Maritime Injury Attorney Blog

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" »

Miami attorney Brett Rivkind was discussed in a recent news account of the Costa Concordia in Ireland. The Ireland paper discusses how it has experience with a prior disaster involving an Ireland citizen who died during a cruise onboard a Costa cruises lines cruise ship. The death involved Lindsay Obrien, who was only 15 years old when she went on a cruise with her family aboard the Costa cruise ship the Magica.

Lindsay was served alcohol aboard the ship despite being a minor, and was reported to have fallen off the balcony railing on the cruise ship. The case was handled by Miami maritime lawyer Brett Rivkind. Brett Rivkind is also handling cases involving the Costa Concordia, and has been interviewed by major news stations, including CBS evening news.

The Ireland article brings back the memory of Lindsay O'Brien and the tragedy that occurred. The Costa Concordia is a painful reminder of another Costa cruise lines disaster resulting in death.

Brett Rivkind continues to act as a safety advocate for both passengers and crew harmed at sea.

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.

Eight relatives decided to go out fishing on a 22-foot boat despite a small craft advisory warning of poor weather conditions. The small pleasure craft encountered seas of 7-feet plus, and winds up to 38 miles per hour. It is reported that two waves hit the boat one after the other, which resulted in capsizing the 22-foot boat. One of the passengers, a 79-year-old woman, died during the incident. Remarkably, it was a small blue water cooler that was onboard the boat that provided the floatation device for four women, including a four year-old child. The remaining three men were found holding on to the capsized boat, with its bow protruding only a few feet out of the water. They were able to hold on for approximately 20 hours before they were rescued. There were reports of exhaustion, jellyfish stings and hypothermia.

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The 79-year-old woman who died was the mother of one of the passengers who reported that his mother died in his arms minutes following the capsizing of the boat. He couldn't hold on to her any longer due to exhaustion after she died.

A commercial fisherman was in the area when he spotted a large object floating in the water. As he approached, he saw a man waving and it was one of the men holding on to the sunken boat. As he approached he realized there were three men. After the men were found, the Coast Guard was called immediately. The Coast Guard then found the women who were hanging on to the small 2-1/2 foot cooler, including the four-year-old girl.

The survivors were taken to a hospital and reported as exhausted, and swollen from the jellyfish stings, as well as dehydrated. However, none of them were reported to have suffered life threatening injuries. They were all very fortunate to have survived.

A representative of the Florida Fish and Wildlife Conservation Committee, the agency responsible for investigating boating accidents here in Florida, said "they shouldn't have been out there". The small craft advisory warning should have resulted in a decision not to go boating in such adverse conditions. Another factor the agency was considering was the fact that the small recreational boat was overcrowded.

Boating accidents in Florida occur at a high frequency. See the Florida Fish and Wildlife Conservation Commission Statistical Report.

Our firm continues to be safety advocates for passengers and crewmembers injured in all types of boating accidents, including accidents on yachts, cruise ships and recreational boats.

As a maritime attorney for almost 30 years, I have seen many fatalities in connection with boating accidents as a result of the failure to wear a life jacket. Recently, I did a blog publishing statistics of the Florida Fish and Wildlife Conservation Committee reporting 4604 accidents that involved 672 deaths reflecting the number of injuries and fatalities in Florida due to boating accidents. The report emphasized that one of the major causes of fatalities is the failure to wear a life jacket. There has been boater safety education legislation introduced in different states which specifically are designed to educate boaters about safety precautions, including the importance all occupants wearing life jackets.

It was reported that over the weekend, during bad weather here in Florida, that a pleasure boat capsized in rough seas off the Florida Keys. An 80-year old woman was reported missing and presumed drowned. A commercial boat came by and rescued three men that were clinging to the overturned watercraft, and they alerted the Coast Guard. A four year old girl, as well as three women were then located holding on to a floating cooler. The Coast Guard reported that the boaters were not wearing life jackets when the boat capsized.

The seven people that were rescued are reported to have floated for nearly a day in the rough weather after the boat sank.

This tragic accident emphasizes the need to be very aware of the weather forecast, and not to take a boat out in extremely rough weather, as well as emphasizes the need to wear life jackets.

Our hearts go out to the victims and the families of this tragic incident. Thankfully, it appears that the seven people that were rescued will recover.

