May 23, 2016

Girl Sexually Assaulted by Crew of a Florida Dolphin Sightseeing Cruise

Brock Christain Hammerstrom.jpgA second arrest was made in recent days involving the alleged sexual assault of a minor during a Destin, Florida dolphin sightseeing cruise. Statements made to the police reveal that the underage girl was served wine on the cruise by two crewmembers without being asked for identification. At the end of the cruise, the girl stayed behind to talk to the crewmembers. She was taken below deck where one crewmember admitted to having intercourse with her. The suspect stated the girl told them she was twenty-four. It is unclear at this time as to whether the other crewmember had sex with the minor. Brock Christian Hammerstrom (pictured to the left) is one of the two crewmembers accused of the sexual assault.

Under maritime law, a cruise operator is strictly liable for any sexual assault perpetrated by one of its crewmembers against a passenger or guest. This means that even though the ship owner is unaware that the crewmember may commit a sex crime, it will still be legally responsible in a civil court for the damages the victim suffered from the assault. Such damages may include past and future medical / psychological treatment as well as pain and suffering.

The landmark case discussing a ship owner's liability for the intentional torts of its crewmember is Doe v. Celebrity Cruises. In that case, a cruise ship waiter recommended a night club to female passengers when the ship docked in Hamilton, Bermuda. The crewmember met the girls at the club and mingled with them until the club closed. The victim became intoxicated from being overserved alcohol at the club. The crewmember, under the guise of escorting her back to the ship, took her to a nearby park and sexually assaulted her. The court found that since the crewmember worked for the shipowner his assault on the passenger, even after hours, was attributable to the cruise line.

Our Florida Board Certified Maritime Lawyers have handled multiple cruise sexual assault cases. We are here to assist you in providing legal counsel as to your rights. Should you have any questions concerning your legal rights feel free to call us toll free at (800) 499-0551.

May 19, 2016

Miami Appeals Court Finds Punitive Damages Claim Can Continue Against Norwegian Cruise Line

Florida's Third District Court of Appeals.jpgThe crew member personal injury lawyers of Brais Brais Rusak received a favorable appellate decision against Norwegian Cruise Line and its subsidiary NCL America concerning a seaman's right to bring a punitive damages claim against the cruise lines for their failure to provide her maintenance and cure benefits.

Background

Our law firm represents a United States credentialed merchant mariner who was the nominal employee of a security services company named American Guard Services. American Guard Services loaned our client to Norwegian Cruise Line's subsidiary NCL America to provide security guard services aboard the Hawaiian based PRIDE OF AMERICA cruise ship. Shortly after beginning her shift at six o'clock on the morning of May 22, 2011, she, along with three other security guards and a deck cadet, received an order from a ship's deck officer to lash down lounge chairs that were being blown across an exterior deck due to Force 10 winds. After assisting with lashing down the lounge chairs, our client made her way back to the exit/entrance when the high winds blew her feet out from under her causing the back of her neck and upper back to violently impact the ship's deck. She was rendered briefly unconscious.

Our client was initially treated with pain medication by the ship's doctor and returned to work for another two weeks before being sent home to Houston, Texas, to recover from post-concussion syndrome. Thereafter, she was diagnosed with damaged cervical vertebrae, and underwent several surgeries to repair the damage. She continues to suffer cervical pain and headaches.

On behalf of our client, we filed a lawsuit against Norwegian Cruise line, NCL America and American Guard Services alleging negligence under the Federal Jones Act (46 U.S.C. ยง 30104) as well as the traditional seaman causes of action for failure to provide unseaworthy vessel and the failure to provide maintenance and cure in Miami, Florida.

Maintenance and Cure Defined

Unlike land-based employment law, a sick or injured seaman is not entitled to a state workers' compensation. Instead, a seaman is entitled to what is called maintenance and cure. Maintenance is a per diem subsistence allowance intended to encompass the reasonable cost of food and lodging comparable to that of the sick or injured seaman received aboard the vessel which extends until the seaman reaches the point of maximum cure. Cure refers to medical treatment. Royal Caribbean Cruises, Ltd v. Rigby, 96 So. 3d 1146, 1152 fn. 12 (Fla. 3d DCA 2012).

