October 2010 Archives

October 30, 2010

Cruise Lines and Shipping Companies are Liable for Injuries under the Jones Act for Assigning Crew Jobs which are Too Physically Demanding

Crew Member Jones Act Lawyer.jpgGiven the nature of working aboard ships, many times captains or officers require crew to undertake jobs which they are not physically suited to perform. Often times, crew members are already sick or injured, and due to short staffing, are required to continue their job duties. Our maritime attorneys have represented crew members whose doctors restricted the amount they could lift and hours they could work; however, when they returned to the ship for "restricted duty", their employers required them to work as if no physical restrictions were ordered.


The question these injured crew members have is whether their employers are liable when they are hurt performing a job that is too physically demanding. The answer is YES.

The Jones Act requires cruise lines and shipping companies to use reasonable care to prevent injuries to crew members serving aboard their vessels. Courts have routinely found the Jones Act imposes a duty upon employers to assign seamen to jobs for which they are reasonable suited. If a crew member is injured performing a job for which he/she is not physically capable of doing, the employer is liable for the injury. Damages under the Jones Act include, pain and suffering, loss of the enjoyment of life, lost wages and disfigurement.

October 28, 2010

Cruise Passenger Allowed to Pursue Personal Injury Claim Against Norwegian Cruise Lines (NCL) Without Providing Written Notice of the Accident

Cruise Passenger Accident Injury Lawyer Attorney.pngOne of the first questions our maritime injury lawyers ask potential clients is whether they provided the cruise line written notice of their accident. Nearly every cruise line requires passengers to give written notice of their claim within a certain time as a condition to bring a personal injury lawsuit. The deadline to provide notice differs between cruise lines. Some require notice be given within 6 months of the accident while others require notice be given within 185 days of the accident. If you were injured during a cruise, it is crucial that you check your boarding pass to find out what procedure the cruise line requires you to follow in order to bring a lawsuit.

Though the boarding pass requires written notice of a claim in order to maintain a lawsuit, a Miami federal court recently allowed an injured passenger to pursue a personal injury lawsuit despite failing to provide proper notice. In that case the passenger fell due to an improperly position carpet aboard a NCL cruise ship. Though she reported the accident to the ship's medical personnel, she never provided the cruise line with written notice as defined by the boarding pass. The cruise line attempted to dismiss the case for the passenger's failure to provide notice. The court, however, found that although the passenger did not provide written notice, the case should not be dismissed. The court reasoned the purpose of the written notice requirement is to make the cruise line aware of a potential personal injury lawsuit so it could conduct an investigation and preserve evidence for the litigation. In that case, the plaintiff established NCL had actual knowledge of the accident, it immediately conducted an investigation and attempted to gather evidence. As such, the court concluded NCL was not prejudiced by the passenger's failure to provide written notice and allowed the case to continue.

If you want to read additional information about the pitfalls contained within cruise line boarding passes, please read our following articles.

October 26, 2010

Sandals Resorts Cannot Force Scuba Diver it Abandoned in the Open Ocean to Litigate in Federal Court

Scuba Diving Injury Lawyer Attorney.jpgOn October 14, 2008, Sandals Resorts in Antigua abandoned multiple scuba divers in the open ocean for over 2 ½ hours when the resort's dive boat left the dive site. The amazing fact of this case is just 8 months prior, the exact situation occurred at the same resort. That time a British couple was abandoned in the water for 5 hours. Brais & Brais filed a claim on behalf of a diver in Miami, Florida state court against Sandals for negligence as well as the Miami, Florida based travel agency Unique Vacation who booked the vacation for its failure to warn of problems with the Sandals Antigua scuba diving operation.

