Maritime Injury Attorney Blog

When a seaman suffers a personal injury during the scope of his employment, he can bring a negligence action under the Jones Act against his employer. He also can bring an action against the shipowner for unseaworthiness. Unseaworthiness is a legal term, but in the context of a claim by a seaman, means that something aboard the vessel was not reasonably fit for its intended use. This can include a procedure at work or a job method. It can include assigning too few persons to a particular job task. It is a form of strict liability.

Previously, the Supreme Court had decided the case of Miles vs. Apex Marine Corp., which dealt with the damages available to a seaman in a wrongful death case. The Supreme Court ruled the damages needed to be uniform between the Jones Act and general maritime law in a wrongful death case, and denied loss of society damages to the spouse of the seaman who died.

Following the Miles decision, there were decisions questioning the availability of punitive damages to a seaman under the general maritime law.

Recently, the Supreme Court of the United States decided the case of Atlantic Sounding Co. Inc. v. Townsend, ruling that punitive damages can be extended to general maritime law claims unless a specific act of Congress had been enacted stating otherwise. In Townsend, the seaman was allowed to pursue his claim for punitive damages for failure to provide maintenance and cure.

In a recent decision of the United States District Court for the Eastern District of Missouri, the court, utilizing the logic of the Townsend case, and ruled that a seaman can recover punitive damages under the general maritime law for the unseaworthiness of the ship.

Continue reading "Seamen Can Recover Punitive Damages in an Unseaworthiness Claim" »

The Cruise Lines International Association (CLIA) has announced that the IMO has agreed to a proposal by the United Kingdom, the Cruise Lines International Association and the Philippines to promulgate guidelines which will address concerns relating to alleged serious crimes and persons missing at sea.

There were 24 delegations which spoke at the IMO meeting held on April 18th. All of them supported the proposal.

The key elements that are going to be part of the guidelines include preservation of evidence, medical and pastoral care for victims, effective and timely reporting to governments, as well as cooperation between the governments with respect to investigations.

Our firm has handled many cases where all these problems have surfaced, and applauds the announcement that guidelines are going to be developed to address these problems. Many of these problems were brought to light following the disappearance of George Smith during his honeymoon cruise. Our law firm represented the parents of George Smith. We fought for more than a year simply trying to get evidence from the cruise line company and from other sources in order to provide the parents with answers to the questions they had about the disappearance of their son. We were met with roadblocks all along the road.

The problems started with the investigation onboard the vessel, where there were allegations that material information was either not properly preserved or destroyed. There were problems determining which authority had the jurisdiction to conduct the investigation, which resulted in a significant delay in the F.B.I. getting involved in the investigation. Again, resulting in loss of material evidence that could have solved the mystery.

The problems with the George Smith case, as well as other cases involving missing persons onboard a cruise ship, led to Congressional Hearings addressing these matters. I was an invited speaker as a maritime expert to answer questions in Congress regarding safety laws and procedures that apply to the cruise ship companies when incidents such as this occur onboard a cruise ship. Eventually, the Congressional Hearings led to the passage of the Cruise Vessel Security and Safety Act which was signed into law by President Obama.

The next step with respect to the IMO is to get down to the technical details to complete the guidelines. The work is supposed to begin immediately and will be led by the United Kingdom along with other member states of the IMO. The goal is to develop guidelines that are proportionate for the different ship types and without an excessive burden to the Master and crew. The IMO will receive input from CLIA and other organizations with specialized expertise.

I think attorney Laurence D. Gore for his reporting on the news about the agreement to develop these guidelines. The guidelines are long overdue, and hopefully will lead to greater clarity when an incident such as what occurred in the George Smith case happens. The goal is to make sure the cruise ship companies promptly report these incidents to the appropriate authorities, and take all necessary steps to assure that important and critical evidence is not lost after a serious crime is reported, or a person is reported as missing at sea.

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

In yet another unfavorable decision for seamen, the Fourth Circuit Court of Appeals has joined other circuits in finding that an arbitration clause in a seaman's employment agreement is binding and enforceable. The case of Potenciano L. Aggarao, Jr. v. MOL Ship Management Company, Ltd., Case No. 10-2211 (D.C. Maryland, March 16, 2012), (addressed a case where the seaman was a citizen of the Philippines and he filed suit for severe injuries he suffered on a ship named the M/V Asian Spirit. The accident happened in the Chesapeake Bay near Baltimore. Multiple claims were alleged, including Jones Act negligence, unseaworthiness, maintenance and cure, breach of contract as well as violation of the Seaman's Wage Act. There were negligence claims brought up under the general maritime law as well as the Jones Act.

