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May 17, 2014

Seamen Have No Claim for Ailments Caused by Work Related Stress

Miami Jones Act Lawyer.jpgIn a rather shocking opinion, the Eleventh Circuit Court of Appeals has found seamen who develop ailments, including heart disease, cause by work related stress have no claim against their employers under the Jones Act.

The Jones Act provides seamen injured by the negligence of their employers a cause of action to recover money damages to compensate them for pain, suffering, disfigurement and lost wages caused by the injury. This Act was traditionally liberally construed in the favor of injured seamen. The recent case of Skye v. Maersk Line, unfortunately, has restricted the scope of the Jones Act. In that case, a chief mate developed left ventricular hypertrophy (a thickening of the heart wall of the left ventricle) as a direct result of excessive work hours and an erratic sleep schedule caused by the demands of his employer. The seafarer brought a lawsuit in Miami Federal Court arguing his employer caused his heart disease by negligently overworking him to the point of fatigue. The shipping company filed a motion requesting the court dismiss the claim as a matter of law arguing that no such relief in provided by the Jones Act. The trial court denied the motion and a trial was conducted. The jury found the shipping company 25% liable and awarded $2,362,299.00 to the injured seaman. The court reduced the award to $590,574.75 to account for the seaman's 75% comparative negligence. The employer appealed the decision.

The Eleventh Circuit analyzing the Jones Act and Supreme Court precedent discussing the Federal Employers Liability Act (a companion statute to the Jones Act) concluded seamen are only protected against the negligent conduct of their employers that imminently threatens them with physical impact. Based upon this legal framework, the Eleventh Circuit found injuries caused by work-related stress are not actionable under the Jones Act because an arduous work schedule and irregular sleep schedule are not "physical perils."

The final paragraph of the Eleventh Circuit's legal analysis sheds light on the outcome of the case. The court feared that by allowing such claims would "flood [the courts with] trivial suits, the possibility of fraudulent claims... and the specter of unlimited and unpredictable liability." This case is another example of the contraction of the Eleventh Circuit's treatment of seamen's claim. Such is a shame as courts historically viewed it was their duty to vigilantly protect seamen.

February 13, 2014

Cruise Ships and Norovirus

Cruise Norovirus.jpgThere has been much in the news lately about Norovirus outbreaks aboard cruise ships. The most noteworthy is the outbreak that occurred on the Royal Caribbean Explorer of the Seas where nearly 700 people were stricken by Norovirus. Princess Cruise Lines and NCL also had Norovirus outbreaks aboard their ships already this year. A casual observer may ask, why Norovirus and cruise ships go hand-in-hand? The answer is simple. Gastrointestional viruses are highly contagious. Cruise ships are floating cities where thousands of people touch common objects such as handrails, elevator buttons, door handles and the like. Infected people leave the virus on those surfaces and non-infected passengers touch the infected surfaces and the virus passes. Another reason why Norovirus flourishes on cruise ships is by the way cruise lines utilize their staff. A person who had a case of Norovirus can transmit the bug to others for two weeks or more after the symptoms subside. As a cruise injury attorney, I have read thousands of crew medical files. From my experience, cruise lines have an interest to keep their staff working and to return them back to duty as soon as possible so they could crew these massive floating hotels. The statistics from the CDC always report many more passengers as being infected than crewmembers. In the case of the Explorer of the Seas outbreak 634 (20.6%) passengers reported having the virus was only 55 (4.7%) crewmember reported symptoms. NCL's Norwegian Star outbreak is similar. In that case, ill passengers totaled 130 (5.61%) as opposed to 12 (1.15%) crewmembers. Likewise, Princess Cruise Lines' Caribbean Princess outbreak had 181 (5.8%) reported ill whereas the crew total was only 11 (0.96%). This means the cruise lines are most likely sending crewmembers back to work even though they still carry and could transmit the virus to others. These same crewmembers that have been found "fit for duty" by the ship doctors are making the passengers' beds, cooking and serving food for the buffets as well as making the drinks at the ship's bars. In other words, the cruise lines could be playing a large role in causing these outbreaks. Given cruise lines are money driven and the only way they make money is constantly operating their ship sick crew and all, I do not think we have heard the last of Norovirus outbreak on cruise ships.

