Blanco v. Moran Shipping Company, 73-2130. Summary Calendar.
| Decision Date | 08 November 1973 |
| Docket Number | No. 73-2130. Summary Calendar.,73-2130. Summary Calendar. |
| Citation | 483 F.2d 63 |
| Parties | Mauro Evaristo BLANCO, Plaintiff-Appellant, v. MORAN SHIPPING COMPANY and Sulphur Carriers Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gerald Sohn, Jacksonville, Fla., Charles Maloney, New Orleans, La., for plaintiff-appellant.
James F. Moseley, Jacksonville, Fla., for defendants-appellees.
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
Rehearing and Rehearing En Banc Denied November 8, 1973.
Summary judgment at the hands of the district court, based upon an exceptionally strong written release of all claims ended this seaman's action by Blanco. The motion for summary judgment was based upon depositions by the attorneys who represented Blanco at the time he gave the release. Counter-affidavits were submitted by Blanco and by one of his present attorneys.
The issue is framed in the language of the classic test set out in Garrett v. Moore-McCormick Company, 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239, 245 (1942):
. . . the burden is upon one who sets up a seaman\'s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with a full understanding of his rights. The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding.
This circuit has paraphrased the Garrett test in this language:
. . . the burden is on the party setting up the seaman\'s release to show that it was given by the seaman with an informed understanding of his rights and a full appreciation of the consequences of his release.
Cates v. United States, 451 F.2d 411, 414 (1971).
The shipboard accident giving rise to this action occurred on July 24, 1967 in Tampa, Florida waters and resulted in Blanco's hospitalization in Tampa General Hospital. Following his discharge from this hospital, Blanco went to Jacksonville, Florida where his ship was then in dry dock and came under the care of a doctor there. He subsequently was released from the ship and thereupon employed a Jacksonville attorney who spoke and understood only English. Blanco spoke and understood only Spanish. To make communications more difficult, Blanco subsequently returned to his native Venezuela. When a settlement offer eventuated, Blanco's English-speaking attorney deposed:
Victor Ramos, referred to in this testimony, is another Jacksonville attorney who was associated by Blanco's first counsel because of Ramos' literacy in both Spanish and English. The deposition given by Ramos similarly appears to have been based solely upon the medical reports covering the Tampa hospitalization or the Jacksonville doctor's treatment.
In his counter-affidavit, Blanco swears that he had accident-related...
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...without deception or coercion, and that it was made by the seaman with full understanding of his rights." 40 In Blanco v. Moran Shipping Co., 5 Cir. 1973, 483 F.2d 63, cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974), we recently reaffirmed the Garrett formulation as the "cl......
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...agreement because we found the release to be unjust, Gueho v. Diamond M. Drilling Co., 5 Cir. 1975, 524 F.2d 986; Blanco v. Moran Shipping Company, 5 Cir. 1973, 483 F.2d 63; Cates v. United States, 5 Cir. 1971, 451 F.2d 411. This strict scrutiny extends to settlements made by relatives of s......
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...fact (as to) whether (he) executed the release with full comprehension of the effects of his action"], and Blanco v. Moran Shipping Co. , 483 F.2d 63, 64 [5th Cir. 1973] [holding that defendant was not entitled to summary judgment where the plaintiff, who "spoke and understood only Spanish,......
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...(S.D.N.Y.1957), aff'd, 2 Cir., 263 F.2d 437, cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959). In Blanco v. Moran Shipping Co., 483 F.2d 63 (5th Cir. 1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974), the Fifth Circuit vacated a summary judgment uphold......