The opinion is interesting because it first addresses the basis for the dismissal, which the Court found to be a dismissal for improper venue since the arbitration clause was likened to a forum selection clause. Dismissal pursuant to a forum selection clause is on the grounds of improper venue. Similarly, this Court concluded that the dismissal based on the arbitration agreement was based on improper venue.

The Court discussed the Convention on the recognition and enforcement of foreign arbitral awards (the "Convention"). The United States has exceeded to this Convention in 1970, and Congress implemented it by enacting Chapter 2 of Title 9 of the United States Code ("The Convention Act").

The United States also, under Title 9 of the United States Code, has what's called the Federal Arbitration Act (the "FAA"). A Ninth Circuit Court of Appeals decision, in Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148 (9th Circ. 2008), described the relationship the Federal Arbitration Act has to the Convention Act:

Federal arbitration law is codified in the three chapters of Title 9
of the United States Code [only two of which are relevant here].
The [FAA] comprises the first chapter. See 9 U.S.C. §§ 1-14.
[The legislation] implementing the treaty . . . commonly called
the Convention Act, comprises the second chapter. See U.S.C
§§ 201-208.

The Supreme Court of the United States has indicated that the goal of the "Convention" is to encourage the recognition and enforcement of commercial arbitration agreements in international contracts, as well as unify standards by which agreements to arbitrate are observed and arbitral awards are enforced in signatory countries.

Continue reading "Fourth Circuit Court of Appeals Sends Seaman Packing and Home to Philippines to Arbitrate Jones Act Claims" »

I reported that on Wednesday, February 29, 2012 the House Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation held a hearing to look into the Costa Concordia disaster. The hearing was stacked with witnesses who were friends of the cruise ship industry. The hearing was reported as being nothing more than a forum to praise the cruise ship industry, not critique it as it deserves.

Today, March 1, 2012, the Senate Commerce Committee held their hearing entitled "Oversight of the Cruise Ship Industry: Are Current Regulations Sufficient to Protect Passengers and the Environment?"

Chairman Rockefeller started off with a critical line of questions directed right at Christine Duffy from CLIA dealing with why the cruise ship industry can avoid paying U.S. taxes despite making millions of dollars in profits each year while relying on over twenty United States Federal agencies for assistance every time their industry runs into trouble. When asked if she thought this was fair, Ms. Duffy did not have a good answer for the Chairman.

I was a little disappointed to hear that Chairman Rockefeller only briefly discussed the Death on the High Seas Act and other maritime laws that result in passengers not getting adequately compensated for injuries and deaths.

Reports indicate that Senator Amy Klobuchar did take the opportunity to question Ms. Duffy about the Death on the High Seas Act. Although she avoided answering the questions during the hearing, she was requested to submit her answers in writing about what impact DOHSA has on surviving members not sufficiently compensated when their family members are killed aboard cruise ships. These written answers must be submitted for the record.

Ross Klein, who maintains statistics on crimes and disappearances on cruise ships, and often times critiques the cruise ship industry, testified. He did discuss the unfairness of the Death on the High Seas Act, and also discussed the cruise ship companies' use of mandatory arbitration clauses as "job killers for Americans" because they create a disincentive to hire American workers.

I was glad to hear that this particular hearing before the Senate focused more on the true issues that must be looked at - at this time, instead of simply acting as a forum for the cruise ship industry to promote themselves.

There is a link to read the witness testimony and view a webcast of the hearing.

In addition, USA Today News issued an article called Senator Rips Costa Concordia's Parent Company on Taxes.

A very interesting piece of information provided by Senator J. Rockefeller at the hearing when he was questioning the nonpayment of taxes by the cruise ship companies, is found in the USA Today article. Senator Rockefeller was quoted as stating: "The fact is that 1.1% in five years, $11.3 billion in profits is absolutely unthinkable to me," Rockefeller stated. "We're not very happy when they don't pay taxes. To me, it's amazing."

It is amazing that the cruise ship companies enjoy such favorable laws yet continue to lobby Congress on a yearly basis to escape legal liabilities to passengers and crewmembers when their negligence causes injuries or death.

