Maritime Law Blog

Resort and vacation injury lawyers Keith S. Brais and Richard D. Rusak of Brais, Brais & Rusak recently won a significant victory in Miami Federal Court in a lawsuit involving the December 28, 2010 hot tub entrapment drowning death of John Van Hoy, Jr., father of two adopted children. Click this link to read the Order denying the defendants' motion to dismiss the wrongful death case.

Sandals Resorts heavily advertises in the United States. Historically Sandals Resorts has earned tens of millions if not hundreds of millions of dollars from U.S. vacationers lured to its Caribbean resorts. Sandals Resorts and its sister company Beaches have their sales and marketing agent, Unique Vacations, Inc., a mere stone's throw from the Miami International Airport. See, photo below:

And finally, Sandals Resorts when it's to its benefit sues in the United States at the drop of a hat. Despite all of this and more, if you are seriously injured or worse die at a Sandals Resort, Sandals will argue: (a) it ought not be sued in the United States, (b) your U.S. lawsuit should be dismissed and (c) that your lawsuit must be refiled in the Caribbean Island where the accident occurred under antiquated and much less plaintiff friendly laws all in an effort to escape or greatly limit liability. Gordon "Butch" Stewart, founder of Sandals Resorts, is reportedly a millionaire hundreds of times over, if not a billionaire. Good for him and his family. With his substantial empire, however, comes great responsibility, including the repair, maintenance and upkeep of the Sandals' properties to ensure minimal and well-recognized safety standards are met. In the case of pools and hot tubs this includes, but is not limited to one or a combination of the following:

1. Dual suction outlet drains (per pump),
2. Nearby emergency shut-off switches,
3. ASME/ANSI A112.19.8 compliant suction outlet drain covers,
4. Unblockable Drain (with minimal dimensions of 18" x 23", see example drawings below),

5. Safety Vacuum Release System (SVRS) or similar device to automatically turn off an electric motor or otherwise eliminate the vacuum holding force in the event an obstruction is detected (compliant with ASME/ASNI A112.19.17),
6. Suction-Limiting Vent System that meets ASTM F2387
7. Gravity Drainage System (see, exemplar diagram below),

Court papers filed in Miami, Florida allege John Van Hoy, Jr. was using a hot tub at the Sandals Royal Bahamian Resort in Nassau, Bahamas, where he was vacationing with his fiancée Nicole Cleaveland. At some point, John became trapped underwater about his lower back a consequence of which he could not surface. The technical term is "entrapment". Entrapment results in suction or hold-down forces that result from one or a combination of improperly designed pools/hot tubs, electric motors, pumps, suction outlet drain sumps, suction outlet drain covers and/or filters all alleged to be unsafe and defective in the Van Hoy Complaint. These types of enormous hold down suction forces are not uncommon, particularly with single suction outlet drains and have resulted in countless and completely preventable serious personal injuries, deaths and eviscerations. Below are links to just some news stories on suction entrapment.

ABC News Story on Suction Entrapment
Play It Safe Slide Show of Suction Entrapment Victims
The Abigail Taylor Story
20/20 Pool Entrapment Special Pt. 1
20/20 Pool Entrapment Special Pt. 2
Pool Safety Council Drain Suction Experiment
Pool & Spa News Article

Nicole, realizing John had not surfaced, jumped into the hot tub and tried free John from the suction outlet drain at the bottom of the hot tub or minimally to raise his head above the waterline. The suction force was so great; Nicole was unable to free John. Nicole began to scream for help. Sandals employees, hearing the screams, all but ignored Nicole; some even walked away. Guests staying at the resort, however, reacted quickly and in an effort to save John's life jumped into the hot tub and began pulling and lifting on John's body. In total somewhere between six and eight guests, all pulling on his body, couldn't free John from the entrapment hold-down forces until it was too late. After John was finally freed many of these same guests and others, including a doctor from Illinois, began efforts to resuscitate John for the lengthy period of time it took for Island ambulance personnel to appear.

A guest on a balcony over looking the hot tub took a harrowing video of the event. In the video that lasts approximately 45 minutes, a Sandals' employee can be seen only momentarily performing CPR and later the same or different Sandals employee is seen lifting John's legs while the guests performed the bulk of the resuscitation efforts. Most shocking, Sandals employees are seen folding towels just feet from the on going resuscitation efforts. Most sadly and needlessly, John died that night leaving his mother Myrna, father John, Sr., two sisters, one brother, fiancée Nicole, and sons Tyler & Landon.