February 4, 2014

Cruise Slip and Falls and Shoulder Injuries

Cruise Slip and Fall Shoulder Injury Lawyer.jpgOur attorneys have represented many clients who sustained shoulder injuries after slipping and falling aboard cruise ships. The most common shoulder injury is a torn rotator cuff. The rotator cuff is a group of four tendons that join the shoulder muscle to the skeletal frame which stabilizes the joint and are responsible for upper arm and shoulder movement.

Rotator cuffs are often torn on cruise ships when the passenger is holding onto a handrail and slips on a slick deck or stairway. The mechanics of falling backward and twisting the shoulder many times causes the tendons making up the rotator cuff to tear and/or separate from the bone. If left untreated, a person may permanently lose the ability to fully rotate their arm. Treatment of rotator cuff injuries often begin with anti-inflammatory medication and physical therapy. If the problem persists, surgery is normally scheduled. Depending upon the injury's severity, the orthopedic surgeon may opt to repair the torn ligament(s) with an arthroscopic procedure. This type of surgery involves the insertions of a small camera, called an arthroscope, into the shoulder joint. The camera displays pictures on a television screen which helps the surgeon guide miniature surgical instruments used to repair the tendons. An arthroscopic procedure is usually performed on an outpatient basis. If the tear is large or complex, the surgeon may have to cut through the muscle and repair or reattach the ligaments in what is called an open procedure.

Rotator Cuff Tear from Crusie Accident.jpgSlip and falls are common on cruise ships. Being that cruise ships see hundreds of thousands of people a year, the anti-slip/skid properties of the deck and stairway coatings break down. The breakdown of the decks protective coating when combined with liquid cause people to slip and fall. The slipperiness of decks is measured by their coefficient of friction value. The coefficient of friction is ratio of the force that maintains contact between an object and a surface and the frictional force that resists the motion of the object. The lower of coefficient of friction value, the more slippery the surface. An expert engineer in recent case handled by our attorneys tested a cruise ship's deck when our client fell. The expert found the area of the deck had a coefficient of friction value of 2.0 - the same as ice!!!

If you suffered a shoulder injury due to a slip and fall on a cruise ship lido deck and want to know more about your legal rights, feel free to contact our Florida Board Certified Maritime Attorneys for a free consultation.

January 7, 2014

Princess Cruise Worker Falls off the Grand Princess

Fall on Grand Princess.jpgThe Coast Guard reports a worker for Princess Cruise Lines has fallen off the Grand Princess cruise ship. The 34-year-old Filipino national was last seen Monday alive Monday night at 10:25 and is said to have gone overboard later that night or early Tuesday morning. The Coast Guard was notified and preformed a search along with the cruise ship and nearby cargo vessel. At this time, he has not been found. The cruise line claims the on board CCTV footage shows the crew member jumping off the ship. The Grand Princess was on a 15 day Hawaiian cruise leaving from San Francisco, California.

This instance is the latest in a recent rash of people falling from cruise ships. The Maritime Law Blog has previously reported on a 26-year-old man fell off the Royal Caribbean Adventure of the Seas on December 28th, a 65-year-old man fell off the Royal Caribbean Independence of the Seas on December 31st, a 88-year-old passenger fell off the Holland America Veendam on January 3rd. If you know anything about these incidents, feel free to contact us or leave a comment.

January 3, 2014

Malfunctioning Doors aboard Carnival Cruise Ships are Causing Injuries

Carnival Passenger Injuired from Door.jpgOur cruise injury lawyers have been retained by several Carnival cruise ship passengers who were injured due to malfunctioning doors. These cases are spread throughout the fleet and involve cabin balcony, restroom as well as automatic sliding doors. A cruise line such as Carnival has a legal duty to every passenger to exercise what is known reasonably care under the circumstances. This means the cruise line does not have to provide an accident free ship but must take reasonable precautions to protect passengers from danger. Concerning doors, reasonable precautions would include performing routine maintenance, periodic inspections and, if the door was observed malfunctioning, erecting a barrier until that door is fixed. It is our experience that such precautions are often overlooked and fixes are slow aboard cruise ships. This is why accidents are so prevalent.

