August 2010 Archives

August 31, 2010

Boat Operator Guilty of Running Over Scuba Diver

images.jpgThe Associated Press reported that a Stuart, Florida Judge found a boat operator guilty of running over a scuba diver which severed the diver's legs. The Palm Beach Gardens scuba diver was struck by boat propellers while diving about 4 miles north of the St. Lucie Inlet in January 2009. The diver testified he tried to get the boat operator's attention by waving a spear gun above the surface, but no one acknowledged his signal. He then tried to swim out of the boat's way, but the propeller struck his tank and legs. Judge Kathleen Roberts found the boat operator violated navigational rules, and sentenced him to six months probation on a misdemeanor charge.

Divers are routinely run over in the crowded waters of South Florida. The cause for such accidents is often times boat operators' and/or the divers' ignorance of navigational and diving rules. Below we explain some of the more common navigable rules applicable to dive situations.

Common Navigational Rules Applicable to Diving Situations

Displaying a "Diver Down" Flag

First and foremost, divers are required to display a "diver down" flag when in the water. When diving in state waters, the diver need only display the well known red flag with a diagonal white strip. Florida law states the minimum size for any diver down flag displayed on a buoy or float towed by the diver is 12 inches by 12 inches. The minimum size for any diver down flag displayed from a vessel or structure is 20 inches by 24 inches. If the diver down flag is displayed from a vessel, it must be displayed from the highest point or such other location which provides that the visibility of the flag is not obstructed in any direction. The diver down flag must be lowered once all divers are aboard or ashore. Furthermore, no person may operate a vessel displaying a diver down flag unless the vessel has one or more divers in the water.

When the vessel is not under command, Federal law requires an Alpha flag not less than 1 meter in height be displayed. Federal law also requires measures be taken to ensure the Alpha flag can be visible without obstruction.

Staying Near the "Diver Down" Flag

Florida Law also requires divers to make reasonable efforts to stay within 100 feet of the diver down flag while diving in rivers, inlets and navigation channels and 300 feet of the diver down flag in all waters other than rivers, inlets and navigation channels.

Maintaining a Safe Speed Near a Dive Flag

Florida law imposes upon boat operators on waters other than rivers, inlets or navigation channels to make reasonable efforts to maintain a distance of at least 300 feet from a diver down flag. Any vessel other than law enforcement or rescue vessels that approaches within 100 feet of a diver down flag on a river, inlet, or navigation channel, or within 300 feet of a diver down flag on waters other than a river, inlet, or navigation channel, must proceed no faster than is necessary to maintain headway and steerageway.

Keeping a Lookout

Federal law requires every vessel at all times to maintain a proper lookout by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

Liability for Failing to Follow Navigable Rules

As we saw with the above case, there are criminal implications for failing to follow navigational rules. There are also civil ramifications. As these navigational rules are designed for safety, violation of them provide the injury party with the rebuttable presumption that the violation caused the injured. To overcome this presumption, the boat operator must not only prove that the violation did not cause the accident, but could not have caused the accident--something very hard to do.

Potential Damages

Divers injured due to boat operators' violation of navigational rules are entitled to fair and adequate compensation for damages experienced in the past and to be likely experienced in the future. Such damages include:

  • Any bodily injury resulting in pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, the loss of capacity for the enjoyment of life;
  • The expense of hospitalization, medical and nursing care and treatment; and,
  • Any earnings for work time lost.

August 29, 2010

Passenger Ejected From a Boat off Miami, Florida - What are Her Rights?

Speed Boat.jpgLocal Miami television station CBS4 recently reported that a woman was ejected from the cockpit when the boat she was traveling aboard struck a wave off Miami, Florida. This happens often and we have litigated several cases where a passenger or guest was ejected from a boat. Should this happen to you, these are your rights.


Who is Liable?

The Boat Operator

The first question is who, if anyone, is liable? The first person to look at is the operator. Under maritime law, an operator has the duty to operate the boat in a reasonable manner given the circumstances. This means did the operator do something that a reasonably careful person would not do or failed to do something that a reasonably careful person would do. To find this answer, we must look at whether the operator:

  • Maintained a safe speed given the sea conditions;

  • Maintained a proper lookout who could have noticed the wave and cautioned the operator to slow down;

  • Properly angled the bow of the boat to decrease the impact of the oncoming wave; or,

  • Failed to take other action that a reasonable person would have done to avoid the accident.

