!--#set var="og_url" value="http://www.maritimelawblog.net/2012/08/"--> August 2012 Archives: Maritime Law Blog

August 2012 Archives

August 26, 2012

Brais Law Defeats Carnival Cruise Lines' Attempt to Force a Crewmember to Arbitrate His Personal Injury Claim

Carnival Personal Injury Lawyer.JPGThe issue of whether arbitration provisions pertaining to cruise line seaman personal injury claims has been a hotly litigated issue over the past seven years. Nearly every major line today inserts arbitration provisions into their seafarer's contracts or collective barging agreements. Along with arbitration provisions, the lines include foreign choice of law provisions. The purpose for these provisions is to limit personal injury liability exposure. These provisions take personal injury claims away from juries and place it in the hands of arbitrators (generally lawyers) and apply the less liberal foreign laws than the Jones Act, Penalty Wage Act and United States general maritime law. Since the 2005 landmark decision of Bautista v. Star Cruises, courts have overwhelming enforced such arbitration provisions. Despite wide enforcement of these arbitration provisions, Courts have made some exceptions. The recent case of Cappello v. Carnival Corp. handled by the maritime attorneys of Brais law is one example where a court made such an exception.

Facts of Cappello

This case involved an Italian engineer who was blinded when mixing caustic chemicals needed to clean the cruise ship's desalination plant. The cruise ship was operated by Carnival Corporation. Cappello was a contract employee of Golden Falcon, a wholly owned company of Carnival. The employment contract required "[a]ny and all disputes arising out of or in connection with [the] Agreement, including any question regarding its existence, validity, or termination, or Officer's service on the vessel, shall be referred to and fully resolved by arbitration." The contract was signed by Cappello and Golden Falcon but not Carnival.

The Litigation

Brais law filed Cappello's personal injury claim against Carnival in Florida state court alleging Jones Act negligence and other violations of United States general maritime law. The cruise line removed the action to federal court under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Convention Act (9 U.S.C. ยง 201, et seq.) based upon the Cappello/Golden Falcon contract. Brais law's attorneys moved to remand the case arguing lack of federal jurisdiction as Carnival failed to produce a signed written agreement to arbitrate between the parties of the dispute as required by the Convention. The cruise line argued the Cappello/Golden Falcon contract required arbitration of the claim against Carnival under the doctrine of equitable estoppel.

The equitable estoppel doctrine allows a non-contract signatory to compel if: (1) the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory, of (2) the signatory to the contract containing the arbitration clause raises allegations that are substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract. Carnival relied on the first situation arguing the dispute is controlled by contract because Cappello's claims invoke the contractual terms as his injury incurred during his service on the vessel. The Court rejected Carnival's argument finding it conflates two distinct concepts -- the scope of the arbitration clause, and the scope of the agreement containing the arbitration clause. The Court reasoned it is not a matter of a straightforward reading of the arbitration clause to determine whether a claim must be referred to arbitration. Instead, an examination of the scope of the contract containing the arbitration provision in light of the claims asserted must be conducted. Upon undertaking such an analysis the Court determined the compliant does not presume the existence of the contract and the cruise line made no particularized showing of why the contract is relevant to these claims. Based upon these findings, the Court determined federal jurisdiction was wanting and remanded the entire claim to Florida state court to be tried by a jury under United States law.


The import of this decision is that the federal courts will not blindly compel seaman personal injury cases to arbitration. Cruise lines must firmly establish the dispute arises from the employment contract signed by the seaman in order to obtain the benefit of arbitration.

August 8, 2012

Court Allows Brais Law's Client to Pursue Claim for Punitive Damages & Attorney's Fees Against His Employer

Florida Seaman Injury Lawyer.jpgThe maritime lawyers of Brais Law were successful in defeating a tug and barge company's attempt to dismiss an injured seaman's claim for punitive damages and attorney's fees for the willful delay of providing medical care. Maritime law requires a shipowner to provide a seaman injured within the course and scope of employment medical care until a qualified doctor declares the seaman at a point where medical care can no longer improve the condition. The Supreme Court recently in the case of Atlantic Sounding Co. Inc. v. Townsend found a shipowner can be liable for punitive damages if it willfully, arbitrarily or capriciously denies or delays in providing medical care to an injured seaman. Brais Law argued its client's case fell inside the perimeters of Townsend thereby allowing the pursuit of punitive damages as well as attorney's fees.

Keenan v. Beyel Bros.

Brais Law's client worked for a tug boat and barge company as a deckhand and unlicensed engineer. On May 27, 2010, he suffered an injury while working on a tug boat performing duties in connection with a salvage operation ("First Incident"). This incident caused two cervical herniated discs. On June 1, 2010, the employers tendered a physician's assistant to care for the spinal injury. The physician's assistant gave the following orders: "No strenuous activities including line handling and heavy lifting." On June 4, 2010, the physician's assistant ordered an MRI and added the following additional orders: "No strenuous activities including line handling and heavy lifting, pulling or pushing." The seaman reported back to work that day.

On June 14, 2010, the physician's assistant referred the seaman to a neurosurgeon and provided following orders: "light duty restrictions." On July 23, 2010, approximately five weeks after the recommendation by the physician's assistant that the seaman consult a neurosurgeon. However, the appointment was cancelled because the seaman refused to sign documents waiving certain rights. The seaman was put back to work in defiance to the physician's assistant's restrictions and on July 17, 2010 he suffered a second injury while handling heavy lines and cables, which injured his cervical and/or lumbar spine ("Second Incident"). On or around July 23, 2010, a second neurologist was agreed upon by both parties as a mutually acceptable back specialist. On January 1, 2011, after seven months of unsuccessful conservative treatment, Plaintiff underwent a fusion of his back at the C5-C7 levels with instrumentality.

Brais Law filed a multi-count complaint on behalf of the injured seaman in federal court located in Orlando, Florida. Within the complaint was a punitive damages claim for the willful, arbitrary or capricious delay of recommended medical care. The seaman's employer filed a motion for summary judgment seeking to dismiss the punitive damages claim arguing that the mere delay in providing medical care does not rise to the level of for which punitive damages can be awarded.

The Court reasoned a genuine issue of material fact exists as to whether Defendant's failure to tender a neurosurgeon, i.e., provide maintenance and cure between the First Incident and the Second Incident, aggravated Plaintiff's condition. Accordingly, the Court found it could not determine as a matter of law that Defendant's actions and/or inactions were not callous and recalcitrant or arbitrary and capricious under the Supreme Court's Townsend decision and allowed the claim to survive.

Import of the Decision

This case is important to maritime law as it establishes when a shipowner fails to tender recommended medical care and that failure causes a second accident which aggravates an injury, a shipowner may be held liable for punitive damages. Click this link to read the Court's decision.