After responding to the complaint, Sandals and Unique Vacations removed the case from state court to federal court. Federal court is typically more costly to plaintiffs than state court and, for this reason, favored by corporate defendants. Brais & Brais argued the statute which Sandals and Unique Vacations relied upon to remove the case does not apply when a corporation is headquartered in the state where the lawsuit was filed. Since Unique Vacations is a Florida company, Brais & Brais argued removal was improper and the case must be remanded back to the diver's chosen state court forum. The federal court agreed. The judge also found Sandals and Unique Vacations' removal lacked any objective reasonable basis as the case is clearly not removable given the statute's language and the fact Unique Vacation is a Florida corporation. Based upon this finding, and even though we took this case on a contingency basis, the Court found Sandals & Unique Vacations liable for reasonable attorney's fees for Brais & Brais' time associated with preparing the legal memoranda required for remanding the case. Click here to read the federal court's order.

Continue reading "Sandals Resorts Cannot Force Scuba Diver it Abandoned in the Open Ocean to Litigate in Federal Court" »

October 24, 2010

Cruise Lines Cannot Force Rape and Sexual Assault Claims to Arbitration

We have been reporting on the major cruise lines forceing their crew member employees to sign arbitration agreements. These arbitration agreements deprive crew members of having their personal injury and wages claims decided by judges and juries. Courts, however, are starting to limit the cruise lines' ability to preclude crew members' access to court. Claims of rape and sexual assault are such instances where courts refused to require arbitration.

Cruise Ship Rape Sexual Assault Lawyer Attorney.jpgCourts have determined the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Arbitration Convention) allows cruise lines to force their crew members to arbitrate personal injury and wage claims. Nearly every major cruise line including, Carnival, Celebrity, Holland America (HAL), Norwegian (NCL), Princess, Royal Caribbean, and others force their crew members to sign contracts which require any claim arising from their employment to be submitted to arbitration. Courts have recently been asked if crew member rape and sexual assault claims must also be arbitrated. The courts said NO! Their reasoning is the Arbitration Convention only governs disputes relating to, arising out of, or connected with employment; and, the heinous acts of rape and sexual assault have no relationship to employment. Based on this reasoning, the crew members were allow to pursue their claims in court.

This is one instance in a growing trend where courts are limiting the cruise lines' ability to force crew members to arbitrate their claims. If you have any questions concerning this article, do not hesitate to contact our board certified maritime lawyers and attorneys.

October 20, 2010

Cruise Lines Liable for Passengers' Deaths Due to Inaccurate Excursion Information

Cruise Passenger Excursion Death.jpgOn September 13, 2010, we posted an article about cruise lines' liabilities for injuries and deaths occurring on shore excursions. Recently, a Miami, Florida Federal court determined a cruise line can be held liable for the wrongful death of a passenger during a shore excursion if the cruise line misstated the required skills, safeness and/or physical level of the tour in the cruise materials.

Many cruise lines' websites list the types shore excisions available for the specific ports of call. Along with the list are descriptions about the various activities. Some cruise lines even rate the activities' physical level so that passengers can determine whether they are physically able to participate.

In this case, daughters of a passenger sued the cruise line for the wrongful death of their mother who drowned during a snorkeling tour in the Cayman Islands. The daughters claimed the cruise line's materials discussing the excursion misrepresented the activity and such misrepresentations lead to their mother's death. The cruise line attempted to dismiss the case arguing a claim for misrepresentation does not exist under maritime law. The court disagreed, and determined cruise lines can be liable for the inaccurate or misleading written materials it produces about shore side activities. If it is proven the cruise line's materials misrepresented the activity, the passenger justifiably relied on the misrepresentation in her decision to participate and was injured or died because of the inaccurate or misleading description, the cruise line will be held liable. The court further found the misrepresentation need not be intentional for the passenger or passenger's family to recover.

October 18, 2010

Carnival Cruise Lines Ordered to Pay Attorney Fees for Improperly Attempting to Force a Crew Member to Arbitrate His Personal Injury Claim

Carnival Cruise Crew Member Injury Arbitration.jpgWe reported on August 9, 2010 that Brais & Brais was successful in obtaining a ruling from a Miami, Florida Federal Court finding Carnival Cruise Lines cannot force a crew member to arbitrate his personal injury claim without producing a signed arbitration agreement covering the employment period for which the accident occured. The Court ruled against Carnival's attempt to compel arbitration even though the cruise line produced a signed arbitration agreement for the employment period immediately prior to the employment period during which the crew member was injured and submitted an affidavit from its director of shipboard personnel attesting that in order to sign on the cruise ship all crew members must sign an agreement to arbitrate any personal injury claim.

