October 23, 2014

Snorkeling Accident Near Haulover Inlet

Midnight Express Runs Over Snorkler .jpgJust last week, on October 17, a snorkeler was involved in a tragic accident when a speed boat struck him at the Haulover Inlet. According to Officer Jorge Pino of the Florida Fish & Wildlife Conservation Commission, the victim, who has not been identified, suffered "critical" injuries from being run over by a go fast boat. According to reports, the individual was snorkeling with a friend in the water when they saw a golden speed boat--equipped with five motors--heading towards them. Officer Pino added the snorkelers tried to make their way back into their boat when the victim was struck by one of the boat's multiple motor propellers. The victim was immediately taken to the Ryder Trauma Center at Jackson Memorial Hospital.

Officer Pino stated the FWC is now determining exactly how this run over incident happened. The speed boat's operator was interviewed at the scene and later taken to FWC's headquarters. The operator's father later appeared at the Haulover Marina with an attorney. The attorney gave a statement that the divers did not display the proper flags. This statement conflicts with the information gathered in the FWC's investigation.
The use of a diving flag and the location of said flag in relation to the parties involved will be material issues for a trier of fact in the event that a civil suit arises from this tragic event. Section 327.331(5) of the Florida Statutes states, "Divers must make reasonable efforts to stay within 300 feet of a divers-down flag or buoy on all waters other than rivers, inlets, and navigation channels. A person operating a vessel on waters other than a river, inlet, or navigation channel must make a reasonable effort to maintain a distance of at least 300 feet from any divers-down flag or buoy." No information or evidence has been released regarding the location of the victim or speed boat driver in respects to the diving flag.

General maritime law (federal law) may also play a role in this terrible incident. For example, the Shipowner's Limitation of Liability Act is a law that is often used by shipowners to limit their legal liability for a maritime casualty. Keith Brais and Richard Rusak, the admiralty & maritime experts at Brais, Brais & Rusak have even authored and published an article on the Act, discussing how it has been used by shipowners as a tool to stay actions, bring claims in concurus before a federal district court, as well as to exonerate or limit themselves from liability stemming from maritime accidents.

Cases involving these state and federal laws are best left for attorneys who have spent their careers practicing in this comprehensive area of the law. While these maritime accidents are regrettable and tragic, proper legal representation may very well determine whether the case could be favorably resolved and, more importantly, whether liable parties can be held accountable for their actions. The admiralty & maritime specialists at Brais, Brais & Rusak are here to help. Our admiralty and maritime lawyers have over 35 years of experience handling these types of maritime injury cases including serious dive injuries and deaths.

October 20, 2014

Cruise Ticket's Hidden Provisions Can Be Costly

Miami Cruise Ticket Provision.jpgCruising is wildly popular. Each year, hundreds of thousands of people cruise from the several ports that line the United States coast. Often times, people have a good time on their vacations without incident. However, sometimes, vacations can go horribly wrong. Our law firm receives multiple calls each week from passengers who unfortunately were injured or from family members whose loved one tragically died while cruising. From our conversations, we have found that nearly all passengers have little or know knowledge about the provisions found within their cruise ticket.

The cruise ticket is a contract between the passenger and the cruise line that sets forth the obligation of both parties. As such, it is VERY IMPORTANT to save and read your ticket if you think you may want to sue a cruise line for its wrongdoing. Cruise lines for years have hired very capable attorneys to insert contract provisions into the tickets designed to limit liability and your recovery. Three important provisions are the six month or 180 day written notice provision, the 1 year suit time provision and the federal court provision. Failure to comply with these terms can be very costly.

The recent case of Royal Caribbean v. Clarke is a prime example of what can go wrong when one fails to read and comply with the cruise ticket provisions. Royal Caribbean requires its passengers to file a lawsuit within 1 year of the accident in federal district court located in Miami Florida. Near the end of the 1 year filing period, the attorney for Ms. Clarke filed a lawsuit in Miami state court not federal court as required. The cruise line moved to dismiss the lawsuit and the appellate court found Royal Caribbean's clauses enforceable and dismissed the case.

