December 2010 Archives

December 27, 2010

Fishermen Still Protected by Maritime Law after the Voyage's Completion

Jones Act Commerical Fisherman Injury.jpgAn interesting situation arises in maritime law when a commercial fisherman finishes the voyage, is paid and then injured when he returns to the boat to collect his belongings. The question often arises is whether the commercial fisherman is protected by the Jones Act and entitled to medical treatment under the ship owner's maintenance and cure obligation. The answer is Yes!

Maritime law holds commercial fishermen still retain their "seaman status" for a reasonable period of time after their employment ends and even if they leave the vessel. For example, a court held a fisherman who completed the fishing trip but was injured when he return to the boat to collect his personal effects is still a seaman. As such, he was entitled to remedies under the Jones Act, doctrine of seaworthiness as well as payment medical expenses and a living stipend under the ship owner's obligation to provide maintenance and cure.

If you are a commercial fisherman and were injured after the completion of the voyage, you may still be protected maritime law. If you have any questions about your rights, do not hesitate to contact a qualified maritime lawyer.

December 9, 2010

The Importance of Hiring a Qualified Cruise Ship Injury Lawyer

Cruise Ship Accident Injury Attorney Lawyer.jpgMaritime law is a very complicated area of law. So much so that in 1995 the Florida Supreme Court approved a maritime law board certification program for qualified lawyers. This program is designed to help the public make an informed decision when seeking and selecting a lawyer.

Florida maritime lawyers are constantly reviewing the ever changing boarding passes of various cruise lines for pitfalls contained in the fine print. Two such pitfalls found in many cruise boarding passes are the one year suit time provision and the Federal Court forum selection clause. Many lawyers who generally practice land based law have not idea these clauses exist. This lack of knowledge can prove fatal to a cruise passenger's case.

The recent case of Crist v. Carnival Corp. illustrates this point. In that case, the lawyer filed a lawsuit on behalf of a passenger in Florida state court nine days before the accident's one year anniversary unaware that Carnival's boarding pass requires all personal injury cases to be filed in Federal Court located in Miami, Florida. After Carnival moved to dismiss the case based on the boarding pass's Federal Court forum selection clause, the lawyer refiled the case in Federal Court. Along with a Federal Court forum selection clause, Carnival's boarding pass contains a one year suit time provision. Unfortunately for the passenger, the case was refiled after one year from the accident's date. The Federal Court dismissed the case because of its late filing.

Had the land based attorney known about the Federal Court forum selection clause, he would have timely filed the case in the appropriate court and the passenger's case would have been decided on the merits. Since the lawyer did not know about the pitfalls contained in Carnival's boarding pass, the passenger will not have her day in court.

December 7, 2010

Loss of Use Damages for a Recreational Yacht / Boat - A Maritime Lawyer's Analysis

In nearly every case where we represent a recreational yacht / boat owner wherein the owner lost use of the yacht for a period of time, one of the first questions asked is whether they could recover loss of use damages. The answer is perhaps.

Loss of Use Damages for Recreational Yachts & Boats.jpgUnder admiralty law, a recreational yacht / boat owner cannot recover loss of use damages while his vessel is laid up. The origin for this maritime rule is from an 1897 case called The Conquer. In that case the Supreme Court denied loss of use damages to Frederick Vanderbilt when his yacht was detained by U.S. Customs after a transatlantic voyage. Though The Conquer decision is highly criticized by the lower courts, it is the law until either the Supreme Court reverses itself or Congress passes a law allowing for such damages. As one court recently put it, "I would be less than candid if I did not also register my sense that the categorical rule of The Conqueror finds its source in the resistance of the Supreme Court to enabling one of the richest men in late nineteenth century America to recover, on questionable evidence, the 'inconvenien[t]' loss of one of his many recreational diversions. That categorical rule has, however, a broad wake, depriving the working couple in this case recovery for a monetizable loss of the central recreational activity to which they have devoted considerable personal efforts over a number of years." Courts, however, have started to chip away at The Conquer's oppressive holding. Below are just a couple of examples where courts have found loss of use damages for a recreational yacht / boat owner.

Breach of Sales Contracts

One such situation where loss of use damages have been allowed for recreational yachts / boats is where there has been a breach of a sales contract. For example, when a seller breaches the contract by not giving clean title to the yacht / boat, and the owner without title cannot register the vessel and in turn use the craft, courts have found the breach of contract is not governed under maritime law, but instead, state commercial law. If the state where you purchased the yacht (or the choice-of-law provision in the sales contract calls for the application of state law which) allows loss of use damages for recreational vehicles, courts will grant loss of use damages for the yacht / boat.