In follow up to the order denying Carnival's motion to compel arbitration, Brais & Brais filed a motion seeking attorney fees against Carnival. We argued it was improper to remove the case from the crew member's chosen state court forum as Carnival could never compel arbitration without the signed arbitration agreement. The Federal Court agreed and found Carnival's removal of the case lacked any objective reasonableness and, even though we took the case on a contingency basis, ordered Carnival to pay reasonable attorney fees.

If you wish to learn more about the cruise industry's recent attempts to force crew members to arbitrate personal injury claims instead of allowing them to pursue their claims in court, we invite you to read the following related articles:

October 16, 2010

Airboat Tour Accidents & Injuries - Where It Happens Matters

Air Boat Tour Accident Injury.jpgThe South Florida Sun Sentinel recently reported about an airboat accident in the Florida Everglades near the Miami-Dade & Broward County line wherein two people were injured when an airboat struck a tree. Airboat accidents often occur in Florida injuring several people each year. Pinpointing where the accident occured is important as the law and types of claims / damages will differ depending on if the accident happened on "navigable" or "non-navigable" waters. This article is meant to explain the differences between the law, claims and damages that govern airboat tour accidents.


The Accident's Location

The first question that must be asked is whether the accident occurred on "navigable" or "non-navigable" waters. If the accident occurred on navigable waters, Federal maritime law will govern the lawsuit. If the accident occurred on non-navigable waters, Florida state law will govern.

"Navigable waters" is not defined by any statute and is one of those legal terms which can be confusing. The Supreme Court determined navigable waters to mean waterways that are used or capable of being used as "highways of commerce." Courts generally look to see if the waterway can be used to transport a boat to the ocean or between two states. For example, if the accident occurred on a canal in the Everglades that leads to Florida Bay, the accident happened on navigable waters. However, if the accident occurred on one of the many landlocked ponds in the Everglades, the accident happened on non-navigable waters.

Why Navigability Matters

Standard of Care

As mentioned above, if the accident occurred on navigable waters, Federal maritime law applies. The standard of care owed to passengers under Federal maritime law is "reasonable care under the circumstances". Simply put, this means would a reasonable person act in the same manner as the airboat operator in the same situation.

If the accident occurred on non-navigable waters Florida state law applies. The standard of care owed to passengers under Florida law is the highest degree of care that is consistent with the type of transportation. This is a much higher standard than the Federal maritime law of reasonable care under the circumstances.

Types of Claims & Damages

Both Federal maritime law and Florida law recognize compensatory damages for medical bills, pain, suffering, loss of the enjoyment of life, disfigurement, mental anguish and lost wages. Federal maritime law, however, does not recognize a loss of consortium claim, but Florida law does. Loss of consortium comes in two forms (spousal and parental).

Spousal consortium is a claim brought by the spouse of an injured person. This claim allows damages that will fairly and adequately compensate the non-injured spouse for any loss by reason of the injured spouse's injury, including loss of services, comfort, society and attention in the past and in the future caused by the incident in question.

Parental consortium is a claim brought by the parent(s) or legal guardian(s) of an injured child. This claim allows damages for any loss by the parent(s) / guardian(s) by reason of their child's injury, including loss of companionship, society, love, affection, and solace in the past and in the future until the child reaches the age of majority.

Conclusion

In summation, the location of an airboat's accident has a direct impact on what law, types of claims and damages that can be sought. If you or a loved one was injured in an airboat tour accident and wish to know more about this area of the law, please contact our board certified maritime attorneys.

