Maritime Injury Attorney Blog

Often times I'm faced with the question of whether a jury trial can be obtained in an admiralty case, and whether admiralty cases must be filed in federal court. I was once trying a case in a federal district court involving an admiralty case, and an expert walked in the courtroom about to testify. He stopped with a look of surprise on his face, and asked how come a jury was deciding the case when it was an admiralty matter. I often get this same questions from attorneys unfamiliar with admiralty law.

A brief review of admiralty jurisdiction and the right to jury trial is the intent of this article.

With respect to admiralty jurisdiction, Article III, § 2 of the United States Constitution gives district courts the power to hear and decide "all case of admiralty and maritime jurisdiction." Cases that are filed in federal court under the admiralty jurisdiction of the court are separated into two categories - what is called an in rem action which is against the vessel itself, and in personam actions which is generally against the vessel owner or operator. The critical distinction between the two is that an in rem action may only be brought in a federal court, and pursuant to the admiralty jurisdiction of the court. An in personam case may not only be brought pursuant to the admiralty jurisdiction of the court, but may also be brought "at law" if there is diversity jurisdiction or federal question jurisdiction present.

The modern day version of § 9 of the Judiciary Act of 1789, found in 29 U.S.C. § 1333, states as follow: "The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled to."

The all important "saving to suitors" clause allows a Plaintiff proceeding in a maritime case against a Defendant in personam to either bring his claim in federal court under admiralty jurisdiction or, under the saving to suitors clause in a civil action which can be filed either in a state court or a federal district court if there is diversity or federal question jurisdiction present.

The effect of the saving to suitors clause is to allow the Plaintiff who has an in personam claim the choice of proceeding in an ordinary civil action in state or federal court, instead of being forced into the admiralty jurisdiction side of the federal district court, where there is no right to a jury trial.

With respect to the right to trial by jury, the seventh amendment to the Constitution governs the right to a trial by jury and generally affords no right to a jury for claims that are filed within the court's admiralty jurisdiction. However, there are two exceptions to this general rule about admiralty claims that must be tried exclusively to the court. The first exception is where Congress expressly provides for the right to a trial by jury, such as the Jones Act, which grants a negligence action against the seaman's employer. If there is a right to a jury trial under a statue, such as the Jones Act, any pendent claims that arise out of that same occurrence, even if they do not ordinarily have a right to a jury trial, will be consolidated for the purpose of trial and may be heard by the jury.

The second exception is when a claim falls within the "savings to suitors" clause, and the Plaintiff decides to move forward on the law side of the court based upon diversity jurisdiction or federal question jurisdiction. In such a case, a right to a jury trial will be present, as the case is not proceeding forward in the admiralty jurisdiction side of the federal district court, which does not allow for a jury trial.

Another potential trap for lawyers filing admiralty cases is when filing in federal district court if there is claim that is being brought within the admiralty jurisdiction of the federal court, Federal Rule of Civil Procedure 9(h) requires that it be so designated. Once a Plaintiff designates the case being a rule 9(h) action under the admiralty jurisdiction of the court, the right to a jury trial will be lost. Often times a Plaintiff's attorney will mistakenly designate a case under rule 9(h) when diversity jurisdiction or federal question jurisdiction exists, and the right to a jury trial is sometimes waived by this designation. One must be very careful when filing an admiralty action in federal district court.

This is a very brief overview of some admiralty jurisdiction issues, including the right to a jury trial in an admiralty case. These are complicated legal issues that frequently arise when filing admiralty claims.

Our maritime firm handles all types of maritime cases in both state and federal courts, and represents Plaintiff's from all over the United States, and internationally.

We all read about the horrific conditions passengers were subjected to when the cruise ship named Triumph caught fire. The ship was days at sea without power, and sewage flowing all over the ship. For some reason it took several days to get the ship back to port, and all the passengers had to endure days of horrible conditions.

Carnival at first made a small offer to everyone, nothing close to what should be paid to compensate the passengers for what they were needlessly subjected to.

Following the disaster, and Carnival's insulting offer, it was first reported Carnival didn't want to reimburse the government for the expenses incurred in coming to the rescue, and towing the ship back to safety. Faced with adverse publicity, Carnival did an about face and agreed to reimburse the government for the expenses.

