baseballA baseball star, and soon-to-be father, 24-year-old Jose Fernandez, described as one of the best pitchers in Major League Baseball, lost his life due to a boating accident that occurred in Miami, Florida, on Sunday, September 25.

So far, reports indicated that the boat was traveling at a high rate of speed and hit the jetty rocks at Government Cut off of Miami Beach, causing the 32-foot Sea Vee Center Console Fishing Boat to flip over. Three bodies were recovered by the United States Coast Guard when they responded to reports of debris that was seen floating. Baseball star Fernandez is believed to have died from the impact of the crash, not from drowning. In a news release this afternoon, the Florida Fish & Wildlife Commission stated that Fernandez was the owner of the boat that crashed, killing him and two of his friends, Emilio Macias and Eduardo Rivero. The operator of the boat at the time of the crash is still under investigation.

It has been reported that it is difficult to see this jetty at night, which is low to the water. There is no lighting to identify it. However, the authorities have stated that the boat has been seen frequently traveling past this area.  Of course, at 3 AM, it is easy to lose your bearings, and at a high rate of speed there is even more of a chance of not observing the exact location of this jetty.

lifeboatThere is a big problem with rescue boats and lifeboats on board cruise ships. Although they are designed and intended to save lives, they too often result in losing lives due to mechanical failures. I previously reported about the tragic incident on the Norwegian Breakaway that occurred on July 20, 2016 in Bermuda. During a rescue boat drill on board the ship, the lifeboat broke from its tethering, falling into the sea. It has sadly been reported that another crew member, Ben Buenaventura of the Philippines, has died as a result of this tragic lifeboat accident. The crew member, after being in the intensive care at Jackson Memorial Hospital here in Miami Florida, passed away from his injuries.

The lifeboat on the Norwegian Breakaway crashed 50 feet from the upper deck into the seas. Under the maritime law, this constitutes unseaworthiness because obviously a rescue boat or lifeboat does not break away and fall 50 feet to the ocean if it is operated properly and in proper condition, unless there is a faulty design.

I have handled many of these types of lifeboat cases resulting in injuries that were not life-threatening, to catastrophic injuries such as paralysis, to cases resulting in death. These cases typically involve a life boat safety drill with crew members on board the life boats. However, these are the same boats that would be used to evacuate passengers in the case of a serious incident on board a cruise ship. Therefore, it is very alarming that there are so many reported accidents involving lifeboats and rescue boats on board cruises. There is clearly something wrong with the design of these boats, and the mechanisms utilized to lower and raise them. Of course, maintenance issues as well is procedure is often times an issue.

gavelIn a recent decision from the 11th Circuit Court of Appeals, Alberts v. Royal Caribbean Cruises, 2016 U.S. App. LEXIS 15502 (5th Cir. 2016), reflecting the pro-arbitration philosophy of the courts, seamen have been given yet another big setback in the pursuit of their right to a jury trial granted to them by the United States statute, the Jones act, 46 U.S.C. § 30104.

The case of Alberts v. Royal Caribbean Cruises involved a crew member working for Royal Caribbean Cruise lines, a Miami-based cruise ship company, who was a United States citizen and resident. There are not many United States citizens working aboard these foreign-flagged cruise ship companies. The crew member brought a case against the cruise line company pursuant to the Jones Act, which allows an employee to sue his or her employer for negligence. The Jones Act is a special grant of a party by Congress, enacted in 1920 to help protect workers on ships due to the unique nature of their employment.

