                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

VALERIE RUSSO, an individual,                   No.    15-56816

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-03184-ODW-JCG
 v.

APL MARINE SERVICES, LTD., a                    MEMORANDUM*
Delaware Corporation,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                        Argued and Submitted June 6, 2017
                              Pasadena, California

Before: BEA and HURWITZ, Circuit Judges, and MOTZ,** District Judge.


      Valerie Russo, a crewmember on the APL Korea, sued the ship’s owner, APL

Marine Services, Ltd. (“APL”), and its captain, James Londagin, alleging state law

and maritime claims arising out of alleged harassment by Londagin after their


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable J. Frederick Motz, United States District Judge for the
District of Maryland, sitting by designation.
romantic relationship ended and the termination of her employment. After the

district court granted partial summary judgment in favor of APL on Russo’s claims

for   harassment,    discrimination,    retaliation,   wrongful    termination,    and

unseaworthiness, a jury returned a defense verdict on Russo’s Jones Act claim for

negligent infliction of emotional distress. On appeal, Russo challenges a jury

instruction on the Jones Act claim and the summary judgment on her other claims.1

We affirm.

      1. Even assuming Russo properly objected to the jury instruction concerning

negligent infliction of emotional distress, there was no error. The district court

faithfully articulated the Jones Act zone of danger test set forth by the Supreme Court

in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547 (1994).

      2. Russo argues that the district court erred in rejecting her unseaworthiness

claim because she produced no evidence of a “savage and vicious physical attack.”

The court correctly rejected this claim. An unseaworthiness cause of action arises

only if there has been a physical attack that results from the “savage and vicious”

disposition of a member of the crew. See, e.g., Boorus v. W. Coast Trans-Oceanic

S.S. Line, 299 F.2d 893, 894-95 (9th Cir. 1962); see also Boudoin v. Lykes Bros. S.S.

Co., 348 U.S. 336, 339-40 (1955).


1
      The district court dismissed Russo’s battery claim for failure to state a claim,
but granted leave to amend. Russo did not amend her complaint, and does not
contest the dismissal on appeal.

                                          2
      3. The district court did not err in dismissing Russo’s claims under the

California Fair Employment and Housing Act. California courts presume that the

California legislature “did not intend to give its statutes any extraterritorial effect”

unless “such intention is clearly expressed or reasonably . . . inferred” from the

statute’s text, its purpose, or legislative history. N. Alaska Salmon Co. v. Pillsbury,

162 P. 93, 94 (Cal. 1916). The FEHA contains no such clear evidence of intent. See

Campbell v. Arco Marine, Inc., 50 Cal. Rptr. 2d 626, 633 (Ct. App. 1996).

      4. The district court correctly dismissed Russo’s California constitutional

claim for the same reason. “Ordinarily, [r]ules of construction and interpretation

that are applicable when considering statutes are equally applicable in interpreting

constitutional provisions.” Morgan v. Imperial Irrigation Dist., 167 Cal. Rptr. 3d

687, 698 (Ct. App. 2014) (alteration in original) (citation omitted). We find no

indication that the antidiscrimination provision in the California constitution was

intended to apply to employment that occurs predominantly outside of the state on

the high seas.

      AFFIRMED.




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