October 14, 2010

Cruise Lines and Shipping Companies Cannot Force Crew Member Employees to be Treated by Company Doctors

Many of our crew member clients had bad experiences with the doctors selected by their employer cruise line or shipping company. Often times the medical providers selected fail to properly diagnose injuries, prescribe wrong medication or botch surgeries. The first question our clients have is whether they must return to these company doctors. The answer is no!

Crew Member Injury.jpgUnder the obligation of maintenance and cure, maritime employers must provide prompt and adequate medical care to their injured crew members. Cruise lines and shipping companies often have network doctors who agree to charge lesser amounts for the volume of patients that are referred. Many of these doctors are located outside the United States and may not have the same qualification or training in the latest surgical techniques as American doctors. This often leads to mistakes. We have seen a knee replacement surgery where the doctor implanted the replacement knee backwards, outdated surgical procedure used to repair a herniated disk which resulted in the need to have multiple vertebra fused and prescription of incorrect medication which caused the cruise member to lose eyesight. It is not surprising that crew members who are sent to these doctors do not want to return for additional "treatment".

Maritime law allows crew members to reject the doctor offered by their employers and select their own physicians. With this said, the crew member may have to pay the difference between the cost charged by the network doctor and the doctor selected by the crew member. However, if it can be shown that an adequate doctor cannot be found at the network rate, the cruise line or shipping company must pay the higher rate for the adequate doctor selected by the crew member.

If you are injured and have questions about accepting the doctor provided by the cruise line or shipping company, do not hesitate to contact our board certified maritime lawyers.

October 11, 2010

Cruise Ship Passenger Slip and Fall Accidents on Wet Decks - What is the Cruise Line's Responsibility?

Cruise Passenger Slip & Fall Accident.jpgSlip and fall accidents occur often on cruise ships. In fact, we regularly represent clients who were injured in slip and falls accidents while cruising. Injuries from slip and falls range from simple bruising and twisted ankles to torn cartilage, broken bones and ligament damage. The number one culprit for these accidents is wet decks; and, many times these accidents could have been avoided if the cruise line was more careful. The intent of this article is to explain the common causes of slip and fall accidents and the cruise line's responsibility.

Why Do Slip and Fall Accidents Happen on Cruise Ships & What is the Cruise Line's Responsibility?

Through there are countless reasons why slip and fall accidents happen on cruise ships, these are the most common.

Washing Down Decks
Cruise ships routinely clean their exterior decks by washing them down at night or early in the morning. Many cruise lines' cleaning procedures require ship personnel to either cordon off the area of the deck being washed or place warning cones informing passengers of the wet and slippery deck. However, due to lack of proper training, forgetfulness or by being rushed, ship personnel tasked with washing the deck at times fail to take these precautions. Not being aware of the wet deck, passengers will walk normally oblivious to the danger. This causes accidents. Cruise lines are responsible for dangers they create. Should a passenger slip on a washed deck where the cruise line did not provide notice (or adequate notice) of the wet deck, the cruise line is liable for the accident.

Spilt Drinks and Food
Spilt drinks and food also cause slip and fall accidents. Cruise lines are obligated to conduct routine inspections of their decks and clean drinks and food that have spilled. However, as above, ship personnel sometimes fail to perform this duty. If the drink or food is on the deck for a period of time where a cruise line, if exercising reasonable care in inspecting and cleaning the area, knew or should have known of the spill, the cruise line is liable if the passenger slips.

Failing to Maintain Deck Surfaces
Failing to maintain deck surfaces frequently cause accidents. Most cruise ship's decks are painted with a special paint that has anti-skid properties mixed in to make the deck safe when wet. However, these anti-skid properties break down over time especially in areas that see heavy foot traffic. When deck paint begins to ware, the coefficient of friction decreases and the deck becomes unreasonably slippery. If this happens, cruise lines are liable for the accident.

Selection of Improper Building Materials
Unlike failing to maintain a deck which at one time was safe but became unsafe due to ware, selection of improper building materials render the deck unsafe at the time of construction. Should a passenger slip on a deck that was unsafe because the materials selected were improper, the cruise line is liable for the accident.