We know that in the wake of the Costa Concordia disaster there's a lot of pressure on Congress to do something, as well as a lot of pressure on the cruise ship industry to show that they are stepping up to the plate to address the problems. The Congressional Hearings are a good platform for both Congress, as well as the cruise ship industry, to at the very least create the appearance that things are being done to address the problems and make the necessary changes. Only time will tell whether this powerful cruise ship industry can be slowed, and whether new safety laws and regulations will in fact be implemented that carry with them the appropriate mechanisms and incentives to make sure they are enforced and followed. There has been a lot of criticism of the Cruise Vessel Security and Safety Act which was passed after the previous Congressional Hearings addressing cruise ship safety. Some of the criticism is that those particular hearings were prompted by public opinion and the pressure to address problems that existed at the time, but once things calmed down the focus turned away from the cruise ship industry and the legislation that was passed did not have much positive impact. I truly hope this is not the case again. I respect our Congress of course, and truly hope that the cruise ship industry, and their powerful lobbying efforts, will not be sufficient to defeat passage of positive safety laws and legislation, as well as to defeat efforts to do away with the archaic maritime laws that deprive passengers and crewmembers of fair and just compensation when they are injured or killed due to the negligence of a cruise ship operator.

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

On Wednesday, February 29, 2012, the U.S. House of Representatives is going to have a hearing on cruise ship safety which is entitled "A Review of Cruise Ship Safety and Lessons Learned from the Costa Concordia Accident."

At first blush, this appears to be a well needed Congressional Hearing in order to focus on problems in the cruise ship industry, and take steps necessary to create more regulations and laws that apply to the cruise ship companies which will make cruising safer for all of us. However, this particular hearing that is scheduled on February 29, 2012 is spearheaded by the Chairman of the House Transportation and Infrastructure Committee (the subcommittee on Coast Guard and maritime transportation), Florida Republican John Mica.

Not only is this hearing led by Republican Mika out of Florida, the initial agenda included a list of the witnesses, which reflected that the witnesses were all cruise ship company's friends or allies. There were five representatives of the cruise lines listed and one Coast Guard witness. I have previously written about how the cruise ship industry maintains strong ties with the United States Coast Guard, often times sponsoring and attending Coast Guard functions. The witnesses listed include a president of Cruise Line International Association (CLIA), Michael Crye (a lawyer for the Cruise Line International Association), as well as Vicky Rey, a public relations and customer care representative from Carnival Cruise Lines. In addition George Wright, from Princess Cruises, as well as Captain Evans Hoyt from Norwegian Cruise Lines was listed to testify at this hearing.

You may be asking where are any of the victims of the Costa Concordia disaster, or any proponents for cruise ship safety changes, such as a representative from International Cruise Victims Association, or a maritime attorney such as myself who acts as a safety advocate for passengers and crewmembers? Not surprisingly, none were initially listed.

I wasn't surprised to learn that Republican Mika set up this hearing, and stacked the field in favor of the cruise ship industry by the list of witnesses that were invited to speak. I previously was invited to speak during Congressional Hearings addressing cruise ship safety back in March 7, 2006 following the disappearance of George Smith aboard a cruise ship. Our firm represented the family of George Smith. I was invited to speak as a maritime expert addressing cruise ship security and safety issues. Eventually, the Congressional Hearings led to passage of the Cruise Vessel Security and Safety Act, signed into law by President Obama on July 27, 2010.

Continue reading "Does Media and Public Relations Campaign of Cruise Line Industry Include Congressional Hearings? " »

The Cruise ship industry just announced adoption of new rules. Every single passenger will receive a required safety briefing which must take place prior to the ship leaving port. This newly implement rule may have saved the lives of passengers on the Costa Concordia.

Hundred of passengers aboard the Costa Concordia had not yet undergone the muster drill when the ship crashed into the rocks off the island of Giglio. Until now, the safety briefing had to be given within 24 hours of disembarkation as required by maritime law.

According to the Cruise Lines International Association, this new requirement was voluntarily Nautilus, the seafarer's union, has recently expressed the problem of actually carrying out a successful evacuation of these very large ships which can carry over 5400 passengers. I too have questioned whether, under current procedures, a safe evacuation can take place on a mega cruise ship that has more than 5000 passengers and crewmembers. I was interviewed on CBS evening news, who did a segment questioning whether passengers on the modern day mega ships can be safely evacuated in case of a disaster such as what occurred with the Costa Concordia.