Besides reading the ticket, injured cruise passengers may also be better served by hiring attorneys experienced with suing cruise lines. Such attorneys are familiar with the various ticket provisions and tend not to get tripped up on such procedural issues. The partners at Brais, Brais & Rusak's Miami office are both board certified by the Florida Bar in the area of admiralty and maritime law and have extensive experiences in cruise line litigation. If you have been injured on a cruise and have questions about your obligations under the ticket, feel free to contact us for a free consultation.

October 19, 2014

Five South Florida Drownings in Three Weeks

Florida Canal Drowning Death Attorney.jpgUnfortunately, South Florida's sunny climate is accompanied by a number of natural and man-made bodies of water that claim lives every day. Making matters worse--the victims are normally our most prized and precious possessions--our children. Just this week, five individuals drowned in a canal, pool or lake. Four of the five individuals were children under the age of ten years old.

One of the children, Jac'Quez Osborne, 9, drowned at a pool party in Southwest Ranches. According to Capt. Engle of the Davie Police Department, Jac'Quez "didn't know how to swim and somehow ended up in the pool." Sadly, there was no one within reach that could administer CPR in time.

Another child, Leila Fleming, 4, left with her grandmother, Laura Zulema Fleming, 59, to go feed ducks by a lake in their Silver Shores gated community. They did not return. Both of their bodies were eventually found and recovered from the lake. Autopsies revealed that both Leila and her grandmother drowned. Unfortunately, neither of them knew how to swim.

The most recent drowning incident involved Louidline Louima, 4, and her sister Louidjiena, 2, who both drowned in a canal located behind their Margate home. Again, authorities reported the all-too familiar and tragic news that neither victim knew how to swim.

A Miami-Dade County Health Department report states that between 2010 and 2012, there were 413 drowning incidents in Miami-Dade County alone. Of this number, 144 cases involved Miami-Dade residents that were hospitalized as a result of a near-drowning. Another 177 consisted of residents that were treated at an emergency department as a result of a near-drowning. Furthermore, the remaining 92 accidents resulted in drowning deaths.

Perhaps even more alarming are the unintentional drowning statistics concerning individuals who are between ages 0-17. This age group accounted for 220 of the total 413 reported drowning incidents between 2010 and 2012 (accounting for more than 50% of the accidents). Specifically, in regards to hospitalization, 92 children were hospitalized as a result of a near-drowning. Another 109 children were treated in an emergency department due to a near-drowning. Insofar as deaths, 19 children died as a result of drowning. In addition to these statistics, the Miami-Dade County Health Department also noted in its report that "[t]he most common location for both fatal and nonfatal drowning incidents occurred in a swimming pool."

Moreover, this drowning epidemic is not limited to Miami-Dade County. Similar statistics have been reported by both Broward and Palm Beach County. From 2009 to the present, Broward County and Palm Beach County have reported 329 and 252 unintentional drownings, respectively. Broward County's Health Department site also includes some alarming statements concerning the severity of this problem:

  • A child is 100 times more likely to drown in a pool than be killed by a gun.

  • 90% of drownings occur when the child walks out the door without anyone noticing.

  • The majority of children who drowned walked out of their home through a sliding glass door.

  • Children between 1 and 3 years old are the most likely to drown.

In the unfortunate event that you or a loved one loses someone as a result of one of these terrible accidents, the Miami and Ft. Lauderdale drowning accident attorneys at Brais, Brais & Rusak may be able to help you obtain some form of legal relief. While our drowning accident lawyers realize that no monetary sum can replace the void left after losing a loved one, we also recognize that a successful civil action can provide families with economic support that will help members cope with the costs, pain, and suffering that are attributable to this tragic event. Furthermore, a civil action can be a form of accountability, holding certain parties responsible for the action or inaction, while making sure the accident does not happen again.

