VII. PRACTICE AND PROCEDURE F. Pleadings and Motions 2. Answer - Maritime Lawyer Hawaii
   

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An important victory in the fight for individual rights (as opposed to insurer rights) is the case of Yukumoto and HMSA v. Tawahara. In that case on May 26, 2017, the Hawaii Supreme Court rejected the efforts of a health insurer who tried to convert its insurance coverage into a 'loan agreement' and recover its medical expense payments from Mr. Yukumoto when he had a 3rd party claim - in spite of the fact that he was not being fully compensated for his losses. This insidious insurance practice has been damaging the citizens and members of the Hawaii community for many years. For more info, see the decision here: Yukumoto and HMSA v. Tawahara, Hawaii Sup. Ct. No. SCAP-15-0000460 (May 26, 2017).



 

 

JONES ACT - TABLE OF CONTENTS

The Jones Act

VII. PRACTICE AND PROCEDURE F. Pleadings and Motions 2. Answer

588. Amendment

Defendant was permitted to file amended answer to plead that at time of injury he was acting as agent of United States although result would be to dismiss complaint; denial would grant plaintiff right to recover against one not his employer and permit jury trial to which he was not entitled against United States. Murphy v Parry Navigation Co. (1949, DC NY) 87 F Supp 127, 1949 AMC 2084.

Defense of limitation of liability may be asserted in answer even though it be served and filed more than six months after owner of vessel receives written notice of claim; but, in instant case, defendant was not permitted to amend his answer to set up such defense two years after filing original answer and on eve of trial. Odegard v E. Quist, Inc. (1961, ED NY) 199 F Supp 449.


589. Impleader

Shipowner against whom seaman brought action under 46 USCS Appx § 688 for personal injuries inflicted upon him by fellow crew member could implead assailant as third-party defendant. Codrington v United States Lines Co. (1958, DC NY) 168 F Supp 261, 1958 AMC 2233.

Oil wells owner and operator's third-party admiralty demand against doctor must be dismissed, where injured employee sued owner and operator under Jones Act (46 USCS Appx § 688) and requested jury trial, owner and operator then sued doctor for negligent treatment of injured employee under Rule 14(c), and finally employers and employee settled their original action, because absent specific assertion in original plaintiff's complaint that admiralty jurisdiction is claimed under Rule 9(h), third-party plaintiffs cannot properly invoke Rule 14(c) direct demand for judgment against third-party defendant. Harrison v Glendel Drilling Co. (1988, WD La) 679 F Supp 1413.


590. Counterclaims

Actions in personam to recover damages caused by collisions in navigable waters not being within exclusive jurisdiction of admiralty can be raised as counterclaims to actions under 46 USCS Appx § 688. Carstens v Great Lakes Towing Co. (1945, DC Ohio) 71 F Supp 394.

Third party defendant in 46 USCS Appx § 688 action could not counterclaim against plaintiff for indemnity. Cavelleri v Isthmian Lines, Inc. (1961, SD NY) 190 F Supp 801.

Counterclaim based upon seaman's employment contract or theory of unjust enrichment in regard to employment may be asserted by defendant in 46 USCS Appx § 688 suit. Bergeria v Marine Carriers, Inc. (1972, ED Pa) 341 F Supp 1153, 16 FR Serv 2d 1268.

Voluntary payments of maintenance and cure made to seaman can be raised as offset or counterclaim in action by seaman under 46 USCS Appx § 688. Royle v Standard Fruit & S.S. Co. (1944) 184 Misc 348, 52 NYS2d 407, affd 269 App Div 762, 54 NYS2d 778.


591. Miscellaneous

Where owner of tug and barge was notified of plaintiff's injury claim by letter mailed Aug. 8, 1956, and he filed his complaint on Feb. 5, 1957, and served it on Feb. 8, 1957, defendant's answer, pleading in partial defense limitation of liability, served Feb. 26, 1957, was not too late. Murray v New York C. R. Co. (1961, CA2 NY) 287 F2d 152, 87 ALR2d 681, 1961 AMC 1118, cert den 366 US 945, 6 L Ed 2d 856, 81 S Ct 1674.

Defendant's answer stated that it "admits that at all the material times mentioned in the complaint a person bearing a name similar to the plaintiff's intestate was in the employ of the United States on board a certain vessel at an agreed rate of wages under merchant shipping articles and was a member of the crew," and this was sufficient admission that deceased seaman was member of crew. Ledesma v Dichmann, Wright & Pugh, Inc. (1947, DC NY) 74 F Supp 752, 1947 AMC 1500.

JONES ACT - TABLE OF CONTENTS


 

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Jones Act maritime law and seaman cases

STATUTE'S LANGUAGE

CASE LAW


I. IN GENERAL

A. General Principles

B. Other Remedies

1. Traditional Maritime
Remedies

2. Federal Law Remedies

3 Remedies by State Law

C. Foreign Involvement

1. In General

2. Place of Injury

3. Flag or Ownership
of Vessel

a. In General

b. Foreign Ownership

c. Foreign Vessels
with American Interests

4. Nationality of Seaman

5. Other Factors



II. PERSONS ABLE
TO RECOVER

A. Seamen

1. General Principles

a. In General

b. Status as Seaman

2. "Vessel in Navigation"

a. In General

b. Status of Vessel

c. Particular Vessels

3. Particular Seamen

B. Representatives of
Seamen



III. EMPLOYMENT

A. In General

B. Particular Entities
as Employers

C. In Course of
Employment



IV. NEGLIGENCE

A. In General

B. Vicarious Liability

1. In General

2 Particular Acts of Crew

C. Circumstances of
Injury

1. Assault

a. In General

b. Assaults Among Crew
& Officers

2. Improper Supervision

a. In General

b. Particular Acts

3. Medical Care

4. Particular Properties
of Vessel & Dock

5. Other Circumstances



V. DEFENSES

A. Seaman's Conduct

1. Comparative
Negligence

2. Assumption of Risk

3. Particular
Circumstances

B. Release

C. Limitations of Actions

1. Statutory Limitations

2. Laches

D. Collateral Estoppel
& Res Judicata

E. Limitation of Liability

F. Other Defenses



VI. DAMAGES

A. In General

B. Damages for Injury

1. Elements of Damages

2 Award Deductions

C. Wrongful Death

1. Elements of Damages

2. Computation of Award



VII. PRACTICE &
PROCEDURE

A. State Court Actions

B. Jurisdiction

1. In General

2. Bases of Jurisdiction

C. Venue

1. In General

2. Bases of Venue

3 Forum Non Conveniens

D. Election of Remedies

1. In General

2. Particular Remedies

E. Institution of Action

F. Pleadings and Motions

1. Complaint

2. Answer

3. Motions

G. Removal and Remand

H. Discovery

I. Jury

1. Right To Jury Trial

2. Submission of Issues

J. Evidence

1. In General

2. Plaintiff's Burden
of Proof

3. Defendant's Burden

4. Admissibility

K. Appeal and Review

L. Settlement

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