Articles Posted in Admiralty and Maritime Law

News outlets have reported that last Sunday afternoon, another tragic boating accident occurred on our Florida waterways. According to various news reports, Brad Martin Bramblett, a 59-year-old man, was ejected from his personal watercraft near the Panama City Marina. After falling overboard, the 17-foot Aquasport then circled around and ran over Bramblett. He sadly died from his injuries.

boat-300x200The Florida Fish and Wildlife Commission (“FWC” is the agency responsible for the investigation of a boating accident such as this and will conduct a full investigation and render a report issuing their findings. Whether it was due to some type of mechanical failure on the part of the boat, operational error, or even intoxication, remains to be seen. It is yet another example of the dangers of operating a boat on the waterways here in Florida and emphasizes again the critical need to be completely familiar with the operation of the boat, as well as the safety rules and regulations governing safety at sea.

MIAMI, Florida–In a case we previously reported about, where we learned that not only is lack of sleep dangerous for someone driving a car, but also for someone driving a cruise ship carrying passengers, passengers have recently filed lawsuits arising out of the incident. Last August, the passenger cruise ship Spirit of Baltimore was carrying around 400 passengers when it crashed into the pier at Henderson’s Wharf Marina in Fells Point, Maryland, and two moored recreational boats. The crash happened at around 230 a.m. when the ship was returning to its berth after a midnight party cruise.

baltimore-harbor-1528252-300x225A Court Guard investigation revealed that the captain had been working other jobs, and had very little sleep. His mate had to leave the bridge of the ship to deal with a drunken passenger, another common problem on passenger ships.  While away, it is reported that the captain fell asleep at the wheel, resulting in the collision. Following the collision, the captain was fired, and a requirement that captains who feel sleepy must stay standing, notify a supervisor, and  have a mate ride in the bridge, was implemented.

It was reported that a 45-foot fishing boat was hit by what is called a rogue wave, causing the boat to start sinking off the coast of Maine. Fortunately Coast Guard rescued the fisherman, and nobody died as a result of this incident.

wave3-300x199Rogue waves are not unknown to the maritime world. There is in fact a saying that the sea is a “harsh mistress” that can develop powerful waves and wind, and is able to cause much harm to vessels and structures. However, vessels should be prepared for this type of rough weather based on modern day equipment, which is able to provide up to date forecasts of the seas, and when conditions that the vessel plans on encountering may be rough.

MIAMI, Florida– This past Sunday, a pleasure boat collided into a Washington State ferryboat. The report is that the operator of the pleasure boat was below deck at the time, and that is the likely reason the ferry was not observed by the operator of the pleasure boat. Fortunately, there was no significant damages to either vessel, or to any person. The ferryboat was cleared to continue with its operation without any shutdown.

ferry-1406024-300x298A collision between two vessels on navigable waters triggers the application of maritime law, and there are very special laws that apply to collisions at sea. Typically, when two vessels collide, the doctrine of comparative negligence will apply where each vessel will be assigned a percentage of fault in the collision. In this case fault will likely fall on the operator of the smaller vessel who should have maintained a proper lookout and gotten out of the way.

gavelIn a recent decision from the 11th Circuit Court of Appeals, Alberts v. Royal Caribbean Cruises, 2016 U.S. App. LEXIS 15502 (5th Cir. 2016), reflecting the pro-arbitration philosophy of the courts, seamen have been given yet another big setback in the pursuit of their right to a jury trial granted to them by the United States statute, the Jones act, 46 U.S.C. § 30104.

The case of Alberts v. Royal Caribbean Cruises involved a crew member working for Royal Caribbean Cruise lines, a Miami-based cruise ship company, who was a United States citizen and resident. There are not many United States citizens working aboard these foreign-flagged cruise ship companies. The crew member brought a case against the cruise line company pursuant to the Jones Act, which allows an employee to sue his or her employer for negligence. The Jones Act is a special grant of a party by Congress, enacted in 1920 to help protect workers on ships due to the unique nature of their employment.

sharkIn June of 2015, Elke Specker paid for a dive trip off the coast of California, where the dive boat drove her to, and while she was diving in the water to observe the sharks, she claims she was bitten by a mako shark. She sued the dive instructor, and the dive company, alleging that the instructor was drunk and negligently caused the shark to come directly to the diver, which then bit her. The dive boat company denied that the instructor was drunk, and even denied that the shark bit the participant.

The interesting issue was that the defendant in the lawsuit claimed in the federal court lawsuit that there was no admiralty and maritime jurisdiction over the case. A federal district court has jurisdiction over a case involving admiralty law and maritime law. If the federal judge agreed it was not a case falling within the maritime jurisdiction of the federal court, the case would have had to been refiled in a state court.

contain-ship-300x201
Often times, the United States Coast Guard learns from the crew of a vessel of violations of laws by ship owners. This can result in retaliation by the ship owner/employer against the employee for “whistleblowing.” Whistleblowing is defined as the “disclosure by a person, usually an employee in a government agency or private enterprise, to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrong doing.”