As you can imagine, injuries from malfunctioning doors can be traumatic. Our law firm has represented passengers who have had severed fingers, broken necks and torn ligaments due to doors malfunctioning aboard Carnival's cruise ships. If you had an experience with a malfunctioning door aboard a Carnival cruise our attorneys would like to speak with you. Your information will help up better serve our clients and hopefully reverse the course of door injuries occurring on Carnival's ships. Contact options can be found by clicking this link.

December 18, 2013

NCL Passengers Beware: Illness Outbreak aboard the Norwegian Gem

Cruise Illness Lawyer.jpgThe CDC has issued a cruise ship illness outbreak alert for the Norwegian Gem. The report states that during the November 13-25 voyage 111 passengers and 3 crew members reported being ill with vomiting and/or diarrhea. In response to the outbreak NCL, the operator of the Norwegian Gem, increased cleaning and disinfecting procedures as well as collected stool specimens for testing by the CDC. The cruise ship currently makes weekly voyages from New York City.

How Cruise Ship Illness Spreads

Being that thousand passengers and crew members interact for extended periods of time in confined spaces aboard the cruise ships like the Norwegian Gem, gastrointestinal illness can spread rapidly. In cases of Norovirus, a person can remain a carrier for two weeks after the symptoms have passed. Cruise line practices also fuel outbreaks. It is routine procedure for many cruise lines to send their crew members back to work after illness symptoms have disappeared. This means crew members who are still carrying Norovirus often times unwittingly pass the virus along to passengers while serving food and handling objects in the cabin and common areas.

Our Law Firm's Experience Representing Ill Cruise Passengers

Besides becoming violently ill, some people experience other serious health issues that stem from being infected with Norovirus. This law firm has represented passengers who suffered heart attacks, significant infections and even death caused by the taxation to the body Norovirus causes. If you had a life altering event caused by Norovirus contracted from a cruise, our cruise illness attorneys would like to speak with you.

November 22, 2013

Carnival Crew Member Luggage Handling Injuries

Cruise Luggage Injury.jpgCarnival crew members, particularly assistant cabin stewards, have tremendously hard jobs. On embarkation days, their work duties include turning over mattresses, changing linens, hauling garbage and handling heavy luggage for several hundred passengers within a few short hours. Such an excessive work load has resulted in several back and shoulder injuries.

On embarkation days these crew members are required to frequently lift suitcases onto and from a trolley then into a luggage cage. The same procedure, but in reverse, is repeated for luggage of embarking passengers. A cruise ship like the CARNIVAL VICTORY carries 2,758 passengers. This behemoth hotel on the sea typically arrives in the turn-around port early in the day. Disembarking passengers are generally off the ship by 11:00 AM. Embarking passengers are generally all on board by 2:00 PM, latest 4:00 PM. The evening prior to arriving in port passengers are instructed to place all luggage, except carry-ons outside their cabins. In actual fact, Carnival does not enforce any real restrictions with respect to the number, size or weight of luggage being brought on board the vessel by passengers. It is also a known fact that some pieces of luggage could weigh as much as 100 lbs. Even assuming each bag did not exceed 50 lbs., the weight carried by assistant cabin stewards during the hours leading up to the vessel's arrival in port between passengers disembarking and embarking on the ship is staggering. For our purposes let's assume the 2,758 each bring along 2 weighing 50 pounds. This equals 275,800 pounds of luggage for just the disembarking passengers. Multiply this figure by the passengers coming onto the ship it equals 551,600 pounds these crew members must carry in a day!

This figure, however, does not account for the number of times each piece of luggage is actually lifted by the assistant cabin stewards. Each bag is minimally lifted once to be placed onto a smaller rolling luggage trolley, a second time to be placed into a larger luggage cage maneuvered by forklifts, a third time when luggage coming on board the vessel is removed from the luggage cages and placed on the smaller luggage trolleys, and a fourth time when the luggage is removed from the smaller luggage trolleys into a passenger's cabin. Therefore, assistant cabin stewards aboard the CARNIVAL VICTORY lift over several short hours 2,206,400 pounds of luggage on a typical disembarkation/ embarkation day in port.

