April 2011 Archives

April 30, 2011

Boat Owner's Complaint for Exoneration from or Limitation of Liability Dismissed by Florida Court

Complaint for Exoneration from or Limitation of Liablity Lawyer.jpgBrais & Brais' Maritime & Boating Accident Lawyer News Blog in January 2011 reported on a recreational boat explosion at the Delray Harbor Club Marina in Delray Beach, Florida. This tragic event caused the death of Robert Romanelli and injured two others including the owner. The explosion also resulted in significant damage to nearby boats and docks.


The Limitation of Liablity Act

When presented with a maritime catastrophe which could potentially costs millions of dollars, marine insurance companies often seek the liberal protections of a little known statute called the Limitation of Liability Act. Enacted in 1851, the Limitation of Liability Act allows boat owners to limit their liability for any death, injury or property damage arising from a maritime accident occasioned without the boat owner's "privity or knowledge" to the post loss value of the boat. In the case of the Delray explosion, the owner claimed the value of the boat after the incident was only $1,000.

The purpose of the Limitation of Liability Act was to "to encourage ship building and to induce capitalists to invest money in the branch of industry." However, since the Limitation of Liability Act is broadly worded, courts have found it to apply to not only ocean going tanker and freighter but to also recreational boats - even personal watercrafts! In essence, if applied, a recreational boat owner and his marine insurance company will pay miniscule damages even though the disaster caused significant injury and death.

Another benefit the Limitation of Liability Act provides to boat owners and their marine insurance companies is the shortening of the statute of limitations to bring a maritime claim. Typically a victim of a boating accident has 3 years to bring a claim against the boat owner. However, the Limitation of Liability Act allows the boat owner to shorten that time period to only a few months. This places an undue burden on a person who is recovering from his injury or a bereaved family healing from the loss of a loved one. A common trick marine insurance companies employ is to file the "Complaint for Exoneration from or Limitation of Liability" on the heels of a maritime disaster in the hope that the injured person or family would not notice the shortened deadline or be unable to retain competent counsel in the shortened time to bring a claim. Such was the situation with the Delray explosion.

The Delray Boat Explosion Exoneration / Limitation Proceedings

Within 4 months of the Delray tragedy, the boat owner, insured by Progressive, filed a Complaint for Exoneration from or Limitation of Liability in Florida Federal Court. In a separate filing, the boat owner asked the court to find the post loss valuation of the vessel was $1,000, enjoin the victims from filing their claims in any other Court and limit the time period for which they could file their claims. After reviewing the Complaint for Exoneration from or Limitation of Liability, the Court noticed that the boat owner did not state he even received notice of a potential claim. The Court reasoned that the Limitation of Liability Act only provided its protections after the boat owner is notified of a claim in writing. Since the boat owner did not state he received written notice of a claim, he lacked legal standing to invoke the Limitation of Liability Act and dismissed the claim. This case is significant as it takes away an arrow in marine insurance companies quiver. No longer can they rush to the courthouse and file Complaint for Exoneration from or Limitation of Liability to catch the victims of boating accidents unguarded.

Additional Information About the Limitation of Liablity Act & Victims' Rights

If you would like to learn more about the Limitation of Liability Act please contact our Florida Board Certified Admiralty and Maritime Lawyers or read the following paper prepared by our firm and presented at the Southeastern Admiralty Law Institute:

News Coverage of the Delray Boat Explosion


April 24, 2011

Rape / Sexual Assault on Cruise Ships - A Maritime Lawyer's Analysis

Cruise Ship Rape Sexual Assult Attorney Lawyer.jpgRecently, there has been major legislation concerning the problem of rape and sexual assaults on cruise ships. On July 27, 2010, President Obama signed the Cruise Vessel Security and Safety Act into law. This act increases security, law enforcement, and cruise lines' accountability for rapes and sexual assaults occurred on their cruise ships.

The Cruise Vessel Security and Safety Act

The following rules will apply to all cruise ships that touch a United States port:

  • Installation of 42" guardrails, peepholes in every passenger and crew member's cabin door, on-deck video surveillance and an emergency sound system;
  • Reporting and information sharing structure between the cruise lines, Coast Guard, and FBI.
  • Each cruise ship is to maintain a log book that records all deaths, missing individuals, alleged crimes, and passenger/crewmember complaints regarding theft, sexual harassment, and assault;
  • Rape kits, anti-retroviral medications, and a trained forensic sexual assault specialist are to be aboard each ship; and,
  • Training appropriate crew members in crime prevention, detection, evidence preservation,
  • Cruise lines are to give passengers who are victims of rape access to a confidential 24-hour sexual assault hotline while on board the cruise ship.

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.
  4. To preserve evidence of the attack - don't bathe or brush your teeth.
  5. Write down all the details you can recall about the attack & the attacker.
  6. Get medical attention. Even with no physical injuries, it is important to determine the risks of STDs and pregnancy.
  7. To preserve forensic evidence, ask the hospital to conduct a rape kit exam.
  8. 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.
If you know that you will never report the incident, there are some things you should still consider:
  • Recognize that healing from rape takes time.
  • Give yourself the time you need. 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.

April 3, 2011

Victim of a Cruise Doctor's Medical Malpractice? A Maritime Lawyer's Prospective

Cruise Doctor Medical Malpractice Lawyer.jpgOur maritime lawyers receive many calls from passengers who visit cruise doctors for routine medical problems but, due to medical malpractice, are left in a weaker condition. Often times improper medical treatment by cruise doctors' leads to prolonged hospitalization, organ damage, amputation or death. The question on many passengers' minds who are victims of medical malpractice is, "Are the cruise lines responsible?" This article is meant to explain passengers' rights when injured by a cruise doctor.


Doctors' Status Aboard Cruise Ships

Every major cruise line has doctors aboard their ships. Cruise lines in fact make hundreds of thousands of dollars each year selling doctors' services to their passengers. Cruise ship doctors, dress in officers' uniforms, have name badges with the cruise lines' name and logo and are introduced as officers at cocktail parties and other ship functions. However, if the ship's doctor commits medical malpractice, the cruise lines immediately claim the doctors are "independent contractors." The reason for this is to exploit the current state of maritime law which holds cruise lines not responsible for the medical malpractice of independent contractors.

What is the Cruise Lines' Obligation to Their Passengers?

Passengers who fall victim to cruise doctors' medical malpractice, in limited circumstances, do have recourse against the cruise lines. Maritime law requires cruise lines to select competent doctors to treat their passengers. This means cruise lines are charged with researching the qualifications of potential doctors as well as insure the doctors applying for shipboard services have good treatment records. Cruise lines are also obligated to replace doctors who, while working on their ships, prove to be incompetent. If cruise lines fail to conduct an adequate vetting process or do not replace incompetent doctors, the law makes the cruise lines responsible for medical malpractice.

If you were injured as a result of a cruise doctor's negligence and would like to discuss your options, feel free to contact our Florida Bar board certified maritime attorneys.