  • If the injured passenger can show the operator failed to act in a reasonable manner, liability will be imposed for the injuries.

The Boat Owner

The next person who may be liable is the boat's owner (if owned by someone different than the operator). Maritime law is different from most states' law that hold owners strictly liable for accidents arising from the negligent operation of their motor vehicles even if they were not present at the time of the accident. In fact, courts consistently hold Florida's Dangerous Instrumentality Statute providing for such strict liability is not applicable to boating accidents occuring on "navigable waters." Though the owner may not be held strictly liable, the injured passenger or guest may sue the owner for the negligent entrustment of the vessel. Negligent entrustment arises when the owner lets someone operate the craft who was not qualified.

The Boat Manufacturer

The third person who may be liable is the boat manufacturer. Certain types of boats are made simply for speed and handle poorly in rough conditions. Many times these boats "spin out" or bury their bows into oncoming waves causing people to fly out. In such case, the boat manufacture may be liable for negligent design and/or the failure to warn of their vessels' dangerous characteristics.

What Potential Damages Are Available?

Individuals injured due to the negligence of a boat operator, owner or manufacturer are entitled to be fairly and adequately compensated for certain damages experienced in the past and to be experienced in the future. Such damages include:

  • Any bodily injury resulting in pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, the loss of capacity for the enjoyment of life;

  • The expense of hospitalization, medical and nursing care and treatment; and,

  • Any earnings for work time lost.

August 27, 2010

Cruise Lines Cannot Force their Crew Members to Arbitrate Jones Act Negligence Claims in Foreign Countries

Cruise Ship at Dock.jpgA Federal District Court recently determined Princess Cruise Lines cannot require its injured crew members to arbitrate their Jones Act negligence claims in Bermuda. Crew members have the statutory right to select where the cruise line resides, where the cause of action arose, or anywhere the cruise line does business as the location of the dispute. The court found contracts requiring seaman crew members to arbitrate in Bermuda violate their substantive statutory right to select the location where their disputes are to be heard. As a consequence, the court held such choice-of-forum clauses are unenforceable.

This ruling is a big blow to the cruise line industry. Nearly every cruise line seafarer's agreement requires injured seaman crew members to arbitrate their claims in foreign countries. Though the locations change from year to year, following cruise lines seafarer's agreements provide:

  • Carnival Cruise Lines: London, England, Monaco, Panama City, Panama or Manila, Philippines (whichever is closer to Seafarer's home country);
  • Celebrity Cruises: The crew member's country of citizenship, unless arbitration is unavailable in that country, in which case, Miami, Florida;
  • Norwegian Cruise Lines (NCL): The crew member's country of citizenship, unless arbitration is unavailable in that country, in which case, Nassau, Bahamas; and
  • Royal Caribbean Cruise Lines: The crew member's county of citizenship or the ship's flag state (Bahamas), unless arbitration is unavailable under in those countries, in which case, Miami, Florida.
The reason behind requiring arbitration in foreign countries is to preclude injured seaman crew members from retaining competent American maritime lawyers who know the ins and outs of U.S. maritime law and how to properly represent crew members against cruise lines. In short, the cruise lines figure if their injured employees cannot hire competent counsel, the claims will settle at a fraction for what they would if the claims are brought in the United States and handled by American maritime attorneys.

The Board Certified maritime lawyers of Brais & Brais have extensive experience regarding cruise line arbitration agreements at both the trial and appellate court levels. If you are an injured crew member and would like to discuss your case, feel free to contact us.

August 25, 2010

Florida Supreme Court Allows Commercial Fishermen to Recover Lost Profits Caused by Polluters

Shrimp Boat.jpgIn the landmark decision of Curd v. Mosaic Fertilizer, LLC., the Florida Supreme Court recently determined commercial fishermen have both statutory strict liability and common law negligence claims to recover damages caused by discharge of pollutants into Florida's waters. Given the recent events in the Gulf of Mexico, marine pollution is on the forefront of the Nation's mind. As explained below, this case provides recourse to those whose lives and businesses were harmed by the pollution of Florida's waters.