Sandals spends untold money advertising and soliciting Americans to come to its resorts. Sandals CEO Gordon "Butch" Stewart and President Adam Stewart maintain offices in Miami, Florida. The pool component manufacturers: Hayward Industries, Inc., A.O. Smith Corp., Pentair Water Pool and Spa, Inc., and Sta-Rite Industries, LLC, are all U.S. manufacturers. Nonetheless, defendants argued that it would be inconvenient to stand trial in Federal Court in Miami, Florida. Additionally the defendants argued the case ought to be moved to the Bahamas. It is assumed the real reason Sandals and the pool component manufacturers raised these arguments had nothing to do with inconvenience and everything to do with avoiding a United States jury deciding a wrongful death case of an American citizen.

In an impressive detailed order, a Miami Federal Court held that Sandals (as well as the hot tub's pump assembly manufacturers / suppliers) failed to make a convincing argument that having the wrongful death case heard in Miami (which is less than an hour's flight from the Bahamas) would be materially unjust to any of the Defendants.

This case is very significant as it apparently opens to doors to lawsuits against Sandals by United States citizens in American courts. This case will be used for evermore as precedent that American Courts should safe guard Americans while vacationing outside the United States.

The resort and vacation lawyers at Brais, Brais and Rusak continue to act as safety advocates for U.S. citizens traveling to resort destinations outside the United States. Any persons with information regarding John Van Hoy, Jr.'s death are urged to contact the firm.

Our firm represents Mrs. Tonya Manning who was a guest aboard the Carnival Valor. The cruise was arranged by the Make-A-Wish Foundation as it was her son's Tyler wish to go on a cruise and swim with the dolphins. The Mannings originally selected a dolphin encounter to take place when the ship arrived in Honduras. Carnival, however, called the Mannings down to Guest Services and arranged the dolphin encounter to take palace in Chankanaab Park when the ship arrived in Cozumel, Mexico. At no time did Carnival warn Mrs. Manning that the park's staircases were ill maintained and dangerous.

On June 17, 2011, the Mannings disembarked the cruise ship and proceeded to Chankanaab Park. During the excursion, the Mannings were invited to use the park's amenities. After swimming with the dolphins, there was time left on the excursion so the Mannings decided to go snorkeling. The Mannings visited a place within park known as "The Dive Shop". While walking down ill maintained stone and cement steps from "The Dive Shop" to the beach, Ms. Manning's foot got stuck causing her to fall. The fall resulted in a severely broken ankle requiring an open reduction internal fixation surgery. Mrs. Manning now walks with a permanent limp.

Though Carnival Cruise never warned Ms. Manning of the dangerous stone steps within Chankanaab Park, there are travel websites which have posted visitor complaints about the park's stone steps.

IF YOU VISITED CHANKANNAB PARK IN THE MONTHS BEFORE JUNE 2011 AND HAVE KNOWLEDGE OF THE CONDITION OF THE STEPS OUTSIDE "THE DIVE SHOP" OR WITNESSED SOMEONE WHO HAD DIFFICULTY WALKING DOWN THOSE STEPS, WE ASK THAT YOU CALL OUR TOLL FREE NUMBER 800-499-0551. ANY INFORMATION YOU HAVE IS IMPORTANT TO HELPING MS. MANNING.

Imagine receiving a call from your captain informing you the U.S. Marshal arrested your yacht? Keith Brais, a Florida Board Certified Maritime Lawyer, has defended yacht owners for over twenty years and will walk you through the steps needed to release your vessel.

A yacht can be arrested by a Federal Admiralty Court for a number of reasons. The two most common are the failure to make payments on a preferred ship's mortgage and the failure to pay for goods and the services supplied to the yacht by American suppliers. Suppose you receive that dreaded call from your captain. The first thing you should do is make an appearance in the Federal Court that issued the warrant of arrest. This is done by filing a Verified Statement of Right or Interest pursuant to Federal Admiralty Rule C(6)(a). The Verified Statement must be filed within fourteen (14) days after the vessel was arrested (the Court may extend this time). The document must describe your interest in the vessel in order to support your right to defend against the arrest proceeding. Once the Verified Statement is filed, you have twenty one (21) days to answer the complaint filed by the arresting party.

