Maritime Law Blog

Brais 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.

Keith 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.

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.

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.

The 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.

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.

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. § 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.

Carnival Cruises' attempt to prohibit an injured American crewmember from bringing a lawsuit under United States law and having a jury decide his case has been defeated by the Brais Law maritime lawyers.

Over the past few years, Carnival and other cruise lines have been taking advantage of an obscure law called the United Nations Convention on the Enforcement of Foreign Arbitral Awards. This treaty allows companies in certain situations to avoid jury trials of personal injury claims brought by their employees' by burying arbitration / choice of law clauses in employment contracts. Cruise lines had great success in convincing courts to apply this international treaty to personal injury claims of Non-American crewmembers. Enforcement of these arbitration / choice of law clauses resulted in hundreds of crewmembers being compelled to arbitrate their claims before an arbitrator(s) under foreign law instead of having a jury decide their rights in a court of law under United States law. This is a big victory for the cruise lines as they can now avoid United States law which favors seafarers and avoid potential high jury awards even though the cruise lines are headquartered in the United States, operate their ships from United States ports and market to United States citizens. Amazingly cruise lines stand alone in being able to take advantage of this legal loophole as other domestic vacation resorts and hotels must follow United States labor laws.

Even though cruise lines have almost uniformly been allowed to compel foreign arbitration for their non-American crewmembers, the issue of whether this foreign treaty can be used to take away American crewmembers' right to sue their employers under United States law in an American courtroom has not often been addressed by the courts. As shown in this article, it appears the courts are drawing the line on the preferential treatment cruise lines have been enjoying of late when it comes to their attempt to restrict the rights of American crewmembers.

Thomas Hines, a lighting technician from Ohio, worked aboard Carnival cruise ships for several years. Unfortunately his shoulders where injured while performing his job at sea. These injuries required multiple shoulder surgeries. Brais law, on behalf of Mr. Hines, filed a lawsuit under the Jones Act and United States maritime law against Carnival in Miami, Florida State Court (the location of the cruise line's corporate headquarters). Carnival, not wanting the case to be decided under United States law or by a jury, removed the case to Federal Court and asked the judge to dismiss the lawsuit and compel arbitration in Panama. The cruise line argued the arbitration agreement within Mr. Hines' employment contracts required him to arbitrate his personal injury claims in Panama under Panamanian law. Despite Carnival being headquartered in the United States and Mr. Hines being a United States citizen, the cruise line insisted the foreign treaty applied to eviscerate the American seaman's United States legal protections. Brais Law argued in order for arbitration to be enforceable under the treaty, the contract must call for performance aboard. Nowhere in the employment agreement does it mention foreign performance. Furthermore, the ships Ms. Hines worked aboard left from and return to United States ports and at no time did Mr. Hines ever perform his duties on foreign soil. The Court agreed with Brais Law's analysis and found the arbitration provision unenforceable. The case was sent back to the State Court where the dispute can be decided by a jury under United States law.

This is a significant ruling. If the arbitration provision was held enforceable, over 200 years of Supreme Court's precedent and Congressional laws designed to protect American seamen would vanish by the stroke of a pen. This decision is perhaps an indication that American Courts will remain open to and will protect American seafarers from large sophisticated shipping companies. The Court's order denying Carnival's Motion to Compel Arbitration can be read by clicking this link.

As reported by Maritimelawblog last month, fire broke out in the engine room of the Costa cruise ship ALLEGRA on February 27th while sailing in the Indian Ocean. The ALLEGRA, a former cargo carrier built in 1969, was towed to Seychelles where she currently remains. Micky Arison, CEO of Carnival Corp. (owner of Costa Cruises), reported to Wall Street analysts during a conference call that ALLEGRA will be sold or scrapped. Costa Cruises announced it was replacing the ALLEGRA with the 927-passenger VOYAGER for the upcoming on European cruising season.