Recognizing that seamen are clearly on unequal bargaining power with their employers, this congressional act is remedial legislation designed to provide seamen with a remedy when they get injured due to negligence on the part of their employer. The Jones Act, being remedial legislation, provides that the employer is responsible for an injury if negligence played any part, no matter how small, in producing the injury. In order to further protect seamen against overreaching by unscrupulous employers, in addition to granting seamen the right to a jury trial for their claim, the act prohibits an employer from contracting away its liability for negligence under the .

lifeboatI have previously written about lifeboat accidents, safety boat accidents, and other types of rescue boat accidents, occurring with frequency on cruise ships. The most recent catastrophe has occurred on Royal Caribbean’s brand-new mega cruise ship, Harmony of the Seas. Unfortunately, I have handled many of these type of cases ranging from minor injuries to fatalities, as well as cases where the accident resulted in paralysis. Other lifeboat and rescue boat accidents have resulted in serious physical and psychological injuries.

I have determined that these accidents are occurring because of the faulty designs of the major safety equipment, inadequate maintenance, and a lack of proper procedures for conducting the safety drills. We had previously written about Royal Caribbean’s Harmony of the Seas, the largest cruise ship in the world. It measures about the length of four football fields, and is longer than the height of the Eiffel Tower, carrying 6,780 passengers and 2,100 crew members.

Although this is a brand-new cruise ship, apparently the lifeboat failed during an attempted lifeboat safety drill, breaking loose from its apparatus, falling 33 feet (10 meters) into the sea, resulting in the death of one 42- year-old Filipino cruise ship crew member and four others catastrophically injured.

wavesWith modern day technology, the cruise ship companies believe they can outmaneuver mother nature, and believe that the fear created by encountering rough seas and rough weather, as well as the unpleasantness and dangers that can result, is not enough to cancel a cruise. I have written many times about cruise ship companies deciding that their mega cruise ships are capable of withstanding storms, and their reluctance to cancel cruises, resulting in passengers being endangered when cruise ships are driven into severe weather, including tropical storms and even hurricanes.

I also have also written about the Anthem of the Seas, a Royal Caribbean cruise ship, too many times this year. This includes its decision to navigate into a storm this past February. For some reason Anthem of the Seas had not learned from its mistakes, and again, the ship decided to not to cancel its itinerary despite Tropical Storm Hermine warnings.

Often times, severe weather causes dishes, plates, furniture, and other items to fly across areas on the ship, creating dangers to passengers and crew. Of course, seasickness is also common during encounters with rough weather. There is also the danger of the ship losing power during a storm, and being at the mercy of strong season winds. In extreme cases, ships have sunk during hurricanes because a ship-owner decided to take a chance and outmaneuver a storm as was in the case of El Faro.

cruiseI have been alerted that another fire has broken out on board another passenger cruise ship, this time on the cruise ship SeaDream I, which is operated by SeaDream Yacht Club. The vessel was sailing in Italy this afternoon when a fire broke out, reportedly from the engine room.  I have been told that the vessel lost power and is currently being towed.

I heard there was a lot of turmoil and that the passengers had to be evacuated at sea onto a high-speed ferry.   Passengers were, understandably so, very scared. I did not hear of any personal injuries. I am only aware that it has been posted in an Italian newspaper so I do not have much more details to report at this time.

However, I can say that I have warned repeatedly about the dangers on cruise ships, which include fires.  There have been numerous fires reported on board cruises.  Although this SeaDream I cruise ship is a small petite cruise ship and does not carry that many passengers, the newer cruise ships are getting bigger and bigger.  They are referred to as mega-cruise ships, carrying over 6000 passengers.

sunken shipThe events and the causes leading to the catastrophic sinking of the El Faro during Hurricane Joaquin on October 1, 2015, continue to be the focus of the National Transportation Safety Board (NTSB) as it begins its review of the voyage data recorder(VDR). El Faro was a United States cargo ship that sank last fall killing all 33 members on board. It has been considered the worst U.S. cargo shipping disaster in over 30 years.  The VDR, as it is referred to on ships, is a vessel’s black box investigators use for accident investigation after the fact. The VDR from El Faro was finally recovered from the ocean floor after 10 months of attempting to retrieve it.