While unloading and loading suitcases weighing anywhere from 40 to 110 lbs. many cabin stewards suffer back and shoulder injuries. Our cruise injury lawyers represent multiple assistant cabin stewards who were injured from the overly strenuous lifting activities associated with embarkation day. If you suffered an injury lifting luggage for Carnival, we would like to talk to you about your experience.

November 8, 2013

Punitive Damages Awardable to Injured Crew Members

Injured Crew Member.jpgThe United States Fifth Circuit Court of Appeals recently held crew members may seek punitive damages in personal injury claims if they can prove the ship owner's misconduct in causing a ship to become unseaworthy was willful, wanton or reckless. This decision is one of an emerging trend to provide injured maritime workers with a wide range of damages as well as to fashion a way to dissuade employers and ship owners from engaging in reckless conduct which is likely to result in injury.

Historical Background

Maritime law historically afforded ill and injured crewmembers only two causes of action against ship owners and employers. If a crewmember became ill or injured while in the service of the ship, the employer and the ship's owner owed him room and board ("maintenance") and medical care ("cure") without regard to fault, and, if not provided, the crewmember had a claim against them for "maintenance and cure." If a crewmember was injured by a ship's operational unfitness, the seaman had a cause of action for "unseaworthiness." Maritime law did not provide crewmembers with a separate cause of action for personal injury resulting from employer negligence, nor did it permit wrongful death or survival claims on behalf of seamen killed during the course of their employment. To remedy those gaps, Congress in 1920 enacted the Jones Act and the Death on the High Seas Act. Congress, however, specifically limited the damages available to those that would compensate the injured seaman for pain and suffering, lost wages and medical expenses. By limiting recovery to "Compensatory" damages, Congress precluded seamen injured by their employers' negligence or died on the high seas from seeking punitive damages.


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The Supreme Court's Landmark Decision

Courts interpreting Congress' intentions in passing the Jones Act and the Death on the High Seas Act for the most part concluded the decision to legislate into the area of maritime personal injury and wrongful death law damages foreclosed any right of a maritime worker to claim punitive damages in every available legal cause of action. This all changed in 2009 when the Supreme Court issued its landmark decision of Atlantic Sounding Co., Inc. v. Townsend finding a sick or injured seaman can seek punitive damages for the ship owner or employees willful and wanton failure to provide maintenance and cure. Supreme Court found punitive damages have historically been available in general maritime lawsuits before Congress passed the Jones Act. The Court reasoned Congress knew punitive damages were available in other seamen causes of action at the time of enacting the Jones Act and could have simply wrote into law that such damages are no longer available in any claim brought by a crew member. Since it did not, the Supreme Court found the Jones Act and Death on the High Seas Act does nothing to seamen's historical right to seek punitive damages against their employers for the failure to provide maintenance and cure.


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Townsend Expanded

Now that the Supreme Court decided punitive damages are available as part of maintenance and cure claims, courts were left to decide whether punitive damages were likewise available in other pre-Jones Act and Death on the High Seas Act maritime claims. The Fifth Circuit decided such an issue in McBride v. Estis Well Service. In that case one seaman was killed and three were injured when the derrick aboard the barge they were working aboard toppled over. The deceased seaman's estate and three surviving seamen sued their employer for negligence under the Jones Act and unseaworthiness of the barge under general maritime law. They also sought punitive damages against their employer under general maritime unseaworthiness claims. The employer / ship owner wanted to stipulate to liability and settle the claims, but the punitive damages claims prevented such settlement. The trial court was then asked to decide whether punitive damages were even available to crew members. The trial court decided such damages were not available. This order was appealed. The Fifth Circuit followed Townsend's reasoning and found like maintenance and cure: 1. unseaworthiness was an established maritime legal claim before Congress enacted the Jones Act; 2. injured crew members historically were able to pursue punitive damages under general maritime law; and, 3. the Jones Act fails to address the claim for unseaworthiness in its text or limit its historical remedies. As such, the Fifth Circuit concluded punitive damages are available to injured seamen post the Jones Act's enactment.

If you were injured while working aboard a ship and would like to discuss your legal rights, feel free to contract the Florida crew injury maritime lawyers of Brais, Brais & Rusak for a free consultation.

