the voyage, the romance continued. About ten days into the voyage, however, Russo ended the relationship over a dispute. Russo alleged that after she ended her relationship, he engaged in harassing behavior towards her. She alleged that he slapped her on her buttocks on at least one occasion, requested they have “make-up sex” on ten occasions, banged on her door at night on several occasions, lay on the deck outside her cabin, criticized her work performance, and denied her overtime pay.

On December 21, 2012, Capt. Londagin terminated Russo’s employment and she was escorted off the ship at Yokohama. Capt. Londagin alleged she threw a Sharpie pen at him. That same day, Russo received a letter from APL advising she was terminated “for exhibiting aggressive behavior towards a senior officer.”

In March 2014, she filed suit. Thereafter defendants moved for dismissal of all claims.

First, the Court dismissed all of Russo’s claims under California law as the acts complained of occurred in international waters. This included her claims for sexual harassment, sexual discrimination, retaliation, and wrongful termination. The Court recognized that state statutes are ordinarily not given extraterritorial effect. The Court found that application of the California laws hinged on the “situs of both employment and the material elements of the cause of action.” Residency, place of the employment contract, and place of termination are not themselves sufficient to overcome the presumption that state law will not apply when the tortious conduct and situs of employment are outside the state. Here plaintiff spent the vast majority of her time of employment on vessels overseas, as did the conduct about which she complained.

As for her unseaworthiness claim on the grounds that Capt. Londagin was unfit for duty, the Court stated that the Captain’s temperament and abilities “must be within the usual and customary standards of the calling.” The question was whether the behavior was “within the usual and customary standards of the calling” or whether it was “a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature.” The Court dismissed the unseaworthiness claim noting that Capt. Londagin slapped her on the buttocks on only one occasion. Citing prior holdings, the Court found that “even unwelcome and harassing physical contact is insufficient to support a claim for unseaworthiness absent ‘a savage and vicious attack’.” A slap on the buttocks did not rise to that level.

The Court did keep intact Russo’s claim for negligent infliction of emotional distress under the Jones Act. The maritime law provides that negligent infliction of emotional distress occurs when a defendant subjects a plaintiff to emotional harm within the “zone of danger” created by the conduct of the defendant.

The Court found that the “zone of danger” test allows recovery for those plaintiffs who sustain a physical impact as a result of defendant’s conduct or who are placed in an immediate risk of physical harm by that conduct. Russo did not allege that she suffered physical impact, but the Court found that there were material questions of fact as to whether she feared an immediate risk of physical harm by the alleged sexual harassment aboard the ship. Russo provided evidence that she feared for her safety so much that she kept a chair behind her stateroom door so that he could not enter. This allegation was sufficient to support her claim that she feared the “immediate risk of physical harm.” Thus, her claim for negligent infliction of emotional distress was preserved for trial. Russo v. APL Marine Services, Ltd., 2015 WL 5626638, U.S. District Court, C.D. Calif.

Gangway Permanently Attached to Pier is Not Maritime Locality

In Adamson v. Port of Bellingham, No. 14-1804, 2015 WL 4716421 (W.D. Wash. August 6, 2015), a U.S. District Court in Washington was asked to determine whether the plaintiff’s common law negligence claim qualified as a maritime tort outside of admiralty jurisdiction, thus invoking Washington state law as opposed to maritime substantive law.  Plaintiff was an officer aboard the car ferry M/V COLUMBIA, owned by the State of Alaska.  Plaintiff was on a gangway leading from the port to the ship when it fell, injuring her.  The gangway was part of a steel structure permanently affixed to a pier extending from the land over the water.  In determining whether Plaintiff’s claim qualified as a maritime tort, the Court cited the two-part test identified by the Ninth Circuit in Taghadomi v. United States, 401 F.3d 1080, 1084 (9th Cir. 2005): 1) the tort must occur on or over navigable water to provide “situs” or “locality,” and 2) there must be a significant “nexus” between the actions giving rise to the claim and traditional maritime activity.


Turning to the “locality” component, the Court noted that the locality test excludes injuries occurring on permanent, fixed structures such as piers, jetties, bridges, and ramps.  The Court acknowledged cases where gangplanks or other methods of ingress and egress from a vessel met the locality test but noted that in those instances the claims were made against the vessel or vessel owner where there was a duty to provide a safe means of embarking and disembarking the ship.  In this case, Plaintiff did not bring suit against the State of Alaska, as owner of the M/V COLUMBIA.  Instead, the State of Alaska was made a third-party defendant and the claims against it were later dismissed on sovereign immunity-related grounds.  Since the Plaintiff did not bring a claim against the vessel, which may have owed a duty of care to its crew with respect to means of embarking and disembarking, and the fact that the gangway was permanently affixed to the pier, the Court found that the Plaintiff failed to meet the locality requirement of the test for maritime tort.


Adamson v. Port of Bellingham

Dropping Anchor Does Not Trigger a Requirement to Provide Notice Under La. RS § 40:1749.11 for Dredge Owner

A dredge, seeking to secure position for anchoring, lowered its dredge ladder and cutter head into the seabed, striking a pipeline. The pipeline owner sued the owner of the dredge claiming, among other things, the dredge owner acted negligently in failing to discharge its notification responsibilities under the Louisiana Underground Utilities and Facilities Protection Law, La. Rev. Stat. Ann. § 40:1749.11 et seq. (referred to as “the One–Call Statute”), before engaging in the anchoring procedure.


The pipeline owner moved for partial summary judgment seeking a ruling that the dredge owner and operator had engaged in “excavation” and was therefore required to provide advance notice under the One-Call Statute. The district court denied the motion, and the pipeline owner appealed to the U.S. Fifth Circuit. Because it is “excavation” that triggers the notification requirement in the statute, the critical question is whether the dredge owner’s anchoring procedure constitutes “excavation.”

The pipeline owner argued that the dredge owner’s anchoring activity was an “operation for the purpose of movement … of earth,” and thus constitutes “excavation” under § 1749.12(6)’s general definition of the term. Specifically, the pipeline argued that the dredge owner’s activity had “the purpose of” moving earth because, “to accomplish” the objective of stopping the movement of the dredge, “the cutter head would have to dig into the seabed and displace the earth.”

The Court held that under the rule of lenity, Louisiana courts resolve ambiguities in the “penal” statute, such as the one at issue in this matter, in favor of the defendants. As such, the Court was required to adopt a narrow reading of “purpose”. The Court also distinguished between “knowledge” of the operation “moving the earth” and “purpose” of the operation “moving the earth.”

The Court found that anchoring did not have the “purpose” of moving the earth, and the district court’s ruling denying the pipeline company’s motion was affirmed.

Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co.