Maritime Injury Attorney Blog

In light of the negative publicity and information that has surfaced about the cruise ship industry after the Costa Concordia tragedy which resulted in the confirmed loss of 25 lives, the cruise ship companies have had to change their typical game plan for getting people onboard a cruise ship for a fun filled, care free vacation. As a result, the advertising plans have changed. For those who love cruising, and still want to cruise, or those who simply want to try a cruise for the first time, now is a good time. The cruise ship companies are offering a lot of discounts. The New York Times has an article about this and tips on how to get the best deal.

Although there are clearly safety issues involving cruise ships that must be addressed and resolved, and maritime laws that need to be changed to better protect passengers and crewmembers, cruising continues to be good choice for a vacation.

Our maritime personal injury firm continues to act as safety advocates for passengers and crewmembers harmed at sea. We are currently representing passengers from the Costa Concordia. We are available for legal consultation regarding the Costa Concordia matter.

A private tribute this past Monday, February 13, marked the one month anniversary of the Costa disaster. The relatives of those still missing from the Costa Concordia cruise ship tossed bouquets of red roses into the sea in their honor. A small boat took the family members 50 yards from the overturned cruise ship. Fifteen people still remain unaccounted for. Among the relatives that visited the site was Kevin Rebello whose brother was a waiter aboard the ship.

"I haven't lost hope yet, anything can still happen, a miracle. He may be injured, he may have lost consciousness, anything may have happened. I still have hope, I always have hope, hope is the last thing to die," Rebello said. "I hope I will find him as soon as possible, to bring him home."

Costa CEO and chairman Pier Luigi attended the mass at the Saints Lorenzo and Mamiliano Church at Giglio Island. At the mass, the Reverend Lorenzo Pasquotti sadly stated: "The feeling that has always been with me during these 30 days and today is sorrow. Sorrow for those who died, for those who are missing."

In addition, Sunday was the day that the passengers had to decide whether to accept the $14,463 as a settlement offer. Unexpectedly, the Costa Cruises announced that they would extend the deadline to March 31, giving passengers more time to evaluate their desired approach: "The decision was taken to offer passengers more time to evaluate the proposal and to exercise their claims with less urgency."

In the meantime, litigation has commenced in Miami, Florida. The lawyers who have filed the lawsuit have backed off from earlier statements that a class action was going to be pursued. Most likely, the lawyers realized that the passenger tickets have a provision precluding class action lawsuits. Although the enforceability of this particular provision in a cruise ship case setting has not been ruled upon by the appellate courts, the Supreme Court of the United States recently upheld a ban on class action lawsuits contained in consumer contracts with AT&T. In addition, the provisions in passenger tickets issued by cruise ship companies have routinely been enforced, such as the provision requiring any lawsuit to be filed in a specific location. In the case of the Costa Concordia, the cruise ship company, Costa, requires lawsuits to be filed in Genoa, Italy. Of course, the cruise lines will seek to enforce this provision and have the lawsuit that has been filed in Miami dismissed.

Continue reading "A Cruise Ship Law Update" »

Norovirus is an RNA virus which can cause gastroenteritis in humans. Washing your hands with soap and water is a recommended preventative measure. It is a highly contagious virus and has recently surfaced aboard two major cruise ships, The Ruby and Crown Princess, Around 500 people were affected. In addition, on Saturday, the Crown Princess had to end its voyage two days early in order to sanitize the ship. I applaud them for taking responsibility and doing the right thing by ending the cruise early despite the jost profits they end up suffering.

Due to many outbreaks of the norovirus on cruise ships, many steps have been taken by t to reduce the outbreaks of this virus. According to the cruise lines: "Our sanitation program has been developed in coordination with the CDC and includes such measures as disinfection of high-touch surfaces; encouraging correct hand washing procedures and enhancing this with the use of hand sanitizing gels placed throughout the ship; isolating ill passengers and crew in cabins until non-contagious; encouraging passengers to use their own cabin's bathroom facilities; and providing regular verbal and written communication to passengers about steps they can take to stay well while onboard." Despite these steps, the outbreaks still exist. The cruise ship industry continues to insist the virus has nothing to do with a cruise ship, that the outbreaks are not more prevalent on cruise ships than other places. as far as cutting the cruise short, the cruise line company stated: "We sincerely regret having to cut short our passengers' cruise vacations because of this highly-unusual situation. We will, of course, be refunding their cruise fare, arranging flights home, including covering change fees if air was not booked through Princess, providing hotel accommodation if necessary, and offering a 25 percent future cruise credit."