Strict Liability

The Florida Supreme Court first determined Florida's Pollutant Discharge, Prevention & Removal Statute gives fishermen who lost revenue as a result of pollutant discharge a strict liability cause of action against the polluter. This means fishermen need only prove:

  1. The defendant discharged pollutants which entered Florida's waters; and
  2. The pollutants caused the fisherman economic damages.
The fishermen need not prove the polluter was negligent in the care, handling or disposal of the pollutants in order to recover. This is a major victory for fishermen because they have a relatively light legal burden of proof and can more easily recover damages from polluters than they would under a common law negligence claim.

Common Law Negligence

In addition to finding commercial fishermen have a strict liability claim under the Florida statute, the court also determined they have a common law cause of negligence. The court held Florida common law implies that companies owe a duty keep, store and dispose of pollutants in a reasonably safe manner so as not to economically harm the state's fishermen. Should a company breach this duty, it will be liable for the economic damages of the fishermen.

Broader Application

Though this case deals with commercial fishermen, it has a boarder holding. As worded, the opinion provides these rights to any person or company damaged by the discharge of pollutants! Theoretically this means:

  • Hotels,
  • Boat and personal water craft rental businesses,
  • Recreational fishing guides,
  • Charter boat companies,
  • Nautical and marine sightseeing businesses,
  • Seafood restaurants,
  • Beach concessionaires, and,
  • Any other business that lost revenue due to the pollution.
Given the disaster in the Gulf of Mexico, this holding provides many of Florida's gulf coast business affected by the spill recourse against BP and Transocean.

Continue reading "Florida Supreme Court Allows Commercial Fishermen to Recover Lost Profits Caused by Polluters" »

August 23, 2010

Cruise Line Liability for Passengers Falling Overboard or Disappearing

Cruise Ship Disappearance.jpgUnfortunately cruise ship passengers fall overboard and disappear each year. It is unknown how often and how many passengers have fallen off cruise ships or disappeared because until the 2010 enactment of the Cruise Safety Act, cruise lines were not required to report these incidents. If you were unfortunate enough to fall overboard or suffer the pain of a loved one disappearing during a cruise vacation, maritime law does provide recourse.

Are Cruises Lines Liable for Passengers Falling Overboard or Disappearing?

Cruise lines can be held liable for passengers falling overboard or disappearing in a variety of ways including:

  • Inadequate or defective handrails;
  • Intoxication from being over served alcohol in the ship's bars and lounges;
  • Failure to warn of expected rough seas;
  • Violent actions of the ship's crew members or other passengers; and,
  • Failure to perform adequate search & rescue operations.
Inadequate or Defective Handrails

Obviously a passenger could easily fall off a cruise ship if the handrails are of an inadequate height or defective. To combat this danger Congress recently passed the Cruise Safety Act. This law requires all cruise ships calling on U.S. ports to have handrails no less than 42 inches above the cabin deck by January 2012. If the cruise ship is outfitted with inadequate or defective handrails, the cruise line may be found negligent for a passenger falling overboard or disappearing.

Intoxication
Another cause attributable to passengers falling overboard or disappearing is intoxication. Cruise lines have the duty to limit their passengers alcohol consumption so they do not become intoxicated. Should a passenger become intoxicated, the cruise line has the duty to protect the passenger from his/her (albeit self-imposed) disability. If the cruise line fails to carry its duty, it will be liable for the passenger's disappearance and/or damages associated with the passenger falling overboard.

Failing to Warn of Rough Conditions
Cruise lines are obligated to warn passengers of known dangers or dangers for which they should have known. In the context of passengers falling overboard or disappearing, this duty usually arises when the ship is expected to encounter rough seas. Often times at sea, weather conditions can deteriorate rapidly. Nearly all cruise ships are equipped with state of the art weather radar and have access to forecasts and conditions for the areas they are sailing. As such, the "deck officers" know when the ship is about to cruise into rough seas where the passengers (who are enjoying their vacations) do not. Consequently, cruise lines are obligated to warn of approaching storms and the dangers of being near the rails during rough seas. If a cruise line fails to warn of such approaching dangers, it may be held liable for passengers who fall overboard during a storm.

Violent Actions of Crew Members
Passenger disappearance may also be as a result of violent actions of the cruise ship's crew members. Cruise lines have the absolute duty to protect their passengers against physical assaults by crew members. If a passenger is pushed overboard by a crew member, the cruise line will be strictly liable even if the crew member had no history of violent behavior.

