Articles Posted in Admiralty and Maritime Law

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.

The accident resulted in around 100,000 worth of damages, plus personal injuries to passengers on board the ship. Now, according to recent news reports, 28 passengers are suing Spirit Cruises LLC, with claims ranging from $5,000 to $1 million. Court records indicate passengers suffered a variety of injuries, with the impact of the crash even throwing one passenger into a glass wall.

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.

Cruise ships will often times plot their voyage itineraries based on tracked weather forecasts, and make adjustments during the voyage based on up-to-date weather reports that are constantly being provided to the vessel. The wind and sea are critical to monitor in order to provide for a reasonably safe and comfortable voyage. However, captains must be trained to guard against unexpected adjustments in the weather, as well as unexpected sea conditions, which often happens due to various reasons.

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.

However, often times in a boating collision case involving two vessels, both vessels are found to be at fault, and a percentage of fault is allocated to each. Had there been any personal injuries, the more likely party at fault would be the operator of the pleasure boat, who by reports was not keeping a proper lookout. The case would be governed by general maritime law since it involves a collision of vessels on navigable waterways. The test is whether there is a significant relationship to traditional maritime activity and if the incident has a potential to disrupt maritime commerce. A collision at sea like this is a clear example of admiralty jurisdiction.

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.

Recognizing that seamen are clearly on unequal bargaining power with their employers, this congressional act is remedial legislation designed to provide seamen with a remedy when they get injured due to negligence on the part of their employer. The Jones Act, being remedial legislation, provides that the employer is responsible for an injury if negligence played any part, no matter how small, in producing the injury. In order to further protect seamen against overreaching by unscrupulous employers, in addition to granting seamen the right to a jury trial for their claim, the act prohibits an employer from contracting away its liability for negligence under the .

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.

The test for whether a case satisfies the requirements for admiralty and maritime jurisdiction is a two-part test. The first is an obvious one, which is locality. If it involves navigable waters, locality will be easily satisfied. Here, the boat and the divers were in the water off the coast of California. Clearly, locality was satisfied.

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.

The whistleblower protector provisions of the Seaman’s Protection Act, 46 U.S.C. §2114,  provide a remedy for a seaman who has been the victim of retaliation for whistleblowing.

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.

Jet ski accidents in Florida are not uncommon. They travel at very high speeds. Many times the operator has rented the jet ski and is not fully acquainted with its operation. In other words, inexperience, as well as traveling at high rates of speed, are often the causes of jet ski accidents. Sometimes the company that rents these jet skis can be legally liable for failure to warn of dangers, and failure to take appropriate measures to assure that the operator is sufficiently acquainted with the operation of the jet ski so that it can be safely operated. Sometimes the accident is a direct result of some defect in the jet ski itself that can lead to a products liability action against the manufacturer of the jet ski.

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.

In a recent case out of the Southern District of Florida, a passenger filed a lawsuit against Royal Caribbean  Cruises for an injury suffered when rock climbing in Dunn’s River Falls.

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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Recently, I was involved in a case where a seaman suffered an injury to his shoulder while working for a cruise ship company. The injury necessitated a surgery, which the cruise line company arranged and paid for. Following a course of physical therapy, the physician who performed the surgery, a physician hired and paid for by the cruise line, declared my client at maximum medical cure and the cruise ship company ceased payment of any further maintenance and cure. This occurred despite the disagreement of the physical therapist that my client was at maximum medical cure. The physical therapist felt that my client would definitely benefit from further physical therapy in order to improve his strength and range of motion. Clearly, if further physical therapy would improve the strength and range of motion, my client was not at maximum medical cure. However, the cruise ship selected doctor, a notorious workmen’s compensation physician, nevertheless concluded my client was at maximum medical cure as his opinion was the physical therapy was not necessary.

Thereafter, my client continued to have problems with his shoulder, and sought out a medical evaluation by an independent physician he selected and paid for. That doctor ordered an MRI, and concluded there was a re-tear of the shoulder which necessitated a further surgery.

A demand was mode on the cruise ship company to reinstate maintenance and cure. At this point, the case was in litigation. The cruise ship company was provided the medical reports and MRI report, as well as the MRI films, which showed the seaman needed another surgery because of a re-tear of the rotator cuff. Notwithstanding the clear medical evidence of the need for further medical care and treatment, the cruise line refused to reinstate maintenance and cure until the seamen appeared for a compulsory physical examination before their selected expert. Since the client was out of the country, we refused to comply with this request and demanded the reinstatement of maintenance and cure based on the undisputed medical evidence that there was a re-tear and a need for further treatment.

The recommended surgery was delayed for over a year, and ultimately the seaman appeared for a compulsory physical examination, and the defense expert agreed with the proposed surgery, which did eventually take place.

The question became whether the Defendant had a right to delay reinstatement of maintenance and cure based on the request for a compulsory physical examination. Does an employer of a seaman have a right to a compulsory physical examination in connection with their right to investigate a claim for maintenance and cure?
There is a case out of Seattle, Washington, that addressed this precise issue. The case is Thuyen Thanh Mai v. American Seafoods Company, LLC Case No. 63969-2-I (WA Ct. App., Mar. 14, 2011).
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