According to reports, about 26 hours of information was able to be recovered from El Faro’s voyage data recorder. The VDR is going to provide very critical information, including the following: a discussion about the ship losing propulsion, a discussion between the crew and the master, Captain Michael Davidson, pertaining to the flooding, a discussion between the master and shoreside personal pertaining to the critical situation at hand, and the captain ordering the crew to abandon the ship.

The actual voice recordings are not made available to the public during the investigation stage. The National Transportation Safety Board has reported that a complete review of the VDR will take quite some time because it is very difficult to hear everything with all the noise taken place during the times leading up to the actual sinking, and continuing through until power was lost.

lifeguardIn yet another incident involving a passenger emergency in a swimming pool on board a cruise ship, it has been reported that a 72-year-old lady had to be rescued by bystanders (not a trained lifeguard or other cruise line staff) when she appeared in distress while in a swimming pool on board  Royal Caribbean’s Anthem of the Seas.  The Anthem of the Seas may sound familiar when discussing the need for lifeguards, as this is the second major swimming pool emergency this year involving this ship alone! Just last month, an eight year old boy died after nearly drowning in a pool also on board the Anthem of the Seas.

My firm has repeatedly urged that there be requirements for lifeguards onboard cruise ships, where there are many swimming attractions present.  With the thousands of passengers running around all the time, including children, there are many opportunities for a brief moment of distraction, and for a disaster to occur.  A trained lifeguard is an expert at detecting a problem before it occurs, and of course an expert in responding to an incident if it is not prevented, as a timely response to any type of incident involving an individual in distress in a swimming pool needs immediate professional attention.

Cruise ship companies, including Royal Caribbean, have resisted placing lifeguards on their cruise ships, probably because of the expense.  Of course having lifeguards are more expensive and require cabin space, meaning less cabins to sell to passengers.  Again, profits seem to rule the day in the cruise ship industry.  For many years it has been urged to place stricter regulations on the cruise ship industry, and there has been some progress, but not enough.

fishingboatIn an amazing story, it has been reported that a passenger from Shangai, who fell overboard from a Royal Caribbean cruise from Japan to China, has lived to tell the tale. Last Wednesday, August 10th, the 32-year-old woman fell overboard when she leaned too far over a guard railing, falling four decks into the water. This is equivalent to about seven stories. Normally, the fall alone is enough to kill someone. Here is the first miracle; she survived the fall without any injury.

Once overboard, the chances of survival are also very slim, unless the cruise line detects the passenger going overboard promptly. In this case the cruise line did not detect that a passenger had gone overboard, so there were no immediate rescue efforts. Here is the second miracle; she survived 38 hours drifting at sea.

How did this 32-year-old female passenger survive? She reports that she stayed above the ocean water, and swam away from any large vessels she saw, because she was smart enough to know that she could be overcome by the wakes, or sucked into the propellers.  Amazingly, she survived for 38 hours before she was rescued by a fishing boat Friday morning.

sharkIn June of 2015, Elke Specker paid for a dive trip off the coast of California, where the dive boat drove her to, and while she was diving in the water to observe the sharks, she claims she was bitten by a mako shark. She sued the dive instructor, and the dive company, alleging that the instructor was drunk and negligently caused the shark to come directly to the diver, which then bit her. The dive boat company denied that the instructor was drunk, and even denied that the shark bit the participant.

The interesting issue was that the defendant in the lawsuit claimed in the federal court lawsuit that there was no admiralty and maritime jurisdiction over the case. A federal district court has jurisdiction over a case involving admiralty law and maritime law. If the federal judge agreed it was not a case falling within the maritime jurisdiction of the federal court, the case would have had to been refiled in a state court.

The test for whether a case satisfies the requirements for admiralty and maritime jurisdiction is a two-part test. The first is an obvious one, which is locality. If it involves navigable waters, locality will be easily satisfied. Here, the boat and the divers were in the water off the coast of California. Clearly, locality was satisfied.