Maritime Law Blog

For years courts have denied the ability of injured crew members' spouses to bring lawsuits for loss of consortium against ship owners. Given the recent Supreme Court decision of Townsend v. Atlantic Sounding, courts are allowing spouses of hurt seafarers to bring lawsuits to recover damages caused by shipboard accidents. The implication of these cases may be more far reaching than only crew member lawsuits. As shown below, the logic of this line of cases may be applied to allow loss of consortium claims by spouses of cruise ship passengers against negligent cruise lines.

Loss of consortium is a legal claim for non-compensatory / non-economic damages arising from an injury of a spouse due to the negligence of another. This claim arises when the injured spouse cannot provide the uninjured spouse with the same companionship, services, love, affection and/or sexual relations enjoyed before the accident. A loss of consortium claim can be very significant if the hurt spouse sustains a long-lasting injury such as paralysis, incontinence, and/or loss of sexual function.

Townsend dealt with the legal issue of whether an injured seaman can bring a punitive damages claim against his employer for its willful, arbitrary or capricious failure to provide maintenance and cure. Maintenance and cure is an ancient obligation of maritime employers to provide injured seamen medical care and daily living stipends until the injury or illness reaches the point of maximum medical improvement. The maritime employer in Townsend argued non-compensatory damage awards such as punitive damages are impermissible in maritime personal injury litigation given the Supreme Court's precedent of Miles v. Apex Marine. Miles precluded such relief in a Jones Act negligence case. The Supreme Court in Townsend, however, limited its previous Miles holding to apply only to Jones Act negligence claims and not to the common law maritime claims enjoyed by seamen before the Jones Act's enactment.

This case involved a deckhand working aboard a fishing boat who suffered significant lung damage in the form of chronic dyspnea due to exposure of Freon gas leaking from the vessel's damaged hoses. The seaman sued the ship owner for damages under the Jones Act and unseaworthiness. His wife sued the owner of the vessel for loss of consortium.

The ship owner sought to dismiss the wife's claim based upon the Miles prohibition of non-compensatory / non-economic damages in maritime personal injury lawsuits. The trial court examined the Supreme Court's Townsend decision which restricted Miles to only Jones Act negligence claims. The court keenly pointed out that seafarers' were afforded personal injury damages due to a vessel's unseaworthiness long before Congress enacted the Jones Act. Applying the logic of Townsend, the trial court found wives of injured seamen may bring a loss of consortium claims against the owners of ships aboard which their husbands were injured due to the unseaworthiness of those vessels. This case is one of the first which extends remedies allowable in maritime cases post Townsend.

The impact of Townsend and Barrette may reach farther than just injured seaman. Cruise lines owe cruise passengers the legal duty of reasonable care under the circumstances which is separate and distinct from the duty they owe crew members under the Jones Act. Given the Supreme Court's restrictive treatment of non-compensatory / non-economic damages to only Jones Act negligence claims, courts may also start allowing spouses of injured cruise ship passengers to bring loss of consortium claims.

On June 19, 2011, Brais & Brais issued a press release on our representation of the family of John Gavigan who, on February 5, 2011, contracted Norovirus aboard the Celebrity cruise ship Solstice and died in his cabin. In January and February of this year the Solstice came back to port with a Norovirus outbreak on multiple occasions. Instead of taking the ship out of service for a complete sanitation, the cruise line decided to keep the ship sailing. Gavigan case alleged Celebrity failed to adequately clean the vessel and warn of the outbreak as well as failed to warn of the significant health risks to elderly people associated with contracting Norovirus at sea. This case resolved in a confidential settlement.

The Centers for Disease Control (CDC) recently issued a report that the Solstice experienced another outbreak during its sailings from November 28th - December 11th. In response to the outbreak, three CDC Vessel Sanitation Program environmental health officers and an epidemiologist boarded the cruise ship on arrival in Ft. Lauderdale, Florida on December 11, 2011 to conduct a targeted environmental health assessment and evaluate the outbreak and response activities.
Celebrity Cruises has taken the following actions:

• Increased cleaning and disinfection procedures according to their outbreak prevention and response plan,
  
• Made announcements to both notify onboard passengers of the outbreak and encourage case reporting,
  
• Collected stool specimens from ill passengers and crew for submission to the CDC lab,
  
• Made twice daily reports of gastrointestinal illness cases to the VSP,
  
• Arranged for additional staff and time for thorough super-sanitation cleaning and disinfection during an extended period between disembarkation and embarkation, and
• Consulted with CDC on plans for:

Next cruise passenger notification procedures and draft letter, which was sent to passengers on the following voyage prior to their embarkation day, about this outbreak and the planned delayed embarkation schedule, and,
Disembarkation plans for active cases, terminal and transport infection control procedures.

The illness caused by Norovirus develops 24 to 48 hours after contaminated food or water is ingested and lasts for 24 to 60 hours. People infected with Norovirus usually recover in two to three days without serious or long-term health effects. However, in some cases, severe dehydration, malnutrition, and even death can result from Norovirus infection, especially among children and the elderly.

