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.