The crew member personal injury lawyers of Brais Brais Rusak received a favorable appellate decision against Norwegian Cruise Line and its subsidiary NCL America concerning a seaman's right to bring a punitive damages claim against the cruise lines for their failure to provide her maintenance and cure benefits.
Our law firm represents a United States credentialed merchant mariner who was the nominal employee of a security services company named American Guard Services. American Guard Services loaned our client to Norwegian Cruise Line's subsidiary NCL America to provide security guard services aboard the Hawaiian based PRIDE OF AMERICA cruise ship. Shortly after beginning her shift at six o'clock on the morning of May 22, 2011, she, along with three other security guards and a deck cadet, received an order from a ship's deck officer to lash down lounge chairs that were being blown across an exterior deck due to Force 10 winds. After assisting with lashing down the lounge chairs, our client made her way back to the exit/entrance when the high winds blew her feet out from under her causing the back of her neck and upper back to violently impact the ship's deck. She was rendered briefly unconscious.
Our client was initially treated with pain medication by the ship's doctor and returned to work for another two weeks before being sent home to Houston, Texas, to recover from post-concussion syndrome. Thereafter, she was diagnosed with damaged cervical vertebrae, and underwent several surgeries to repair the damage. She continues to suffer cervical pain and headaches.
On behalf of our client, we filed a lawsuit against Norwegian Cruise line, NCL America and American Guard Services alleging negligence under the Federal Jones Act (46 U.S.C. § 30104) as well as the traditional seaman causes of action for failure to provide unseaworthy vessel and the failure to provide maintenance and cure in Miami, Florida.
Maintenance and Cure Defined
Unlike land-based employment law, a sick or injured seaman is not entitled to a state workers' compensation. Instead, a seaman is entitled to what is called maintenance and cure. Maintenance is a per diem subsistence allowance intended to encompass the reasonable cost of food and lodging comparable to that of the sick or injured seaman received aboard the vessel which extends until the seaman reaches the point of maximum cure. Cure refers to medical treatment. Royal Caribbean Cruises, Ltd v. Rigby, 96 So. 3d 1146, 1152 fn. 12 (Fla. 3d DCA 2012).
Duty to Provide Maintenance and Cure
A seaman's employer has the obligation to provide maintenance and cure benefits to a seaman injured while in the service of the ship regardless of fault. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107 (1942); Porto v. Carnival Cruise Lines, Inc., 555 So. 2d 394 (Fla. 3d DCA 1989). The duty of the seaman's employer to provide maintenance and cure is non-delegable, meaning that if another company, other than the employer, mishandles the obligation to provide maintenance and cure, the employer is liable for any damages arising therefrom including punitive damages. See, Hines v. J.A. La Porte, Inc., 820 F.2d 1187 (11th Cir. 1987)(subjected the employer to punitive damages despite the fact that the employer's insurance company mishandled the administration of the injured seaman's maintenance and cure benefits). Furthermore, as held by the Supreme Court, an employer cannot "contract out" of its obligation to provide a sick and injured seaman maintenance and cure benefits. See, Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 371, 53 S. Ct. 173, 77 L. Ed. 368 (1932).
Often times a relationship exists between a ship owner and a company for the purpose of providing specialized skilled labor to work aboard the ship. When an employee of one company goes to work on the ship and is controlled by the ship owner, a borrowed servant-employer relationship exists between the seaman and the ship owner even though he or she receives a paycheck from another company. In such situations, maritime law requires the borrowing employer to provide the injured seaman maintenance and cure benefits. See, Hall v. Diamond M Co., 732 F.2d 1246, 1249 (5th Cir. 1984).
Penalties for the Failure to Provide Maintenance and Cure
There is an ascending scale of penalties for an employer's failure to provide maintenance and cure benefits depending upon the level of culpability. See, Norwegian Cruise Lines v. Zareno, 712 So. 2d 791 (Fla. 3d DCA 1998). An employer is afforded a reasonable period of time to investigate a maintenance and cure claim to determine whether the injury or illness occurred while the seaman was working in the service of the ship and crewmember did not intentionally cause his injury or illness. If, after the investigation, the employer denies the claim on a reasonable basis and the seaman later determined to be entitled to maintenance and cure, the employer is only liable for the past and future maintenance and cure benefits. However, if the employer unreasonably denied maintenance and cure benefits, it will be liable for not only the past and future benefits but compensatory damages associated with the denial. Such compensatory damages include pain and suffering the crew member endured while waiting to receive the benefits as well as any progression of the injury or illness that was caused by the failure to provide maintenance and cure. The final level of penalties for the failure to provide maintenance and cure is punitive damages. Such damages could be awarded when the employer was not only been unreasonable but was callous, recalcitrant, arbitrary and capricious, or willful in denying or delaying owed maintenance and cure benefits.
Success in the Trial Court
Florida procedural law bars a plaintiff from pleading punitive damages at the first instance. Instead, it requires the plaintiff to proffer to the trial court judge evidence which could support a punitive damages finding by a reasonable jury. The trial court judge receives this evidence and makes a finding as to whether the evidence could or could not support a punitive damages award. If the trial court judge finds that the proffered evidence could support a punitive damages finding by the jury, the plaintiff is allowed to amend the complaint and seek punitive damages.
We filed the requisite motion with the court and proffered evidence that Norwegian Cruise Lines, NCL and American Guard Services engaged in a willful pattern of denying and delaying our client recommended treatment and medication. The trial court found that such evidence could in fact support a jury's finding that the companies could be held punitively liable for their actions.
Success at the Appeal Court
Norwegian Cruise Line and NCL America appealed the trial court's finding. They argued that allowing the injured seaman to seek punitive damages is premature as there was no legal determination as to which entity (Norwegian Cruise Line, NCL America or American Guard Services) is ultimately responsible to provide maintenance and cure benefits. We argued that such a determination need not be made before a trial court judge could allow a claim for punitive damages. The fact that a borrowing employer is obligated to provide a sick or injured seaman maintenance and cure is enough to bring a claim of punitive damages against the cruise lines under Florida procedural law. The appellate court accepted our argument and denied the cruise lines' appeal.
There are many intricacies as to who is entitled to and who must provide maintenance and cure benefits. Two of our law firm's partners are Board Certified by the Florida Bar in the area of Admiralty and Maritime law and have dealt with these intricacies throughout their careers. If you work on yachts or commercial ships and would like to learn more about your legal rights, contact us for a free consultation.