Now, faced with lawsuits arising out of the incident, and there being clear liability on the part of Carnival, Carnival is seeking to dismiss the lawsuits, arguing passengers agreed to no class actions and to arbitration. Of course, passengers do not really agree to any such thing. These are simply provisions put in a take it or leave it passenger ticket, which is considered a contract of passage containing binding terms and conditions, one of which is a prohibition against bringing a class action, and one of which is the passenger must submit certain claims to binding arbitration.

We have constantly urged these provisions are unfair, and slanted in favor of the cruise ship companies. These provisions are not bargained for. The provisions are designed to shield cruise ship companies like Carnival from liability.

Cruise ship companies enjoy way too many privileges and benefits under maritime law, many of which have been gained through lobbying Congress and getting favorable laws enacted.

With the recent trend of serious incidents involving cruise ships, we all have been alerted to the need for stricter laws governing cruise ship companies. Hopefully, Congress will act out of concern for the safety of our citizens, and not continue to act out of concern for their big financial donors, the cruise ship industry. Millions are spent by the cruise ship companies each year lobbying Congress for protection of the already existing favorable laws, and to seek passage of even more favorable laws designed to take away people's rights.

Our firm will continue to be leaders in the fight against the cruise ship industry and assist those who are harmed at sea due to a cruise ship accident.

Carnival Corp. said "the company has made the decision to voluntarily provide reimbursement to the federal government," following harsh criticism over its use of federal resources for costs related to the high-profile fires aboard the Carnival Triumph in February and Carnival Splendor in 2010. The exact amount of payment is still being determined, though a U.S. senator has said the U.S. Coast Guard and U.S. Navy had estimated costs of about $4.2 million for the two incidents combined. In both cases, fire knocked out power to the ships, which were slowly towed to land. The U.S. Coast Guard escorted the Triumph and Splendor; the U.S. Navy delivered tons of food and supplies to the Splendor.

In letters released earlier, it sounded as if Carnival Corp. was refusing to reimburse federal agencies if they sought remuneration. Carnival explained that at no point did they refuse to make a payment and added that no agency had asked them for money. A newspaper article states Carnival has said they will in fact pay the expenses incurred by the United States, including the Navy costs and Coast Guard costs.

Had they refused to pay, U.S. federal taxpayers would have had to foot nearly $780,000 for costs associated with the rescue of the crippled Carnival Triumph cruise ship. Carnival Corp. in the released letters had stated that its policy is to "honor maritime tradition that holds that the duty to render assistance at sea to those in need is a universal obligation of the entire maritime community," a duty that would not include reimbursing the U.S. government for Coast Guard costs.

The letters were in reply to an inquiry by U.S. Sen. Jay Rockefeller, a West Virginia Democrat who chairs the Senate Commerce Committee, about the Triumph stranding and the cruise line's overall safety record. In his letter Rockefeller, adding that Carnival appears to pay little or no federal income taxes and that "these costs must ultimately be borne by federal taxpayers."

Rockefeller called the response "shameful" and said that he is considering "all options to hold the industry to higher passenger safety standards" which could include a congressional hearing and legislation, perhaps even a closer look at taxation.

In its defense, the cruise line noted that its ships frequently participate in rescues at the Coast Guard's request, including 11 times in the past year in Florida and Caribbean waters. It also mentioned port taxes and fees and other payments and said it paid $16.5 billion in wages to U.S. workers in 2011.

"Every state where our ships call or home port benefits from the dollars spent by cruise lines to buy products and retain services from local businesses," Carnival added.
Carnival has had about 90 incidents aboard its ships that were filed with the Coast Guard in the past five years. Carnival responded that 83 were not considered serious under federal regulations. Three were the Triumph and Splendor mishaps and the capsizing of the Costa Concordia off Italy's coast, which killed 32 people in January 2012. The others were more minor ship collisions, an illness and one passenger who jumped off a ship.

The cruise line said it takes each incident "very seriously" and undergoes reviews and corrective measures when needed, such as a review of safety and emergency response practices across all of Carnival's brands following the Concordia accident. In a separate letter, Carnival Chairman and CEO Micky Arison said the company takes the issues raised by Rockefeller very seriously and "remain committed to the safety and comfort of our guests and we are proud of our ability to provide millions of people with safe, fun and memorable vacation experiences."