Duty to Provide Maintenance and Cure

A seaman's employer has the obligation to provide maintenance and cure benefits to a seaman injured while in the service of the ship regardless of fault. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107 (1942); Porto v. Carnival Cruise Lines, Inc., 555 So. 2d 394 (Fla. 3d DCA 1989). The duty of the seaman's employer to provide maintenance and cure is Cervical Injury Lawyer.jpgnon-delegable, meaning that if another company, other than the employer, mishandles the obligation to provide maintenance and cure, the employer is liable for any damages arising therefrom including punitive damages. See, Hines v. J.A. La Porte, Inc., 820 F.2d 1187 (11th Cir. 1987)(subjected the employer to punitive damages despite the fact that the employer's insurance company mishandled the administration of the injured seaman's maintenance and cure benefits). Furthermore, as held by the Supreme Court, an employer cannot "contract out" of its obligation to provide a sick and injured seaman maintenance and cure benefits. See, Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53 S. Ct. 173, 77 L. Ed. 368 (1932).

Often times a relationship exists between a ship owner and a company for the purpose of providing specialized skilled labor to work aboard the ship. When an employee of one company goes to work on the ship and is controlled by the ship owner, a borrowed servant-employer relationship exists between the seaman and the ship owner even though he or she receives a paycheck from another company. In such situations, maritime law requires the borrowing employer to provide the injured seaman maintenance and cure benefits. See, Hall v. Diamond M Co., 732 F.2d 1246, 1249 (5th Cir. 1984).

Penalties for the Failure to Provide Maintenance and Cure

There is an ascending scale of penalties for an employer's failure to provide maintenance and cure benefits depending upon the level of culpability. See, Norwegian Cruise Lines v. Zareno, 712 So. 2d 791 (Fla. 3d DCA 1998). An employer is afforded a reasonable period of time to investigate a maintenance and cure claim to determine whether the injury or illness occurred while the seaman was working in the service of the ship and crewmember did not intentionally cause his injury or illness. If, after the investigation, the employer denies the claim on a reasonable basis and the seaman later determined to be entitled to maintenance and cure, the employer is only liable for the past and future maintenance and cure benefits. However, if the employer unreasonably denied maintenance and cure benefits, it will be liable for not only the past and future benefits but compensatory damages associated with the denial. Such compensatory damages include pain and suffering the crew member endured while waiting to receive the benefits as well as any progression of the injury or illness that was caused by the failure to provide maintenance and cure. The final level of penalties for the failure to provide maintenance and cure is punitive damages. Such damages could be awarded when the employer was not only been unreasonable but was callous, recalcitrant, arbitrary and capricious, or willful in denying or delaying owed maintenance and cure benefits.

Success in the Trial Court

Miami Courtroom.jpgFlorida procedural law bars a plaintiff from pleading punitive damages at the first instance. Instead, it requires the plaintiff to proffer to the trial court judge evidence which could support a punitive damages finding by a reasonable jury. The trial court judge receives this evidence and makes a finding as to whether the evidence could or could not support a punitive damages award. If the trial court judge finds that the proffered evidence could support a punitive damages finding by the jury, the plaintiff is allowed to amend the complaint and seek punitive damages.

We filed the requisite motion with the court and proffered evidence that Norwegian Cruise Lines, NCL and American Guard Services engaged in a willful pattern of denying and delaying our client recommended treatment and medication. The trial court found that such evidence could in fact support a jury's finding that the companies could be held punitively liable for their actions.

Success at the Appeal Court

Norwegian Cruise Line and NCL America applied the trial court's finding. They argued that allowing the injured seaman to seek punitive damages is premature as there was no legal determination as to which entity (Norwegian Cruise Line, NCL America or American Guard Services) is ultimately responsible to provide maintenance and cure benefits. We argued that such a determination need not be made before a trial court judge could allow a claim for punitive damages. The fact that a borrowing employer is obligated to provide a sick or injured seaman maintenance and cure is enough to bring a claim of punitive damages against the cruise lines under Florida procedural law. The appellate court accepted our argument and denied the cruise lines' appeal.