After an appearance is made, the Admiralty Rules of Court provide for ways in which your yacht can be released. If you think the claim is valid, you can simply pay the demand. This will satisfy the claim. The Court on motion will then release the vessel and the case will be over. However, if you dispute the claim, you can only release your yacht by entering into a stipulation with the arresting party. It is almost a given, however, that the arresting party will require substitute security in the form of cash or bond to be deposited in the Court's registry sufficient to satisfy the claim, interest and costs. The yacht can also be released by Court. In this situation, the Court will require the yacht owner to post a bond in an amount sufficient to cover the amount of the arresting party's claim with accrued interest and costs. This bond, however, shall not exceed the lesser of twice the amount of the arresting party's claim or the value of the property based upon due appraisement.

The mere stipulation or posting of a bond will not relieve you from defending the claim. If you fail to participate in the defense of the arrest proceeding, you will be at risk of forfeiting the substitute security deposited in the Court's registry.

Should you wish to discuss your yacht arrest with Keith Brais, you may email him at kbrais@braislaw.com.

Brais law's cruise injury attorney Richard Rusak recently won a case before Florida's Third District Court of Appeal. The case involved a Honduran crewmember who worked as a cabin steward aboard a Carnival Cruise Line ship. Being a cabin steward, the crewmember was required to clean dozens of cabins, including lifting heavy mattress to change linens, for the next cruise. Though it was Carnival's policy to have teams of two crewmembers working together to "turn over" these cabins, Carnival failed to provide an assistant. Given the short period of time he had to complete his job, the heavy lifting involved and because Carnival did not provide with an assistant, the cabin steward injured his back.

A lawsuit was filed in Florida state court located in Miami alleging violations of the Federal Jones Act statute, breach of the general maritime law warranty of seaworthiness and failure to provide injury benefits. Carnival removed the case to Federal court under the United Nations Convention for the Enforcement of Foreign Arbitration Awards arguing the seaman's claims were governed by the arbitration provision contained in his contract and that the claims must be arbitrated in Panama under Panamanian law. The Federal court entered an order finding public policy nullifies the arbitration / Panamanian law provisions of the contract with regard to the Federal Jones Act claim and remanded the Jones Act claim to state court for a jury trial. The Federal court based its finding on the Federal Eleventh Circuit's opinion of Thomas v. Carnival which held public policy can be considered when deciding to enforce an arbitration agreement.

Instead of challenging the Federal court's remand order to the appellate court, Carnival decided to participate in the state court litigation without regard to its claimed right to arbitrate. While in state court, Carnival acted contrary to the arbitration provision by engaging in the machinery of the litigation process without even asking the State Court to review whether the statutory claim should be arbitrated. After a year and a half of litigating in State Court, Carnival sought a Federal court to re-review whether the Federal Jones Act must be arbitrated per the contract. This time, Carnival relied on a later opinion from the Eleventh Circuit called Lindo v. NCL (Bahamas) Ltd. which disagreed with the prior Thomas opinion. The Federal trial court, like in the first instance, remanded the case back to state court. After being re-remanded, Carnival, for the first time, asked the State Court to compel the Jones Act claim to arbitration. The state court denied Carnival's motion on two separate grounds. Those grounds being: (1) the prior Federal Court's orders finding against arbitration precluded the issue to be reviewed for a third time and (2) Carnival's actions in proceeding in state court for over a year and a half waived its claimed right to arbitrate.

Carnival then appeal the second remand order to the Federal appellate court and the state court's order denying its motion to compel to the Florida appellate court. Richard Rusak, handling both appeals, was successful in obtaining an order from the Federal appellate court dismissing the appeal. On December 5, 2012, Richard Rusak argued the seaman's case to the Florida appellate court. Two weeks later on December 19, 2012 the state appellate court issued its opinion affirming the denial of Carnival's Motion to Compel arbitration.

The maritime attorneys Keith Brais & Richard Rusak of the Brais law firm had the honor to represent Mr. Lloyd Hughes. Mr. Hughes was an assistant engineer for Ft. Worth, Texas based CSC Applied Technologies, LLC. CSC Applied Technologies was awarded a contract from the United States Navy to furnish all personnel, services and such other resources necessary to maintain and operate the Atlantic Undersea Test and Evaluation Center (AUTEC). Located on Andros Island in the Bahamas, AUTEC's mission is to provide instrumented operational areas in a real world environment to satisfy research, development, test and evaluation requirements and operational performance assessment of war fighter readiness in support of the full spectrum of maritime warfare.