Damages for Slip or Fall Accidents

Passengers injured due to the negligence of cruise lines are entitled to fair and adequate compensation for damages experienced in the past and to be likely experienced in the future. Such damages include:

  • Compensation for 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,
  • Lost earnings for the inability to work.
Additional Information

Slip and fall accidents aboard cruise ships happen for a number of reasons and the cruise lines are liable for their negligent conduct. Click here for addition information about cruise line liabilities or contact our Florida Board Certified Maritime Attorneys.

October 8, 2010

Cruise Ship Passenger Sexual Assault / Rape - Why it Happens, Your Rights and What to Do If Attacked

Rape.pngIt is terrible but sexual assaults / rapes occur on cruise ships. In fact, during the short period of April 1, 2007 - August 24, 2007 the 25 major cruise lines that makes up the Cruise Lines International Association (CLIA) reported 41 instances of sexual assaults / rapes occurring aboard their ships. Such a high number is staggering. Based on the 41 reports, the FBI opened 13 investigative cases. According to the FBI, 5 of these cases were later closed due to victim reluctance to press charges or because the goverment declined to prosecute. As of September 2007, only 8 of these cases remained under investigation. This article is meant to explain why sexual assaults / rapes occur on cruise ships, the victim's rights and what to do if sexually assaulted during a cruise.


Reasons Why Sexual Assaults / Rapes Occur on Cruise Ships

Cruise ships are floating cities with thousands of crew members from every corner of the world and every level of social background. Though there are multiple reasons why sexual assaults occur on cruise ship, these are the most common.

Failure to Perform Detailed Background Checks

Cruise Lines staff their ships without performing a detailed background check. An example that illustrates this point is the Carnival Cruise Line spa manager who was recently arrested for sexually assaulting a minor while he was a coach at a California gymnastics school in 2002. Incredibly, the spa manager worked for various cruise lines (including Disney Cruise Lines) for 8 years all the while being listed on California's Most Wanted List. Though Carnival claims it preformed a background check prior to letting this person serve as a spa manager, it seems inconceivable that a detailed background check would miss the fact that the person was on California's most wanted list.

Failure to Provide Adequate On-Board Security

Though modern cruise ships hold upwards to 6,000 passengers and 2,000 crew, the ship's security team is usually only made up of around 10 individuals. Not having a high security presence provides opportunity for sexual predators.

Crew Access to Passenger Stateroom

Nearly every cruise ship provides certain crew member key cards to gain access to state rooms for cleaning and delivery of dry-cleaning, gifts and room service. These key cards have been also used from more sinister purposes. In an effort to combat sexual assaults arising from crew access to staterooms, Congress passed the Cruise Vessel Security & Safety Act of 2010 which, among other things, requires cruise lines to restrict which crew members have access to the staterooms and the times of day the crew members can access the staterooms.

Strict Liability

Maritime law holds Cruise Lines strictly responsible for the sexual assault / rape of their passengers by crew members employed aboard the vessel. This means the cruise line will still be liable even if the crew member did not have a history of such actions or the cruise line could not have prevented the attack. This, however, does not mean the victim will not face the inevitable questions regarding previous relationships, history of promiscuity, reasons for traveling on the cruise, alcohol consumed, dress attire, consent and the litany of usual additional inquires.

Damages

Though no amount of money can make up for being sexually attacked, as a victim of a sexual assault or rape aboard a cruise ship you are entitled to compensation for medical treatment, pain and suffering, mental and emotional anguish and other injuries experienced in the past or likely to be experienced in the future.