Liability may arise under a number of legal theories when dealing with a drowning accident. Most commonly, a party can be found liable under the theory of negligence. Under this legal theory, the party filing suit (plaintiff) must allege that: (1) the defendant had a duty of care to the plaintiff; (2) said defendant breached this duty; (3) the defendant's breach of the duty caused the plaintiff harm; and (4) plaintiff suffered injuries.

In the context of a drowning accident, a defendant could be found liable under a negligence theory if he or she failed to adequately warn or supervise a party that he or she owed a duty of care to, i.e., child drowning in a pool. This circumstance is not limited to a person who fails to appropriately watch children in his or her care. Similar to negligence, a person can be found liable under the theory of premises liability.
Under the "attractive nuisance" doctrine, an individual has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his or her property. Accordingly, a backyard pool can usually be characterized as an attractive nuisance because it is an "artificial condition" on the person's property than can reasonably and foreseeably pose a risk of harm to children. These dangers can be reduced by taking the appropriate measures, such as erecting a fence that complies with safety guidelines.

In any event, if you or a loved one has lost someone as the result of a drowning, you should contact a skilled attorney that will help determine which legal theory best applies to your case. The drowning lawyers at Brais, Brais & Rusak are here to help you.

August 27, 2014

Cruise Tender Injuries and the Law

Cruise Tender Injury Lawyer.jpgOur law firm is receiving an increasing number of inquires about cruise passengers injuries occurring on tenders. Generally, when a cruise liner is too large to dock at a pier, it requires tenders to shuttle passengers back and forth from the ship. With ships increasing in size each year, tendering is becoming more and more prevalent. There are two basic ways passengers are tendered. One option is to lower the cruise ship's life boats and use them as the tenders. The other option available to cruise lines is to contract with local tendering services which use small boats to shuttle the passengers.

The Cruise Line's Legal Responsibility to Passengers

A Cruise line has the non-delegable legal obligation to provide their passengers safe ingress and egress, under adequate supervision, to and from the ship. This legal duty remains the same no matter if the cruise line decides to use its own life boats or contract with local boat companies to provide tender services. As such, if a passenger is injured due to the unsafe operation of a tender, that passenger has a legal claim for negligence against the cruise line even though the tender was not operated by the cruise line. Given the legal duty to provide passengers safe ingress and egress to and from the ship, United States law precludes a cruise line from exculpating or limiting its liability for injures arising from negligent tendering.

Legal Differences Between Tendering and Boating Excursions

There is a significant difference between a cruise line's duty to its passengers regarding tendering and boating excursions. Unlike tendering, boating excursions and are not technically part of a cruise line's obligation under the cruise ticket contract. These activities are purchased separately either on-line or on the cruise ship. Since excursions are not part of a cruise line's obligation to carry passengers to foreign ports in a reasonably safe manner, courts allow cruise lines to exculpate their liability for injuries occurring on excursions. These exculpations are found in the cruise ticket contracts of all major cruise lines. Similar exculpations are usually found on the back of the excursion tickets issued to the passengers.

If you would like to learn more about a cruise line's obligation to passengers during tendering operations, feel free to contact our Florida Board Certified Maritime and Admiralty attorneys.

August 13, 2014

Young Boy and Woman Die in Indian River Boating Accident

Local news outlets are reporting that a young boy and a woman were killed in a boating accident on the Indian River near the Eau Gallie Causeway in Melbourne. Eyewitnesses at the scene stated that the 18-foot boat flipped over when attempting to assist a sailboat in distress. Four of the other people on the boat were rescued by good Samaritans as well as first responders. The victims of the boating accident, Ares Aronoyos and Stephanie Coleman were taken to Holmes Regional Medical Center, where they were pronounced dead. Florida Fish and Wildlife is handling the investigation

July 9, 2014

Miami Boat Accidents and a Little Known Law

Miami Boating Accident Lawyer.jpgBoat accidents are nothing new in Miami. Sun, fun, inexperienced operators and alcohol all play a role in both recent and past boating tragedies. After such horrific events there is a public outcry for more law enforcement and tougher laws aimed to prevent more injuries and deaths. This is a normal and well intended reaction. However, flying under the radar from public scrutiny is an over 150-year-old Federal law that allows boat owners, or should it be said the boat owners' insurance companies, the ability to limit the amount of money damages paid to the victims of the boat accidents to the post-loss value of the vessels. This law, known as the Limitation of Liability Act, can be devastating to an already overwhelming situation. Imagine a situation where a boat passenger who one minute was enjoying a holiday weekend and the next cannot walk or the children left parentless after the accident. This statute allows the boat owners to ask a Federal judge to limit the amount they must compensate these victims to a few thousand dollars or less.

