Maritime Injury Attorney Blog

The Eleventh Circuit Court of Appeals, in the case of Lindo v. NCL, rendered an opinion which severely restricts seamen's rights to recovery for personal injuries suffered in the course and scope of their employment. The decision surprisingly ignored prior case law which clearly stated that a seaman's employer, who enjoys a relationship where they can write just about anything they want into a contract of employment with the seaman, cannot contract away the applicability of the Jones Act, a federal statute granting seamen the right to sue their employer for negligence.

The cruise ship companies, who hire from third world countries, have recently been inserting mandatory arbitration clauses in seamen's employment agreements. The mandatory arbitration agreements require seamen to pursue their claims in binding arbitration. However, under the federal statute which granted seamen a right of negligence against their employer in 1920, called the Jones Act, seamen are entitled to sue their employer for negligence, with a right to a jury trial. The statute is liberally interpreted for the protection of seamen, who have historically been recognized by the courts as deserving of special protection because of the situation they are in. The courts have recognized that the ship owners exercise tremendous power over the seamen. Seamen must follow orders. It is one of the few types of employment where an individual loses their personal freedom once they step onboard the ship. They are subject to the rules and discipline of the ship, 24 hours per day. They work 7 days a week, often times 12 to 14 hours per day. They work for meager wages. Their working conditions are often described as horrible. They are overworked. Ship owners assign crewmembers to a multitude of tasks, many of which they are not qualified for, resulting in many serious accidents with serious injuries.

Recognizing the need to protect seamen, Congress granted seamen a right to sue their employer for negligence, and to hold their employer liable for the negligent acts of the employer's agents and for the negligence of fellow employees. The agents have included doctors who are hired to treat the seamen once they become injured or ill. This has somewhat tempered the temptation on the part of ship owners to send the crewmembers off the ship without needed medical treatment, or ignore the medical needs of crewmembers. In addition, holding the ship owner liable for the negligent acts of the doctors they choose also helps put some incentive on the ship owner to select competent physicians to treat their seamen. However, historically, the shipping companies have still chose to save money by sending crewmembers to third world countries for medical care and treatment, which has resulted in many claims for improper medical care and treatment. Our firm recently obtained a 2.9 million dollar verdict against a cruise line in a case where the company chose to send a crewmember to Managua, Nicaragua to be treated for a knee problem. The doctor then performed an arthroscopy surgery, which was done improperly, leading to a total knee replacement.

The Jones Act is a major vehicle for seamen to enforce their rights. They have very little rights once they step onboard the ship. They have no one to protect them. The ship owner does nothing to inform them of their legal rights. The crewmember is often times afraid to report an accident with the fear that they'll be fired, and sent home to their third world country without any money or medical treatment.

The Jones Act allows a crewmember to stand up against big corporations like Carnival Cruise Lines, Royal Caribbean Cruise Lines and Norwegian Cruise Lines. The Jones Act has always given the seamen the opportunity to go into a court of law, and be on equal footing with the cruise ship company. Recognizing that the Jones Act is designed to provide a remedy to seamen injured in the course and scope of their employment, the courts have said it is to be given a liberal interpretation, and the standard of causation that it is applied in cases under the Jones Act is much different than the regular causation standard in general negligence cases. In a seaman's case, any negligence, no matter how small, which contributes in any manner to the seaman's injury, is a basis for the seaman to recover. At least, prior to this Lindo v. NCL decision in the Eleventh Circuit Court of Appeals, which simply ignored prior case law, not only by its own court, but also case law of the Supreme Court of the United States.

In Lindo v. NCL, the seaman had an employment agreement that required him to arbitrate his disputes in his home country, (Lindo was from Nicaragua), and that the law of the Bahamas would be applicable to any of his claims. The seaman argued in the lower court that this was an improper attempt on the part of the ship owner to deprive the seaman of his rights under the United States laws, including the Jones Act, and also argued that the Jones Act provided a right to a jury trial. The seaman argued his employer could not force binding arbitration on him in the contract of employment.

The lower court dismissed the case and compelled arbitration. The seaman appealed.

The Eleventh Circuit Court of Appeals, shockingly, not only stated that a seaman can be required to arbitrate his claims against his employer, but also ruled that the choice-of-law clause in the employment agreement applied. The Court paid little attention to their previous decision in Thomas v. Carnival Corp. 573 F3d 1113 (11th Cir.2009), which had held that although a seaman can be required to arbitrate claims against his employer, the employer could not deprive the seaman of his United States statutory claims. In Thomas, the United States statutory claims involved a wage claim under the Penalty Wage statute that applies to seamen.

