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.

May 17, 2014

Seamen Have No Claim for Ailments Caused by Work Related Stress

Miami Jones Act Lawyer.jpgIn a rather shocking opinion, the Eleventh Circuit Court of Appeals has found seamen who develop ailments, including heart disease, cause by work related stress have no claim against their employers under the Jones Act.

The Jones Act provides seamen injured by the negligence of their employers a cause of action to recover money damages to compensate them for pain, suffering, disfigurement and lost wages caused by the injury. This Act was traditionally liberally construed in the favor of injured seamen. The recent case of Skye v. Maersk Line, unfortunately, has restricted the scope of the Jones Act. In that case, a chief mate developed left ventricular hypertrophy (a thickening of the heart wall of the left ventricle) as a direct result of excessive work hours and an erratic sleep schedule caused by the demands of his employer. The seafarer brought a lawsuit in Miami Federal Court arguing his employer caused his heart disease by negligently overworking him to the point of fatigue. The shipping company filed a motion requesting the court dismiss the claim as a matter of law arguing that no such relief in provided by the Jones Act. The trial court denied the motion and a trial was conducted. The jury found the shipping company 25% liable and awarded $2,362,299.00 to the injured seaman. The court reduced the award to $590,574.75 to account for the seaman's 75% comparative negligence. The employer appealed the decision.

The Eleventh Circuit analyzing the Jones Act and Supreme Court precedent discussing the Federal Employers Liability Act (a companion statute to the Jones Act) concluded seamen are only protected against the negligent conduct of their employers that imminently threatens them with physical impact. Based upon this legal framework, the Eleventh Circuit found injuries caused by work-related stress are not actionable under the Jones Act because an arduous work schedule and irregular sleep schedule are not "physical perils."

The final paragraph of the Eleventh Circuit's legal analysis sheds light on the outcome of the case. The court feared that by allowing such claims would "flood [the courts with] trivial suits, the possibility of fraudulent claims... and the specter of unlimited and unpredictable liability." This case is another example of the contraction of the Eleventh Circuit's treatment of seamen's claim. Such is a shame as courts historically viewed it was their duty to vigilantly protect seamen.

May 12, 2014

Two Vacationers Evacuated off the Carnival Splendor Cruise Ship

Coast Guard Rescue Cruise Passenger.jpgThe Coast Guard reports two passengers were evacuated from the Carnival Splendor cruise ship off the coast of North Carolina. It appears the two vacationers became extremely sick aboard the ship prompting the captain to request medical assistance. The Splendor, at the Coast Guard's request, deviated its course closer to shore so the passengers could be picked up by helicopter. Information about the passengers' medical condition is not currently available.

April 17, 2014

Coast Guard Targeting Potentially Hazardous Cruise Ships

Cruise Ship Hazards.jpgLast month the Coast Guard started surprise inspections of cruise ships it has flagged as potentially hazardous to passenger safety. The Coast Guard's reason for stepping up inspections of problem cruise ships is because the regular twice-a-year inspections of 140 cruise ships based at the various United States ports in 2013 found 351 deficiencies. The most frequently safety issues aboard these ships dealt with lifeboats and fire doors. Captain Eric Christensen, the officer in charge of oversees ship inspection policy, told the National Transportation Safety Board, "There was a population of cruise ships that had the lion's share of deficiency. You want to focus your efforts on those vessels." Specific ships or cruise lines, however, were not identified.

What does this mean to the hundreds of thousands of American cruise travelers? It appears the cruise ships based out of the United States will become safer in the sense that should a Costa Concordia type catastrophe take place, the life boats and watertight doors will likely work. However, the increased Coast Guard inspections will do nothing to protect passengers from the several shipboard hazards caused by the cruise lines' failure to properly maintain their ships. Most cruise passengers are injured due to the failure to maintain decking surfaces whether it is carpet, wood, marble or steel. These decks experience a significant amount of wear and tear due the large number of people walking on the ships each day causing slipping and tripping hazards. The Coast Guard inspectors do not pay much attention to deck surfaces and thus those hazards will remain.