There are many intricacies as to who is entitled to and who must provide maintenance and cure benefits. Two of our law firm's partners are Board Certified by the Florida Bar in the area of Admiralty and Maritime law and have dealt with these intricacies throughout their careers. If you work on yachts or commercial ships and would like to learn more about your legal rights, contact us for a free consolation.

May 16, 2016

Woman Goes Overboard from Galveston, Texas Based Carnival Cruise

Samantha Broberg Carnival Liberty.jpgThirty-three year old passenger, Samantha Broberg, was reported missing by friends on the Galveston, Texas based Carnival Liberty Friday morning. Upon being notified that Ms. Broberg, a mother of four, was missing, Carnival performed a ship wide sweep and review of CCTV footage. The cruise ship's CCTV system captured video footage of a female passenger falling overboard at approximately 2 a.m. It is reported that approximately 10 hours later, Carnival notified the Coast Guard that Ms. Broberg went overboard. The Coast Guard began a search but on Sunday night, after a 20 hour operation covering over 4,300 square miles, the Coast Guard announced that the search operation was suspended. The Carnival Liberty was approximately 195 miles from Galveston, Texas when Ms. Broberg went overboard. The ship was sailing on a four-day Mexican cruise.

The Federal Cruise Vessel Security and Safety Act of 2010 requires cruise lines to integrate technology that can be used for capturing images of passengers or detecting passengers who have fallen overboard. It is uncertain why it appears that Carnival took 10 hours to confirm Ms. Broberg went overboard. Notwithstanding the Federal law requiring cruise ships to have technology which will alert and confirm that a person went overboard, cruise ships also have a duty to perform a search and rescue operation, and to notify the U.S. Coast Guard in a timely fashion once it is discovered that someone has fallen overboard. Such search and rescue procedures are required for all overboard occurrences, whether involving a passenger or crew member.

Passengers and crew falling overboard from a Carnival ship departing Galveston is nothing new. In March of 2015, a male passenger's body was recovered after falling overboard from the Galveston based Carnival Triumph. In February of 2012, a Carnival crew member slipped and fell from a Galveston based cruise and was later rescued. In September of 2011, a man went overboard from the Carnival Conquest. The full circumstances surrounding how and why Ms. Broberg ended up overboard are still under investigation. It is not uncommon for cruise lines to issue press releases stating that passengers went overboard intentionally. In numerous instances, however, the excess service of alcohol is linked to a passenger's disappearance. The service of alcohol is a major profit center for the cruise lines. We will continue to monitor this incident and report of any additional information learned.

Photo Credit: New York Daily News

May 9, 2016

Carnival Cruise Ship Crashes Into Passenger Gangway

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The Carnival Pride after deporting from Baltimore

A Carnival cruise ship has crashed into a passenger gangway in Baltimore, Maryland, while attempting to dock after a 7 day Bahamas cruise. Media are reporting that the gangway was knocked over by the ship onto 3 parked cars. Luckily, no one was in any of the vehicles and no one was injured. The ship, the Carnival Pride, only sustained minor damage to the bow and is expected to depart on its next cruise as scheduled.

Although cruise ship "crashes" are a rare event, Carnival has experienced a number of various types of accidents in recent years. In 1995 the Carnival Celebration was adrift in the Bahamas for two days after losing power to an electrical fire. The Carnival Ecstasy caught fire in 1998 but was luckily still near the port of Miami and the fire was doused by rescue fire boats. The Carnival Tropicale was left adrift in the Gulf of Mexico in 1999 due to an engine room fire, leaving passengers no option but to wait out a tropical storm that occurred after the ship became disabled. A fire that broke out in the generator room left the Carnival Splendor disabled off the Western Coast of Mexico in 2010 until it was eventually towed to port in San Diego.