What to Do If Sexually Assaulted or Raped

The Rape, Abuse & Incest National Network (RAINN) recommends the following if sexually assaulted or raped:

  1. Find a safe environment - anywhere away from the attacker. Ask a trusted friend to stay with you for moral support.
  2. Know that what happened was not your fault and that now you should do what is best for you.
  3. Report the attack to the authorities. If you want more information, a counselor on the National Sexual Assault Hotline at 1-800-656-HOPE can help you understand the process.
    • To preserve evidence of the attack - don't bathe or brush your teeth.
    • Write down all the details you can recall about the attack & the attacker.
    • Get medical attention. Even with no physical injuries, it is important to determine the risks of STDs and pregnancy.
    • To preserve forensic evidence, ask the hospital to conduct a rape kit exam.
    • If you suspect you may have been drugged, ask that a urine sample be collected. The sample will need to be analyzed later on by a forensic lab.
  4. If you know that you will never report the incident, there are some things you should still consider:
  5. Recognize that healing from rape takes time. Give yourself the time you need.
  6. Know that it's never too late to call. Even if the attack happened years ago, the National Sexual Assault Hotline (1-800-656-HOPE) or the National Sexual Assault Online Hotline can still help. Many victims do not realize they need help until months or years later.
Additional Information

Click here for additional information concerning your rights if sexually assaulted or raped while aboard a cruise ship.

October 6, 2010

Making the Marine Insurance Company Pay Attorney Fees for Not Accepting Your Claim

Sometimes marine insurance companies outright deny claims, but more often, they file what is known as declaratory judgment actions. A declaratory judgment action asks a federal court if an interpretation of the insurance policy -- usually an exclusion clause -- can be used to deny the claim. Depending upon the court's answer, the marine insurance company will either accept or deny the claim.

Marine Insurance Attorney Fees.jpgThe reason why marine insurance companies bring declaratory judgment actions is to avoid the punitive damages statute for the wrongful denial of a claim. Declaratory judgment actions, however, are costly for the boat owner as he or she will have to hire an attorney to fight the insurance company. To combat the expense insurance companies place on their customers in pursuing declaratory judgment actions, Florida enacted a statute which holds the insurance company liable for attorney fees should the boat owner win the lawsuit. The purpose of this law is to discourage litigation over insurance policies. Most beneficial to boat owners is that the statute is one-sided and does not allow insurance companies to seek attorney fees if they are successful.

It is interesting to note the law states it does not apply to, "insurance of vessels or crafts, their cargoes, marine builders' risks, marine protection and indemnity, or other such risks commonly insured under marine insurance policies." At first blush, it looks like it does not apply to marine insurance litigation. However, the Florida Supreme Court has found the exclusion only applies to rates and rating organizations and not to boat owners seeking attorney fees if successful in litigation.

In conclusion, if your marine insurance company files a declaratory judgment action in response to your claim, the law provides you the right to recoup attorney fees if the court rules in your favor. If you have a dispute with your marine insurance company and wish to discuss your case further, feel free to contact our board certified maritime attorneys who have vast experience in litigating marine insurance claims.

October 3, 2010

Liabilities for Boating Under the Influence While Partying in Biscayne Bay on Columbus Day Weekend

Columbus Day Regatta.jpg
There is a well known South Florida regatta that takes place each year on Columbus Day Weekend in Biscayne Bay off Miami, Florida. Many "spectators" do not come so much to watch the race but, to party. In fact, the party that takes place along side the regatta (but is in no way sponsored or affiliated with the regatta) is often described as a "floating Mardi Gras". Drinking and boating, however, don't mix; and, there are many accidents including deaths surrounding the partying that co-insides with the regatta in years past. The below explains Florida's Boating Under the Influence Statute as well as the criminal and civil ramifications of drinking and boating.


Criminal Penalties for Boating Under the Influence

Boating under the influence is taken seriously in Florida. A blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood is considered boating under the influence. That is roughly 3-4 drinks per hour for the average male adult. Penalties for boating under the influence are:
Fines of:

a. Not less than $250 or more than $500 for a first conviction.
b. Not less than $500 or more than $1,000 for a second conviction; and

Imprisonment for:
a. Not more than 6 months for a first conviction.
b. Not more than 9 months for a second conviction.

