September 2010 Archives

September 29, 2010

Can a Florida Marina Require You to Move Your Boat when a Hurricane is Approaching?

Marina Damage.jpgIt is a common after a hurricane to see boats strewn across docks as well as marina pilings and bulkheads severally damaged. In an effort to protect against hurricane damage, many marina storage agreements contain a clause requiring boat owners to move their vessels out of the marina when a hurricane is approaching. This clause also holds the boat owners responsible for any damage caused by their vessels to the marina should the owners not move their water crafts. Should your marina try to hold you responsible for damage resulting from not removing your boat prior to a hurricane, the law is on your side.

Florida law states:

Marinas may not adopt, maintain, or enforce policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watch or warning, in order to ensure that protecting the lives and safety of vessel owners is placed before interests of protecting property.

Courts interpreting this statute determined marinas have no claim against the boat owners for failing to remove their vessels when a hurricane is approaching.

With this said, however, marinas can require boat owners to use certain kind of cleats, ropes, fenders and any other type of damage mitigating equipment as a condition to storing their boats at the marina. Should the boat owner fail to utilize the equipment required in the marina storage agreement, and it could be proven that had the equipment been utilized the marina would not have suffered damage, the marina then will be able to bring a claim against the boat owner.

September 27, 2010

Does Maritime Law Allow Me to Arrest a Ship if the Owner Filed Chapter 11?

Given the current economic climate, more and more companies are filing Chapter 11 in an attempt to shed debt. We receive many calls from vessel suppliers inquiring whether the yacht's or ship's owner filing of Chapter 11 has any impact upon their right to enforce a maritime lien and arrest the vessel. The answer is no!

United_States_Bankruptcy_Court_Seal.pngMaritime law gives a person or company who supplies "necessaries" to a vessel the right to have an admiralty court seize and sell the vessel, its earned freight and cargo to satisfy any unpaid invoices. This right is commonly known as a maritime lien right. Maritime lien rights are given a higher priority under the law since its purpose is to encourage necessary services to ships whose operators are unable to make contemporaneous payments.

Given the nature of maritime liens, courts have found the bankruptcy code has no impact upon the right to enforce a maritime lien against a vessel even though the owner filed Chapter 11. In fact, courts have held that maritime lien rights can arise in favor of a company supplying necessaries to a vessel during the time the owner is operating under Chapter 11. It is important to note that even though Chapter 11 proceedings have no impact upon maritime lien rights against the vessel, if the vessel is sold at a Marshal auction and the proceeds of the sale do not fully cover the unpaid invoices, the remainder of the debt owed may be discharged by the Bankruptcy court.

If you are interested in learning more about maritime lien law, please read our article Maritime Liens & Vessel Arrests - Getting Paid for Your Work! where we explain the process by which a person or company supplying necessaries must undertake to enforce a maritime lien right.

September 25, 2010

Cruise Lines or Ship Owners are Responsible to Provide Crew Members Medical Care for Injuries Occurring when on Sick Leave

Sometimes crew members develop additional injuries or illnesses while on sick leave. Often times these new injuries or illnesses have nothing to do with the shipboard accident which placed them on sick leave in the first place. The question on the minds of these crew member is does the cruise line or ship owner have to pay for the medical treatment of these new injuries or illnesses? The answer is YES.

ankle xray.jpgUnder the maritime law doctrine of "maintenance and cure", a cruise line or ship owner must provide a daily living allowance (Maintenance) and medical treatment (cure) to its crew members who were injured or when an illness manifested itself while subject to the call of the ship. This duty to provide maintenance and cure lasts until the crew member reached maximum medical cure. Maximum medical cure is simply the stage were the injury or illness is resolved or there is no further medical treatment that could better the crew member's condition.

Courts have determined when a crew member is on sick leave, he is technically still subject to the call of the ship because when he gets better, he will go back to work. As such, these courts reasoned that since the crew member is subject to the call of ship while on sick leave, the cruise line or ship owner must provide maintenance and cure for any additional injuries or illnesses arising during that period. For example, if a crew member is on sick leave for bronchitis and on the way to the supermarket is hit by a car, the cruise line or ship owner must provide maintenance and cure for any injuries resulting from the car accident.