According to an article published in the Sun Sentinel it is peak season for norovirus. In addition, Princess has stated that the U.S. Centers for Disease Control (CDC) said there are "widespread outbreaks of norovirus occurring in the U.S.". A recent article in the Florida newspaper Sun-Sentinel provides more discussion about this virus. Passengers can get very sick from this virus, and in rare cases, the virus can cause death.

It is difficult to prove any negligence on the part of the cruise ship for the outbreak of the norovirus during a cruise. One can question their sanitation procedures, but it is difficult to prove the cruise line did something wrong that resulted in the outbreak. If there are back to back cruises with an outbreak of the norovirus, that would be different. In such a case, that would suggest the cruise ship company didn't properly sanitize the ship after the first outbreak and before the start of the next cruise.

Rivkind and Margulies, P.A. are Miami based maritime attorneys that handle all type of accidents occurring on the waterway, including boating accident, cruise ship accidents, and accidents involving personal watercrafts.

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.

The Costa Concordia rescuers stopped their search of the remaining missing bodies in the submerged parts of the ship due to the danger the underwater mission imposes. The search above the water still poses danger because the ship could slip under water at any second. The way the rescuers enter the ship is through holes that were blown into the hull. The ship is almost at a 90-degree angle , and even with the strong torches the divers use to search within, the visibility still is very weak. They enter the ship with a thread that will mark their route and help them exit. The divers use air tanks, which gives them about 40 minutes of breathing time. In addition the water is around 10 °C so they must wear heavy outwear. The divers stated that the one of the hardest things about the search is finding bodies still wearing lifejackets close to the lifeboats that never made it out. The Costa Concordia continues to impose a never-ending danger, including environmental dangers.

Just recently, Giglio's Mayor Sergio Ortelli, gave a letter to the rescue divers in praise of their heroic efforts. In the letter, a child's father explained how his son left his teddy bear aboard the ship and had been unable to sleep since the Costa Concordia tragic disaster. The divers, risking their lives, were able to track down the cabin of this family and retrieve the still intact toy. Isn't that a great story to hear?

The Miami based maritime and cruise ship lawyers at Rivkind and Margulies continue to assist passengers and crewmembers who were onboard the Costa Concordia. Brett Rivkind has testified in Congress about cruise ship safety, and looks forward the opportunity again to do so and advocate safety changes in the cruise ship industry that will make cruise ships safer for both passengers and crewmembers.

As another body was found onboard the Costa Concordia, the death toll has increased to 17 for this needless tragedy. This needless tragedy occurred due to gross negligence on the part of the captain. Although the cruise ship company, Costa Cruise Lines along with Carnival Cruise Lines, continues to assert that this was an isolated event involving a captain's decision to dangerously navigate the cruise ship too close to shore, the captain has fought back and stated that the cruise ship company was well aware of the practice of maneuvering the vessel close to land to show off its beauty and impress the passengers and islanders.

Why the captain navigated the vessel recklessly close to the shore, striking rocks that are well chartered, remains an unanswered question. For those who were affected by this disaster, especially the families who lost loved ones, the cruise ship company's statements that it was the captain's fault, do not matter much. The fact remains lives were needlessly lost. We are now up to 17, and the search for the remaining 16 victims from this needless tragedy has been called off. The Italian Civil Protection Agency stated the search is too much of a danger to the workers involved in the search and rescue efforts.

In the meantime, newspapers are reporting how Carnival Cruise Lines profits have dropped significantly, and their bookings of future cruises have significantly dropped. I personally find it offensive to be focusing on how this disaster has affected Carnival Cruise Lines' profits, when the entire focus should be on the victims of this needless tragedy.