In Lindo, the Court said that forum selection clauses, arbitration agreements and choice-of-law clauses, are generally valid under the maritime law, and enforceable. However, the Court ignored prior case law recognizing that because seamen are a unique class subject to be taken advantage of by their employers, any agreement with a seaman and an employer should be scrutinized, and not lightly enforced. The Court should recognize the unequal bargaining power, and the fact that these agreements are a take it or leave it employment agreement. These contracts of employment are signed under duress, economic duress at the very least. These agreements are signed without any knowledge of their rights. However, the Lindo court simply did not care. The Court did not care about the general principle in admiralty, which is that a seaman is a ward of the Court, which means that the Court should provide special protection for the seaman, recognizing that they are a class of people that are disadvantaged and taken advantage of.

The Lindo court enforced the arbitration agreement and choice-of-law clause, requiring the seaman to go to Nicaragua to arbitrate his claims under Bahamian law. What happened to the Jones Act? What happened to Lindo's rights to a jury trial? What happened to the principle that Lindo is a ward of the court entitled to special protections? What happened to recognizing that ship owners are able to put whatever they want in employment agreement? It is simply unconscionable to allow the cruise ship companies to escape their obligations under the applicable United States law by the stroke of a pen! None of this bothered the Eleventh Circuit Court of Appeals in rendering the Lindo decision.

This is a severe blow to seamen's rights. Seamen have relied on the Jones Act since 1920 to seek recovery for their personal injuries suffered in the course and scope of their employment. It is a mechanism for them to make the workplace safer for all seamen. By holding the ship owner accountable under the Jones Act, ship owners have an incentive to try to make the workplace safer for everyone. Seamen are hired from third world countries. They leave their families behind. They make tremendous sacrifices to try to provide for their families. They give up everything to come work onboard a ship and spend 9 to 10 months a year away from their families. When they suffer an injury at work, they are most likely never going to work again onboard a ship. They lose their capacity to earn money. It is a life changing experience for them. They are now faced with the prospect of losing the main mechanism they have always had to seek compensation for their injuries. This decision is extremely unfair, and the reasoning of the decision makes no sense. The Court does not refer to the prior United States Supreme Court decision in Hellenic Lines Ltd. v. Rhoditis, 398 US 306, 310 (1970) which dealt with the issue as to when United States law applied to seamen claims that involve a foreign seaman suing a foreign ship owner and a foreign flag vessel. Most of the shipping industry now flies foreign flags, and all of the cruise ship companies do. Cruise ship companies, even though their base of operations are in the United States, fly foreign flags, such as the flag of the Bahamas or Panama. They do so to escape United States taxes and labor laws, and other regulations of the United States. They benefit tremendously from being able to do this. The Supreme Court in Rhoditis said if you are going to enjoy the benefits of operating in the United States, and the associated profits, then you must be subject to the obligations of the United States law.

Accordingly, in Rhoditis, even though there was a choice-of-law clause in the seaman's employment agreement that required him to bring his case in the country of Greece, under the Greek compensation system, the Supreme Court of the United States held that the Jones Act was applicable due to the substantial base of operation the ship owner had in the United States. This has always been the law. The cruise ship companies are subject to the United States law, including the Jones Act, based on their substantial base of operations in the United States. This Lindo decision appears to allow the ship owner to insert a provision in the contract which relieves the ship owner of its obligations under the Jones Act, which is a very special statute enacted for the protection of seamen.

The Lindo decision was a two to one decision, and the decent is definitely worth reading, and is well written and reasoned. Hopefully, the Eleventh Circuit, on a re-hearing, will consider hearing the case banc, having the entire Eleventh Circuit Court panel listen to these issues and hopefully revisit the conclusions made by the Lindo panel. This decision is simply wrong, and contrary to prior case law, and contrary to the expressed language of the federal statute, the Jones Act.

We will keep a close eye on further developments. We understand that the seaman's attorney is going to move a re-hearing, and a re-hearing banc. We anticipate the next step after that, if the re-hearing route is unsuccessful, will be an attempted visit to the Supreme Court of the United States regarding these issues.

Our firm continues to be safety advocates for both passengers and crewmembers injured at sea.