Should the cruise line or ship owner not provide maintenance and cure benefits for the additional injuries or illnesses, a crew member can sue for the failure to provide maintenance and cure claim as well as a tort claim under the Jones Act. Under these claims, the injured crew member can seek damages in the form of:

  • Payment of medical bills for the injury;
  • Payment of certain living expenses until the point of maximum medical cure;
  • Compensatory damages for the worsening of the condition (pain and suffering, lost of the enjoyment of life, disfigurement and loss of earnings); and,
  • Punitive damages.

September 23, 2010

Cruise Ships Must be Accessible to Handicapped Passengers

handcapped.pngThe Americans with Disabilities Act ("ADA") was passed to make businesses and recreational areas accessible to persons with disabilities. Though originally envisioned as a land-based statute, the Supreme Court in Spector v. Norwegian Cruise Line, Ltd. held the ADA applicable to any cruise ship leaving from an United States port. Overnight, the Spector case required the cruise industry to refit its ships to comply with the ADA including the accessibility standards set forth in the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). Subsequent cases, however, recognized because of the uniqueness of ocean going vessels many ADAAG requirements, were specifically formulated for land-based structures, cannot practically apply to ships. As such, cruise ships are exempt from certain structural ADAAG requirements until such time as the Architectural and Transportation Barriers Compliance Board issues specific standards for ships. However, courts found all other aspects of the ADA applicable to cruise ships. These include:

  • Proper height and shape for signage;
  • Wheelchair assessable cabins/staterooms;
  • Grab rails in lavatories;
  • Assessable height of counters, tables, sinks, toilets, door handles and grab rails;
  • Wheelchair turning radius in hallways and rooms;
  • Installation of certain assessable door handles; and,
  • Appropriate number on wheelchair accessible tables and seating locations in the ship's dining rooms, theaters, clubs and lounges.
Bringing an ADA Claim

Before one can bring an ADA claim, the person must be "injured". This means the disabled person must have attempted to gain access to the premises but was unable due to the configuration of the space. It is not enough to scan a cruise line's website and conclude none of their ships are accessible.

Damages Under the ADA

Aggrieved individuals may sue to enforce the ADA and, if successful, obtain relief in the form of requiring the cruise line to make the area assessable as well as an award of attorney's fees associated with bringing the suit.

September 21, 2010

Commercial Fishermen Wrongful Death and Survival Claims under the Death on the High Seas Act

It is common knowledge that commercial fishing is the most dangerous and deadly job in the United States. Thankfully maritime law provides benefits to those who lost a loved one while working the sea.

Fishing Boats.jpgWe recently posted an article discussing commercial fishermen wrongful death and survival claims which can be brought against their employer under the Jones Act. As the article explained, the Jones Act applies to commercial fishermen wrongful deaths occurring upon inland waterways or within 3 nautical miles from shore. But what happens if an accident occurs beyond 3 nautical miles? Maritime law provides an entirely different statute for such claims.

Death on the High Seas Act

The Death on the High Seas Act ("DOHSA") applies to all maritime deaths resulting from accidents occurring beyond 3 nautical miles from shore. Unlike most wrongful death statutes, DOHSA applies to the actual site of the accident, not where the death actually occurs or where the wrongful act causing the accident may have originated. Thus, if an accident occurs beyond 3 nautical miles from shore, but the fisherman ultimately dies within 3 nautical miles or even in a hospital on shore, DOHSA applies.

Unlike the Jones Act, which only allows for the fishermen's employer to be sued, DOHSA allows an estate or family member to sue any responsible party. This may be the fisherman's employer, but also the boat owner (if different than his employer), vessel manufacturer, equipment installer/manufacturer, the captain of another boat if the death resulted from a collision and any other person, company or government who contributed to the accident which resulted in the death.