The commercial fisherman who initially discovered the capsized boat should be applauded for his efforts in helping rescue the individuals, as well as the efforts of the United States Coast Guard.

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

By: The Greenwich Citizen
http://www.greenwichcitizen.com/news/article

The disappearance of George Smith IV of Greenwich on his honeymoon cruise in the Mediterranean six years ago is the subject of a new book, "Man Overboard -- Inside the Honeymoon Cruise Murder (Lyons Press, $14.95)," by author Joan Lownds of Naugatuck, a former reporter for Greenwich Citizen.

To learn more about the author's book, her opinions about Smith's disappearance and her final conclusions about the case, the Citizen asked Lownds a few questions.

What were the major determining factors in your decision to state in your book title that George Smith IV was murdered?

I used the word "murder" in the book title based on several facts and sources. First of all, I don't believe that the FBI would have spent millions investigating the case throughout the world if they didn't believe foul play was involved. Also, Kevin O'Connor, the U.S. attorney, speaking for the New Haven FBI, described the case as "suspicious." Vito Colucci, the private investigator and former Stamford detective said he "believed right from the start that it's a murder case."

And there are simply and logically the facts of the case: there was a loud commotion in George Smith's cabin just before he went missing and then "a horrific thud" ­­-- as reported by the neighboring passengers, Clete Hyman and Pat and Greg Lawyer. And then there was a huge bloody stain on the awning below. Walter Zalisko, the vacationing former police chief of Jersey City, N. J., looked at the blood stain and concluded it was most likely a homicide. As Brett Rivkind, the lawyer for the Smith family said, "It doesn't take Sherlock Holmes to figure out there was crime there that night."

In your book, there is mention that Smith was carrying a good deal of money with him. Was this true to your knowledge and, if so, is there some thinking that money might have led to foul play?

This was rumor on the ship, that Walter Zalisko and other passengers had heard. But there is no proof of this.

What do you think is the most inexplicable or even outrageous aspect of this honeymoon cruise disappearance story?

I think it is both inexplicable and outrageous that passengers such as Walter Zalisko and Sheldon Sandler reported that George Smith's cabin was not "sealed off and contained;" and that the ship was reportedly not locked down when it docked in the next port of Kusadasi. This allowed passengers and crew to disembark, perhaps taking critical evidence with them. Brett Rivkind said Turkish police conducted a brief investigation that did not include the key ear witnesses, including Hyman and the Lawyers.

How many interviews did you do with family members who had lost someone on a cruise ship? Did you see any common threads in those cases?

I have done countless interviews with family members who lost loved ones on cruises, and also several with women who were allegedly raped on cruises. There was definitely a common thread. To quote Son Michael Pham, whose parents, Hue Pham and Hue Tran, went missing from a Carnival ship in May, 2004: "All of us had lost loved ones from cruise ships and all of us had no answers and the same story -- no witnesses, no surveillance tape, no motive and no help from the cruise line."

This was why the Smiths and the other families decided to from International Cruise Victims (ICV). As the Smiths said in their written testimony at Chris Shays' first Congressional hearing in Dec., 2005, "Please don't let George die in vain."

From the vantage point of those family experiences and what you have learned from the Smith case, how do you see the new Cruise Vessel Security and Safety Act best protecting passengers on cruise ships?

This new law, which takes effect Jan. 1, 2012, will protect passengers, I believe. The bill provides heightened transparency in crime reporting on cruise ships by establishing a "structure" between the cruise industry, the FBI and the Coast Guard, requiring each ship to maintain a log book recording all deaths, missing passengers, alleged crimes, and complaints about theft, sexual harassment, and assault.

The bill also mandates shipboard rape kits and that a trained forensic sexual assault specialist be assigned to each ship; and the establishment of a program by the U.S. Department of Transportation which provides FBI training for crew members in crime prevention and crime scene preservation, among other safety measures.

I think this will help make cruising safer, and I hope that the passage of this bill brings some solace to the Smith family and the other families of the victims. Maureen Smith has said that they have to be George's voice now, and I think they have made his voice heard, and in the process have truly helped others.

Bottom line question -- do you believe George Smith was murdered?

Yes, I believe George Smith was murdered, or I would not have chosen the title I did. As I mentioned, I do not believe the FBI would have spent millions investigating the case all over the world if they didn't believe foul play was involved. And the circumstances of the case seem "suspicious," as U.S. Attorney Kevin O'Connor said.

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" »