November 2010 Archives

November 15, 2010

Cruise Ship Passenger Slip / Fall Accidents & Injuries - What is the Cruise Line's Responsibility?

Cruise Ship Slip and Fall Injury.jpgMany cruise ship passengers slip and sustain injuries due to slippery decks each year. Maritime law imposes certain duties upon cruise lines to lessen the likelihood of such accidents and injuries. The purpose of this article is to explain these duties. Cruise lines are obligated under maritime law to exercise reasonable care under the circumstances for the safety of their passengers. In the context of slippery decks, this duty typically requires the cruise line to first warn passengers of the slippery condition and to make the area safe.

Duty to Warn

Maritime law imposes the duty upon cruise lines to warn of dangerous conditions. This duty extends to conditions it creates (decks wet due to daily washing procedures), conditions it had actual knowledge about (water accumulated on the deck due to a rain shower) and conditions it should have known about in the ordinary exercise of reasonable care (the banana that fell off a passenger's plate and was laying on the deck for 10-15 minutes).

This duty can be satisfied by placing signs on top or near the dangerous condition that adequately informs passengers of the danger or by stationing crew members nearby to verbally inform passengers of the danger.

Duty to Make Safe

Once a dangerous condition is created by the cruise line or the cruise line had actual or constructive notice of a dangerous condition, the cruise line is obligated to make the area safe.

This duty can be satisfied by cordoning off the area so passengers cannot walk on the dangerous condition and/or by eliminating the hazard. In the case of a wet deck, the cruise line can squeegee the standing water, or if food should fall off a plate, the cruise line could pick up the food and clean any reaming particles.

Legal Damages

Cruise lines do not always satisfy their duties to warn of dangerous conditions and to make the area safe. Should a cruise line fail to satisfy its duties and a passenger slips, falls and is injured, the cruise line can be legally responsible for damages the passenger suffers. 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.

November 7, 2010

A Maritime Lawyer's Analysis of a Boating Accident Injury Claim

Maritime Lawyer boat accident injury claim.jpgBoating accidents happen all the time. Our maritime lawyers are regularly contacted by people who have been injured in such accidents. There are many question a maritime lawyer must ask to determine what rights and remedies an injured person possesses. This article is intended to give just a sketch of how a maritime lawyer analyzes a boating accident injury claim.

Where Did the Accident Occur?

The first question that must be answered is where did the accident occur. This answer is key to a maritime lawyer's analysis of how to represent a injured client. If the accident occurred on "navigable waters", federal maritime law applies. If the accident occurred on" non-navigable waters", state law applies. Knowing whether the accident happened on navigable or non-navigable waters will tell a maritime lawyer the types of claims that can be brought, the standard of care owed to the injured person and the damages that can be recovered. Maritime and state law are very different from each other and lawyers who do not regularly practice maritime law oftentimes get tripped up when litigating a maritime case because they simply don't know which law applies to the accident.

When Did the Accident Happen?

After finding out if maritime or state law applies to the claim, the next important fact a maritime lawyer must know is when the accident happen. Knowing when the accident occurred will tell the maritime lawyer if the claim falls within the "statute of limitations." Simply put, a statute of limitation is the length of time in which a claim may be filed. If the accident occurred outside the statute of limitations, the law will not allow an injured person to file a lawsuit even if it could be proven that the wrongdoer is 100% liable.

Maritime law has a 3 year statute of limitations for personal injury claims (cruise line boarding passes often times shorten this time to 1 year). State statutes of limitation may be longer or shorter. For example Florida has a 4 year and Texas has a 2 year statute of limitations. This difference in the statute of limitations is not well known among non-maritime attorneys. This may prove devastating to your case especially if you hired the lawyer within 3 years of your accident, but the lawyer did not timley file the claim because he thought the longer state statute of limitations applied. A similar result may occur if the lawyer thought the shorter state court statute of limitations applies, and advises you the claim is time-barred when in fact it is not.

What was the Injured Person's Status aboard the Boat?

The next piece of information a maritime lawyer needs to know is what was the injured person's status aboard the boat. Maritime law provides for different claims, standards of care and damages depending on whether the injured person was a passenger / guest, a crewmember / seaman, or a longshore / harbor worker. Knowing the injured person's status is important in order to bring the appropriate claim.

Conclusion

In conclusion, maritime lawyers practice a specialized area of the law with many pitfalls that may trap non-maritime attorneys. Hiring an attorney knowledgable in maritime law who can perform a proper analysis will often times mean the difference between brining a successful claim and having the claim dismissed by the court.

November 2, 2010

Texas Court Finds Marine Insurance Policy's New York Choice of Law Clause Does Not Defeat Extracontractual Tort Claims Brought Under Texas Law

Denied Marine Insurance Claim Lawyer.jpgMany boat owners do not know Great Lakes insurance company buries a provision in its marine insurance policy requiring all disputes arising from the policy be governed under New York law in the absence of "well established, entrenched principles and precedents of substantive United States Federal Admiralty law". Even if the boat owner never traveled to New York, any dispute concerning the denial of a claim, in many instances, will be decided by New York law. The reason for this provision is because New York law favors insurance companies especially in the area of denying a claim in bad faith. Many states have statutes which provide for attorney's fees and even punitive damages against an insurance company if a claim is denied when the insurance company knew or should have known the policy covered the claim. For example the Texas Insurance Code provides for attorney's fees to be assessed against the insurance company for its failure to promptly, fairly, and equitably settle of a claim where coverage has become reasonable clear. By invoking New York law, Great Lakes is attempting to side-step any penalties for wrongfully denying marine insurance claims.

Courts throughout the country have found Great Lakes' New York choice of law clause is enforceable. However, a Federal Court in Houston, Texas determined the New York choice of law clauses only governs disputes as to whether a claim is covered or not. The court more importantly found the New York choice of law clause does not govern "extracontractual" claims for deceptive trade practices and attorney's fees for wrongful denial of the insurance claim which is allowed under Texas law. As such, this opinion unravels Great Lakes' strategy of being able to willfully and wrongfully deny marine insurance claims without fear of penalty.