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May 4, 2016

Florida Panhandle Diving Accident Leaves One Commercial Diver Dead

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A Florida panhandle diving accident leaves one commercial diver dead and one injured in an accident last month near Tyndall Air Force Base near Panama City, Florida. The accident occurred on April 7th, 2016, but very few details of the accident have emerged. Media report that four divers were operating out of an inflatable zodiac boat when the accident occurred around 2:00 in the afternoon causing the death of one diver and another diver to be hospitalized with injuries. The Coast Guard is investigating.

Commercial diving is a high risk career which involves all of the risks of recreational diving such as drowning, hypothermia, decompression sickness, air embolism, and equipment failure but commercial divers often face additional hazards of underwater construction zones which include power tools, welding, cutting and demolition. When accidents happen it can leave the diver with disabling injuries or, in the event of death, the diver's family may not only lose their source of support, but they may also be left with many unanswered questions about what caused the accident that took their loved one.


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May 3, 2016

Commercial Diving Accidents and Injuries

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Commercial divers injured during diving accidents may have legal rights to recovery under federal admiralty and maritime law. While a non-maritime legal expert may be familiar with state negligence or wrongful death law, a maritime attorney will best be able to determine whether maritime law applies. This could mean the difference between the amount of recovery for your injury, the time period in which you must file your injury or wrongful death claim, and even whether recovery is possible at all.

What to do if you are injured in a diving accident

It is important to know your rights and to know what benefits you may be entitled to if a diving injury or tragedy happens to you. The Board Certified Admiralty and Maritime Law Attorneys at Brais Brais Rusak represent diving accident victims and their loved ones with over 70 years of combined experience. Brais Brais Rusak have recovered for victims under maritime law through the Death on the High Seas Act, the Jones Act, failure of employers to provide maintenance and cure, and unseaworthiness among other maritime or state law based causes of action.

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April 18, 2016

Florida Parasailing Accidents and Pre-Injury Releases

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Florida parasailing operators often use liability waivers or releases to attempt to escape responsibility when customers are injured under their care. Another common defense parasailing operators try to use to escape liability is the assumption of risk defense, meaning that the customer "assumed the risk" and is liable for his or her own injuries.

Pre-injury releases do not always provide the defense that negligent parasailing operators rely on. Courts consider pre-injury releases to be against public policy in cases where an operator ignores laws that are meant to prevent accidents.

The Florida Board Certified Admiralty and Maritime Lawyers at Brais Brais & Rusak ("BBR") specialize in representing injured clients against parasailing operators and jet-ski rental companies that require their customers to sign pre-injury releases. When a tourist's parasailing adventure turns into a tragedy and he or she finds themselves in a trauma center with life altering injuries, parasailing companies and their lawyers are immediately preparing to defend themselves with pre-injury release forms, assumption of risk defenses, and even with old Maritime laws like the Shipowner's Limitation of Liability Act. A good Maritime attorney knows how to get around these common defenses in order to help injured clients and their families hold negligent business owners/operators liable so that they can start to heal and get their lives back on track.

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March 12, 2016

Lantana Area Man Injured in Intracoastal Boat Accident

Danny-Pena.jpgNews outlets are reporting that Daniel Pena, a 33-year-old-man from the Lantana area, was knocked off his boat after making contact with a large wake cast from a passing boat in the Intracoastal Waterway. After entering the water, Pena's boat ran him over and the propeller of the outboard engine struck his head. The incident caused Pena to lose all his teeth and part of his tongue. He remains in intensive care at Delray Medical Center and his doctors opine that his injuries will require at least 20 rounds of reconstructive surgeries to his skull, mouth, nose and cheeks. He will be transferred to Jackson Memorial Hospital to undergo the additional surgeries.

Pena had his nephews, Daniel and David Garza, of West Palm Beach, ages 29 and 26, respectively, and their friend aboard his 18 foot center console Mako flats boat. Daniel Garza entered the water to save his uncle and pulled him back on to the boat. While rescuing his uncle, Daniel suffered a slight injury. The Florida Fish and Wildlife Conservation Commission is investigating the incident.