But what corrective measures are in place for those guests and cruise ship workers who aren't provided with a safe and fun experience?

It is good of Carnival to step up to address this issue, even if it is only in response to the criticisms. It would be great to see them, as the world's largest cruise ship company, take the lead in the industry toward higher passenger safety standards. The cost of preventing these problems would be priceless in comparison to the very expensive cures they face.

Our firm continues to act as safety advocates for those harmed at sea.

As reported by CNN News, another disaster involving a carnival cruise ship. Yes, the triumph again! CNN News reports:

One man is missing after winds blew a guard shack into the water and knocked the damaged Carnival Triumph cruise ship away from dock in Mobile, Alabama. Another man inside the shack has been recovered.

The Triumph was undergoing repairs after an engine room fire left it stranded at sea for several days in February. The ship was carrying more than 4,200 people, including 3,100 passengers, when the fire happened.

We will monitor the new about this recent disaster involving carnival cruise lines, and see how carnival explains yet another mishap that appears to have cost a person their life. We have seen reports that carnival is stepping up their maintenance and inspections in light of the repeated incidents involving their ships, including a ship that practically sank and ships that caught on fire. Should passengers on cruise ships be scared? I would be. Cruising does not appear to be as safe as believed.

We are also currently handling a carnival cruise line where a rescue boat plummeted 20 meters to the water during a routine lifesaving drill. The initial reports are this incident occurred was due in part to lack of proper maintenance of the safety raft, a rather important piece of equipment aboard a cruise ship!

Our firm is Miami based, and handles all type of maritime personal injury and wrongful death cases. Brett Rivkind has been handling maritime cases for 30 years, and was an invited speaker on maritime security and safety issues during major congressional hearings which eventually led to passage of the Cruise Vessel Security and Safety Act.

It is still early in 2013 and Carnival Cruise Line seems to be plagued with cruise ship issues.

Just a few weeks ago, the Carnival Triumph had a fire in the ship's engine room and left the ship drifting, without power, water or flushing toilets for five days. And already in March, the cruise line has two new shipboard emergencies.

The Carnival Dream's emergency fuel generator broke, and like the Carnival Triumph, saw the guests without use of elevators and toilets. Luckily, the conditions for the guests on the Dream didn't last long as the cruise line removed guests from the ship and flew them back to Orlando immediately.

And as the Carnival Dream sits in St. Maarten's, the Carnival Legend is moving slowly off the coast of Honduras with its own problems. Ports are being cancelled and the ship is heading back to its home port.

As Carnival deals with these issues, it can still boast that it is the largest cruise ship company and in the first quarter of this year has earned $37M. How much of this money is being put towards things that can improve safety and living conditions on the ship for guests and crew? Not much it would seem.

Carnival has offered the usual discounts and reimbursements to guests but what are they offering the crew? Nothing it would seem.

The dream vacation that many take when they cruise is becoming more of a nightmare. The industry needs to pay closer attention to safety at sea and if cruise lines such as Carnival continue to endanger lives, then maybe they should be impacted where it hurts them the most--in earnings. They should be charged, and often, until they realize that cutting corners where safety is concerned is a dangerous practice that cost lives.

Our Miami Maritime law firm continues to act as safety advocates for crewmembers and passengers.

Ever since the tragic incident involving the Costa Concordia, there has been a lot of talk about where any lawsuits would have to be decided. Many lawyers not familiar with maritime law were unaware that in passenger cases, the passenger ticket must be consulted immediately since it contains many time constrains and other limitations, including limiting the place where the lawsuit can be filed. In the case of the Costa Concordia, the ship is operated by the Costa Cruise Line Company out of Italy. The passenger tickets for the Costa Concordia provides for an Italian forum with the applicability of Italian law. This is because the Costa Concordia did not start or end its cruise in a United States port. Otherwise, United States law would govern, and the lawsuit would have to be filed in Broward County Florida, according to the ticket.