As a part of his shipboard responsibilities, Mr. Hughes was required to maintain, repair and replace, as needed, shipboard light fixtures aboard the Naval research vessel RANGE ROVER. On April 8, 2010, Mr. Hughes was attempting to replace a light bulb within an exterior halogen light fixture mounted to the fascia high above one of the ship's decks. As he was trained and as he'd done on numerous previous occasions, Mr. Hughes utilized a ladder to reach the light fixture. He loosened some and later all of the bolts holding the fixture in place in order to lower the fixture in a controlled fashion so he could work on it on deck. The fixture, however, did not lower away from the fascia as expected and, instead, remained fixed to the fascia because it had been painted over which caused it to be stuck. At this point, Mr. Hughes carefully pulled on the light fixture to break it free when it broke loose unexpectedly. Mr. Hughes' momentum, awkward position on top of the ladder and the unavailability of a co-worker caused him to fall off the ladder and strike the deck.

Mr. Hughes suffered serious injuries, including but not limited to: (a) a comminuted distal left tibia fracture a/k/a pilon fracture, (b) a proximal fibula fracture, and (c) a mild acute compression fracture superior endplate of the L1. Additionally, he suffered a broken small toe and badly bruised tail bone. He also developed compartment syndrome and later underwent bilateral (both sides) fasciotomy of his left leg. These surgeries left horrific scars to Mr. Hughes' leg. Later he was diagnosed by his treating neurologist with Complex Regional Pain Syndrome (CRPS) a/k/a Reflex Sympathetic Dystrophy (RSD) in his left leg. CRPS or RDS is a condition whereby a person experiences a burning type pain, tenderness and swelling of an extremity associated with varying degrees of sweating, warmth and/or coolness, flushing, discoloration and shiny skin. His injured required him to undergo multiple surgical procedures including a fasciotomy.

Court documents allege Mr. Hughes' fall and resulting injuries were the result of a routine job made unsafe and dangerous because; (a) the light fixture had been painted over and effectively sealed to the fascia, (b) the ladder in question was not reasonably suited for the intended purpose of working overhead and the height in question, and (c) no co-worker had not been assigned to assist Mr. Hughes while working in a precarious position and at an unsafe height.

After bringing suit in Federal Court against CSC Applied Technologies and the United States for their alleged negligence, the parties entered into a settlement whereby CSC contributed $1,040,000 and the United States contributed $250,000.

Keith Brais and Richard Rusak of the Brais maritime law firm obtained a ruling from a Florida court allowing the wife of an injured seaman to pursue a claim for loss of consortium. Loss of consortium is a claim typically possessed by the spouse of a person injured by the fault of another. This claim includes compensation for household chores the injured spouse now cannot perform as well as compensation for the non-injured spouse's loss of comfort and diminished social life the accident brought upon the marriage. Maritime law does not allow every spouse of an injured person to make a claim for loss of consortium. In fact, due to the improper interpretation of a Supreme Court ruling, the law has been rather unsettled.

Courts have historically allowed for spouses of seamen whose injuries were caused by the unseaworthiness of the ships they worked aboard to bring a claim for loss of consortium. This tradition carried along until 1990 when the Supreme Court issued its opinion of Miles v. Apex Marine. In that case, a seaman was assaulted and killed by a fellow crewmember. The seaman's mother and the estate brought a claim against the shipping company for negligence under the Jones Act and Death on the High Seas Act. The mother included a loss of consortium claim. The Supreme Court held loss of consortium damages in seamen death cases are not available as a matter of law given such damages are not available under the Jones Act negligence statute and the Death on the High Seas Act. Lower courts applying the Miles holding started to hold loss of consortium as well as other nonpecuniary damages such as punitive damages were not available in any maritime death and personal injury lawsuit. Such was the law until 2009 when the Supreme Court issued its Atlantic Sounding v. Townsend opinion. That case involved the issue of whether punitive damages were available to seamen for a maritime employer's willful failure to provide illness benefits required under maritime common law. The Supreme Court was faced with the question of whether Miles precluded all traditional nonpecuniary remedies afforded to injured seaman before the enactment of the Jones Act and Death on the High Seas Act. The Supreme Court explained the Miles opinion only dealt with damages as they relate to a wrongful death case brought under the Jones Act and Death on the High Seas Act and such a holding should not impact traditional rights and legal remedies afforded to seamen before the enactment of those two statutes. The Supreme Court then undertook a historical analysis of punitive damages in maritime cases dating back to the colonial era and found seamen historically had the right to recover punitive damages when their employer acted willfully or recklessly in breaching their legal duties owed to their seamen. With Townsend clarifying that Miles was only limited to Jones Act and Death on the High Seas Act wrongful death cases, the issue became ripe to re-allow spouses of injured seamen to bring loss of consortium claims based upon injured resulted from the unseaworthiness of the vessel.