Like most maritime claims, DOHSA lawsuits must be brought within 3 years from the date of the accident and can be brought either in state or federal court. Though DOHSA does not provide a right to a jury, a jury can be requested if the case is brought in state court or in federal court if diversity jurisdiction is avilable.

Damages under DOHSA

Unlike the Jones Act where a survival claim can seek non-pecuniary damages, DOHSA claims are limited to only pecuniary damages such as:

  • Loss of Support;
  • Loss of Services;
  • Loss of Nurture, Guidance and Care to Minor Children;
  • Funeral Expenses; and,
  • Loss of Inheritance.
(For a more detailed discussion between pecuniary and non-pecuniary damages, see our article entitled Commercial Fishermen Wrongful Death and Survival Claims under the Jones Act)

September 19, 2010

Employers are Liable to Crew Members for the Medical Malpractice of Shoreside Doctors

Our lawyers routinely handle cases where the crew members' conditions worsen or new injuries occur due to the substandard medical treatment of the doctors selected by their employers.

Doctor.jpgUnder maritime law, an employer has the duty to provide prompt, proper and adequate medical treatment to its sick and injured crew members. This means an employer is required to promptly select a suitable doctor for its injured crew members. Should the employer fail to carry out its duty, and the crew member's condition worsens or new injuries arise, the employer is liable for those injuries. For example, should a crew member sustain an eye injury, and the employer selects a general practitioner who is not suitable to treat an eye injury, the employer will be liable should the crew member loose eyesight.

Furthermore, an employer is obligated to closely monitor the crew member's medical care and intervene if the doctor provided is inadequate. This means if the doctor is not properly diagnosing and/or treating the sickness or injury, the employer has the duty to find another doctor who can properly care for the crew member.

In recent years, courts have begun to find employers strictly liable for the medical malpractice of the doctors they select even though there was nothing in the doctor's past which could alert them that the doctor may not be suited to treat the injured crew member.

The bottom line is crew members have the right to be sent to qualified doctors should they get sick or hurt when subject to the call of duty. If the employer fails to provide quality doctors, they will become liable for any poor result.

Continue reading "Employers are Liable to Crew Members for the Medical Malpractice of Shoreside Doctors" »

September 17, 2010

Cruise Lines Liable for Injuries Caused by Over-Serving Passengers Alcohol

Beer.jpgSeveral injuries occur each year due to the over serving of alcohol to passengers aboard cruise ships. Given the nature of maritime travel, an intoxicated passenger is a threat to the people around him as well as himself. In fact, many cruise ship accidents, sexual assaults and disappearances are alcohol related.

Cruise lines owe their passengers the duty of reasonable care under the circumstances. This means a cruise line is liable if it does something that a reasonable person in a similar situation would not. In the situation of over serving alcohol, cruise lines not only have the duty to protect passengers from the person who became intoxicated at the ship's bars, but also have an obligation to protect the person who is intoxicated from any injury he may cause himself. Only by strictly monitoring the alcohol consumption of its passengers, will cruise lines fully perform their duty. Unfortunately, this rarely happens.

Brais & Brais has the expertise needed to handle cases concerning injuries arising from intoxicated cruise passengers. If you were injured do to an intoxicated passenger and would like to discuss your claim further, please contact our Board Certified Maritime attorneys.

September 15, 2010

Commercial Fishermen Wrongful Death and Survival Claims under the Jones Act

Shrimp Boat Wrongful Death.jpgCommercial fishing is the most dangerous occupation in the United States. The Centers for Disease Control and Prevention reported during 1992-2008 an average of 58 deaths occurred annually. This equates to a staggering 128 deaths per 100,000 workers! Thankfully, maritime law protects the rights of the loved ones of fishermen who unfortunately lost their lives while working the sea.