Several cases were filed here in Miami, Florida, which have been met with defense motions to dismiss based on forum non conveniens, and improper venue selection due to the passenger ticket requiring suit to be filed in Italy. One of those cases, Scimone v. Carnival Corporation at el, was filed in the Miami-Dade County Circuit Court. Since Carnival was added as a Defendant, and there are other Defendants other than Costa, the Plaintiff's chose to try to file suit in Miami, Florida. They too were met with a motion to dismiss, but in this particular case the Defendants took a chance and removed the case to the Federal District Court here in the Southern District of Florida. The Plaintiffs moved to remand the case claiming that the Federal Court did not have jurisdiction.

The Federal District judge entered an order granting the motion to remand the case to the State Court. The reason the case was remanded to the State Court is important. Some have believed that the mere fact the Federal judge remanded the case to the State Court was a determination by the Federal judge that Miami is in fact an acceptable forum to hear these cases. However, the Federal judge did not reach that ruling. The Federal judge did not address the Defendants motion to dismiss the case based on form non-conveniens, or the argument that the forum selection clause in the Costa ticket requires suit to be brought in Italy. Instead, the Federal District Court limited its decision to remand the case to a jurisdictional basis. The Defendants had removed the case from the State Court to the Federal Court under the Class Action Fairness Act of 2005. This statutory law allows for the removal of "mass actions", which is a civil action "in which monetary relief claims of a 100 or more persons are proposed to be tried jointly on the ground that the Plaintiffs' claims all have the common questions of law or fact." 28 U.S.C. § 1332 (d)(11)(B)(i)

As for the Class Action Fairness Act being a basis for the Federal Court to have jurisdiction, the Federal Judge ruled that the lawsuit did not have 100 separate different Plaintiffs. In addition, the Plaintiffs did not propose to have all the cases tried jointly. Therefore, this statue did not apply and did not provide a valid basis to remove the case to the Federal Court.

An interesting point about the decision that the CAFA did not provide a basis for removal is that the court had to determine whether the Plaintiffs had engaged in "artful pleading" to deliberately avoid Federal jurisdiction, and if so, whether that was a basis to apply the CAFA in this particular case. The court noted a diversion of opinion among the District Courts on whether artful pleading can avoid the CAFA Federal jurisdiction. This particular judge agreed with the courts that concluded Plaintiffs may skirt the removal under the CAFA and mass actions by artful pleading. Thus, removal was not appropriate under the CAFA.

Continue reading "Federal Judge Grants Motion to Remand to Costa Concordia Plaintiffs" »

In recent years, ship owners have increasingly been able to avoid their responsibilities and obligations under the United States laws that are designed to protect seaman, namely the Jones Act enacted by Congress in 1920, and the General Maritime Law which give seaman rights to maintenance and cure as well as claims for unseaworthiness of the vessel. Unseaworthiness is a form of liability without fault. The maritime laws have consistently been interpreted to protect seamen, who historically have been considered the wards of the United States Admiralty Courts.

Ship owners, including cruise ship companies, have fought hard, and spent lots of money, trying to escape their responsibilities under the favorable laws to protect seaman. They have petitioned Congress to repeal the Jones Act, or amend it to lessen the rights of the seamen. They have consistently tried to contract away their obligations, as they do in the context of passenger claims.

In recent years, courts have started to enforce arbitration provisions in a seaman's employment agreement. Even though a seaman's employment agreement is a take it or leave it employment agreement, with the seaman having no bargaining rights, and most of the time without any understanding of his legal rights, the courts have allowed ship owners to insert a mandatory arbitration clause into the seaman's employment agreement.

The Jones Act, enacted in Congress in 1920, which is to be liberally interpreted to benefit seamen, provides for a right to a jury trial. This standard of causation in a negligence case under the Jones Act is very liberal, a seaman only has to prove that his injuries were caused in part by the employer's negligence. If there was any negligence, no matter how small, which contributed in any way to the seaman's injury, under the American law, the seaman is entitled to compensation.