Should boating under the influence cause a fatality, the operator will be subjected to Florida's manslaughter laws. Recently, a Destin man was convicted to just over 40 years in prison for boating under the influence which led to the death of 3 people. In that case, an 18-foot Bayliner collided with a 21-foot Sea Hunter near Marler Park in the Choctawhatchee Bay. Though the operator of the Sea Hunter survived, the 3 guests aboard were killed in the accident. The Florida Fish & Wildlife Report indicated several empty beer bottles and an empty bottle of vodka were found in the Bayliner and that the operator's blood-alcohol level was 0.19 (over twice the legal limit). It also should be noted that the operator of the Sea Hunter's blood-alcohol level was 0.7 (just under the legal limit); and, the report concluded, "both operators judgment was impaired to some extent and contributed to the collision."

Civil Penalties for Boating Under the Influence

Besides criminal ramifications, there are civil penalties for injuring or killing someone while operating a boat under the influence. Since the Florida statute governing boating under the influence is designed for safety, an operator will be found liable for the accident in a civil court unless it is proven the drunkenness did not cause the accident and could never have caused the accident. This is extremely hard to prove; and, a person convicted of boating under the influence will likely be found liable for the accident in a civil court.

A person injured due to boat operator's violation of Florida's Boating Under the Influence statute is entitled to fair and adequate compensation for damages experienced in the past and to be likely experienced in the future. These damages include:

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

Survivors and the estate of a person who died due to boat operator's violation of Florida's Boating Under the Influence statute are also entitled to damages. Given the partying surrounding the regatta occurs within one marine league from shore, maritime law dictates Florida's wrongful death damages will apply.

Under Florida's wrongful death statute survivors may recover the following:

  1. The value of lost support and services from the date of the decedent's injury to the date of death as well as future loss of support and services from the date of death. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
  2. The surviving spouse may also recover for loss of companionship and protection and for mental pain and suffering from the date of injury.
  3. Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
  4. Each parent of a deceased minor child (under 25 years of age) may also recover mental pain and suffering from the date of injury. Each parent of an adult child (25 years of age and older) may also recover for mental pain and suffering if there are no other survivors.
  5. Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

The estate of the decedent may recover the following:

  1. Loss of earnings of the deceased from the date of injury to the date of death;
  2. Loss of the prospective net accumulations of an estate which might reasonably have been expected but for the wrongful death may also be recovered if the decedent's survivors include a surviving spouse or lineal descendants; and,
  3. Medical or funeral expenses due to the decedent's injury or death that were charged against the estate or that were paid by or on behalf of decedent, excluding amounts paid by, and awarded to, a survivor.
Click here for additional information on maritime wrongful death damages or contact our Florida Board Certified Maritime Attorneys.
October 1, 2010

Failing to Provide Adequate Instruction to Personal Watercraft and Motor Boat Renters Could Cost Concessionaires

Jetski.jpgMany times Florida personal watercraft and motor boat concessionaires rent watercraft without providing the renters with adequate, if any, instruction. Several people renting these vessels have little or no operational experience. This is a recipe for disaster. If you were injured because the rental company did not provide you with sufficient instruction or were injured by someone who rented a watercraft, you may have a claim against the concessionaire.

Florida law states:

A livery may not knowingly lease, hire, or rent a vessel to any person:

When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

  • Operational characteristics of the vessel to be rented.
  • Safe vessel operation and vessel right-of-way.
  • The responsibility of the vessel operator for the safe and proper operation of the vessel.
  • Local characteristics of the waterway where the vessel will be operated.
Unless the livery displays boating safety information in a place visible to the renting public.
Should the concessionaire fail to give adequate instruction in accordance with Florida law, it will be found negligent per se. This means the burden is on the concessionaire to not only prove the accident did not happen because of its failure to provide adequate instruction, but the accident could not have happened because of its failure to provide adequate instruction. This burden is nearly impossible to overcome.

The maritime law firm of Brais & Brias has years of experience handling personal watercraft (jet ski) accidents as well as boating accidents. If you were injured because the rental company did not provide you with sufficient instruction or were injured by someone who rented a watercraft, feel free to contract our board certified maritime lawyers.