October 22, 2013

BBR Case Highlighted in Maritime Law Publication

Maritime Law Association of the United States.jpgThe Maritime Law Association of the United States has recently included an article about a case handled by BBR in its annual publication. Founded in 1899, the MLA comprises of maritime lawyers, judges, admiralty law professors, and non-lawyers who are selected because they hold responsible positions in the maritime field and have rendered distinguished service in the advancement of maritime law or its administration. Each year the association publishes its annual report which highlights the more significant cases decided that year facing the practice of maritime law.

The article entitled Exception Recognized to Arbitration of Seaman's Claim highlights a case where BBR successfully defeated Carnival Cruise Line's attempt to dismiss an injured crew member's lawsuit and require his claim to be decided by an arbitrator as opposed to a jury of his peers. This case involved a tragic accident of an engineering officer who was blinded in both eyes when the caustic solution he was ordered to mix for the cruise ship's desalinization plant blew up in his face. By arguing that the contract requiring arbitration was signed only by an employment company, not Carnival, BBR successfully convinced the Federal Court sitting in Miami, Florida to deny the cruise line's motion. The case currently is being litigated and is awaiting trial.

If you are a crew member working aboard a cruise ship and would like to know more about your rights, feel free to contact our firm for a free consultation with one of our Florida Board Certified Admiralty & Maritime Lawyers.

October 21, 2013

Carnival Conquest Crew Member Crushed to Death in the Port of New Orleans

Carnival Conquest New Orleans Death.jpgSad new coming from New Orleans. Carnival Cruise Lines acknowledges a Carnival Conquest crew member died Sunday morning at the Port of New Orleans while working on the cruise ship's exterior. The accident occurred when the crew member was performing maintenance work on the side of the vessel while the cruise ship was in port between voyages. Reports state he was working in a cherry picker and became wedged between the machine and a platform holding one of the cruise ship's lifeboats. The ship's medical team responded along with local paramedics. Unfortunately, the crew member died. The Coast Guard is currently investigating the incident.

September 8, 2013

Cruise Injuries, Accidents & Mishaps for the Week of September 2, 2013

Carnival Personal Injury Lawyer.JPGInjured Crew Member Medevaced from the Carnival Conquest

New Orleans, Louisiana - The United States Coast Guard medically evacuated a 34-year-old crewmember on September 7th from the Carnival cruise ship Conquest. It was reported the seaman from Indonesia fell and hit her head on the ship's deck requiring emergency medical care. At the time of the medevac request, the Conquest was out of flight range of the rescue helicopter and the Coast Guard directed the ship's master to head towards New Orleans. The rescue team was able to intercept the vessel at 11:20 a.m. and safely hoist the crew member from the ship. She was transferred her to LSU Public Hospital for further medical treatment. The Conquest is currently making weekly voyages to the Western Caribbean from New Orleans.

Princess Cruise Injury Lawyer.jpgAustralian Man Sues Princess Cruises for Being Abandoned in Fiji after Sustaining a Brain Injury

Sydney, Australia - An Australian man has brought a lawsuit for a brain injury sustained on board the Dawn Princess. The man claims he was struck in the head by falling roof panels and lights from the Princess' cruise ship. After the incident, the injured passenger stated the cruise line simply, "took [him] down the gang-plank and stuck [him] in a cab" with only a book and passport. The situation became more insulting to the passenger the next day after his medical treatment when he attempted to board the cruise ship but was denied because he did not have the right passes. The cruise line's attorney does not dispute the passenger suffered a minor brain injury but it is arguing about the size of the compensation he should be paid.

Thomson Cruises Accident.jpgPassenger Airlifted from the Thomson Cruise Line's Thomson Spirit

Belfast, Northern Ireland - The Irish Coast Guard was dispatched to assist the airlift of a 78-year-old woman from the Thomson Spirit on September 3rd. The ship's doctor became concerned when the passenger suffered a number of nosebleeds. Though operated by Thomson Cruises, the Thomson Spirit is owned by Holland American Lines.

September 6, 2013

Injured Crew Members Need Not Pay Back Maintenace and Cure Benefits

Florida Injured Crew Lawyer.jpgA landmark case from the Fifth Circuit Court of Appeals in New Orleans, Louisiana finds maritime companies are not entitled to repayment of maintenance and cure wrongly provided to injured seaman even if the crewmember lied on his employment application. Maintenance is a living stipend that employers must pay seamen injured while in service and subject to the call of the ship up until the time the medical condition plateaus. Cure is medical treatment for the injury.