Violent Actions of Fellow Passengers
Cruise lines may also be responsible for disappearances caused by the violent actions of its passengers. However, unlike the violent actions of their crew members for which the cruise line is strictly liable, a cruise line will only be liable if it could have anticipated the violent activity of the other passenger and could have prevented the injury.

Duty to Perform Adequate Rescue Operations
Once a missing passenger is reported, cruise lines have the duty to perform a reasonable search and rescue operation. Should the cruise line fail to conduct a search and rescue operation or performs such an operation in an inadequate way, it will be liable for the death or further injury of the passenger.

Should you have any questions concerning passengers' falling overboard or disappearing and the cruise line's liability, please do not hesitate to contact our board certified maritime attorneys.

August 21, 2010

Can I Put in a Contract that I have a Maritime Lien for Attorney Fees if the Owner Does Not Pay?

We are often asked by our clients who refurbish yachts whether they can include a clause in their contracts which gives them a maritime lien for attorney fees paid in association with bringing a lawsuit to collect unpaid invoices. Unfortunately, the answer is no. However, maritime law does provide a remedy.

Contract.jpgMaritime liens are statutory. This means the Maritime Lien Act gives people who provide goods and services to yachts, ships and other vessels certain protections. This includes the ability to arrest the ship in order to secure payment on outstanding invoices. However, nowhere in the Maritime Lien Act does Congress give a maritime lien for attorney fees. As such, courts hold that a person cannot have a lien against the vessel for attorney fees even if the owner agreed to such a lien in a contract. However, this does not preclude a contractor from putting a clause in the contract whereby the owner agrees to be personally liable for attorney fees should a lawyer need to be hired to collect the debt.

Often times a maritime collection lawsuit has two defendants: (1) the yacht; and, (2) the yacht owner. The claim against the yacht is for the foreclosure of a maritime lien. This claim is for the amount of the unpaid invoices plus certain court costs allowed by law and prejudgment interest. The claim against the owner is for breach of contract. This claim is also for the amount of unpaid invoices, certain taxable costs provided by law, prejudgment interest plus anything else the contract may provide. If the contract is written properly, these additional damages can include costs (normally not allowed by pure operation of law) as well as attorney fees paid in the course of pursuing the collection lawsuit. As such, though the contractor cannot create a maritime lien for attorney fees he still can recoup his attorney fees against the yacht owner.

If you have a company that provides goods and services to yachts, ships or other vessels and have not been paid or would like us to draft a contract whereby you can pursue attorney fees against the vessel owner, don't hesitate to contact our Florida Board Certified maritime attorneys.

August 19, 2010

Does a Kayak or Canoe with an Electric Motor Need to Be Titled & Registered in Florida?

Being an avid kayaker as well as a maritime attorney, I get asked time and again if Florida requires titling and registration of kayaks or canoes outfitted with electric motors. The answer is an emphatic YES!

Kayak and canoe manufactures have started selling models with built in electric motors. For example, Ocean Kayak recently launched the Torque which has a factory installed electric motor. There are also emerging businesses which sell aftermarket electric motors attachments for kayaks and canoes. The sellers of these products generally don't tell you most states including Florida require these crafts to be titled and registered as motor vessels.

Motor Kayak.jpgFlorida Statutes § 328.03 and § 328.56 require the titling and registration of all motorized kayaks and canoes regardless of length. In addition to paying for the title and registration, Florida law requires motorized kayaks and canoes to display registration numbers and decals.

The fee to title a kayak or canoe is $77.25 in most cases. The fee to register a kayak or canoe is relatively inexpensive costing only $12.25 a year as of the day of this article. For your convenience, click here for a Florida Certificate of Title with Registration Application.

So, if you live in Florida and have a kayak or canoe that is outfitted with an electric motor, you need to get it registered. If not, you are in jeopardy of getting ticketed!

August 17, 2010

My Marine Insurance Company Required Me to Hire Contractors to Mitigate the Damage to My Yacht After the Accident but then Denied My Claim - Can They Do That?

Damaged Blue Yacht.jpgUpon receiving a claim notice, it is often times a marine insurance company's knee jerk reaction to tell the yacht owner to take all reasonable precautions to mitigate and lessen the damages or the claim will be denied. The yacht owner, wanting the marine insurance company to pay the claim, will hire various contractors to care for the damaged vessel and to undertake work designed to prevent additional damage from occurring. After the insurance company "investigates" the claim, the owner receives a letter stating coverage is denied because the owner breached one of the several warranties buried in the policy. If this happened to you, maritime law may provide recourse.

