Articles Posted in Admiralty and Maritime Law

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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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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I decided to divert a little bit for this article from my normal topic of Maritime Law, and talk about some thoughts that came to me about the recent incidents involving well known football players Ray Rice and Adrian Peterson.

Ray Rice was caught on video punching his wife so hard that he knocked her unconscious in an elevator. He received a couple of days suspension, apologized, and everything seemed as if it was okay. High paid athletes have good publicists and crisis management people to help them say the right things during a press conference. I have experienced this with the cruise line industry that I battle constantly with. When an incident occurs aboard a cruise ship, such as a suspected murder as in the George Smith case involving a young man who went missing during his honeymoon cruise under suspicious circumstances, the cruise ship company is quick to hire a crisis management specialist and bombard the media with their spin on the facts in order to cut their losses from a public relations standpoint.

Similarly, athletes do well in press conferences, speak calmly and appear to be rational, kind individuals.

Adrian Peterson was recently indicted on charges of negligence and reckless conduct, injuring his 4 year old child. Adrian Peterson admitted that he spanks his child, and punishes him with some type of physical contact. He apologized for it possibility going a little too far, saying he didn’t intend to cause the harm that he in fact did to his young child.

So how does Buddhism and Mindfulness principles fit into this problem? The Buddha’s story goes like this; the Buddha himself apparently had everything that a human being would want, he had riches, and was surrounded by beautiful women, and lived in a palace. However, he had never traveled outside the palace doors. He decided to take an adventure and soon discovered the harsh realities of life. This included that nothing was permanent. We all grow old, we all get sick, and then we all die.
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There has been interesting discusses going on among maritime experts regarding the old adage that the captain must go down with the ship. The discussion surfaced mainly after the sinking of the Costa Concordia where it was reported that the captain got off the ship before the passengers, and he was criminally prosecuted for doing so. The captain had a good excuse. He said he fell onto a lifeboat when the ship tilted sideways abruptly. He is being charged with manslaughter.

Obviously, a captain’s first obligation is for the safety of his crew and passengers. He should remain onboard until he is sure he knows that everybody is safely evacuated. There is an International Maritime Convention called the Safety of Life at Sea, which does state a captain is responsible for the ship and all the people onboard the vessel, but it doesn’t specifically say that the captain must remain onboard the ship until the very last minute and go down with the ship if necessary.

Most of the experts agree there is some type of balance. Obviously, the captain must stay onboard and take care of the passengers and crewmembers, but the captain doesn’t need to die with the ship based on any maritime law stating the captain must go down with the ship.

Some countries, including Italy and South Korea, have made abandonment of ship a maritime crime.

We heard of further examples of this kind of conduct in the recent sinking of a ferry boat in South Korea.

Regardless, of whether you feel the captain should go down with the ship, we have seen blatant examples of cowardness, and blatant violations of the duties associated with being a captain of a vessel. The captain of the Costa Concordia had the responsibility for thousands of passengers and crewmembers. His getting off the vessel early before everybody else was safely evacuated, under the circumstances, should result in criminal penalties against him. It was an act of cowardness on his part.
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gavelMany years ago, I handled the case of Royal Caribbean Corporation v. Modesto, 614 So. 2d 517 (Fla. 3rd D.C.A 1992). I argued the case before our Intermediate State Appellate Court, the Third District Court of Appeal, where the issue was whether Florida’s Offer of Judgment statute which provides for an award of attorney’s fees if a party makes a Proposal for Settlement to the other side which is not accepted, and then one side or the other fulfills the criteria of the Offer of Judgment statute for the award of attorney’s fees. If a Plaintiff serves a Proposal for Settlement or Offer of Judgment, the Plaintiff must receive a jury award of at least 25% more than the rejected proposal in order to receive attorney’s fees, and if a Defendant serves a Proposal for Settlement, if the Defendant receives a jury verdict which is more than 25 % less than their offer, Defendant is entitled to an award of attorney’s fees.

In the Modesto case I argued, the Defendant argued that awarding attorney’s fees pursuant to the Florida Offer of Judgment statute would conflict with Federal Maritime law. Defendant argued the statute should not apply in a Maritime case because of this conflict. I was successful at the time with the Third District Court of appeal in convincing the court that awarding a seaman attorney’s fees pursuant to the Offer of Judgment statute did not violate any established Federal Maritime law, and enforcement of the Offer of Judgment statute would not contradict any well-established Maritime laws or principles.

The law governing a right of a seaman to recover compensation for an injury or illness suffered on shore leave while employed on a vessel is somewhat complex. This is due to the nature of the seaman’s employment. This is one of the few areas of employment that results in somewhat of a loss of personal freedom. I often tell juries this when I am trying a case involving a seaman’s injury. Once onboard, a seaman often times works seven days a week, and is on call basically 24 hours a day. The cruise ship companies are known to hire crewmembers from third world countries so they can avoid the United States labor laws. This results in crewmembers working an excessive amount of hours each day, seven days a week, for what I would consider piddly wages. It is a tremendous business advantage cruise ship companies have been able to enjoy at the expense of the workers.

As a result of the recognition of the nature of the employment of seamen, courts have been liberal in interpreting when a seaman is actually in the course and scope of his employment, if that issue becomes relevant to determining the liability of the ship owner/employer for an accident or injury. One of the main issues that surfaced early on in the law applicable to seamen was whether a seaman who goes on shore leave from the vessel, and is injured during his shore leave, is still within the course and scope of his employment, or in the service of the vessel, entitling him to pursue claims for Jones Act Negligence, Unseaworthiness and Maintenance and Cure.

We all read about the horrific conditions passengers were subjected to when the cruise ship named Triumph caught fire. The ship was days at sea without power, and sewage flowing all over the ship. For some reason it took several days to get the ship back to port, and all the passengers had to endure days of horrible conditions.

Carnival at first made a small offer to everyone, nothing close to what should be paid to compensate the passengers for what they were needlessly subjected to.

Carnival Corp. said “the company has made the decision to voluntarily provide reimbursement to the federal government,” following harsh criticism over its use of federal resources for costs related to the high-profile fires aboard the Carnival Triumph in February and Carnival Splendor in 2010. The exact amount of payment is still being determined, though a U.S. senator has said the U.S. Coast Guard and U.S. Navy had estimated costs of about $4.2 million for the two incidents combined. In both cases, fire knocked out power to the ships, which were slowly towed to land. The U.S. Coast Guard escorted the Triumph and Splendor; the U.S. Navy delivered tons of food and supplies to the Splendor.

In letters released earlier, it sounded as if Carnival Corp. was refusing to reimburse federal agencies if they sought remuneration. Carnival explained that at no point did they refuse to make a payment and added that no agency had asked them for money. A newspaper article states Carnival has said they will in fact pay the expenses incurred by the United States, including the Navy costs and Coast Guard costs.

As reported by CNN News, another disaster involving a carnival cruise ship. Yes, the triumph again! CNN News reports:

One man is missing after winds blew a guard shack into the water and knocked the damaged Carnival Triumph cruise ship away from dock in Mobile, Alabama. Another man inside the shack has been recovered.