A favorite tactic of maritime employers and ship owners when faced with a seaman's lawsuit is to file a counterclaim seeking to recoup wrongly paid maintenance and cure benefits. Often times the defending company will scour the employment application and pre-employment medical disclosure forms then compare these statements with the injured seaman's medical records for anything that may, in its view, be inconsistent. The company will then file a counterclaim seeking reimbursement based upon such inconsistency. This is ploy simply designed to scare the crew member into accepting a lower settlement than the true value of the case.

Facts of the Case

The Fifth Circuit in Boudreaux v. Transocean Deepwater, Inc. has put an end to this practice. Boudreaux concerned a seaman who filed a lawsuit alleging he injured his back while servicing equipment. Prior to his employment with Transocean he filled out a pre-employment medical questionnaire wherein he failed to disclose significant preexisting back problems and affirmatively wrote "no" to questions regarding prior back issues. After his on the job injury, Transocean started paying maintenance and cure. While the litigation was proceeding, Boudreaux's previous back issues were discovered. Transocean stopped paying maintenance and cure and filed a counterclaim seeking recovery of all previously paid maintenance and cure.

Fifth Circuit Court of Appeals New Orleans.JPG

Legal Analysis

The legal arguments presented to the court were maritime employers should not be caused to suffer payment of maintenance and cure to a seaman who intentionally misrepresented himself to get a job. After all, if the crew member was truthful, he would not have been hired and never had the accident. The counter-argument was requiring a seaman to pay back money to a company would conflict with maritime law's protection of seaman as it would stand as a serious impediment to a seaman's economic recovery and would have a negative impact on settlement negotiations.

The court agreed with the seaman's argument finding maritime employers ability to recoup paid maintenance and cure has no support in maritime law even though the seaman obtained those befits through dishonest means. Rewarding a seamen who are not truthful may seem like a harsh decision. The court, however, points out maritime employers need not immediately provide maintenance and cure to injured seamen. They have the right to conduct an investigation into the accident and medical condition before deciding to pay the benefits. If Transocean was diligent in investigating the claim, it would have found out that Boudreaux concealed his preexisting back injury which would have supported the denial of benefits.

Crew Injury Lawyers

If you were hurt while working aboard a ship and would like to know more about your legal rights, feel free to contact our attorneys for a free consultation. The BBR Florida Board Certified Maritime Lawyers are well versed in issues of maintenance and cure and have successfully litigated the very topic presented in Baudreaux before various trial courts.

September 3, 2013

Royal Caribbean Cruise Line's Arbitration Clause Found Unenforceable for American Crewmember's Personal Injury Claim

Cruise Arbitration Agreement.jpgMore and more courts are finding cruise line's personal injury arbitration agreements unenforceable when it comes to American crewmembers. The latest case comes from the Middle District of Florida wherein an American ice skater employed by Royal Caribbean Cruises was injured while performing aboard the Voyager of the Seas off the coast of Mexico. The injured seafarer filed a lawsuit against the cruise line asserting claims for Jones Act negligence, Unseaworthienss and Failure to Provide Maintenance and Cure in a Florida state court. As typical with employee claims, Royal Caribbean removed the case to Federal court located in Tampa and filed a motion to compel enforcement of an agreement to arbitration pursuant to the United National Convention on the Recognition and Enforcement of Foreign Arbitral Awards.


Compelling Arbitration Under the U.N. Convention

In order for a cruise line to compel arbitration under the U.N. Convention, it must show (1) there exists a written agreement to arbitrate; (2) the agreement provides for arbitration in the territory of a signatory of the Convention; (3) the agreement arises out of a commercial legal relationship; and (4) a party to the agreement must not be an American citizen, or the commercial relationship must have some reasonable relation with one or more foreign countries.


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Why American Crewmembers Are Exempt from Arbitration Agreements

In this case Royal Caribbean easily proved the first three prerequisites. The dispute and the focus of the Court's legal analysis was on the fourth prerequisite specifically whether the seaman's agreement had some reasonable relation with one or more foreign states. The court, like others before it, found the fourth prerequisite lacking.