Given the extraordinary benefits to boat owners, the Limitation of Liability Act is applied regularly. Take for example the highly publicized case involving Ernesto Hernandez who died of propeller injuries after being backed over by a boat operated by popular Miami radio personality DJ Laz (whose real name is Lazaro Mendez). The boat Mendez was operating was owned by Voli Spirits - the Vodka brand he was promoting. Our law firm learned the boat owner is exploring its limitation options and most likely will file a limitation proceeding in the United States District Court for the Southern District of Florida. Our firm is currently handling a case where a deckhand was killed while working aboard a tug. Days after the complaint was filed, his employer (who also owns the tug) filed a Limitation Action in Federal Court. Another case our law firm is handling involves a personal watercraft collision where a rider suffered multiple facial and vertebral fractures, sustained a brain injury, and has a permanent facial disfiguration due to nerve damage. The rental concessionaire company filed a limitation proceeding seeking to limit its liability to only Three Thousand Dollars. In short, boat owners will take advantage of the Limitation of Liability Act at any opportunity.

In addition to allowing boat owners to limit their liability, the law provides various strategic advantages to boat owners. The first advantage is boat owners can initiate the litigation. This is the exact opposite of a traditional litigation where the victim starts legal proceedings. By being allowed to initiate proceedings, boat owners can set the tempo and even scare victims into not bringing a claim. In addition, if the victims had already brought a lawsuit in the local state court, the statute allows the boat owners to stay those proceedings in favor of a Federal Judge deciding the case. Part and parcel of staying the state court action, the victims loses the right of having a jury decide the case.

Despite providing multiple benefits to boat owners, the Limitation of Liability Act can be overcome in certain situations. For example the law carries a strict statute of limitations. This means if boat owners do not timely file limitation proceedings the Federal Court will dismiss the limitation proceeding. Additionally, boat owners cannot limit liability in situations where the negligent action or vessel unseaworthiness was within their privity or knowledge. Furthermore, in certain instances the Federal limitation proceeding could be stayed allowing victims to proceed in state court with a jury trial. However, once the state court jury trial concludes, the case will be reinstated before the Federal judge who will decide issues of limitation.

Though the Limitation of Liability Act has outlived its stated purpose of promoting American ship building, it is still a Federal law and will be enforced by the courts. Victims of boating accidents should be aware of its existence. A detailed explanation of the Act can be found in the linked article The Shipowner's Limitation of Liability Act: Pitfalls for the Unwary which was written and presented by our lawyers at the Southeastern Admiralty Law Symposium.

July 7, 2014

Another Biscayne Bay Boat Crash Claims Lives

Biscayne Bay Boat Accident.jpgIt seems every holiday weekend someone has lost their life in a boat crash on Biscayne Bay. Ernesto Hernandez was killed in May when a boat operated by DJ Laz backed over him on Nixon Beach in Key Biscayne. On Memorial Day Weekend, Giovanna Patricia Santos was killed when the boat on which she was a passenger collided with an anchored boat near Elliot Key. Now this past 4th of July weekend, four people died and several other injured when three boats collided near Dinner Key in Coconut Grove.

This past tragedy occurred after a fireworks show. After the fireworks concluded, many boats began racing back to the marina. Reports state that a 32-foot Contender center-console boat operated by Andrew Garcia collided with another vessel owned by the Hanono family. Garcia and most of his passengers were ejected causing the unmanned boat to collide with another.