Brais law represents an engineer who lost his vision when the chemicals he was mixing for a cruise ship's desalination plant caused a violent reaction. As one can imagine the lives of the seaman and his wife changed dramatically after that day. Attorneys Keith Brais and Richard Rusak brought a lawsuit against Carnival on behalf of the injured crewmember seeking compensation for the loss of his sight and on behalf of his wife seeking compensation for her essentially becoming the "eyes" of her now visually handicapped husband. Carnival sought to dismiss the wife's loss of consortium claim arguing Miles precluded the claim and there was no historical right for loss of consortium. Richard Rusak and Keith Brais filed opposing briefs providing examples where courts throughout the United States allowed loss of consortium claims dating back to 1858. They then argued the Townsend holding must be applied to allow loss of consortium claims. The court agreed and denied Carnival's motion and allowed the loss of consortium claim to proceed.

Miami lawyers Keith Brais & Richard Rusak obtained a ruling from a Federal Court finding a cruise line can be held responsible for a rape caused by the over service of alcohol. The complaint failed in the Southern District of Florida alleges a passenger participated in a Norwegian Cruise Line organized pub crawl which occurred on the cruise ship NORWEGIAN SUN. After the pub crawl, the passenger remained at the last bar to have additional drinks with some of the other pub crawl participants. The plaintiff alleges she became intoxicated from the drinks served on the cruise ship. Court papers reveal the passenger walked to a public ladies room located near a café. While in a stall, a man opened the door, spun her around and raped her. Affidavits filed in the case assert due to her intoxicated state she was unable to fend off her attacker.

Norwegian Cruise Line filed a motion for summary judgment arguing the Florida "dram shop" statute applied to the service of alcohol aboard its cruise ships. The Florida dram shop statute shields companies from liability for injuries and damages caused by their service of alcohol except when the person served is under the age of 21 or the person served is known to be "habitually addicted" to alcohol.

The Federal Court rejected the application of the Florida dram shop statute. Instead, it followed the Florida state appellate court's legal holding in Hall v. Royal Caribbean Cruises which found the statute is contrary to the uniformity of maritime law. This case solidifies the maritime law that a cruise line has a duty to exercise reasonable care for its passengers including reasonable care in the service of alcohol. A copy of the Court's order can be found at this link.

A Miami Federal Judge ruled Norwegian Cruise Line owed as a matter of law the duty to warn passengers of the risk of being raped and/or sexually assaulted aboard their cruise ships when such criminal acts are foreseeable. In this case a female passenger from Texas alleged she was over served alcohol during and after a cruise organized drinking event. Court documents reveal she left the bar to utilize a public ladies restroom near the ship's cafe. The assault victim claims that while in the restroom stall, a man entered, spun her around and raped her.

Attorneys Keith Brais & Richard Rusak with Brais law filed a lawsuit in Miami, Florida on behalf of the cruise ship passenger as required by the Norwegian's cruise ticket. Alleged in the complaint is that the cruise line failed to warn her of the risk of being sexually assaulted and/or raped onboard the ship. The cruise line filed a motion requesting the court to find that it did not have a legal duty to warn of potential criminal acts such as rape. In a pair of orders denying summary judgment, the court found a cruise line under maritime law does have the legal to warn of the risk of foreseeable criminal acts, including rapes and sexual assaults, on its ship. The court then allowed the rape claim to proceed to trial. This is the first opinion of its kind nation wide.

The court's orders can be viewed at this link and this link.