As can be expected, Carnival Corporation continues to pay attention to the financial impact this disaster will have on them. According to Carnival Corporation, the disaster will decrease its net income in 2012 by $155 million to $175 million. I am sure we all feel sorry for carnival! It upsets me to see so much media coverage about the financial impact on carnival, instead of keeping the focus on the passengers and crewmember, especially those whose lives were lost due to this needless tragedy.

Rivkind and Margulies are Miami based cruise ship and boating accident attorneys. Mr. Rivkind has been handling maritime cases for thirty years. He is past president of the Florida Bar Admiralty Committee, a lecturer and teacher, as well a safety advocate for passengers and crewmembers. He has testified in Congress as an invited speaker and maritime expert.

In Henriquez v. NCL (Bahamas), Ltd., the 11th Circuit followed its recent decision in Lindo v. NCL, recognizing that arbitration agreements and seaman employment agreements are enforceable notwithstanding a choice of law provision which requires the application of foreign law to the seaman's claims.

We previously blogged about the disturbing opinion in Lindo, in which the 11th Circuit affirmed the trial court's dismissal of the seaman's case, compelling arbitration, based on an arbitration provision in the seaman's employment contract. The 11th Circuit rejected the argument that the choice of law provision, which required the application of foreign law, rendered arbitration agreement void as against public policy. The public policy defense is available under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitration, which the 11th Circuit Court of Appeals had previously recognized in the decision in Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), cert. denied, 130 S.Ct. 1157 (2010).

In Thomas, the 11th Circuit Court of Appeals ruled that a arbitration provision in the seaman's employment agreement was unenforceable, ruling that it was against the public policy of the United States for the cruise line company to require foreign law to apply to the seaman's wage claim pursuant to the penalty wage statute of the United States. The 11th Circuit ruled that it violated public policy, and thus was a defense to the enforceability of the arbitration agreement. The 11th Circuit recognized prior United States Supreme Court precedent in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629 (1985), which stated that if a choice of law provision operates in tandem with an arbitration clause to deprive an individual of their statutory rights under the United States Law, the arbitration agreement is void as against public policy. Thomas ruled that since the arbitration agreement in the seaman's employment agreement drafted by Carnival Cruise Lines attempted to deprive him of his United States Statutory rights under the penalty wage statute, the arbitration agreement was void as against public policy. The seaman was permitted to pursue his penalty wage statute claim in the courts, and was not required to go to arbitration.

In Lindo, the 11th Circuit did a complete about face, ignoring Thomas, and ruled that the arbitration agreement in the seaman's employment agreement was enforceable notwithstanding the choice of law provision requiring the application of foreign law to the seaman's claims, including his statutory claims under the Jones Act. The court rejected the arguments by the seaman that the arbitration agreement violated public policy and was void based on the fact the choice of law provision deprived the seaman of his statutory claims under the Jones Act. The Lindo court also rejected any claims that the agreement could be stricken based on an inequality of bargaining power, or that the arbitration agreement was invalid because of the specific language contained in the Jones Act prohibiting the contracting away of rights seaman have under the Jones Act. Despite the fact that these arbitration agreements in the seaman employment agreements deprive the seaman of their venue rights under the Jones Act, as well as their rights to a jury trial, the court said that such arbitration agreement are valid.

In Lindo, the court left open the possibility of later review by the District Court to determine whether the seaman ends up being deprived of his rights in the arbitration proceedings. In other words, the seaman has an opportunity to come back to the court and demonstrate that the arbitration proceedings resulted in a deprivation of his statutory rights. The court suggested that the foreign law can provide the substantial equivalent of the statutory rights under the Jones Act, and basically that it was a wait and see game, and that it was not enough to strike the arbitration agreement prior to seeing what happened in the arbitration proceeding.

Continue reading "11th Circuit Court of Appeals Affirms Dismissal of Nicaraguan Seaman's Case Against Cruise Line and Compels Arbitration" »

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.

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.

Her name is Rebecca Coriam. She is only 24 years old. She is from Guilden Sutton, which is located in Cheshire, England.