The policies and procedures of the cruise ship companies worldwide will have to be examined now. We are already learning that companies are making sure that emergency practice drills are being performed before a cruise ship leaves port. In the case of the Costa Concordia disaster, we know that there were many passengers who never participated in a practice emergency drill before the tragedy occurred. This is a significant flaw in the procedures of the Costa Cruise Lines, as well as Carnival Cruise Lines. As the parent company, Carnival Cruise Lines should have made sure that all of their subsidiary companies operating cruise ships with millions of passengers onboard yearly, complied with all necessary safety procedures and policies. The performance of practice life saving drills after the cruise ship is already sailed simply makes no sense, as demonstrated by this needless tragedy.

Our firm continues to answer questions from many passengers and crewmembers who have contacted us following the Costa Concordia disaster to learn about their rights. We have answered many questions about the propriety of quickly filing a class action lawsuit in Miami, Florida, asking for millions of dollars. We have been asked whether this is offensive to some because this lawsuit has been filed by passengers who did not suffer significant physical injuries, or deaths. We have been asked whether this is the proper course of action to take at this time. We have advised that there is no need to rush to the courthouse within weeks of this disaster. In addition, this lawsuit will likely end up in Italy based on the passenger cruise ship ticket, or what's called a forum non-conveniens analysis.

Continue reading "Death Toll up to 17 in Costa Concordia Disaster" »

In my opinion the disaster involving the Costa Concordia, involving the loss of lives, not only requires us to focus in on safety issues aboard the mega cruise ships, but also emphasizes the needs for changes in the favorable laws cruise ship companies enjoy.

All of the cruise ship companies register in foreign countries, and register their ships in foreign countries. The flags of these vessels are referred to as flags of convenience because the cruise ship companies register these vessels in foreign countries in order to enjoy favorable laws, including avoiding United States taxes.

What are the many favorable laws that the cruise ship companies enjoy? First, let's focus in on claims involving passengers onboard cruise ships.

The first thing a passenger must be concerned with is the passenger ticket issued by the cruise line. It is referred to as a contract of passage. However, it is not really a contract, although it is considered legally to be one. It is merely a number of provisions which disclaim and limit the liability of the cruise ship company. It grants no rights to the passengers. It takes rights away.

In the passenger ticket, the cruise ship company sets forth the deadline to file a lawsuit against them arising out of personal injury or death. The deadline is one year from the date of the incident. This is an extremely short statute of limitations. Most statute of limitations involving personal injury and wrongful death claims are 2 to 4 years. The cruise ship company enjoys the benefit of being able to limit the time a passenger can file a lawsuit against them to a very short one year period of time. In addition, the cruise ship company requires written notice to be provided of such a claim within 6 months.

Continue reading "Costa Concordia Disaster Shows the Needs to Change Favorable Laws Cruise Ships Companies Enjoy " »

Costa cruise lines has issued a statement admitting the captain was too close to shore, and that he did not follow appropriate procedures for an emergency situation.

The captain has been arrested, and the first officer is also being detained. Authorities in Italy confirmed the captain did abandon the ship before all the passengers were evacuated.

The captain has said the rocks were not charted, but it is reported the area in question is know for the rocky sea bottom and was in fact well charted.

At least five people have been confirmed dead.

The captain was a safety officer with Costa and then became a captain. His background and qualifications have not been released yet.

Costa did defend the crew, saying they acted appropriately in the assistance of the evacuation of so many passengers under such stressful conditions.

Passengers described the situation as chaotic, and likened the situation to the Titanic disaster.

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

CNN has just announced that the captain of the Costa cruise line cruise ship, Costa Concordia, has been arrested and is being investigated for abandoning ship and manslaughter.

The cruise ship, for some unexplained reason, struck a large rock in shallow waters off the coast of Tuscany, and this massive cruise ship is now laying on its side submerged in water. Three people are dead, two passengers and one crewmember. Many others are missing.