A part of the allure of cruising is the excursions offered at the various ports of call. However, most passengers do not know the safety standards at these ports of call are a far cry from what they are used to in the United States. Decreased safety standards, unfortunately, result in several accidents to vacationers each year. Maritime law recognizes this problem. It requires cruise lines to warn of known dangers in places where their passengers are invited or expected to visit. It also requires cruise lines to properly vet the tour operators and excursions offered aboard their cruise ships. This law is designed to arm passengers with knowledge in order for them to make informed decisions on their safety while in foreign ports. Often times when a passenger sues for an injury occurring at a port of call, the cruise lines ask the court to dismiss the claim. These attempts to dismiss are met with varying success. The cruise injury attorneys of Brais law recently was required to address such a challenge by a cruise line.

Brais Law represents a Carnival Cruise passenger who broke her ankle when she fell down an unsafe stairway located in Chankanaab National Park during an excursion selected by the cruise line. The dangerous nature or the park's stairways are well known to tour operators and companies doing business in the area. However, the unsafe nature of the stairway was not communicated to the cruise passengers.

The attorneys of Brais Law filed a complaint against Carnival in federal court alleging the cruise line was negligent as it had superior knowledge of the dangerous stairway but failed to warn its passengers of the dangers. The complaint also alleged the cruise line was negligent for selecting an excursion that takes place in an area known to be dangerous. Carnival asked the Court to dismiss the lawsuit alleging the complaint failed to state a legal cause of action. The Court rejected Carnival's argument and allowed the claim to proceed. A copy of the Court's order can be found here.

Though cruise lines are sometime successful in convincing courts to dismiss lawsuits concerning injuries occurring on an excursions, when facts exist that could prove the cruise line know or should have known of a danger and fails to warn its passengers, courts are likely to allow such claims to proceed.

The issue of whether arbitration provisions pertaining to cruise line seaman personal injury claims has been a hotly litigated issue over the past seven years. Nearly every major line today inserts arbitration provisions into their seafarer's contracts or collective barging agreements. Along with arbitration provisions, the lines include foreign choice of law provisions. The purpose for these provisions is to limit personal injury liability exposure. These provisions take personal injury claims away from juries and place it in the hands of arbitrators (generally lawyers) and apply the less liberal foreign laws than the Jones Act, Penalty Wage Act and United States general maritime law. Since the 2005 landmark decision of Bautista v. Star Cruises, courts have overwhelming enforced such arbitration provisions. Despite wide enforcement of these arbitration provisions, Courts have made some exceptions. The recent case of Cappello v. Carnival Corp. handled by the maritime attorneys of Brais law is one example where a court made such an exception.

This case involved an Italian engineer who was blinded when mixing caustic chemicals needed to clean the cruise ship's desalination plant. The cruise ship was operated by Carnival Corporation. Cappello was a contract employee of Golden Falcon, a wholly owned company of Carnival. The employment contract required "[a]ny and all disputes arising out of or in connection with [the] Agreement, including any question regarding its existence, validity, or termination, or Officer's service on the vessel, shall be referred to and fully resolved by arbitration." The contract was signed by Cappello and Golden Falcon but not Carnival.

Brais law filed Cappello's personal injury claim against Carnival in Florida state court alleging Jones Act negligence and other violations of United States general maritime law. The cruise line removed the action to federal court under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention Act (9 U.S.C. § 201, et seq.) based upon the Cappello/Golden Falcon contract. Brais law's attorneys moved to remand the case arguing lack of federal jurisdiction as Carnival failed to produce a signed written agreement to arbitrate between the parties of the dispute as required by the Convention. The cruise line argued the Cappello/Golden Falcon contract required arbitration of the claim against Carnival under the doctrine of equitable estoppel.

The equitable estoppel doctrine allows a non-contract signatory to compel if: (1) the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory, of (2) the signatory to the contract containing the arbitration clause raises allegations that are substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract. Carnival relied on the first situation arguing the dispute is controlled by contract because Cappello's claims invoke the contractual terms as his injury incurred during his service on the vessel. The Court rejected Carnival's argument finding it conflates two distinct concepts -- the scope of the arbitration clause, and the scope of the agreement containing the arbitration clause. The Court reasoned it is not a matter of a straightforward reading of the arbitration clause to determine whether a claim must be referred to arbitration. Instead, an examination of the scope of the contract containing the arbitration provision in light of the claims asserted must be conducted. Upon undertaking such an analysis the Court determined the compliant does not presume the existence of the contract and the cruise line made no particularized showing of why the contract is relevant to these claims. Based upon these findings, the Court determined federal jurisdiction was wanting and remanded the entire claim to Florida state court to be tried by a jury under United States law.