Rebecca chose to work onboard a Disney cruise ship which is registered in the Bahamas. She was employed to supervise children onboard the ship. Reports state that Rebecca was last seen onboard the passenger cruise ship, Disney Wonder, on March 21, 2011.

Unfortunately, as has become the typical scenario, the issue of which country should take the leads in the investigation surfaced and became a problem. The family learned that the police in the Bahamas did an investigation, but the Bahamian authorities stated the evidence did not suggest any "foul play". The question arises what type of investigation the Bahamian police really could have conducted to try to find this British citizen who went missing on a Disney cruise ship which was registered in the Bahamas as a flag of convenience.

Disappearances onboard cruise ships have gained much more national attention since the honeymooner, George Smith, went missing during his honeymoon cruise aboard a Royal Caribbean cruise ship. Legal commentators and experts voiced harsh criticism of the manner in which the disappearance was reported and investigated by the cruise lines, arguing that the critical passage of time and missing evidence thwarted the efforts of the authorities to solve the disappearance, which was labeled as likely involving foul play.

In this particular case, the Bahamian authorities has indicated there was no evidence to suggest "foul play", but again the issue of who should have conducted a thorough and complete investigation, the timing of that investigation, and how much evidence was actually gathered, remains at issue.

In a report from the BBC News out of the UK, it is indicated that a meeting with the shipping minister in the UK is going to take place. This incident is further calling to the attention of the authorities of other countries the need for legislation regulating criminal activity, including disappearances, that occur onboard these foreign flag cruise ships that sail all over the world, and carry passengers from all different locations in the world.

Continue reading "Family of Chester Woman Missing From Cruise Ship Seeks Answers" »

Over the recent years, there has been increasing attention paid to criminal acts, including sexual assaults, that occur onboard the passenger cruise ships. Special attention was directed to the cruise ship industry after the disappearance of George Smith during his honeymoon cruise. The initial investigations suggested foul play as the cause of his disappearance, prompting an ongoing FBI investigation into the matter. The George Smith case, in which our firm represented his parents in an action against the cruise line company, involved his disappearance while the ship was in international waters. This led to some complex issues of which authorities had jurisdiction over the investigation. Initially, the Turkish authorities investigated the incident. They did a very poor job. There was a very quick and incomplete investigation.

The cruise ship company did their own internal investigation, including flying attorneys from Miami, Florida to the ship immediately to interview passengers and crewmembers. The cruise line delayed in reporting the incident to the FBI, which resulted in a delayed reaction by the FBI. Of course by the time the FBI got involved, the investigation became very difficult because critical evidence had been lost.

There were many allegations of improper handling of important evidence, and an improper investigation and cover up about the incident.

However, the incident did highlight the jurisdictional complexities involved in investigations of criminal activity that occur onboard cruise ships which travel through international waters, especially when carrying United States passengers.


Since the George Smith case, there have been Congressional hearings held which have addressed the complexities of jurisdiction, as well as the safety procedures onboard cruise ships. I was invited to speak as a maritime expert at Congressional hearings which addressed these issues. This resulted in addition, legislation which creating reporting requirements for certain crimes that occur aboard a ship.

Continue reading "Special Maritime Criminal Jurisdiction" »

In a decision hot off the press, Erikson v. NCL (Bahamas) Ltd., Case Number 1:11-Civ-20414-COOKE/TURNOFF (S.B. Fla. April 27, 2011), Federal District Judge Cooke of the Southern District of Florida ruled that an arbitration provision in a seamen's employment agreement with Norwegian Cruise Lines was null and void as against public policy.

The seaman originally filed an action in State Court. Norwegian Cruise Lines removed the case to Federal Court and sought to compel arbitration based on the arbitration clause and the employment agreement. Norwegian Cruise Lines argued that the arbitration clause was enforceable pursuant to the United Nations Convention on Recognition and Enforcement of Arbitral Awards (New York 1958) ("The Convention").

The arbitration provided the substantive law would be the law of the flag state of the vessel, which in the case of Norwegian Cruise Lines is the Bahamas.

I recently published a blog on our injury board blog, concerning arbitration provisions in seamen employment contracts. In this particular case, Norwegian Cruise Lines attempted to require application of foreign law to the seaman's claims, depriving him of his United States statutory rights under the Jones Act. In Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), the Court held that an arbitration clause was null and void as a matter of public policy when it deprived the Plaintiff of his United States statutory rights. In Thomas, the statutory right involved was the penalty wage statute available to a seaman. The arbitration provision was determined to be null and void in Thomas because Carnival attempted to deprive the seaman of his U.S. statutory rights under the penalty wage statute.