In order to find the arbitration provision enforceable under the U.N. Convention where the crewmember is American and the cruise line's principal place of business is located in the United States, the employment contract must have some relationship with one or more foreign countries. Courts look at the facts surrounding the relationship between the crewmember and the cruise line and the language of the contract to make this determination.

Royal Caribbean argued the relationship is foreign as the crewmember was assigned to a cruise ship registered in the Bahamas, the ship called on foreign ports and the employment contract had a foreign choice of law provision. The court rejected the cruise line's argument. It reasoned the mere fact the Voyager of the Seas is registered in the Bahamas and that the ship calls on foreign ports alone cannot satisfy the foreign relationship test. Moreover, a foreign choice of law provision, in and of itself satisfies the fourth prerequisite of the U.N. Convention.

The court instead focused on the fact the cruise ship begins and ends each cruise in Galveston, Texas and spends most its time on the High Seas which has no connection with any country. The Court also noted the crewmember signed employment contract in Galveston, the contract provides the crewmember to be paid in U.S. dollars and she was assigned specific additional duties to be performed in Galveston including assisting passengers in safety drills, guiding passengers regarding disembarkation, and to be on board and on call during "port manning". In contrast, no work was designated to be performed on foreign soil. Looking at all these factors as a whole, the Court concluded the employment agreement is related to foreign services and found the arbitration agreement null and void.


Choosing a Maritime Injury Lawyer

Hiring a lawyer is an important decision and should not be based only upon advertisement. The cruise injury attorneys of Brais, Brais & Rusak have significant experience representing crewmembers hurt on the job. Our Board Certified Maritime Attorneys were also successful in having an American crewmember's arbitration agreement with his employer cruise line deemed unenforceable by a Federal court.

December 24, 2012

Cruise Injury Attorney Richard Rusak Wins Case at Florida's Third District Court of Appeal

Cruise Injury Law Appeal.gifBrais law's cruise injury attorney Richard Rusak recently won a case before Florida's Third District Court of Appeal. The case involved a Honduran crewmember who worked as a cabin steward aboard a Carnival Cruise Line ship. Being a cabin steward, the crewmember was required to clean dozens of cabins, including lifting heavy mattress to change linens, for the next cruise. Though it was Carnival's policy to have teams of two crewmembers working together to "turn over" these cabins, Carnival failed to provide an assistant. Given the short period of time he had to complete his job, the heavy lifting involved and because Carnival did not provide with an assistant, the cabin steward injured his back.

A lawsuit was filed in Florida state court located in Miami alleging violations of the Federal Jones Act statute, breach of the general maritime law warranty of seaworthiness and failure to provide injury benefits. Carnival removed the case to Federal court under the United Nations Convention for the Enforcement of Foreign Arbitration Awards arguing the seaman's claims were governed by the arbitration provision contained in his contract and that the claims must be arbitrated in Panama under Panamanian law. The Federal court entered an order finding public policy nullifies the arbitration / Panamanian law provisions of the contract with regard to the Federal Jones Act claim and remanded the Jones Act claim to state court for a jury trial. The Federal court based its finding on the Federal Eleventh Circuit's opinion of Thomas v. Carnival which held public policy can be considered when deciding to enforce an arbitration agreement.

Instead of challenging the Federal court's remand order to the appellate court, Carnival decided to participate in the state court litigation without regard to its claimed right to arbitrate. While in state court, Carnival acted contrary to the arbitration provision by engaging in the machinery of the litigation process without even asking the State Court to review whether the statutory claim should be arbitrated. After a year and a half of litigating in State Court, Carnival sought a Federal court to re-review whether the Federal Jones Act must be arbitrated per the contract. This time, Carnival relied on a later opinion from the Eleventh Circuit called Lindo v. NCL (Bahamas) Ltd. which disagreed with the prior Thomas opinion. The Federal trial court, like in the first instance, remanded the case back to state court. After being re-remanded, Carnival, for the first time, asked the State Court to compel the Jones Act claim to arbitration. The state court denied Carnival's motion on two separate grounds. Those grounds being: (1) the prior Federal Court's orders finding against arbitration precluded the issue to be reviewed for a third time and (2) Carnival's actions in proceeding in state court for over a year and a half waived its claimed right to arbitrate.