At least as to claims involving economic and environmental losses, a United States District Court Judge in New Orleans made a significant ruling, finding that the United States Oil Pollution Act did not bar claimants from seeking punitive damages as the companies had argued.

Under the General Maritime Law, punitive damages have historically been available to claimants in all types of cases. However, over the years certain federal statutes have been interpreted as precluding an award of punitive damages. The Jones Act, a federal statute that applies to seamen in personal injury and wrongful death claims, has been interpreted not to allow for the recovery of punitive damages. Similarly, the Death on the High Seas Act, has been interpreted as precluding an award of punitive damages.

However, recently the United States Supreme Court in the case of Atlantic Sounding Co., v. Townsend, 129 S.Ct. 2561(2009), addressed whether a seaman could recover punitive damages under the General Maritime Law for the willful and arbitrary failure to provide maintenance and cure. The argument on the part of the shipping company was that punitive damages were no longer available under the General Maritime Law.

There has been a conflict in the decisions regarding the availability of non-pecuniary damages under the General Maritime Law when a statute does not speak directly to the claim in question. In Townsend, the Supreme Court of the United States ruled that there was no bar to the recoverability of punitive damages on the part of seamen at least with respect to maintenance and cure actions. The Supreme Court did not find any such bar in any of the statutes that govern claims brought by seamen. The statutes were not applicable to maintenance and cure claims. Therefore the Supreme Court of the United States ruled that punitive damages survived under the General Maritime Law, at least for maintenance and cure claims.

In this recent decision by the federal judge in New Orleans, the federal judge similarly ruled that the United States Oil Pollution Act did not have any bearing on the General Maritime Law claims for punitive damages. The statute was silent and thus Congress did not occupy the area in question. Accordingly, the plaintiffs, with respect to the economic environmental losses, may now pursue claims under the General Maritime Law for punitive damages. The question remains whether seamen who were injured, or the families who are pursuing wrongful death claims, can also seek punitive damages under the General Maritime Law, or whether the prohibition of punitive damages read into the Death on the High Seas Act and the Jones Act will prevent such.

This is a major victory for claimants. Due to the amount of money involved, one can anticipate an appeal will be made from this federal judge's ruling.

Our personal injury and wrongful death firm continues to be safety advocates for passengers and crewmembers injured at sea.

Irene has become our first hurricane of the year, and questions then arise as to how it affects maritime travel and what ships and vessels must do as the storm approaches.

The United States Coast Guard issued a news release dated August 21, 2011 indicating that the Coast Guard's San Juan Captain of the Port, Captain Drew Pearson, issued Port Condition ZULU, which means that he closed the ports to all incoming and outgoing vessels in the United States Virgin Islands and Puerto Rico. This is a protective and precautionary measure in anticipation of the approaching storm.

This raises interesting questions to whether vessels can stay in port, or must be sent out to sea to find another place of refuge. Our office has handled several cases involving vessels that have been lost at sea during a hurricane.

A well known case involved a passenger cruise ship, named the Fantome, which was operated by Windjammer Cruises. The Phantom was initially a large sailing type vessel that was converted to a passenger cruise ship by the Windjammer Company. Since it was intended to be a sailing vessel, it operated at very slow speeds after the conversion. Despite the slow moving vessel, the owners made a decision when Hurricane Mitch, which was a category 5 hurricane, was approaching toward the port in Honduras. The owners made a decision to take the vessel out to sea, and try to out maneuver Hurricane Mitch. This was an extremely reckless and dangerous decision. As a result, Hurricane Mitch, a powerful category 5 hurricane, destroyed the Fantome. The vessel was lost, and all members of the crew that were onboard the vessel were lost. The vessel was never found, nor were any of the crewmembers. This tragedy formed the basis of a book, named the Ship and the Storm. Our firm represented the survivors of many of the crewmembers who were lost at sea.

We also handled another case involving a cruise ship that was operating out of a port here in Florida many years ago, operating one day cruises to nowhere. It was a gambling vessel. As a hurricane was approaching, the port had an order that all vessels must leave port before the storm approached. This again is a precautionary measure for the safety of the port. Again, a decision was made for the vessel to leave port and try to seek safe refuge in the open seas. Unfortunately, this vessel was manned by an incompetent crew, and did not have the capabilities to out maneuver a storm, and never should have left port in the condition the vessel was at the time, including the incompetent and inexperienced crew that was manning the vessel at the time. In this particular case, the vessel owner argued that it was ordered to leave port, and this was their major defense in the negligence action against the vessel operator. The vessel was lost at sea, and several crewmembers were injured, and two of the crewmembers died.

