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ROANE v. GREENWICH SWIM COMMITTEE

United States District Court, S.D. New York


April 29, 2004.

STEPHEN ROANE and MARGOT ROANE, Plaintiffs, -against- GREENWICH SWIM COMMITTEE; WALTER F. MCDERMOTT; and S 2 YACHTS, INC., d/b/a/ TIARA YACHTS, Defendants

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

OPINION AND ORDER

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. ยง 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 questions:

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.

  It is SO ORDERED.

20040429

© 1992-2004 VersusLaw Inc.



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