Articles Posted in Cruise Ship Injury

MIAMI, Florida–We are always sad to hear of a passenger on a cruise ship being injured. The most recent case involves a Disney cruise ship, the Disney Wonder, sailing from Galveston, Texas. Not far after leaving port, approximately 50 miles from Galveston, it had been reported that a passenger fell down a set of stairs and had to be airlifted due to head injuries, suffering a skull fracture and bleeding. The seriousness of the injuries and long-term impact is unknown at the time of this writing.

stairs-300x237Common questions future cruisers often ask is whether cruise ships are safe, whether the cruise lines keep statistics on the number of accidents occurring on their ships,what is the cruise lines’ duty of responsibility to passengers regarding their safety, and whether the cruise ship companies adequately protect their passengers.

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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Our firm acts as safety advocates for those harmed at sea. However, we simply don’t wait for accidents to happen and then get involved. I have testified in congress address safety issues on cruise ships, pushing for the adoption of safety laws that would make cruise ships safer. We have all read the horror stories involving cruise ships, and the many incidents that have occurred in the past couple of years. These incidents have caused numerous injuries, and even many deaths.

My firm also has participated in boating safety awareness week, which includes bringing awareness to boating under the influence, another very dangerous activity that results in accidents, serious injuries and deaths on the waterways. We have published the reports of the Florida wildlife who publishes statistics regarding boating accidents, the number of injuries, and the number of deaths. Sadly, Florida ranks high among the states with the most deaths due to boating accidents.

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.

Disney Cruise line is the cruise line currently making headlines. A very disturbing story has been reported involving a sexual molestation of an 11 year old girl aboard the Disney Cruise ship, the Disney Dream, while in a Florida port. The disturbing news is that the incident was caught on a surveillance video and reported to the cruise ship company. Despite this, the ship sailed without reporting the incident to United States authorities. The cruise line waited to report the incident until the cruise ship arrived in Nassau, Bahamas, where the cruise ship is registered. A local 6 investigation out of Orlando, Florida reports that the incident was not reported until the following day, long after the ship had left the Florida port, suggesting that the cruise line intentionally allowed the 33 year old crewmember (suspect) to avoid any investigation and potential prosecution by United States authorities.

To further illustrate the disturbing actions of the cruise line, the story by the local 6 investigation team states that Disney first stated they did report the incident while the ship was still in port on August 5th. However, after they were confronted by local 6 and the Port Canaveral police, which established that they did not in fact report the incident while the ship was still in Florida, the cruise line then recounted on its story. The cruise line than admitted the incident was not reported. The story than changed, and Disney originally claimed their employees were not aware of the incident until the following day. Disney’s next explanation was that what was reported to them was that the 11 year old had something happen to her to make her feel “uncomfortable”, and therefore they were unaware that an actual crime had been committed.

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.

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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In recent years, ship owners have increasingly been able to avoid their responsibilities and obligations under the United States laws that are designed to protect seaman, namely the Jones Act enacted by Congress in 1920, and the General Maritime Law which give seaman rights to maintenance and cure as well as claims for unseaworthiness of the vessel. Unseaworthiness is a form of liability without fault. The maritime laws have consistently been interpreted to protect seamen, who historically have been considered the wards of the United States Admiralty Courts.

Ship owners, including cruise ship companies, have fought hard, and spent lots of money, trying to escape their responsibilities under the favorable laws to protect seaman. They have petitioned Congress to repeal the Jones Act, or amend it to lessen the rights of the seamen. They have consistently tried to contract away their obligations, as they do in the context of passenger claims.

In recent years, courts have started to enforce arbitration provisions in a seaman’s employment agreement. Even though a seaman’s employment agreement is a take it or leave it employment agreement, with the seaman having no bargaining rights, and most of the time without any understanding of his legal rights, the courts have allowed ship owners to insert a mandatory arbitration clause into the seaman’s employment agreement.

The Jones Act, enacted in Congress in 1920, which is to be liberally interpreted to benefit seamen, provides for a right to a jury trial. This standard of causation in a negligence case under the Jones Act is very liberal, a seaman only has to prove that his injuries were caused in part by the employer’s negligence. If there was any negligence, no matter how small, which contributed in any way to the seaman’s injury, under the American law, the seaman is entitled to compensation.

Not only has mandatory arbitration provisions in a seaman’s employment contract taken away the seaman’s rights to a jury trial, the ship owners have now been using the employment agreement to take away the seaman’s rights under the Jones Act, putting a mandatory foreign choice of law provision into the employment agreement. The 11th Circuit Court of Appeals recently, in a case involving Norwegian Cruise Lines, enforced the mandatory arbitration clause in the seaman’s employment agreement which also contained a foreign choice of law clause. The court did not accept the argument that since the ship owner was trying to contract away the seaman’s statutory rights under the Jones Act the whole agreement should be stricken as against public policy and thus void. Instead, the court said the arbitration provision was enforceable, and if the seaman could prove at a later date that he was denied his statutory rights, he could come back to court and oppose enforcement of any arbitration award. Obviously, a long and tedious process for a seaman, who has little or no funds to pursue a big shipping company thru long and expensive litigation, especially a cruise ship company.
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