Jones Act Negligence

One of the methods families of deceased fishermen can seek recourse is through the Jones Act. The Jones Act is a federal statute which allows the personal representative of fishermen's estates, spouses and dependent children to bring negligence claims against the employers. A lawsuit brought on behalf of a fisherman's estate is known as a "Survival Claim". A lawsuit brought by the family of a deceased fisherman is a "Wrongful Death" claim. Survival and Wrongful Death claims under the Jones Act can only be brought if the accident occurred upon inland waterways or within 3 nautical miles from shore. Deaths resulting from accidents occurring beyond 3 nautical miles can only be brought under the Death on the High Seas Act. (See our article entitled Commercial Fishermen Wrongful Death and Survival Claims under the Death on the High Seas Act)

Under the Jones Act, an employer owes the duty to exercise reasonable care and prudence in providing its employees with a reasonable safe place to work. It is the plaintiff's burden to prove the employer breached its duty and the breach was the cause of the death. While the plaintiff must show the employer's negligence was the cause of death, the law holds the plaintiff need only show the breach of duty contributed in any way, no matter how slight, to the death will be deemed sufficient for recovery under the Jones Act.


Damages for Jones Act Wrongful Death Claims

Only "pecuniary damages" are recoverable under a Jones Act for wrongful death claim. These are damages the family could have expected to receive from the fisherman if he lived. Such damages include:

Loss of Support

Loss of support and services includes all financial contributions the decedent fisherman made to his family had he lived. To recover loss of support, it is necessary for the beneficiary to show dependency on the decedent.

Loss of Services

Loss of services includes the household services performed by the deceased fisherman and an award is usually measured by the costs of paying someone else to perform the same services.

Loss of Nurture and Guidance to Minor Children

Loss of nurture to minor children damages are intended to compensate for the loss of parental guidance and intellectual and moral training to a child.

Funeral Expenses

Funeral expenses are recoverable to the extent they have actually been incurred by a family member.

Lost Inheritance

Loss of inheritances are recoverable where the family member can prove the probability of an inheritance and the amount that would have been inherited


Damages for Jones Act Survival Claims

In addition to pecuniary damages allowed under its wrongful death provisions, the Jones Act also provides for the recovery of non-pecuniary damages under its survival provisions. Non-pecuniary damages may only be awarded to the personal representative of the fisherman's estate on behalf of the family. Any amount of non-pecuniary damages awarded does not become part of the estate's general assets, is not subject to debts and is not distributed under any statue of descent destitution. Non-pecuniary damages include:

Conscious Pre-death Pain and Suffering

These damages compensate for the pain and suffering the fishermen endured before death. However, to recover these damages, it must be proved that the fisherman was conscious between the time of his injury and death.

Lost Past and Future Wages

These are wages the fisherman would have earned between the time of his injury and death as well as wages he would have reasonably been able to earn though the course of his life.

Pre-Death Medical Expenses

All medical and hospital expenses actually paid by the fisherman between the time of his injury and death.

September 13, 2010

Cruise Shore Excursion and Tour Injuries & Deaths vs. The Cruise Lines' Ticket Disclaimers - A Maritime Lawyer's Analysis

Several people are injured and killed each year while participating in a cruise ship shore excursions and tours. Unfortunately, cruise lines painstakingly attempt to avoid responsibility by burying disclaimers on the back of excursion and cruise tickets. Despite these attempts, maritime law imposes certain responsibilities on cruise lines which they can't disclaim.

Tourbus resized.jpgFran Golden recently posted a well written article on AOL Travel about the July 12, 2010 shooting of a 14 year old Carnival Cruise Lines passenger while traveling to a popular beach in St. Thomas, U.S. Virgin Islands in an open air taxi. These unfortunate facts are eerily similar to a situation which occurred years earlier in the Bahamas where gunmen injured several and killed one passenger while traveling from a beach known to the police as being dangerous. The cruise line in that case argued it was not liable for the incident because of its ticket language disclaiming responsibility for the actions of others. The court rejected the cruise line's argument and determined cruise lines have the obligation to protect their passenger while on shore by warning of dangers it knows or reasonably should have known in places where passengers are invited or may reasonably be expected to visit.

In addition to warning passengers of dangers, cruise lines are required to investigate and select competent and reasonably safe tour operators to run their shore excursions. It is common for a cruise line to point to their excursion ticket disclaimers in an attempt to avoid responsibility for injuries and deaths caused by incompetent tour operators. In a number of recent cases, however, courts refused to enforce these disclaimers finding that cruise lines cannot avoid liability for the negligent selection of incompetent tour excursion operators.