Can the Marine Insurance Company Deny My Claim After Requiring Me to Mitigate the Damage?

The answer depends upon whether the marine insurance company required you to mitigate the damage after it knew of the warranty breach. Nearly every yacht insurance policy requires the owner to minimize or prevent further damages after an accident. This is to protect the marine insurance company from having to pay more money associated with additional post-loss damage which could have been prevented. However, if the underlying claim is not covered by the policy because the owner breached a warranty, there is no obligation on the part of the yacht owner to mitigate the damage.

Many times, however, the insurance company becomes aware of the breach of warranty but, while in the process of deciding whether or not to pay the claim, requires the yacht owner to mitigate the loss. Sometimes this happens because you are a good customer and the insurance company is struggling with whether to deny the claim and risk you sending your business elsewhere. Other times the investigation report revealing the breach simply gets lost on the insurance adjuster's desk - this happens more often than you think! No matter why it happens, maritime law is in your favor. Courts routinely find if the marine insurance company knows of a reason to deny the claim and still requires the yacht owner to undertake actions to minimize or prevent further loss, the marine insurance company cannot later deny the claim. Instead, courts find that the marine insurance company waives its defenses and must pay the claim!

If your marine insurance company wrongly denied your claim and would like to discuss your situation further, please contact our board certified maritime attorneys.

August 15, 2010

Cruise Lines Liability for Passengers Injured Due to the Medical Malpractice of Ship's Doctors

Needle.jpgAll major cruise lines have doctors aboard their cruise ships. In fact, cruise lines turn a profit from charging passengers for doctor visits and dispensing needed medication. However, if a passenger suffers an injury or dies as a result of the medical malpractice of these ship doctors, the cruise lines are generally not liable.

Most passengers don't know that despite wearing cruise line uniforms and name badges, ship board doctors are hired as independent contractors. This fact is often buried in the cruise boarding pass booklet. By hiring these doctors as independent contractors, cruise lines can shield themselves from liability should they commit medical malpractice.

Another secret the cruise lines like to keep from their passengers is the medical staff are often foreign and have never attended American medical schools! This further frustrates the rights of passengers who suffer as a result of medical malpractice because these doctors are generally not subject to the U.S. courts.

The law, however, does provide passengers some recourse. Although passengers cannot sue the cruise lines directly for the medical malpractice of the ship's doctor, passengers can sue the cruise line for the negligent selection of the doctor. Under this theory of law, the passenger must show the cruise line should not have selected the doctor because the doctor was insufficiently trained or had a substandard performance history. If proven, the cruise line will be liable for the medical malpractice.

Passengers may also directly sue the doctor. Unfortunately, unless the passenger can show the medical malpractice occurred in a state's territorial boundaries, the doctor cannot be sued in the U.S. However, the doctor may be sued in the country of residence under the laws of that country.

August 13, 2010

Cruise Lines Attempt to Limit Crew Member's Rights by Inserting Foreign Choice of Law Provisions Into Employment Contracts

NCL Epic.jpgCruise lines such as Carnival, NCL, Princess and others have begun inserting foreign choice of law provisions into their seaman crew member employment contracts. This means if a crew member is hurt and wants to bring a claim against the cruise line, foreign law, not U.S. law, is to be applied. The purpose of these provisions is to deprive crew members of the vast rights and benefits afforded under U.S. law and substitute the lesser rights and benefits afforded under foreign law. In short, cruise lines don't want to pay their seamen employees the benefits due under U.S. law even though these same cruise lines operate from U.S. ports and have their corporate offices in the U.S. Many crew members have no idea what they are potentially giving up when they sign an employment contract with a foreign choice of law provision. For example, the Carnival and Princess contracts call for the application of Panamanian law. Unlike U.S. law, Panamanian law does not provide for:
  • Double Penalty Wages for each day the cruise line failed to pay earned wages after discharge;
  • Punitive damages and attorney fees for the willful, arbitrary and capricious denial of Maintenance and Cure benefits;
  • Payment of Maintenance until the crew member reaches maximum medical improvement (Panamanian law only provides maintenance benefits for 30 days);
  • Strict liability under the doctrine of Unseaworthiness for injuries arising from the cruise line's breach of its duty to provide a vessel in a condition reasonably suited for its intended use;
  • Direct claims against the cruise line for the negligence of fellow crewmembers; and
  • Jones Act Negligence claims against the cruise line for injuries and damages resulting from the misdiagnosis and/or malpractice of shipboard and shore side physicians
Despite the cruise lines' attempt to deprive their seaman crew members' U.S. legal rights, courts are hostile towards these foreign choice of law provisions. The lawyers Brais & Brias often litigate this issue and have been successful in convincing courts to strike down such foreign choice of law provisions as they violate public policy against employees contracting away their U.S. statutory claims and allowing employers to lessen their maintenance and cure responsibilities.
August 11, 2010