In my many years of being a maritime attorney, I have seen violations of waste disposal laws, violations of safety laws, violations of discrimination laws, just to name a few. Many times, a seaman working on board a vessel is afraid to report these violations to the authorities in fear of losing his or her job, or otherwise receiving a demotion or some other type of retaliation.

A horrible jet ski accident was reported to have occurred about a mile and a half south of Bill Baggs State Park, near Key Biscayne. Two young women were riding the jet ski together on Monday afternoon. The reports indicate that the watercraft ran aground and propelled the women off the jet ski, critically injuring one of the women. The other woman was reported to have suffered some facial injuries. The seriously injured woman was flown to the trauma center at Jackson Memorial Hospital. The reports indicated that she suffered head and neck injuries, and was not moving her extremities.

jet ski 2The fortunate occurrence regarding this event was that a party boat was passing by, and the experienced captain in charge of the boat, Captain Alexis Perez, came to the rescue of the women. The seriously injured woman was laying in the water, unable to move, and likely would have drowned if it was not for the prompt intervention by this captain. He was able to move the woman onto the back of the jet ski, waiting with her until Miami-Dade Fire Rescue divers arrived.

dunn-300x225A big aspect of the money earned by cruise ships is on shoreside excursions passengers take. Many passengers believe these are run by the cruise line, and the cruise line will stand behind these excursions if there are any problems or accidents. However, many times a passenger is surprised, after having a problem or an accident, to hear the cruise line deny responsibility on the basis that they do not operate the shoreside excursion that the operators are independent contractors, and the cruise ship company has no liability for the negligence of the shoreside excursion company. Since the shoreside excursions occur in foreign countries, the passenger is then left with the prospect of trying to pursue a foreign shoreside excursion company who may not be subject to jurisdiction in the United States, and who may not have any insurance.

However, maritime attorneys knows that he or she can come up with a few theories of liability against the cruise ship company for the shore excursions, including an argument that the cruise ship company should at least be aware of the dangers, if any, and then warn the passengers of these dangers. This is one theory of liability which imposes direct liability on the cruise ship company for negligent failure to warn of dangers. This would require proving that the cruise line knew, or should have known of the dangers, based on past experience with the shoreside excursion company.

As previously reported, the Royal Caribbean cruise ship the Anthem of the Seas suffered damages, and caused personal injuries to passengers, when the cruise ship was navigated into the path of a severe storm. The ship was reported to list (tilted) almost completely on its side. Experts state that this storm was forecasted, and question the cruise ship company’s decision to head into the area. The cruise line defends its actions saying the storm was worse than it was forecasted, and had it known that the winds would get so strong they would never have directed the cruise ship into the area.

storm cloudsI have previously written about the decision of cruise ship companies to not cancel cruises despite forecasted storms. It is very costly to the cruise line to cancel a cruise or change its itinerary, and my experience in handling maritime cases over the past 30 years has been that the cruise line does what it can to avoid this. The companies believe their mega  ships can withstand any type of weather, and take its chances that it will simply be an uncomfortable ride for its passengers.

Several times this decision making process on the part of the cruise lines has backfired, and resulted in serious damages to the cruise ship, passengers and crew.

Maritime Law states that a cruise ship company owes a duty of reasonable care to all of its passengers, which includes a duty to exercise reasonable care in making decisions on the itinerary of the ship, and to provide a reasonably safe and comfortable cruise for the passengers. Clearly heading into a forecasted storm of this magnitude is a breach of that duty.

Once there is a breach of the duty of care owed to the passengers, the passenger then must prove more than merely psychological damages or emotional distress. The passenger ticket indicates that there must be a physical impact or injuries before a passenger can bring a case for emotional distress or emotional damages. The law also requires more than simply claiming there was fear as a result of the storm and therefore emotional damages were suffered.

There is a test called the Zone of Danger Test, which states that if a passenger was within the zone of danger of the physical impact, and suffered emotional damages but no physical injuries, the passenger can recover for emotional damages. This would likely apply in cases such as what occurred with the Anthem of the Seas.

A lawsuit is being filed, claiming compensatory damages and punitive damages. This could be a good case to bring a claim for punitive damages, if  allowed under the General Maritime Law, for being reckless and exposing the passengers and crew to the risks of injury and possibly death by heading into a storm of this magnitude. However, this is a difficult case because often times the Coast Guard and the authorities in charge of investigating such incidents are favorable to the cruise line. My firm once handled a case involving a cruise ship that headed into a well-forecasted storm, and all independent experts agreed it was crazy to go into the storm and risk the lives and safety of the passengers and crew. However, the governmental authority that issued the flag to the vessel, and even our United States Coast Guard, bought the cruise line’s argument that the incident was nothing but an unavoidable encounter with unexpected weather, which is the typical defense.
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