Not only has mandatory arbitration provisions in a seaman's employment contract taken away the seaman's rights to a jury trial, the ship owners have now been using the employment agreement to take away the seaman's rights under the Jones Act, putting a mandatory foreign choice of law provision into the employment agreement. The 11th Circuit Court of Appeals recently, in a case involving Norwegian Cruise Lines, enforced the mandatory arbitration clause in the seaman's employment agreement which also contained a foreign choice of law clause. The court did not accept the argument that since the ship owner was trying to contract away the seaman's statutory rights under the Jones Act the whole agreement should be stricken as against public policy and thus void. Instead, the court said the arbitration provision was enforceable, and if the seaman could prove at a later date that he was denied his statutory rights, he could come back to court and oppose enforcement of any arbitration award. Obviously, a long and tedious process for a seaman, who has little or no funds to pursue a big shipping company thru long and expensive litigation, especially a cruise ship company.

Continue reading "Harshness of Arbitration Provisions in Seaman's Employment Contracts Highlighted By Piddly Award For Burn Injuries to Seaman" »

The recent problems with the Carnival Triumph are coming to an end. A fire in the ship's engine room left the ship drifting, without power, water or flushing toilets for five days. Conditions deteriorated to the point that both guests and cruise ship workers had to use plastic bags to dispose of body waste and they walked through excrements when toilets clogged and overflowed. Food lines were up to three hours long and passengers at the front of the lines hoarded food causing worry for those at the back of the line. A lack of air conditioning saw people sleeping on decks and in hallways. A cruiser's nightmare comes true.

The cruise line said it would give each passenger $500, a free flight home, a full refund for their trip and for most expenses on board, as well as a credit for another cruise, though many passengers indicated they would never cruise again, and definitely not with Carnival.
But what of the cruise ship workers? What do they get? The crew would have had to continue working through this disaster. They would have had to do all that could be done to ensure the safety and comfort, within those confines, of the guests. Is anyone looking out for their health and wellness after exposure to those unsanitary conditions?

The Triumph disaster isn't the first to happen on a cruise ship and likely won't be the last. Following the sinking of the Costa Concordia in Italy last year, all cruise ships tightened up their safety practices and put their workers, and guests, through safety drills. But despite those actions, accidents still occur on cruise ships. So just how safe is cruising for guests and workers?

Fire is the biggest concern onboard but there are other concerns such as flooding, loss of electricity, man overboard, medical emergencies, pollution, and damage to the ship. And in all those emergencies, the passenger comes first but in most cases, the passenger isn't even aware of what is going on and this is usually for their own good to avoid panic. Workers get training to deal with dangers on the water and in the event of real emergencies many know exactly what to do. But some don't. In an emergency, cruise ship workers do their best to assist guests but when fear and panic set in, it could easily become an "every man for himself," situation which is dangerous but a realistic reaction under the circumstances.

There is a lot to think about when considering cruising. Is it safer than flying? Sure. But the impact of an accident at sea affects so many more lives when you consider that the average cruise ship accommodates more than 3000 guest sand 800 - 1000 workers. Additionally, the frequency at which cruise ship accidents seem to be happening is alarming. The dangers are real. The cruise ship industry doesn't seem to be doing enough prevention. And cure, is a too little too late.

The maritime lawyers at Rivkind and Margulies handle all types of maritime cases Involving injury or death.

The Carnival cruise line's Triumph didn't live up to its name for the 3000 passengers unfortunate to be onboard. The ship can be seen getting towed to port, with a ship full of backed up sewage and other disease producing conditions.

Passengers will have to monitor their health over time as they have been exposed to not only the fear of a fire onboard, and loss of power, but also they have exposed to conditions that can lead to serious illnesses and disease.

The cruise became a nightmare for everyone, not a triumph. This incident is yet another in a long string of mishaps and disasters onboard cruise ships, once believed to me a totally safe and fun filled way of going on a vacation. Recent events have raised questions about the safety of cruise ships.

The NTBS is investigating the fire. Lets not lose sight of the fact that everyone is very lucky there were not more serious consequences from a fire onboard a mega cruise ship plying the high seas. It is very dangerous to be without power and a slave to the rough seas, but a fire onboard can lead to the loss of lives. I had the unfortunate task of representing hundreds of family members who lost their love ones onboard a cruise ship during a fire. The ship, was a sea escape cruise ship, and this did happen many years ago. Since that horrible incident, there have been many improvements in cruise ship safety. Of course, after the Costa Concordia disaster, we know there still needs to be many more improvements. The safety of cruising is in serious doubt these days.