A constant theme throughout all three tragedies is alcohol. A blood alcohol level of 0.08 is the legal limit to operate a boat in Florida. In civil cases where an operator is over the legal limit and is involved in an accident, maritime law requires him to prove by the preponderance of the evidence not only that his alcohol consumption did not cause the accident but could not have caused the accident. This is a very high burden to prove.

Even though 0.08 is the legal limit, any alcohol impacts decision making and reaction time. According to Florida's Fish and Wildlife Conservation Commission, the majority of boating accidents (fatal and nonfatal) involve the consumption of alcohol. Therefore, the best practice is to avoid drinking if you are going to spend time on the water.

June 17, 2014

Florida Snorkeler Dies after being Run Over by Boat

Florida Snorkler Death.jpgA Florida snorkeler was run over and killed in Jupiter Inlet. Andrew Harris and Nicole Kapfer were snorkeling on June 8th when two motor boats entered the Jupiter Inlet. The lead boat was able to avoid the snorkelers. Unfortunately, the second boat did not. Both boats stopped to render assistance after the accident. Harris, a 27-year-old graduate of Florida State University, was air lifted to St. Mary's Medical Center where he later died from his injuries. Kapfer luckily only sustained minor injuries.

June 5, 2014

Slippery Decks on the Carnival Paradise

Carnival Paradise Slippery Deck.jpgOur law firm receives many calls from vacationers who were injured after slipping and falling aboard the Carnival Paradise. Currently home ported in Tampa, Florida, the Carnival Paradise is a 17-year-old cruise ship - a veritable dinosaur in this day-in-age where cruise lines pump out new ships each year. The exterior decks are mostly made of wood. It seems water tends to pool in certain areas after rain or washing causing the unsuspecting passenger to hydroplane when walking across the deck. This often times results in slip and fall injuries.

The two most common injuries we see from Carnival Paradise passengers are torn menisci and broken wrists. A meniscus is a piece of cartilage that protects and cushions the knee joint surface as well as the upper ends of the femur and tibia. This cartilage is torn when the knee is hyper or hypo extended which occurs with regularity when someone is falling down after their feet fly from underneath them. Fractured wrists many times occur when the passenger extends their arms to break their fall.

Both injuries sometime could be treated without surgery but often times require an outpatient procedure, rest and rehabilitation to heal. Our attorneys have helped many people who suffered injuries aboard the Carnival Paradise. If you wish to learn more about our services, feel free to contact us for a free consultation.

June 1, 2014

Two Arrested for Raping Royal Caribbean Cruise Passenger

Galveston Cruise Rape.jpgJamaican news outlets are reporting two men were arrested for raping a fellow passenger aboard the Royal Caribbean Navigator of the Seas. The rape is reportedly to have occurred approximately 50 miles outside Jamaican waters on Thursday morning (5/29) while the cruise ship was approaching Falmouth. The men (both Americans) were supposedly partying with the victim the night before. The Navigator of the Seas conducts weekly voyages to the western Caribbean from Galveston, Texas.

Rapes and sexual assaults unfortunately occur with regularity aboard cruise ships. Our law firm is routinely contacted by cruise rape and sexual assault victims. Our attorneys are currently representing a victim of sexual assault which occurred in a ladies room aboard the Carnival cruise ship Magic which also leaves from Galveston.

May 31, 2014

Boy Found on Bottom of Royal Caribbean Cruise Ship Pool Fights for Life

Royal Caribbean Drowning.jpgA six-year-old boy was discovered unconscious at the bottom of one of the Royal Caribbean owned cruise ship Independence of the Sea on May 27th. When the boy was found his heat had already stopped. The shipboard doctor (a non-Royal Caribbean employee) was able to restart his heart beating through CPR. The drowning victim was then airlifted by the French navy and is currently treating at a hospital in Brest. The incident happened while the cruise ship was passing northern France near the city of Breton. At the time of the incident the Independence of the Seas was on a six-night Western Europe voyage leaving from Southampton, England.