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November 14, 2015

Cape Canaveral, Florida - Dredging Crewmember's Legs Cut Off By Boat Propellers

Barge_Paula_Lee.jpgIt is being widely reported that a crewmember suffered serious personal injury after he fell into the water while attempting to step from the aft of a crew boat to a dock, barge or other vessel engaged in dredging operations in Port Canaveral. Authorities are presently withholding the man's name. The dredging crew is deepening and widening the entrance to the port so that larger ships can come in.

The man fell from a barge PAULA LEE Tuesday night (November 10th) and was injured by a pair of spinning propellers that caused him to lose one leg below the knee as well as the foot on the other leg. News reports seem to indicate the Captain of the crew boat left the engines in gear in an effort to keep the stern of the crew boat up against the dock, barge or other vessel during crew changes that take place 24 hours a day. It is uncertain at this time if dock lines and buoys were utilized to secure the crew boat thus, eliminating the need to keep the crew boat's engine's in gear while crew stepped across at the stern of the boat. It's also unclear why the crew changes were not conducted from either side of the crew boat after securing the boat alongside. Paramedics credit the quick action by other crewmembers with stopping the bleeding and saving the man's life.

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November 9, 2015

Families of the El Faro Victims Have Only Until December 21, 2015 to File Wrongful Death Claims

El_Faro_Claims_Must_be_Filed_by_December_21_2015.jpgIn a move that is both unfortunate but expected, TOTE Maritime and Sea Star Lines obtained an order from a Federal Judge requiring the families of the 33 crew members who died while serving aboard the El Faro to file their wrongful death claims by December 21, 2015. This means that the families through a personal representative of the crew members' estates must file their claims in the Federal Middle District of Florida by the December 21, 2015 deadline or risk losing the right to sue TOTE Maritime and Sea Star Lines for the deaths of their loved ones.

Besides forcing grieving families to participate in a lawsuit which they may not be ready to emotionally address, the limitation proceedings initiated by TOTE Maritime and Sea Star Lines give the shipowners other distinct tactical advantages. First of which the limitation proceedings may entitle them to limit the total amount TOTE Maritime and Sea Star Lines have to pay the grieving families to $15,309,003.50. The order setting the December 21, 2015 filing deadline also stayed the various state court lawsuits brought against the El Faro's owners requiring them to refile their claims in the Federal limitation proceedings. The limitation proceedings also preclude the families from having a jury of their loved one's peers decide the case. Instead, a Federal Judge will be the sole fact finder.

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November 6, 2015

A 35-year-old passenger has gone overboard from the Royal Caribbean cruise ship Oasis of the Seas

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A search by the Coast Guard is underway after a 35-year-old male passenger from Brazil fell into the ocean. It appears the man lost his grip while hanging from a davit used to raise and lower the cruise ship's lifeboat. The incident occurred at approximately 1:00 a.m. Friday morning when the ship was some 80 nautical miles northeast of Mayaguana, Bahamas.

According to the Coast Guard, it has received multiple reports of the man falling or jumping, but it has been unable to confirm whether he actually fell or jumped. Royal Caribbean released a written statement claiming that the man "was spotted by Oasis of the Seas crew members intentionally going over the side of the ship." A video posted by CBSMiami shows the man holding onto the davit and several people trying to help him before he loses his grip and falls into the ocean. It does not show whether the man jumped or fell into the lifeboat.

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November 3, 2015

TOTE and Sea Star Lines File Limitation Proceedings in El Faro Sinking Case

Tote Seeks to Limit Liability in El Faro Sinking.jpgAs predicted by our Florida Board Certified Maritime Attorneys, TOTE Maritime and Sea Star Lines have filed a Petition for Exoneration from or Limitation of Liability for any damages associated with the death of the 33 sailors aboard the El Faro. The lawsuit is pending in the Federal District Court for the Middle District of Florida. The aim of the offensive suit is to exonerate, or if that fails, cap the amount payable to the families of the merchant mariners who lost their lives in the service of the ill-fated cargo ship. The question for those following this catastrophe is why TOTE who publicly stated "Our focus has been on supporting and caring for the family members, loved ones, and friends of those aboard the El Faro" is now seeking a Federal Court to exonerate it from any responsibility or limit the amount it must pay the families? The answer is simple. TOTE and Sea Star Lines' marine insurer has taken control of the defense of the case and the shipping companies are required under contract to cooperate in this legal maneuver so that the insurance company could lessen the amount of money it has to pay the victims' families.