I have been handling maritime cases for 30 years, and the bigger the better is not applicable to the cruise ship industry. With the bigger ships, I have seen many more incidents, including sexual assaults, crimes of different kinds, people going overboard, and an increase in fires, and other disasters.

A commuter ferry boat crashed into a lower Manhattan pier early Wednesday causing injuries to 57 people, and reports indicate one was critically injured.

Firefighters and rescue workers responded to the scene at approximately 8:43am. A passenger reported to CNN that "people were thrown into the air and the ground".

Many were transported to a local hospital. Reports from the police department indicated that only one person was critically injured.

The reports indicate that the ferry boat was backing up, struck something and slammed into the pier. An unidentified construction worker reported it as follows: "the boat was backing up and hit something and that's when everything went crazy".

The National Transportation Safety Board is investigating the matter to determine the cause of the crash.

The ferry boat is named the Seastreak Wallstreet. It had departed from the Atlantic Highlands in New Jersey.

A ferry boat striking a pier in the New York/New Jersey area is not a first time occurrence. In October of 2003 a Staten Island ferry boat crashed into a maintenance pier and killed 11 people and injured dozens more. The same ferry boat involved in the 2003 incident, the Andrew J. Barberi also was involved in another accident in May of 2010 that injured approximately 40 passengers.

As a result of the 2003 ferry boat incident, the pilot of that ferry boat was sentenced to more than a year in prison. In that particular incident, the pilot had passed out at the helm.

The ferry boat involved in yesterday's collision is operated by Seastreak, reported to be a privately owned company which holds another company called the Interlake Steamship Company, Mormac Marine Group, Inc., and Moran Towing Comp. Moran Towing Company is the largest tug and barge operator on the East and Gulf Coast, according to their website.

This maritime incident is a surely to result in many claims from passengers and crew for the obvious negligence of the operator of the ferry boat. All passengers aboard a ferry boat, just like passengers aboard a cruise ship, are owed a duty of reasonable care under the circumstances. Maritime law would apply to the claims for any personal injuries or deaths. Crewmembers onboard would have rights under the Jones Act and General Maritime Law of the United States. The Federal Courts would have jurisdiction over the matter, but there is the Savings to Suiters Clause in the Constitution that does permit admiralty action to be filed in State Court. An experienced maritime lawyer will evaluate all the facts and circumstances, who the proper defendants would be in the lawsuit, and decide what claims need to be pursued against the owner and operators of the ferry boat, as well as which court the maritime case should be filed in.

Our law firm handles exclusively maritime accidents, handling serious personal injury and wrongful death cases. I have been handling exclusively maritime cases for 30 years. I have been selected to appear before the United States Congress during congressional hearings addressing passenger safety aboard passenger vessels. The appears to be a needless incident and the operator will have a lot to answer about regarding this unfortunate incident.

The National Transportation Safety Board will provide very useful information regarding the cause of this accident.

A tragic incident has been reported involving a commercial dive boat with 23 people on board. This incident happened in Pompano, Florida, and it was reported that the boat was returning after a excursion involving diving. Upon return it was reported that a "rogue wave "hit the boat, causing it to capsize.

Rogue waves are often blamed for tragic incidents such as this. Exactly what is a rogue wave is debatable. Also, there is no excuse on the part of the operator of the boat just because he claims it was a rogue wave that caused the boat to capsize.

Read the entire article about this tragic incident here.

Our personal injury and wrongful death firm focuses on boating accidents and cruise ship accidents, and we have been handling maritime cases for 30 years. Brett Rivkind has been an invited speaker in the United States Congress on maritime safety issues.

An investigation is taking place to determine the exact cause of this tragedy.

There are many types of structures that float on water. Many times an issue arises whether a particular structure is considered a vessel under the maritime law. There are significant consequences to being considered a vessel under federal maritime law. Whether maritime law governs a particular action will depend on whether the particular structure constitutes a vessel or not.

In a Florida case, the city of Rivera Beach, utilized federal maritime law in order to "arrest" what looks like a typical house except for the fact it was on water at a marina. It was alleged that the presence of the house violated safety regulations of the marina. In order to utilize the legal principles that the city relied upon, the floating house had to be considered a "vessel" under the federal maritime law.