In the Norwegian Cruise Lines case under discussion, the Federal Judge ruled that the same reasoning applied with respect to the seaman's Jones Act claim. Since the agreement called for the applicability of Bahamian Law, the agreement improperly took away Plaintiff's United States statutory remedies. Accordingly, the clause was determined void as a matter of public policy.

Continue reading "Southern District Federal Judge Declares Arbitration Provision Null and Void in Seamen's Employment Agreement " »

The Coast Guard released a report on Friday which determined Transocean was at fault in the Gulf oil spill disaster. The report found:" Flaws in Transocean Ltd's emergency training and equipment and a poor safety culture contributed to the deadly Deepwater Horizon drilling rig explosion that led to the Gulf oil spill."

A spokesperson from Transocean, Brian Kennedy, issued a statement that his company "strongly" disagrees with the Coast Guard's findings.

There are several more entities that are concluding their investigation and reports.
As for the legislation that has been proposed to address caps on liability for the oil spill disaster, including the harsh restrictions on the wrongful death claims brought by the survivors of those who were needlessly killed in this disaster, no legislation has been enacted so far.

ABC Nightline is doing a story about a thirteen year old who was raped aboard a Carnival Cruise Lines' passenger cruise ship during a family vacation. Sadly, sexual assaults and rapes occur aboard cruise ships with a much greater frequency than one would expect. I have been handling Maritime cases involving the cruise ship industry since 1983. I have watched the cruise ship industry grow tremendously. We all read about the new cruise ships that are being built that carry thousands of passengers. In addition to the thousands of passengers that must mix aboard the ship, there are the thousand plus crewmembers from all different countries who are onboard the ship. The sexual assaults that are reported often times involve a crewmember sexually assaulting a passenger. However, there are many reported sexual assaults involving a crewmember sexually assaulting another crewmember or a passenger sexually assaulting another passenger.

The cruise lines have become floating cities, with the dangers that are present in any city. The cruise lines often defend themselves by trying to point to crime statistics in big cities and compare them to the crime rates onboard their ships. The cruise lines argue that statistically the crime rate is much lower onboard a cruise ship. The cruise ship companies argue this demonstrates how safe a cruise actually is.

While I do not disagree that generally a cruise can be a safe and enjoyable vacation for the entire family, and that criminal activity, including sexual assaults, are not rampant aboard a cruise ship, the public needs to be aware of the dangers associated with cruising aboard a passenger cruise ship with such a large population of people from all different backgrounds and countries.

In the case reported by Nightline, a fourteen year old teenager was onboard with her parents. She reportedly was having trouble sleeping and decided to go by herself to an upper deck onboard the Carnival ship. A thirty year old Carnival Cruise Line employee from Indonesia then took her to an employee only area and raped her. When the crewmember was arrested sometime later, after actually being employed on another Carnival Cruise Lines' passenger ship, he initially denied the incident. After he reportedly did not pass a lie detector test, he then claimed the sexual acts were consensual. However, a fourteen year old teenager is below the age where one can legally have consensual sexual activity. This is called statutory rape.

Since the crewmember admitted to having sexual activity with a fourteen year old teenager, he was guilty of statutory rape. He was actually sentenced to prison and was serving jail time in Orlando, Florida. This is one of the rare instances where we hear about a crewmember being convicted for the crime of rape. One major cruise line previously remarked how it had never had anybody successfully prosecuted for a sexual assault aboard one of their cruise ships in over twenty-five years. This statement was made supposedly to support the assertion that sexual assaults were not occurring aboard cruise ships. However, we have been able to obtain statistical information regarding the number of sexual assaults and rapes that the cruise lines admitted to, which demonstrated that sexual assaults and rapes were occurring at a much greater frequency than anyone knew or expected, and yet there had not been a successful prosecution of any of the perpetrators of the crime. This did not demonstrate that the cruise lines were free of the problem of sexual assaults and rapes. Instead, it demonstrated how difficult it is to prosecute an individual for such a crime. The difficulty in obtaining successful prosecutions has been linked to the failure of the cruise lines to properly report and investigate alleged sexual assaults and rapes.

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