Brais & Brais' maritime attorneys have the privilege to represent former crewmember Edward Florian in a lawsuit against Carnival Cruises. Mr. Florian injured his back while working as a galley steward aboard the Carnival Valor requiring surgery. Maritime law obligates an employer such as Carnival Cruises to promptly provide an injured crewmember competent medical care as well as a daily living stipend until the crewmember's medical condition plateaus. This is called the maintenance and cure obligation. So great is a maritime employer's obligation to provide maintenance and cure, the Supreme Court recently held when a maritime employer fails to promptly pay all owed benefits, a crewmember may seek punitive damages.

Mr. Florian's initial medical treatment was performed at South Miami Hospital. However, when it came time to preform a back surgery, Carnival opted to save money and required the surgery to go forward in Peru. This proved to be disastrous for Mr. Florian. The operation in Peru was inadequately preformed which caused him to be bedridden for slightly over two months. During this time, Mr. Florida experienced excruciating pain, was required to wear an orthopedic corset and underwent rehabilitation therapy to enable him to re-learn how to walk. (The above photograph depicts Mr. Florian undergoing rehabilitation therapy). In addition to tendering an incompetent doctor to perform the back surgery, Carnival did not pay all amounts owed under the maintenance and cure obligation thus requiring Mr. Florian to incur these expenses.

A lawsuit was filed against Carnival in Miami, Florida (the location of its corporate headquarters) alleging claims of negligence under the Jones Act, unseaworthienss of the vessel as well as failure to provide all maintenance and cure. A hearing was held to assess whether sufficient evidence exists to support a punitive damages award by a reasonable jury as required by Florida procedural law. The Judge, after reviewing all the evidence and listening to legal argument, agreed with Brais & Brais' maritime attorneys and concluded Mr. Florian may proceed with a punitive damages claim against Carnival Cruises. Trial of this case is expected to occur in 2012.

Brais & Brais' attorneys have filed a wrongful death case in Ft. Lauderdale, Florida for the drowning of Leonardo Rosales. On October 20, 2010, Enrique Pitta of Oakland Park, Florida invited Mr. Rosales aboard his boat to go diving for lobster. The method of diving selected was not the traditional scuba tank, but, a Brownie's Third Lung Hookah System. The Hookah System supplies air to the diver from above the surface by a gas powered motor. Mr. Rosales was unfamiliar with the Hookah System and drowned leaving behind a wife and two small children.

The complaint alleges Pitta was negligent and responsible for Mr. Rosales' death due to his failure to:

• Provide a reasonably safe dive plan;
  
• Conduct the dive in a reasonably safe manner;
  
• Properly maintain Brownie's Third Lung Hookah System;
  
• Properly operate the Brownie's Third Lung Hookah System;
  
• Properly warn the dangers associated with the "hookah" from of diving; and,
  
• Make sure prior to the dive that he was qualified to participate in the dive.
  

The estate and family seek compensation for the wrongful death in the form of lost earnings, spousal/parental companionship, support, instruction, and guidance along with mental pain and suffering.

Cruise ships today are more reminiscent of floating carnivals than a means of transporting passengers from one port to another. Modern cruise lines spend millions of dollars advertising the ship (not the ports of call) as the vacation destination. Royal Caribbean's and Celebrity's cruise ships have FlowRiders, zip lines, rockwalls and ice skating rinks. Norwegian's (NCL) and Carnival's ships have water parks and slides. Cruise lines charge passengers additional fees to participate in these attractions in the increasing effort to make money. They, however, want to avoid liability if someone gets hurt. In an attempt to maximize profit and limit liability exposure, cruise lines started requiring passengers to sign releases of liability or waivers before participating in these attractions. In a blow to the cruise lines, the Federal Appellate Court for the Eleventh Circuit (the court that reviews decisions from the Florida, Georgia and Alabama Federal trial courts) recently held such liability waivers are unenforceable.

This case involves a passenger who was injured while participating in Royal Caribbean's FlowRider attraction. The FlowRider is a statutory wave that allows people to surf or body board in place while on the ship. Before Ms. Johnson was allowed to ride the FlowRider, Royal Caribbean required her to sign an "Onbroad Activity Waver" which released the cruise line and its employees from any liability "arising from any accident [or] injury. . . resulting from . . . [her] participation in any or all of the shipboard activities [she] has selected." While waiting for her turn, the attraction's instructor told Ms. Johnson to stand on the body board while he was holding it. This maneuver was in violation of Royal Caribbean's safety guidelines for the FlowRider attraction. These guidelines specifically state that the boards for the surfing portion can be stood upon, while the boards used for the body boarding portion should only be used while lying down. When the instructor released the board, Ms. Johnson fell off and fractured her ankle.

A personal injury lawsuit was filed in Miami, Florida which is where all passengers aboard a Royal Caribbean cruise ship must sue the company. The trial court analyzing the release found it enforceable and dismissed Ms. Johnson's lawsuit. On appeal, a three judge panel unanimously found the waiver violated Federal Statute 46 U.S.C. § 30509 which precludes common ocean carriers such as Royal Caribbean from limiting their liability for personal injury or death caused by their negligence or fault. Based upon this finding, the appeals court vacated the trial court's order and reinstated Ms. Johnson's case against the cruise line.

The impact of this opinion renders cruise lines' liability waivers for injuries occurring on board their ships unenforceable. As a consequence, passengers who are injured while partaking in these on board activities have the right to bring their cases to court in order to obtain just compensation.

If you were injured during an on board activity and have questions about your rights, feel free to contact our Florida Board Certified Admiralty and Maritime lawyers.