The homeowner responded by arguing the floating house did not constitute a vessel under the maritime law. The house did not have any steering mechanism or motor to propel it. It was basically a house in every sense, but on the water. This is different than some houseboats that are powered with engines and steering wheels and can be self-propelled through the waterways.

The case is very interesting because not only does the resolution of the issue of what constitutes a vessel affect claims such as injury claims filed by workers, or specific property rights, the gambling industry has a lot at stake with this particular issue that has made its way all the way up to the United States Supreme Court. If this floating house is found to be a vessel, it may then be argued that dock-side casinos are vessels under the federal maritime law. This could have far reaching implications on the casino business.

The United States Supreme Court recently had oral argument regarding this case. It appears to be a very interesting case as it is received a lot of publicity, and it was reported that every justice appeared at the oral argument with hypothetical questions addressed to the city's argument, which stretched to the logical conclusion, is any type of structure like this on the waterways is capable of moving people or things over water, which is the general test for determining something is a vessel or not. According to the city, since it was a floating home, it can be capable of moving people or things over water. This argument seems to be stretching to the limits the definition of a vessel, and is reported that the justices challenged this reasoning with questions, including the following;

Chief Justice John Roberts: How about an inner-tube or inflatable raft?
Justice Elena Kagan: Tape some coins to the inner-tube and now it's moving money across the water- it is a vessel then?

Another interesting question that was reported to have been asked by Justice Stephen Breyer was: "Styrofoam sofas" or other "absurd things that have nothing to do with ships or vessels and really could be used theoretically to carry something on the water."
This interesting case is expected to result in a decision by the Supreme Court of the United States sometime by the end of June of 2013.

Our Miami based maritime law firm helps victims of accidents and crimes that occur on the waterways, including accident or crimes involving personal watercrafts, recreational boats and cruise ships.

Protestors in Venice are trying to ban the large cruise ships from entering in and out of the Venice passage, which is only yards from the city's famous piazza, San Marco. Critics have stated that passage of these mega cruise ships poses a risk of environmental damage, as well as the fear of another Costa Concordia disaster which could destroy this historical city. There have been such criticism in the past of the cruise ships sailing in and out of Venice, but the recent Costa Concordia disaster has again brought into the spotlight the potential of enormous environmental damages, as well as the risk of an accident causing disaster.

The critics have been heard as the Italian government has been reported to be examining a new route for the larger cruise ships that visit Venice, which would divert them away from the San Marco area.

The recent protestors caused delays for several passenger cruise ships departing the city, e-trade insider reported. Among the cruise ships that were delayed by the protestors, were the passenger cruise ships, Costa Fascionsa, a 3,000 passenger vessel, the MSC Opera, a 1,712 passenger cruise ship, and the MSC Musica, a 2,536 passenger cruise ship.
The protestors formed in a flotilla of small boats and took to the waterways. Hundreds more lined the waterfront areas.

The images of the Costa Concordia lying on its side in the waters so close to the beautiful island of Giglio in Italy painfully reminds us of the dangers these mega cruise ships pose to their destinations if not properly regulated.

Our office continues to act as safety advocates for those injured or harmed at sea. We are presently representing passengers who suffered harm as a result of the Costa Concordia disaster. We continue to advocate for passenger safety onboard cruise ships and with respect to all aspects of boating. Boating safety is an important goal of each state's legislature. We have seen an increasing number of boating accidents in the Florida waterways, and a great number of accidents and fatalities relating directly to the consumption of alcohol while operating a boat or personal watercraft. There is growing awareness of the need to be aware of boating under the influence and regulating the operation of watercraft within each state. There was a national movement to create awareness of boating under the influence, and its dangers. The waterways continue to be a great way to enjoy yourself, but also can be extremely dangerous.

Accidents that occur on our waterways, including accidents that occur onboard cruise ships, are governed by maritime law. If a passenger is harmed during a cruise, the passenger will face very restrictive terms and conditions imposed upon them by the cruise ship company which are placed into the passenger ticket. A passenger should read very carefully their passenger ticket which outlines all the terms and conditions, including time limitations on bringing a claim for property loss, or personal injury/wrongful death.