The import of this decision is that the federal courts will not blindly compel seaman personal injury cases to arbitration. Cruise lines must firmly establish the dispute arises from the employment contract signed by the seaman in order to obtain the benefit of arbitration.

The maritime lawyers of Brais Law were successful in defeating a tug and barge company's attempt to dismiss an injured seaman's claim for punitive damages and attorney's fees for the willful delay of providing medical care. Maritime law requires a shipowner to provide a seaman injured within the course and scope of employment medical care until a qualified doctor declares the seaman at a point where medical care can no longer improve the condition. The Supreme Court recently in the case of Atlantic Sounding Co. Inc. v. Townsend found a shipowner can be liable for punitive damages if it willfully, arbitrarily or capriciously denies or delays in providing medical care to an injured seaman. Brais Law argued its client's case fell inside the perimeters of Townsend thereby allowing the pursuit of punitive damages as well as attorney's fees.

Brais Law's client worked for a tug boat and barge company as a deckhand and unlicensed engineer. On May 27, 2010, he suffered an injury while working on a tug boat performing duties in connection with a salvage operation ("First Incident"). This incident caused two cervical herniated discs. On June 1, 2010, the employers tendered a physician's assistant to care for the spinal injury. The physician's assistant gave the following orders: "No strenuous activities including line handling and heavy lifting." On June 4, 2010, the physician's assistant ordered an MRI and added the following additional orders: "No strenuous activities including line handling and heavy lifting, pulling or pushing." The seaman reported back to work that day.

On June 14, 2010, the physician's assistant referred the seaman to a neurosurgeon and provided following orders: "light duty restrictions." On July 23, 2010, approximately five weeks after the recommendation by the physician's assistant that the seaman consult a neurosurgeon. However, the appointment was cancelled because the seaman refused to sign documents waiving certain rights. The seaman was put back to work in defiance to the physician's assistant's restrictions and on July 17, 2010 he suffered a second injury while handling heavy lines and cables, which injured his cervical and/or lumbar spine ("Second Incident"). On or around July 23, 2010, a second neurologist was agreed upon by both parties as a mutually acceptable back specialist. On January 1, 2011, after seven months of unsuccessful conservative treatment, Plaintiff underwent a fusion of his back at the C5-C7 levels with instrumentality.

Brais Law filed a multi-count complaint on behalf of the injured seaman in federal court located in Orlando, Florida. Within the complaint was a punitive damages claim for the willful, arbitrary or capricious delay of recommended medical care. The seaman's employer filed a motion for summary judgment seeking to dismiss the punitive damages claim arguing that the mere delay in providing medical care does not rise to the level of for which punitive damages can be awarded.

The Court reasoned a genuine issue of material fact exists as to whether Defendant's failure to tender a neurosurgeon, i.e., provide maintenance and cure between the First Incident and the Second Incident, aggravated Plaintiff's condition. Accordingly, the Court found it could not determine as a matter of law that Defendant's actions and/or inactions were not callous and recalcitrant or arbitrary and capricious under the Supreme Court's Townsend decision and allowed the claim to survive.

This case is important to maritime law as it establishes when a shipowner fails to tender recommended medical care and that failure causes a second accident which aggravates an injury, a shipowner may be held liable for punitive damages. Click this link to read the Court's decision.

Law enforcement from Sarasota, Florida responded to a Jet Ski accident on Sunday, June 17, 2012 wherein a man's arm was nearly severed. According to a Sarasota Fire Rescue spokesperson, two men were riding the personal watercraft in Big Pass between Lido Key and Siesta Key. When the men attempted to jump a wake of a passing boat, the rider in the back fell off and was run over by a 26 foot cabin cruiser. The injured man was medevaced to Tampa General Hospital to have surgery to re-attach his arm.

Later that day Carlos Dominguez, a 26-year-old Sarasota man, was severely injured when he fell off his personal watercraft also in Big Pass. A spokesperson from the Florida Fish and Wildlife Conservation Commission reports Dominguez turned in front an oncoming 32-foot Intrepid operated by 43-year-old Dean Dougherty. The Intrepid ran over Dominguez while he was in the water.

Both incidents are still under investigation.