The captain is being heavily criticized for not only being in such shallow waters, known for its rocky sea floor, but for failure to start emergency evacuation procedures. Instead, the passengers were told there was an electrical problem.

Passengers described the situation as chaotic. Fear and panic spread rapidly. The ship leaned to one side and passengers were frantically trying to find their way to life boats in the dark. Some were reported to have jumped off the ship.

I am continuing to monitor the situation and reports as they come in, and my client, a cruise ship captain, is providing his insights into the situation which I will share with my readers.

I continue to act as a safety advocate for those harmed at sea.

Dylan Cole Bloodsworth, who was referred to as a "serial rapist" by the prosecutor, has pled guilty to sexually assaulting a 13-year-old during a cruise aboard a Carnival Cruise Line cruise ship, the Elation. The assault occurred last March.

This sad story which was highly publicized involved a 13-year-old who was travelling on the cruise ship with her family. She had agreed to go with Bloodsworth to his cabin under the pretense that he was going to retrieve a jacket. He then sexually assaulted the minor in yet another tragic case of a sexual assault on a minor occurring aboard a cruise ship.

These horrible stories we hear is a reminder to all parents who decide to take minor children on a cruise ship that sexual assaults and rapes do happen on cruise ships with a much greater frequency than ever was imagined by the general public. It has only been in recent years that there has been increased public awareness of crimes, including sexual assaults and disappearances, happening onboard cruise ships. The public attention has also resulted in Congressional Hearings addressing cruise ship safety, which eventually led to the passage of the Cruise Vessel Security and Safety Act past in the year 2010 and signed into law by President Obama.

In this particular case, the sexual assault was not committed by a crewmember. It was committed by another passenger. We have also read recently of stories involving passengers engaging in the sale of drugs while onboard ship. One must be aware that the cruise ship has been compared to a small city, which would include the potential for all types of criminal activity that occurs in a city. In the past, passengers have come onboard cruise ships with a false sense of security, and have not expected that these types of crimes can occur onboard a cruise ship. Unfortunately, minor children have often been the victims of sexual assaults which are a direct result of the fact that these types of incidents have been kept out of the public eye for some period of time, resulting in the false sense of security passengers get when boarding a cruise ship.

Again, this is a reminder to be very careful when going onboard a cruise. One must consider all aspects of the cruise, not just the advertisement by the cruise ship companies about the beautiful ports they are going to travel to, and all of the fun activities onboard the ship. One must consider the availability of medical care, including the fact that the cruise ship company takes the position that the ship's medical staff are independent contractors and that the cruise ship will deny liability for any negligence on the part of the medical staff. One must also consider the different ports the cruise ship is taking the passengers to. Are these ports safe? Has the cruise line warned the passengers of any criminal activity known in the particular areas of the ports they are travelling to? With respect to shoreside excursions and activities, are they safe? Are the operators of these shoreside excursions experienced and well trained? Is the equipment up to date and safe? Who regulates these shoreside excursions? Again, the cruise ship companies will allege that these shoreside excursions are provided by independent contractors and the cruise line will deny liability for any accidents that might occur during a shoreside excursion.

Continue reading "Man Pleads Guilty to Rape of Thirteen Year Old on Cruise Ship" »

A Tampa Bay news station is reporting that a couple that purchased a "dream cruise," to travel the Panama Canal on the Norwegian Cruise Line's Norwegian Star are now saying they are reluctant to step foot on a cruise ship again after one of them got extremely sick with what was believed to be the norovirus and then was left in Cartagena, Colombia. The Colemans went aboard the Norwegian Star with expectations of it being a memorable cruise through the Panama Canal. However, Ronald Coleman got extremely sick during the cruise. "He was so sick, he couldn't sit up long enough to sign his name," reported his wife, Betty Coleman.

The couple was then dropped off in Cartagena, Colombia to receive further medical care and treatment. Although their son was listed on an emergency contact form with the cruise line as the next of kin to be called in case of an emergency, the son was not notified by the cruise line about the fact the Colemans were left in a foreign country to receive medical care and treatment. The cruise line responded by saying the couple was given a chance to call their son prior to disembarking the vessel, but chose not to do so.