Pools are considered attractive nuisances for children and child drownings are becoming more and more common on cruise ships. The reason for these tragic events is there are no kiddy fences or life guards. Often times children just wonder in the pools and drown without anyone bring aware. This problem is known industry wide. However, only Disney Cruise Lines currently has life guards assigned to all ship pools and spas. It appears unconscionable for a billion dollar cruise line such as Royal Caribbean to not hire life guards to protect their passengers. Hopefully the bulk of the cruise lines will change their policies and spend the extra money to employ life guards to protect the children aboard their ships.

May 27, 2014

Weston Woman Killed in Boating Collision Near Elliot Key

Multiple news agencies are reporting on a fatal boating accident that occurred near Elliot Key late Sunday (May 25, 2014). The incident occurred between 10:30 and 11:30 p.m. when a 23' boat collided with larger 36' anchored vessel. Giovanna Patricia Santos of Weston, Florida and two men were aboard the 23' boat. The collision was so traumatic that Santos was airlifted to Ryder Trauma Center at Jackson Memorial Hospital and the men were airlifted to Kendall Regional hospital with serious injuries. Tragically Ms. Santos died from her injuries.

The operator of the boat, Felipe Escobar, is suspected of boating under the influence. Jorge Pino of Florida's Fish and Wildlife Commission stated, "Our investigators felt that there was enough probable cause based on the odor of alcohol that was coming from the operator's person for us to do a forced blood draw on him." The toxicology results are pending.

The two people aboard the anchored 36' boat vessel were sleeping at the time of the accident and weren't injured. Investigator found the anchored boat was properly lit.

WSVN-TV - 7NEWS Miami Ft. Lauderdale News, Weather, Deco

May 24, 2014

Kayaker Missing Off Dania Beach, Florida

David Lemonds.jpgThe Coast Guard is conducted an air and sea search for a kayak who has gone missing off Dania Beach, Florida. David Lemonds of South Carolina was last seen by local kayakers at 11:00 am Thursday (5/22/14) in his yellow 12' kayak leaving from John U. Lloyd Park. His car was noticed in the park's parking lot overnight. The Coast Guard was notified on Friday (5/23/14) of a possible missing kayaker given the long time the car was in the lot. Boat crews from Coast Guard Station Fort Lauderdale along with the Miami based Coast Guard Cutter William Flores were launched to search the area. A MH-65 Dolphin Helicopter crew and an HC-144 Ocean Sentry aircraft from Coast Guard Air Station Miami were also deployed to search the ocean from Dania Beach to Riviera Beach. Lemonds' last known communication was with his wife Thursday morning. He is 5' tall, 140lbs and was last seen wearing a black wetsuit. Any person with information is asked to call the Coast Guard Watchstanders at (305) 415-6800.

:: UPDATE ::

The body of David Lemons was found in the waters south of Ft. Lauderdale by fishermen. He was wearing a SCUBA tank and wetsuit. Broward County homicide detectives are currently investigating this tragedy. He was missing for three days.

May 22, 2014

Miami Fire Rescue Evacuate Injured Passenger from the Majesty of the Seas

First responders from Miami's Fire Rescue evacuated an injured passenger from the Royal Caribbean cruise ship Majesty of the Seas Monday evening. The cruise line's Director of Communications Cynthia Martine stated the passenger is a 32-year-old Swedish man who sustained a head injury. He was and was initially treated by the on board medical facility but required additional care. The ship stayed close to shore to facilitate the at-sea rescue before traveling to Key West. There is no word on the passenger's medical condition at this time. The Majesty of the Seas conducts regular voyages to Nassau and the Royal Caribbean private island Coco Cay.
WSVN-TV - 7NEWS Miami Ft. Lauderdale News, Weather, Deco

May 22, 2014

Passenger Medevaced from the Bahamas Celebration Cruise Ship

Bahamas Celebration Passenger.jpgThe Coast Guard reports a 56-year-old passenger was medically evacuated from the Bahamas Celebration cruise ship this week after experiencing severe pain. The passenger was transferred to St. Mary's Hospital in West Palm Beach. His condition is currently unknown. The Bahamas Celebration conducts cruises from Ft. Lauderdale, Florida to the Bahamas.