September 10, 2010

Cruise Ship Passenger Slip and Fall on a Gangway or Ramp - Is the Cruise Line Responsible?

passageway.jpgWe represent many passengers who slip and fall on a cruise ship's gangways and ramps. The first question we are usually asked is if the cruise line is even responsible for gangway and ramp accidents. The answer is yes.

Maritime law requires cruise lines to provide passengers with reasonably safe means of ingress and egress to and from the ship. Despite this duty, several people are injured each year while embarking or disembarking cruise ships.

Gangways are the most utilized method for passenger ingress and egress. Cruise lines have the duty to select proper as well as maintain their gangways. This duty is often breached by:

  • Deploying a short gangway thereby making the slope passengers are required to walk too steep;
  • Selecting a gangway that does not have proper non-skid properties such as anti-slip strips, diamond plate or ribs;
  • Selecting a gangway that is too wide so the passenger cannot utilize both set of handrails;
  • Not properly maintaining the gangway's non-skid properties which are often worn smooth do to the sheer amount of foot traffic;
  • Not straightening bent flaps on either end of the gangway which meet the deck and shore; and
  • Not mopping up liquid and/or clearing debris which accumulated on the gangway.
Unfortunately, gangway and ramp accidents result in back, neck, knee injuries as well as bone fractures. Often times such injuries have long-term effects.

If you sustained an injury due to an improperly selected or maintained gangway or ramp and have additional questions, feel free to contract our board certified maritime lawyers who specialize in cruise ship passenger accidents.

September 8, 2010

Crew Members Who Were Not Paid in Full May be Entitled to 2x the Wages for Each Day Payment is Delayed

batch_of_dollars.jpgWe are often contacted by crew members who were discharged from employment but were not paid all owed wages. Should this happen, you may be entitled to 2 times the wages for each day the ship owner fails to make payment.


Crew Members Employed on American Ships

The Seaman's Penalty Wage Act provides crew members serving aboard American Ships who are discharged in any port without being paid all earned wages within 4 days the right to sue the ship owner for earned wages plus 2 days wages for each day payment is delayed! This statutory right is provided to both American and non-American crew members. For example, a crew member from Honduras who was discharged in Miami without being paid all earned wages can bring a claim under the Penalty Wage Act.

Crew Members Employed on Non-American Ships

The Penalty Wage Act also provides the above remedies to crew members serving aboard non-American ships. The only difference is, the crew member must be discharged at a United States port.

Wages Included under the Seaman's Penalty Wage Act

Only certain types of owed money are considered "wages" under the Penalty Wage Act. Wages included under the Act are all compensation owed for service aboard the ship including bonuses, vacation pay, annual allowances, tips and severance pay. Consequently, if the crew member has not been paid the above compensation within 4 days of discharge, he is entitled to bring a claim under the Act. However, courts found contributions to union health, retirement/pension plans, maintenance and cure benefits, and vacation trust funds are not "wages" under the Act. As such, failure to pay these types of benifits cannot trigger the Penalty Wage Act.

Crew Members Exempted from the Seaman's Penalty Wage Act

Unfortunately, not all crew members may take advantage of the Seaman's Penalty Wage Act. Specifically excluded from the Act are ship's masters, crew members working aboard yachts and fishing vessels as well as crew members serving aboard ships whose voyage does not call on a non-American port. However, any other type of crew members not specifically excluded from the Act can bring a claim for double wages.

If you are owed earned wages and think you have a claim under the Seaman's Penalty Wage Act, feel free to contact our experienced maritime lawyers who specialize in crew member wage disputes.

September 6, 2010

Passengers / Guests Injured When the Boat they were on Collided with a Wrecked Vessel - Who is Responsible?

Often times after a hurricane or strong 'Noreaster, many boaters strike unmarked vessels wrecked in the storm. Often times, these collisions cause personal injuries to the passengers and guests onboard the moving boat. The question often becomes, who is responsible? There are 3 possible answers.