It is good that in the recent years we are seeing an increase focus on the impact cruise ships can have on our environment. In the past years I've seen many instances of damages to our environment caused by cruise ships. There has in fact been significant penalties and fines imposed on different cruise ship companies as a result of causing environmental damages, and attempting to cover up their actions.

Let's hope the Italian government is successful in its efforts to keep these mega cruise ships from endangering such a historic and beautiful city.

The right to receive maintenance and cure if you are injured or suffered an illness while in the service of a vessel, as a seaman, is one of the oldest remedies available to seamen. It is an ancient obligation placed on the employer to take care of seamen who suffer an injury or illness while in the service of a vessel. There are a few exceptions to the obligation, and any ambiguities or doubts as to the right of a seamen to maintenance and cure must be resolved in favor of the seaman.

Maintenance and cure is a contractual form of compensation that is provided for under the general Maritime law. The obligation to provide maintenance and cure does not depend on any determination of fault. It is an obligation that is treated as an implied term of any contract of Maritime employment with a seaman.

A seaman can recover maintenance and cure even for an injury or illness that may have pre-existed the seaman's employment unless the seaman knowingly or fraudulently concealed a medical condition from his employer at the time he was hired.

The employer is entitled to investigate any claim for maintenance and cure benefits before paying them. One of the few defenses available to a Maritime employer to deny maintenance and cure, is a defense that the seaman willfully concealed a pre-existing medical condition from his employer. Most, if not all, employers of seamen, require the seamen to submit to pre-employment physical examinations and interviews. It is at this time that the seaman must be very careful not to fail to disclose any pre-existing medical condition he or she may have as this may later result in a defense raised by the employer to a claim for maintenance and cure.

In order to maintain the defense of an intentional misrepresentation by the seaman, the Maritime employer must establish the three elements in order to have a valid basis to deny maintenance and cure benefits:

1. The seaman intentionally misrepresented or concealed medical information;

2. The medical information that was not disclosed would have been material to the employer's decision whether to hire the crewmembers; and

3. There is a casual connection between the information that was not disclosed and the injury or illness the seaman is claiming maintenance and cure benefits for in the lawsuit.

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Over the years I have experienced many judges and attorneys who are of the belief that an Admiralty or Maritime claim must be filed in Federal Court due to the Federal Court's Admiralty Jurisdiction granted under the United States Constitution.

The Savings to Suitors Clause 28 U.S.C. §133 (1), provides that District Courts shall have original jurisdiction, exclusive of the states, of: (1) any civil case of admiralty or maritime jurisdiction, Saving to Suitors in all cases all other remedies to which they are otherwise entitled.

It is this provision, referred to as the Savings to Suitors Clause, which permits a Plaintiff to file an Admiralty or Maritime claim in a State Court. In other words, the State and Federal courts have concurrent jurisdiction. The Savings to Suitors Clause is critical to a claimant because it often times is the only way to achieve a jury trial for an Admiralty or Maritime claim. If the Admiralty or Maritime claim is filed within the Admiralty jurisdiction of a Federal District Court, there is no right to a jury trial.

Regardless of whether the claim is filed in a State Court or a Federal Court, Federal Admiralty/Maritime law governs the action.

Often times a Maritime action filed in a State Court under the Savings to Suitors Clause is removed by a Defendant to the Federal District Court. However, the Defendant may not remove the case by simply arguing that Federal Maritime law applies, and saying therefore the action should be brought in the Federal District Court. This would defeat the intent and purpose of the Savings to Suitors Clause. However, an action may be removed to the Federal District Court on an alternative basis for Federal Court jurisdiction, such as diversity jurisdiction.

It varies from state to state as to whether a Plaintiff will be better off filing a Maritime or Admiralty claim in a State Court or a Federal Court. An experienced Maritime attorney with knowledge of his State and Federal District Courts often times must make a judgment call regarding this matter. Of course, the right to a jury trial will most likely be the critical deciding factor.

Our Miami based Maritime law firm continues to handle cases in both the State and Federal courts within the State of Florida, and many times we have been retained to act as counsel or co-counsel on maritime cases outside of the State of Florida.