Senad Djedovic, a former assistant cruise director for Norwegian Cruise Lines, pled guilty to possessing child pornography depicting a cruise passenger. The once NCL employee faces as much as 10 years in prison for having photos of an underage girl he had sex with on the NORWEGIAN STAR cruise ship.

Court records reveal the assistant cruise director had sex with a 16-year-old female passenger on the cruise ship after it departed for a seven day cruise from Tampa in January. A statement from the U.S. Attorney's Office for the Middle District of Florida reads, "After the minor departed the vessel, Djedovic began exchanging emails with her. In a series of emails spanning several weeks, Djedovic commented about her age and asked the minor to send him sexually explicit photos of herself". The NORWEGIAN STAR'S assistant cruise director showed the photographs to fellow crewmembers and told them she was a minor. The government's statement further revealed, "A search of Djedovic's personal computers revealed additional videos and images of minors engaging in explicit sexual activity.'' Dejedovic worked for Norwegian Cruise Lines from 2006 through early March 2012.

Child victims of sexual assault / exploitation aboard cruise ships have been handed a victory in Federal Court. Former U.S. Public Defender for the Southern District of Florida now U.S. District Court Judge, Kathleen Williams, ruled cruise lines can be held civilly liable for their crewmembers' violation of the certain federal laws designed to protect children. Originally enacted as part of The Child Abuse Victims' Right Act, Federal Statute 18 U.S.C. § 2255 provides minors who are victims of certain crimes involving sexual abuse, molestation, exploitation and other violent acts with a civil cause of action against those responsible. The federal statute, however, is silent as to whether only the perpetrator can be civilly penalized for such violent acts against children. Given the wording of the statute, an open legal question existed as to whether others responsible for the perpetrator's conduct may also be held liable under the statute.

The scope of this federal statute was tested in a case involving an alleged sexual assault of a 17 year old passenger aboard a cruise ship operated by Royal Caribbean Cruises. The lawsuit alleges a cruise ship bartender served the minor dangerous amounts of alcohol then a cruise ship entertainer sexually assaulted and took sexually explicit photographs of her. The complaint filed in Miami, Florida set forth two counts against the cruise line under the statute. The lawsuit alleges the cruise line was vicariously liable for the actions of the crewmembers and such liability includes penalties under 18 U.S.C. § 2255.

The minor's lawyers argued since the language of the statute does not restrict its scope to only the perpetrator, it must encompass not only the perpetrator, but also the cruise line. Royal Caribbean argued the Court should not extend the scope of the Act to include anyone other than the perpetrator. Maritime law holds a cruise line strictly responsible for the intentional actions including sexual assaults, rapes and other violent acts of their crewmembers against passengers. The Court determined when enacting the statute Congress understood maritime law holds cruise ship operators strictly liable for their crewmembers' intentional acts against passengers. Armed with this knowledge or maritime law, Congress, in the Court's view, could have expressly limited the Act's scope to only the perpetrator, but, it did not. Therefore, the Court reasoned Congress intended to incorporate this maritime legal principle into the statute. Applying this statutory construction, the Court ruled 18 U.S.C. § 2255 provides children who were abused, exploited and/or victimized by a crewmember a direct claim against the cruise line in addition to existing maritime common (non-statutory) law.

This ruling has a significant impact upon maritime law. The statute states that any minor who is a victim of sexually assault, molestation, exploitation and other offenses can sue for compensatory damages and shall be deemed to have sustained damages of no less than $150,000 in value for each violation. Moreover, the statute provides the minor can receive attorneys' fees if he/she wins the lawsuit. This ruling changes the landscape of cruise law. Before this decision, there was no minimum recovery for child assault, rapes and exploitations perpetrated by crewmembers and attorneys' fees were not awardable.

U.S. Coast Guard helicopter crews medevaced a 35-year-old female Polish passenger from THE WORLD cruise ship who was suffering from pneumonia on May 25th. Petty Officer Anthony Soto stated the rescue involved two helicopters missions. The first delivered oxygen to the cruise ship and the second transported the passenger to Kona Community Hospital. THE WORLD, a concept cruise ship whereby passengers reside on board, was originally en route to Honolulu but was diverted to the Big Island. The ship's last port of call was Fanning Island in the Republic of Kiribati.

This was the second reported event in a week where the Coast Guard was called to medevac a passenger off a cruise ship. The first involved a Royal Caribbean a passenger who was experiencing stroke-like symptoms off the coast of Massachusetts.