Articles Posted in Admiralty and Maritime Law

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.

It is still early in 2013 and Carnival Cruise Line seems to be plagued with cruise ship issues.

Just a few weeks ago, the Carnival Triumph had a fire in the ship’s engine room and left the ship drifting, without power, water or flushing toilets for five days. And already in March, the cruise line has two new shipboard emergencies.

Ever since the tragic incident involving the Costa Concordia, there has been a lot of talk about where any lawsuits would have to be decided. Many lawyers not familiar with maritime law were unaware that in passenger cases, the passenger ticket must be consulted immediately since it contains many time constrains and other limitations, including limiting the place where the lawsuit can be filed. In the case of the Costa Concordia, the ship is operated by the Costa Cruise Line Company out of Italy. The passenger tickets for the Costa Concordia provides for an Italian forum with the applicability of Italian law. This is because the Costa Concordia did not start or end its cruise in a United States port. Otherwise, United States law would govern, and the lawsuit would have to be filed in Broward County Florida, according to the ticket.

Several cases were filed here in Miami, Florida, which have been met with defense motions to dismiss based on forum non conveniens, and improper venue selection due to the passenger ticket requiring suit to be filed in Italy. One of those cases, Scimone v. Carnival Corporation at el, was filed in the Miami-Dade County Circuit Court. Since Carnival was added as a Defendant, and there are other Defendants other than Costa, the Plaintiff’s chose to try to file suit in Miami, Florida. They too were met with a motion to dismiss, but in this particular case the Defendants took a chance and removed the case to the Federal District Court here in the Southern District of Florida. The Plaintiffs moved to remand the case claiming that the Federal Court did not have jurisdiction.

The Federal District judge entered an order granting the motion to remand the case to the State Court. The reason the case was remanded to the State Court is important. Some have believed that the mere fact the Federal judge remanded the case to the State Court was a determination by the Federal judge that Miami is in fact an acceptable forum to hear these cases. However, the Federal judge did not reach that ruling. The Federal judge did not address the Defendants motion to dismiss the case based on form non-conveniens, or the argument that the forum selection clause in the Costa ticket requires suit to be brought in Italy. Instead, the Federal District Court limited its decision to remand the case to a jurisdictional basis. The Defendants had removed the case from the State Court to the Federal Court under the Class Action Fairness Act of 2005. This statutory law allows for the removal of “mass actions”, which is a civil action “in which monetary relief claims of a 100 or more persons are proposed to be tried jointly on the ground that the Plaintiffs’ claims all have the common questions of law or fact.” 28 U.S.C. § 1332 (d)(11)(B)(i)

As for the Class Action Fairness Act being a basis for the Federal Court to have jurisdiction, the Federal Judge ruled that the lawsuit did not have 100 separate different Plaintiffs. In addition, the Plaintiffs did not propose to have all the cases tried jointly. Therefore, this statue did not apply and did not provide a valid basis to remove the case to the Federal Court.

An interesting point about the decision that the CAFA did not provide a basis for removal is that the court had to determine whether the Plaintiffs had engaged in “artful pleading” to deliberately avoid Federal jurisdiction, and if so, whether that was a basis to apply the CAFA in this particular case. The court noted a diversion of opinion among the District Courts on whether artful pleading can avoid the CAFA Federal jurisdiction. This particular judge agreed with the courts that concluded Plaintiffs may skirt the removal under the CAFA and mass actions by artful pleading. Thus, removal was not appropriate under the CAFA.
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