Articles Posted in Crew Member & Seamen Claims

lifeboatI have previously written about lifeboat accidents, safety boat accidents, and other types of rescue boat accidents, occurring with frequency on cruise ships. The most recent catastrophe has occurred on Royal Caribbean’s brand-new mega cruise ship, Harmony of the Seas. Unfortunately, I have handled many of these type of cases ranging from minor injuries to fatalities, as well as cases where the accident resulted in paralysis. Other lifeboat and rescue boat accidents have resulted in serious physical and psychological injuries.

I have determined that these accidents are occurring because of the faulty designs of the major safety equipment, inadequate maintenance, and a lack of proper procedures for conducting the safety drills. We had previously written about Royal Caribbean’s Harmony of the Seas, the largest cruise ship in the world. It measures about the length of four football fields, and is longer than the height of the Eiffel Tower, carrying 6,780 passengers and 2,100 crew members.

sunken shipThe events and the causes leading to the catastrophic sinking of the El Faro during Hurricane Joaquin on October 1, 2015, continue to be the focus of the National Transportation Safety Board (NTSB) as it begins its review of the voyage data recorder(VDR). El Faro was a United States cargo ship that sank last fall killing all 33 members on board. It has been considered the worst U.S. cargo shipping disaster in over 30 years.  The VDR, as it is referred to on ships, is a vessel’s black box investigators use for accident investigation after the fact. The VDR from El Faro was finally recovered from the ocean floor after 10 months of attempting to retrieve it.

According to reports, about 26 hours of information was able to be recovered from El Faro’s voyage data recorder. The VDR is going to provide very critical information, including the following: a discussion about the ship losing propulsion, a discussion between the crew and the master, Captain Michael Davidson, pertaining to the flooding, a discussion between the master and shoreside personal pertaining to the critical situation at hand, and the captain ordering the crew to abandon the ship.

lifeboatLifeboats are obviously designed to save lives, not to take lives. However, I have sadly represented numerous crew members who have been catastrophically injured or killed during a lifeboat or rescue boat safety drill, when the boat has broken from the wires lifting or lowering the boat, or there has been a failure of the mechanism used to lift and lower the boats.

The recent catastrophic incident happened on the Norwegian Breakaway, a Norwegian Cruise Line cruise ship. It is ironic that the name of this ship is Breakaway because the life boat broke away from its tethering and plummeted to the water. According to reports, on July 20, four male crew members were onboard a lifeboat during a routine safety drill when the boat fell into the water. The accident, which occurred  while the ship was docked in Bermuda, left all four crew members injured. One of the crew members, Diogenes Carpio, was found floating in the water with several broken bones. He passed away at the hospital shortly after. Exact details as to why this tragedy occurred are still unclear.

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.

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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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.

The recent problems with the Carnival Triumph are coming to an end. A fire in the ship’s engine room left the ship drifting, without power, water or flushing toilets for five days. Conditions deteriorated to the point that both guests and cruise ship workers had to use plastic bags to dispose of body waste and they walked through excrements when toilets clogged and overflowed. Food lines were up to three hours long and passengers at the front of the lines hoarded food causing worry for those at the back of the line. A lack of air conditioning saw people sleeping on decks and in hallways. A cruiser’s nightmare comes true.

The cruise line said it would give each passenger $500, a free flight home, a full refund for their trip and for most expenses on board, as well as a credit for another cruise, though many passengers indicated they would never cruise again, and definitely not with Carnival.

Royal Caribbean’s Vision of the Seas holding 2,000 passengers, Holland America’s Rotterdam holding 1,316 passengers, the Emerald Princess holding 3,080 passengers, and Star Clipper’s Star Flyer holding 170 passengers are just a few cruise ships to name that have been turned away from docking in Oslo. According to an article in USA Today titled Strike scuttles cruise ship calls in Oslo, a strike by pilot boat skippers is causing this inconvenience. The article states that “the dispute over wages between the pilots and municipality of Oslo comes just as the Norwegian summer cruise season is kicking into high gear.” Supposedly this will expand even more tomorrow which will result in more Norwegian ports being affected. The article states that “cruise ships are required by local and International Maritime regulations to have a pilot – an expert in navigating the local waters – come onboard in order to enter various ports of call around the world.” As a result, maritime services will be greatly affected. The strike started with 42 public sector pilots on strike. Hurtigruten is not impacted by the strike since the ship’s navigators do not have the same pilot requirements.

Our Miami maritime law firm has been handling all types of maritime disputes for over 30 years.