The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
In this tort action, plaintiffs seek damages for personal injuries
suffered by Stephen Roane in the course of a swim meet and subsequent
rescue attempt, as well as for loss of services and consortium suffered
by Margot Roane as a result therefrom. All defendants have filed motions
for summary judgment on various grounds. In addition, defendant S 2
Yacts, Inc., d/b/a/ Tiara Yachts ("S2") moves pursuant to Federal Rule of
Evidence 702 to preclude the testimony of plaintiffs' expert Rik Van
Hemmen. Plaintiffs contest all of defendants' motions and also file a
cross-motion for summary judgment of their own.
In support of their motion for summary judgment, defendants Greenwich
Swim Committee ("GSC") and Walter F. McDermott contend, inter
alia, that plaintiff Stephen Roane assumed the risk of injury
arising out of the swim meet. Plaintiffs respond that assumption of risk
is not applicable to this case insofar as it is not a valid defense under
general maritime law. Thus a threshold arises as to whether general
maritime law applies to this tort action.
Plaintiffs have properly filed this claim in federal court pursuant to
this court's 28 U.S.C. § 1332 diversity jurisdiction. Nevertheless,
it is well established that federal maritime law may apply, even in diversity cases, so long as the underlying cause of
action constitutes a maritime tort. Pope & Talbot, Inc. v.
Hawn, 346 U.S. 406 (1953). Under these circumstances, plaintiff has
the burden of establishing that general maritime law is applicable.
Even if general maritime law were to apply, however, state law may
still be broadly applicable to the action. See Wilburn Boat Co. v.
Fireman's Fund Ins. Co., 348 U.S. 310 (1955) (holding that in
the absence of federal legislation or conflicting rule, state law applies
to interpretation of marine insurance contract) and Earl v. Bouchard
Transportation Co., Inc., 735 F. Supp. 1167 (E.D.N.Y. 1990),
affirmed in part, remanded in part, 917 F.2d 1320 (2d. Cir.
1990) (holding that in a maritime action, courts may refer to state law
that neither contravenes clearly established rule of general maritime law
nor impairs principle of national uniformity).
In this case, plaintiffs were residents of New York, GSC was
incorporated in and had its principal place of business in Connecticut,
McDermott was a resident of Connecticut, and S2 was incorporated in and
had its principal place of business in Michigan. Furthermore, Roane's
injury presumably took place during a swim meet sponsored by GSC in the
Long Island Sound, Therefore, a second threshold question arises as to
which state's law applies.
These threshold questions must be resolved before this action can
proceed. While some of the parties have provided some response to some of
these questions, all parties shall now be afforded an opportunity, if so
advised, to submit memoranda to the Court in response to the following
1. Is Plaintiff's claim a maritime tort action so
that general maritime law applies?
2. Regardless of whether plaintiff's claim is
properly characterized as a maritime tort,
should New York or Connecticut state law
apply? Any party may submit a memorandum to the Court on these specific issues
on or before May 17, 2004. I reserve decision on all pending motions
prior to the resolution of these threshold issues.
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