Typically, a shipping company obtains liability insurance in the case of an injury or death occurring aboard its ship. The shipping company self-retains a portion of the exposure. This self-retention amount could range between one thousand to one million dollars. After that money is exhausted (either by paying defense attorneys or paying claims), the insurance company is responsible to pay the balance of the damage up to the policy limits (if there is a policy limit). As such, TOTE and Sea Star Lines' exposure is already capped at their self-retention. Consequently, the Limitation of Liability lawsuit filed on their behalf really only benefits the insurance company.

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October 30, 2015

60-year-old crew member arrested for molesting 15-year-old girl aboard Costa Diadema

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LA SPEZIA, Primocanale, an Italian news station, has reported that a cleaner working aboard the Costa Diadema sexually molested a 15-year-old-girl on October 23, 2015. The crew member's name was not released by the Italian news station. However, he was identified as a 50-year-old man from Honduras. According to the Italian news station, the minor girl was traveling aboard the Costa Diadema with her aunt and uncle. On the day of the assault, she apparently returned alone to her cabin after dinner. Once inside the cabin, the crew member somehow entered her cabin and allegedly began touching and kissing the girl. She was thankfully able to escape and reported the assault to her aunt and uncle. The Costa Diadema was in port at the La Spezia terminal when the assault occurred. The crew member was arrested after Costa notified the police of the assault.

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October 29, 2015

El Faro Lawsuits and the Limitation Act

Fatal Course of the El Faro.pngOur maritime lawyers have recently been contacted by the media to provide legal insight on how the Shipowner's Limitation of Liability Act may impact the lawsuits filed in the El Faro disaster. It is important from the outset to note that the Limitation Act is an over 150-year-old statute designed to encourage United States shipping enacted in a time when insurance was rarely extended to American shipowners. The reasoning behind the Limitation Act was to provide shipowners with a safety net to lessen their financial exposure should a maritime disaster strike. Congress hoped this, in turn, would encourage businesses to invest in shipping and operate vessels within the United States. In modern times, however, every shipping firm has marine insurance to protect them financially from a catastrophic loss such as a ship sinking. Given the common use of insurance, many courts have commented that the Limitation Act is outdated and no longer serves its intended purpose. Congress, however, has not removed the law from the books and a judge must apply the Limitation Act if invoked. The purpose of this post is to discuss how the Limitation Act may be used in the El Faro lawsuits.

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October 21, 2015

56-Year-Old Cruise Passenger dies after falling during a Zip-Line Excursion in Puerto Rico

Police have just released information on the October 15, 2015 death of a cruise ship passenger during a shore excursion in Puerto Rico. The passenger, identified by police as Marsha Boekeloo, was a 56-year-old woman from New Mexico. According to police, she fell 20 feet from a zip-line at the Hacienda Campo Rico, located east of Puerto Rico's capital city, San Juan. Media reports state that immediately after falling, Boekeloo complained of chest pain and was unable to move her legs. She tragically passed away hours later at a hospital.

The zip-line tour was run by a San Juan based tour company named Ecoquest Adventures & Tours. According to the company's owner, the park where the zip-line tour was conducted was certified by the Association for Challenge Course Technology ("ACCT"), based out of Illinois. The tour company owner has also been quoted saying that all tour guides are trained in first aid, rescue and risk management and that the park is regularly inspected by the tour guides. The ACCT's executive director James Borishade has said that the company's membership with the ACCT actually expired last year. According to Borishade, adventure parks such as Ecoquest, should have yearly third-party inspections. Unfortunately, there is no agency or body to monitor and ensure that yearly inspections are in fact done. It remains unknown what caused Boekeloo to fall and whether the park had undergone a previous third-party inspection. The name of the cruise ship aboard which Boekeloo was traveling also remains unknown.

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