Mark Coleman, the son, stated that he first heard of his father's sickness on Friday after he received a frantic call from his mother. His mother was so frantic she was unable to state where she was. The son then called Tampa's 10 News after NCL could not tell him of his parents' exact location in Cartagena, Colombia. It was reported that he was told his parents were on the ship.

A State Department official was contacted who assisted in locating his parents. The Colemans have requested an apology from the cruise line, but the cruise line officials have responded by saying that the Colemans didn't express any dissatisfaction with their care, and issued a statement, which is obviously from their Public Relations Department. I have previously handled a case against this particular cruise line where discovery revealed an extensive manual dealing with how to respond to crisis situations and adverse publicity. A cruise line is prepared for adverse publicity, and typically issues sworn statements to the public in an attempt to diffuse any adverse publicity. In one case involving the cruise line allegedly heading into the teeth of a storm despite the forecast, and allegedly endangering the lives of the passengers, the cruise line promptly got into the media outlets with a response that the cruise ship had struck what was called a "freak wave" which was unavoidable. The characterization of a "freak wave" was to portray the incident as an avoidable incident with a wave that could not have been anticipated. However, through discovery in that particular case, the captain who was operating the ship at the time denied the fact that there was a "freak wave" that struck the vessel despite the fact the cruise line had issued statements saying there was in fact a "freak wave". This illustrates the tacts of "spinning" factsin a certain way in response to adverse publicity.

In this particular case, NCL issued the following statement in response to the ordeal suffered by the Colemans:

Continue reading "Upset Cruise Ship Passengers Left in Colombia Speak Out" »

I had previously reported about another incident involving a cruise ship worker that went missing while onboard a cruise ship named. Rebecca Coriam was working on a cruise ship operated by Disney Cruise Lines named the Disney Wonder. The 24 year old crewmember apparently made a mysterious phone call and then later disappeared without a trace.

It has been reported that at least 168 people disappeared from cruise ships and ferries in international waters since 1995, statistics provided by International Cruise Victims Association.

According to international maritime laws, typically the country where the ship is registered gets involved in the investigation. In the case of the Disney Wonder, the ship is registered in the Bahamas. Although a British citizen, the disappearance of Rebecca Coriam was investigated by police from the Bahamas. Rebecca's parents, rightfully so, have expressed shock and anger at the fact that the Bahamian police got involved in the investigation instead of American or British police. This has been a problem I have observed over the many years I have been representing passengers and crewmembers who have been victims of accidents and crimes onboard the passenger cruise ships. Most of these incidents happen in international waters, and involve ships that are registered for the convenience of the cruise line companies in a foreign country. There are often complex jurisdictional issues that get in the way of a prompt and adequate investigation being conducted. An example is the George Smith case, which involved a passenger who was on his honeymoon who went missing while on the Royal Caribbean Cruise Line ship the Brilliance of the Seas. The Turkish police authorities were the ones who got involved in the immediate investigation of the incident, and there were delays with the F.B.I. getting fully involved in the investigation despite the fact that George Smith was an American citizen. The investigation was highly criticized, and blamed by many experts as the reason why his disappearance was never solved despite there being strong evidence of his disappearance being related to foul play.

In the case of Rebecca Coriam, the Bahamian police have little incentive to conduct a complete and thorough investigation in a case involving a British resident. The only real connection to the Disney Wonder, or the company, with the Bahamas, is the fact that the Bahamas is used as the country to register the ships. The Bahamas are considered a flag of convenience for the cruise ship companies. Registering in the Bahamas is a big benefit to the cruise ship companies, and obviously a big benefit to the Bahamas that have all of these cruise ship companies paying money to register their ships in the Bahamas.

The parents of Rebecca Coriam pointed out that only a single police officer from the Bahamas got involved in the investigation. It was also pointed out that the investigator failed to interview any of the approximately 3,700 passengers and crew that were onboard the ship.

Continue reading "Parents of Rebecca Coriam Appear on CNN Demanding New Cruise Ship Laws" »

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" »