Carnival then appeal the second remand order to the Federal appellate court and the state court's order denying its motion to compel to the Florida appellate court. Richard Rusak, handling both appeals, was successful in obtaining an order from the Federal appellate court dismissing the appeal. On December 5, 2012, Richard Rusak argued the seaman's case to the Florida appellate court. Two weeks later on December 19, 2012 the state appellate court issued its opinion affirming the denial of Carnival's Motion to Compel arbitration.

December 22, 2012

Brais Law Obtains Ruling from a Florida Court Allowing Seaman's Wife to Pursue a Loss of Consortium Claim

Florida Cruise Lawyer.jpgKeith Brais and Richard Rusak of the Brais maritime law firm obtained a ruling from a Florida court allowing the wife of an injured seaman to pursue a claim for loss of consortium. Loss of consortium is a claim typically possessed by the spouse of a person injured by the fault of another. This claim includes compensation for household chores the injured spouse now cannot perform as well as compensation for the non-injured spouse's loss of comfort and diminished social life the accident brought upon the marriage. Maritime law does not allow every spouse of an injured person to make a claim for loss of consortium. In fact, due to the improper interpretation of a Supreme Court ruling, the law has been rather unsettled.

History of Loss of Consortium in Maritime Cases

Courts have historically allowed for spouses of seamen whose injuries were caused by the unseaworthiness of the ships they worked aboard to bring a claim for loss of consortium. This tradition carried along until 1990 when the Supreme Court issued its opinion of Miles v. Apex Marine. In that case, a seaman was assaulted and killed by a fellow crewmember. The seaman's mother and the estate brought a claim against the shipping company for negligence under the Jones Act and Death on the High Seas Act. The mother included a loss of consortium claim. The Supreme Court held loss of consortium damages in seamen death cases are not available as a matter of law given such damages are not available under the Jones Act negligence statute and the Death on the High Seas Act. Lower courts applying the Miles holding started to hold loss of consortium as well as other nonpecuniary damages such as punitive damages were not available in any maritime death and personal injury lawsuit. Such was the law until 2009 when the Supreme Court issued its Atlantic Sounding v. Townsend opinion. That case involved the issue of whether punitive damages were available to seamen for a maritime employer's willful failure to provide illness benefits required under maritime common law. The Supreme Court was faced with the question of whether Miles precluded all traditional nonpecuniary remedies afforded to injured seaman before the enactment of the Jones Act and Death on the High Seas Act. The Supreme Court explained the Miles opinion only dealt with damages as they relate to a wrongful death case brought under the Jones Act and Death on the High Seas Act and such a holding should not impact traditional rights and legal remedies afforded to seamen before the enactment of those two statutes. The Supreme Court then undertook a historical analysis of punitive damages in maritime cases dating back to the colonial era and found seamen historically had the right to recover punitive damages when their employer acted willfully or recklessly in breaching their legal duties owed to their seamen. With Townsend clarifying that Miles was only limited to Jones Act and Death on the High Seas Act wrongful death cases, the issue became ripe to re-allow spouses of injured seamen to bring loss of consortium claims based upon injured resulted from the unseaworthiness of the vessel.

Cappello v. Carnival Cruise Lines

Brais law represents an engineer who lost his vision when the chemicals he was mixing for a cruise ship's desalination plant caused a violent reaction. As one can imagine the lives of the seaman and his wife changed dramatically after that day. Attorneys Keith Brais and Richard Rusak brought a lawsuit against Carnival on behalf of the injured crewmember seeking compensation for the loss of his sight and on behalf of his wife seeking compensation for her essentially becoming the "eyes" of her now visually handicapped husband. Carnival sought to dismiss the wife's loss of consortium claim arguing Miles precluded the claim and there was no historical right for loss of consortium. Richard Rusak and Keith Brais filed opposing briefs providing examples where courts throughout the United States allowed loss of consortium claims dating back to 1858. They then argued the Townsend holding must be applied to allow loss of consortium claims. The court agreed and denied Carnival's motion and allowed the loss of consortium claim to proceed.