Maritime Liens & Vessel Arrests - Getting Paid for Your Work!

Yacht Interior [314 x 235].jpgWe receive many calls from marine contractors telling us they finished a project, the yacht owner was pleased with the work but were never fully paid. Unfortunately, this is the industry standard for the yacht refurbishing business. Luckily the law is on your side!

The Maritime Lien Act gives a lien against a vessel to:

  • Refurbishers,
  • Woodworkers,
  • Carpenters,
  • Canvas suppliers,
  • Marble suppliers,
  • Painters,
  • Plumbers,
  • Upholsterers, and
  • Anyone else who supplies materials or labor to a vessel.
This lien is in the amount of all unpaid invoices for material and labor supplied to the vessel. The law also gives these contractors the unique ability to arrest the ship to foreclose on their lien.

When their ship is arrested the owner has the option of: (1) depositing money in the court for the amount of the unpaid invoices plus reasonably expected court costs and interest; or, (2) suffer a judicial sale of his vessel wherein the proceeds of the sale will be deposited in the court to secure the claim. This provides the contractor with security for his claim and avoids the hassle of having to track down the owner to collect a judgment. Arresting the vessel also causes the owner the inconvenience of not being able to use his yacht as well as the expense of depositing money to cover the lien amount. If the owner does not provide this security, he will lose his yacht. Often times, owners will pay the outstanding invoices at this time in exchange for the release of the yacht.

Should the owner still decide not to pay the monies owed, the court will decide the claim on its merits. In order to prevail under a Maritime Lien Act claim, the contractor must simply establish:

  1. "necessaries" (materials or labor) were provided;
  2. at the direction of the vessel's owner or agent;
  3. to the vessel; and
  4. at a reasonable price. See, Windward Assocs. v. M/Y Esteral
Once these four elements are proven, the Court will execute judgment against the security and the contractor will finally collect the money owed.

If you are a contractor who is owed money for your work on a yacht or other type of vessel and would like to discuss your options further, please contact a Florida board certified maritime lawyer.

August 9, 2010

Court Requires Carnival Cruise Lines to Produce Contract in Order to Force an Injured Seaman Crew Member Employee to Arbitrate His Claim

Carnival Cruise Lines recently started inserting arbitration provisions into their seaman crew member employee contracts. These arbitration provisions require injured crew members to arbitrate their claims against the cruise line as opposed to having a judge or jury decide their cases. Though Carnival Cruise Lines often times require their seaman crew member employees to sign such contracts when they report to the ship, this practice is not always followed. Should the cruise line fail to produce a signed contract, it cannot compel arbitration. This was the case with Brais & Brais' client Edward Florian.

Carnival Ship Blog.jpgMr. Florian began working for Carnival Cruise Lines on February 25, 2007. At the time he reported to the ship, Mr. Florian signed a contract containing an arbitration provision. He served the contract period without incident. At the conclusion of the contract period, he returned home to Peru. Carnival Cruise Lines then rehired Mr. Florian to begin work on January 13, 2008 aboard a different ship. This time the cruise line did not require him to sign an employment contract as a condition to letting him work. During this second employment period, Mr. Florian developed a spinal cord injury.

Brais & Brais filed a lawsuit in Miami, Florida state court on Mr. Florian's behalf for his spinal cord injury as well as additional injuries suffered as a result of substandard medical care provided by Carnival. The cruise line removed the case to federal court and attempted to compel arbitration of the claim. Carnival based its argument upon the contract signed for the first period of employment -- not the second period of employment when Mr. Florian developed his injury. The cruise line also argued, although it could not find the signed contract for the second period of employment, Mr. Florian must have signed one since it is company policy to require seaman crew members to sign a contract containing an arbitration provision as an employment condition.