Our wrongful death firm represented the surviving family member of one of the deceased crewmembers. In handling the litigation, we learned that although the port does implement rules requiring large vessels to leave the port, there are methods to apply for relief from this particular requirement. In particular, the vessel operator could have petitioned to stay, and show that the vessel was not in a seaworthy condition, and that the vessel was not adequately manned at the time, making it extremely dangerous for it to leave the port at the time.

The news release closing the ports in the U.S. Virgin Islands and Puerto Rico, called Port Condition ZULU, states that there are sustained gale force winds from hurricane force storm predicted within 12 hours. The ports then remain closed to all incoming and outgoing vessel traffic until further instructions by the Captain of the Port.

The news release warns owners and operators of recreational vessels to follow small craft advisories issued from the National Weather Service, and to take the necessary safety measures to protect their vessels.

The approaching of a storm is a difficult and tricky situation for vessel owners and operators. Any decisions to take a vessel out to sea in order to out maneuver an approaching storm must be carefully made, considering the size of the vessel, the experience of the captain, and of course taking into consideration the unpredictability of the path of storms, which often do take sudden and unexpected turns. Over the years, the equipment used to forecast the tracking of storms, as well as our experiences with storms, have definitely improved. We are all now familiar with the cones that are created showing the possible areas a storm may travel to. Over the years, the strict forecasted path of the storm is no longer the focus. We now look at a much wider spread area, called The Cone of Influence. This is to take into account the unpredictability of the path of a severe storm. Many disasters at sea have occurred due to the focus on the narrow anticipated path of a storm, without taking into account the variability of the course of the storm.

We have also handled many cases involving injuries sustained by passengers on cruise ships who have decided to go to sea when there is a hurricane approaching instead of cancelling a particular cruise. The cruise ship companies have experienced captains and state of the art navigational equipment. Therefore, they are able to change the itinerary of the cruises, and travel on an itinerary as far away from the effects of the storm as possible. However, many times the cruise ship encounters extremely severe weather conditions when a storm does not follow its predicted course, resulting in injuries to passengers or crewmembers. We have handled many of these cases.

We will continue to keep a close eye on Hurricane Irene, and the affects that it will have on the maritime travel here in the state of Florida.

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

The right to maintenance and cure for seaman has been recognized in our country for centuries. It is one of the oldest obligations a ship owner has to their crewmembers. Maintenance and cure can be described succinctly as medical expenses, living allowance and unearned wages owed to a seaman who suffers an injury or illness while in the service of the vessel.

Ship owners (employers) have argued that seamen cannot recover punitive damages for the willful, arbitrary and capricious failure to live up to their maintenance and cure obligations. The issue was somewhat unsettled until fairly recently when the Supreme Court of the United States decided, in the case of Atlantic Sounding Co., v. Townsend, 129 S. Ct. 2561 (2009) , that punitive damages are available to a seaman for the willful, arbitrary and capricious failure to provide maintenance and cure. Townsend resolved a conflict among the circuits regarding the issue.

The Supreme Court of the United States recognized that the legal obligation to provide maintenance and cure dates back centuries as an element of general maritime law, and that punitive damages for the failure to provide a seaman without adequate medical care and treatment was recognized in the early 1800's.

The Supreme Court of the United States recognized punitive damages have historically been available at common law. Also, that this common law tradition of awarding punitive damages applied to maritime cases. Lastly, the Supreme Court of the United States concluded there were no legal barriers to a claim for punitive damages for failure to provide maintenance and cure. Instead the general admiralty rule recognizing punitive damages was applicable. As such, the seaman does in fact have a right to seek punitive damages for the willful, arbitrary and capricious failure to provide maintenance and cure.

This weapon given to the seamen is critical to all seamen. It is a method of enforcing their rights to maintenance and cure. It is a method to punish owners / employers who do not comply with this critical obligation. The failure to provide maintenance and cure leaves seamen without proper means to obtain necessary medical care and treatment. If the claim was limited to purely compensatory damages, the ship owner / employer would have less incentive to comply with their maintenance and cure obligations as the compensatory damages are sometimes very little compared to the actual damages suffered. Punitive damages is a method to punish and to deter willful, arbitrary and capricious conduct on the part of the ship owners / employers.