Breach of Maritime Contracts that Contain State Choice of Law Provisions

The second instance where courts allow loss of use damages for recreational yachts / boats is when there is a breach of maritime contract that contains a state choice of law provision. For example, the refurbishment of a yacht is considered a maritime contract to be governed by maritime law. However, some of these contracts call for the application of state law to govern any dispute. If the refurbisher fails to complete the contractual obligations in time call for or preformed the job poorly so that additional time is needed to properly effect the refurbishments, courts have applied the state law called for in the contract to award loss of use damages.

Conclusion

In conclusion, though maritime law precludes loss of use damages for recreational yachts / boats, such damages still can be awarded in certain circumstances. If you may think you are entitled to loss of use damages for your recreational yacht / boat, it is in your interests to contact a qualified maritime lawyer to discuss your claim.

December 6, 2010

Cruise Lines Depriving Florida Resident Passengers of the Right to a Jury Trial Without Their Knowledge

Cruise Lines Deprive Florida Resident Passengers of the Right to a Jury Trial.jpgCertain cruise lines are depriving Florida resident passengers of their right to a jury trial without their knowledge. Buried in nearly all cruise line boarding passes is what is known as a choice of forum clause. This clause dictates the court where an injured cruise passenger must bring the lawsuit. Carnival, Celebrity, Costa, Norwegian (NCL), Regent Seven Seas and Royal Caribbean, require their cruise passengers to file personal injury claims in the United States District Court for the Southern District of Florida.

Notwithstanding the forum selection clause, in order for a court to hear a case, it must have what is known as "subject matter jurisdiction" which can only be bestowed upon a Federal court by the U.S. Constitution or Federal statute. In a maritime personal injury case, subject matter jurisdiction can be obtained only two ways - diversity of citizenship or admiralty. A right to a jury trial is dependent upon which type of subject matter jurisdiction is available to the cruise passenger. As explained below, Florida residents do not have the luxury of selecting a type of subject matter jurisdiction which affords the right to a jury trial.

The first way a cruise passenger can establish subject matter jurisdiction is by asserting diversity of citizenship jurisdiction. As a part of diversity of citizenship jurisdiction, a plaintiff has the right to demand a jury trial. In order to have diversity of citizenship jurisdiction, the injured passenger and the cruise line must be citizens of different states or foreign countries and the claim must be worth over $75,000. Though many of the cruise lines are incorporated in foreign countries in order to dodge Federal taxes, their corporate headquarters are located in Florida. For diversity jurisdictions purposes, the Supreme Court determined a corporation is a citizen of the state where they are headquartered. As such, a Federal Court does not have diversity of citizenship jurisdiction in a case involving a Florida citizen and a cruise line headquartered in Florida. Consequently, a Florida citizen cannot invoke the court's diversity of citizenship subject matter jurisdiction.

The second way a cruise passenger could establish subject matter jurisdiction is by alleging admiralty jurisdiction. A Federal Court almost always has admiralty jurisdiction for a cruise passenger personal injury as all there needs to exist is the accident occurred on the cruise ship or gangway. The citizenship of the parties has no bearing on this form of subject matter jurisdiction. However, unlike diversity jurisdiction, a cruise passenger does not have a right to a jury trial under admiralty jurisdiction. Consequently, Florida citizens do not have a right to a jury trial in a personal injury lawsuit against the above cruise lines. This fact is not mentioned in the cruise boarding pass; and, thousands of Florida residents decide to sail with the above cruise lines without knowing they are signing away their right to have a jury decide their case. Recently, the Florida Supreme Court has a case before it wherein it will decide whether cruise lines can deprive Florida residents of a jury trial by including a Federal Court forum selection clause. This case is due to be decided by the Florida Supreme Court in 2011.

December 1, 2010

Carnival Cruise Lines Fined for Attempting to Prevent a Crew Member from Having a Jury Decide His Injury Claim in an American Court

Carnival Cruise Line Fined for Attempting to Preclude Crew Member a Jury Trial for Injury Claim.jpgAs we reported in our article Court Requires Carnival Cruise Lines to Produce Contract in Order to Force an Injured Seaman Crew Member Employee to Arbitrate His Claim, a Miami Federal Court denied Carnival Cruise Lines' attempt to preclude its crew member's right to have a jury of his peers decide his personal injury claim in an American court by forcing the claim to be arbitrated in Panama. After Carnival's attempt to force foreign arbitration failed, the Magistrate Judge recommended to the Judge presiding over the case that Carnival be fined $10,521 for its actions. Click to see the Magistrate Judge's Recommendation to Sanction Carnival. On November 29, 2010, the presiding Judge accepted the Magistrate's recommendation and ordered Carnival to pay the $10,521 fine. Click to see Order Fining Carnival.