Brais & Brais argued the cruise line is required to produce the contract containing an arbitration agreement applicable for the employment period the crew member was injured; and, the production of a contract applicable for the employment period before the injury or the rendition of company policy regarding the signing of such agreements cannot serve as a basis to compel arbitration. The court agreed with Brais & Brais and issued an order denying the cruise line's request to compel arbitration and remanding the case back to state court to be tried by a jury.

August 7, 2010

Marine Insurance Companies' Practice of Wrongfully Denying Claims Based Upon Non-Applicable Policy Exclusions and Your Rights

We often times represent clients whose marine insurance companies wrongfully deny claims based upon exclusions even though the loss was really caused by a covered risk. This is a common tactic of marine insurance companies as they often play the odds that you will simply go away and not fight. Fortunately, maritime law is on your side should you decide to fight.

sailing_accident.jpgTo illustrate this point, we recently represented a yacht owner whose engine sustained serious damage as a result of an improperly installed coolant plug which fell out while cruising. Boat/U.S. (Continental Insurance Company) denied the claim because the policy excluded damage resulting from overheating engines. It is true the engine overheated; and, at first blush, an owner may think he has no insurance. However, under maritime law, insurance companies are to look at the cause which is most essentially connected with the loss and not merely an incidental cause which may be nearer in time to the loss.

Brais & Brais filed suit for breach of contract alleging the policy covered damages resulting from the improper plug installation, and such improper installation was the cause essentially connected with the engine damage. We argued if the plug was properly installed, the engine would not have overheated and the loss would not have occurred. We also filed a claim for punitive damages and the assessment of attorney fees under the Rhode Island Bad Faith Insurance Statute for the claim's wrongful denial. Shortly thereafter, Boat/U.S., instead of defending the case, changed course from denying coverage to paying the claim.

Continue reading "Marine Insurance Companies' Practice of Wrongfully Denying Claims Based Upon Non-Applicable Policy Exclusions and Your Rights" »

August 5, 2010

Suing a Cruise Line? Read Your Passenger Boarding Pass!

3 Cruise Ships at Port.jpgNearly every cruise line's boarding pass requires an injured passenger to file suit within one year from the date of accident. Cruise lines also require their injured passengers to file their claim in a specific city and even a particular court. As such, a person living in Chicago who was injured on a cruise departing from and returning to San Diego may be required to bring a lawsuit in a Miami Federal Court even though the cruise ship never touched a Florida port.

Cruise lines prey on the fact many injured passengers (and their local non-maritime attorneys) do not read the boarding pass' fine print and think they have three or four years to file suit and/or could file the claim in their local court. Cruise lines are also empowered by court decisions which strictly enforce these boarding pass provisions. Often times cruise lines delay in responding to information requests or stall settlement negotiations as a tactic to lullaby unsuspecting injured passengers into not timely filing suit. Unfortunately, each year many hurt passengers forfeit their right to sue and obtain just compensation by not adhering to the boarding pass' conditions.

Don't fall victim to these terms and conditions. If you have any questions, contact an experienced cruise passenger injury attorney to help you navigate your way through these pitfalls.

Restrictive Boarding Pass Provisions for the More Popular Cruise Lines
  • Carnival Cruise Lines - Suit must be filed within 1 year in the Federal Court located in Miami, Florida
  • Celebrity Cruises - Suit must be filed within 1 year in the Federal Court located in Miami, Florida
  • Costa Cruise Lines - Suit must be filed within 1 year in the Federal Court located in Ft. Lauderdale, Florida
  • Cunard Lines (Voyages that begin or end in a U.S. Port) - Suit must be filed within 1 year in the State or Federal Court located in Los Angeles, California
  • Disney Cruise Lines - Suit must be filed within 1 year in court located in Brevard County Florida or Federal Court located in Orlando
  • Holland America - Suit must be filed within 1 year in the Federal Court located in Seattle, Washington
  • Norwegian Cruise Lines (NCL) - Suit must be filed within 1 year in the Federal Court located in Miami, Florida
  • Princess Cruises - Suit must be filed within 1 year in the State or Federal Court located in Los Angeles, California
  • Royal Caribbean Cruises - Suit must be filed within 1 year in the Federal Court located in Miami, Florida
(This information is subject to change and injured passengers are urged to consult their exact boarding pass for the terms and conditions governing their claims)