The Owner of the Wrecked Vessel

shipwreck.jpgThe obvious first answer is the person who owned the wrecked vessel. The Federal Wreck Removal Statute requires an owner to mark the wrecked vessel immediately and maintain the mark until the wreck is removed. This is a non-delegable duty, meaning if the owner hires someone to mark the vessel and they didn't, the owner is still liable for any injuries resulting from the failure to mark the wreck. The Federal Wreck Removal Statute also requires the owner to immediately begin removal operations. Should the owner fail to commence removal operations, a person injured by the wrecked vessel may bring a claim against the vessel owner for damages. Like the requirement to mark the sunken vessel, the duty to remove it is also non-delegable.

The Federal Wreck Removal Statute is designed for safety and to avoid collisions. Therefore, should the owner fail to comply, maritime law imposes a presumption that the failure to mark or remove the vessel caused the accident. This places a heavy burden upon the wreck owner to prove not only the failure to mark or remove the wreck was not the cause of the accident but could not have caused the accident. This burden is nearly impossible to overcome.

The Third Party Who Was Hired to Mark & Remove the Wreck

An injured boating passenger or guest may also bring a lawsuit against the person who the wreck's owner hired to mark and remove the sunken vessel. Liability only arises, however, if the third party fails to mark and/or carry out its duty to remove the vessel in a reasonable manner.

The Operator/Owner of the Moving Boat

Finally, the injured passenger or guest may be able to bring a claim against the operator of the moving boat. The injured passenger or guest would have to prove the operator failed in its responsibility to:

  • Keep a proper lookout;
  • Operate at a safe speed;
  • Monitor operational radar (assuming some part of the wrecked vessel was above the water); or,
  • Abide by any other navigational rule which would have avoided the accident if followed.
If you were injured due to a boat colliding with a wrecked vessel and would like to know about your rights, we invite you to contact our board certifed maritime lawyers specializing in boating accidents to discuss your claim.

September 2, 2010

Injured Cruise Passenger Required to Sue Cruise Line in Paris

French Flag.jpgLast month we posted an article explaining that every major cruise lines' boarding pass contains a provision requiring injured passengers to bring their lawsuits in a certain city. Under maritime law, cruises that originate from or terminate at a U.S. port must provide injured passengers someplace in the United States to bring a claim. This same right is not afforded to passengers sailing on cruises which exclusively touch foreign ports. This is true even though the particular cruise line's corporate offices are in the United States.

The recent case of Seung v. Regent Seven Seas Cruises, Inc. shows how restrictive cruises lines boarding passes can be. In that case, an elderly woman sailed aboard a Regent cruise and suffered an accident. Her lawyers brought suit in Ft. Lauderdale, Florida -- the location of Regent's corporate offices. The boarding pass, however, required the filing of any personal injury claim in Paris, France. The passenger argued that requiring her to bring suit in Paris is unfair because she is financially unable to bring a lawsuit half way across the world; she is a California resident with medical limitations, due in part to her shipboard injury, that prevent her from traveling to Paris; and, Paris is a remote, alien forum chosen merely as a means of discouraging passengers from bringing legitimate claims. The court, while sympathetic to the passenger, held maritime law allows cruise lines to force their passengers to bring personal injury suits in foreign countries when the subject cruise did not call on a U.S. port.

Though cruise lines can require passengers traveling on foreign cruises to bring their personal injury claims in foreign cities, many still allow for claims to be filed in selected U.S. court. Below are the current forum selections of the major cruise lines for foreign cruises:

  • Carnival Cruises, Miami, Florida Federal Court.
  • Celebrity Cruises, Miami, Florida Federal Court.
  • Cunard Lines, Paris, France.
  • MSC Cruise, Naples, Italy.
  • Norwegian Cruise Lines (NCL), Miami, Florida Federal Court.
  • Regent Seven Seas Cruises, Paris, France.
  • Royal Caribbean Cruises, Miami, Florida Federal Court.