Continue reading "Punitive Damages Available to Seamen for Failure to Provide Maintenance and Cure" »

In any negligence case, there are two prongs the injured party must meet in order to recover damages for the injuries sustained. The first prong is to prove negligence on the part of the alleged wrongdoer, which is to show that the wrong doer did not act reasonably under the circumstances. Basically, the alleged wrong doer violated a safety rule or safety standard of care.

Seamen have special laws that apply to them when they bring cases for injuries sustained while working aboard a vessel. A crewmember who qualifies as a seaman can assert a claim under the Jones Act, 46 U.S.C. §30104. The seaman's employer is responsible for damages if the employer is found negligent, and the negligence is determined to have caused the injuries. The Jones Act contains a very special standard for determining the causation prong. The seaman's burden of proof under the Jones Act to prove that the negligence caused his injuries has been described as "featherweight". The employer's negligence must simply be determined to be a "producing cause" of the injury. This means that in order to win the causation prong, a seaman only has to show that the negligence played any part, even the slightest, in producing his injury.

This very relaxed standard of causation, and featherweight burden of proof, was recently questioned by the railroad industry in a case before the Supreme Court of the United States brought by railroad worker under the Federal Employer's Liability Act (FELA). The Supreme Court, in a rare victory for the Plaintiff, recently reaffirmed this relaxed standard of causation in a FELA case, in the decision of CSX Transp., Inc., v. McBride, 2011 WL 2472795 (2011).

The Supreme Court decision in McBride is a major victory for the railroad workers, as well as for seamen. The Jones Act incorporates the FELA, and therefore the same negligence standards as to causation apply in Jones Act case as apply in FELA cases. The railroad argued in McBride that the language in the FELA statute did not support the relaxed standard of causation that is applied in FELA and Jones Act cases. They argued the language meant comparative negligence was applicable in FELA and Jones Act cases. Previously, assumption of risk was applicable and contributory negligence acted as a complete bar to recover in until passage of the Jones Act, which abolished assumption of risk, adopted comparative negligence, and created a negligence cause of action for the negligence of the agents or employees of the employer. Under the Jones Act, medical care providers are determined to be the agents of the employer and therefore the employer of the seaman is responsible for any of the negligence of these medical care providers.

I am pleased to report about the McBride decision by the Supreme Court of the United States. We have seen several unfavorable decisions recently out of the Supreme Court of the United States. It is rare to see a victory for the Plaintiff. I applaud all of the efforts of those who handled the McBride case on behalf of the railroad employees, including the fantastic Amicus Brief that was filed. It was a difficult court to convince to rule in the favor of the employee. It is a major victory for the railroad employees and the seamen.

Seamen are not limited by worker's compensation. They do get to sue for negligence and recover full tort damages. There are several other causes of action a seaman does have if injured or if the seaman suffers an illness during the course and scope of their employment. Historically, seamen are considered wards of the court, and are entitled to special protections by the court. A seaman who suffers an injury or illness in the course and scope of his employment should immediately consult with a maritime specialist in order to find out all of his or her rights, protections and theories of recovery for the illness or injury.

My firm continues to act as safety advocates for passengers and crewmembers harmed at sea.

A Sixteen year old passenger aboard a Norwegian Cruise Line ship, the Norwegian Spirit, acted swiftly when a passenger went overboard into the Mississippi River. The sixteen year old, Alex Giffel, of Baton Rouge, Louisiana, saw a passenger go overboard into the Mississippi River. He thought fast and immediately threw a nearby life ring to the passenger in the water. The Norwegian Spirit's rescue team onboard was notified and immediately a rescue boat was sent to rescue to the overboard passenger. Fortunately, the passenger was rescued and brought back onboard the ship without any injuries.

In a special ceremony held onboard the ship in New Orleans, the Captain of the ship personally thanked the sixteen year old passenger for his heroic efforts. He received plaques of appreciation as well as the same life ring that he used to throw into the water to rescue the passenger.

I continue to be surprised at the number of people we hear going overboard during a cruise. While it does seem very difficult for somebody to fall overboard during a cruise, we have been seeing it happen with much more frequency than expected. This particular passenger was very lucky to be rescued and brought back onboard safely. We have heard of many passengers going overboard who have not survived.

Our firm has handled many cases involving a passenger going overboard to their death.

We continue to be safety advocates for passengers and crewmembers harmed at sea.