The ALLEGRA fire was the second calamity to strike Costa Cruises this year following the CONCORDIA sinking of January 13th. Two major disasters combined with a significant drop in ticket sales fueled speculation that the Carnival Corp. may possibly re-brand the Costa name.

The Costa cruise ship ALLEGRA suffered a fire causing the vessel to lose propulsion off the coast of Seychelles in the Indian Sea Monday, February 27, 2012. The fire was reported to have started in the ship's engine room and is now extinguished. No causalities among the 636 passenger and 413 are reported.

The ALLEGRA departed Madagascar on Saturday, February 25, 2012 and was cruising toward the port of Victoria, Seychelles' capital, when the fire broke out. Tugs from Seychelles were dispatched to the ALLEGRA and are expected to reach the ailing cruise ship Tuesday afternoon.

Unlike the modern ocean liners of the major lines which are designed and built to be used as cruise ships, the ALLEGRA, launched in 1969, was originally cargo container vessel. The ship, originally named ANNIE JOHNSON, served as a cargo vessel until 1986 when it was sold to Regency Cruises with the intention to be refitted as a cruise ship. This did not occur and was again placed into service as a cargo ship until 1990 when sold to Costa. The ship was then finally retrofitted, renamed ALLEGRA and put to use as a cruise ship in 1992.

The 4,232 passenger cruise ship Costa Concordia grounded after it struck a rock formation near the Italian island of Giglio on Friday, January 13, 2012. At the time of this article, 5 people are reported dead, 17 missing and scores injured.
The Concordia was sailing from Civitavecchia to Savona when the shipwreck occurred. The vessel struck a rock at night tearing a 150 foot gash in its side and bottom. Water entering the cruise ship caused it to list dangerously to one side. Though badly damaged, the Concordia was able to maneuver to shallower waters in order to expedite evacuation efforts. Maritime investigators are still trying to determine exactly what caused the ship to run aground. Most amazingly is the Concordia sails that route every week. It is also interesting that no distress call was sent until after the evacuation was started.

The cruise ship's captain, Francesco Schettino, 52, has been detained by Italian police and is under investigation for manslaughter and abandoning the ship. Captain Schettino, an 11 year employee of Costa Cruises, claims the rocks the ship struck were not properly marked on nautical charts. He also claims he was the last one to leave the disabled vessel. First officer Ciro Ambrosio has also been detained.

Though the Concordia's passengers were mostly European, there were over 100 Americans on board. As the Concordia was on an Italian voyage and did not touch an American port during the cruise, United States law will most likely not apply to this disaster. Instead, the more restrictive Athens Convention will most likely govern any wrongful death and personal injury action stemming from this disaster. Unlike American maritime law which does not have damage caps, the Athens Convention limits cruise lines' liability to a maximum of approximately $71,000 for each person who died or was injured.

The Concordia's grounding is just the latest in a series of mishaps involving Costa cruise ships within recent years. In 2010, the Costa Europa violently struck a pier at Sharm el-Sheikh in Egypt when the captain decided to dock the vessel in high winds instead of skipping the port like other cruise ships scheduled to dock that day. That unfortunate event injured 4 passengers and killed 3 crewmembers including spa workers employed by the Florida based Steiner company which manages spas for several major cruise lines. Also in 2010, the Costa Classica collided with a cargo ship in China's Yangtze River injuring three people.

Costa is a subsidiary of the Miami based Carnival Corporation. Costa primarily operates cruise ships in the Mediterranean but does sail from Ft. Lauderdale, Florida and sometimes Miami, Florida in the winter.

Photo Credit: ABC News

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.

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.

Our lawyers represent crewmembers and seafarers from all over the world. One of the first questions that must be answered when a client contacts the law firm is whether United States law applies to their personal injury claim. When it comes to the United States based cruise lines such as Carnival, Norwegian (NCL), Disney, Royal Caribbean, Celebrity, Holland America, Princess, United States law will most likely apply. The application of United States law is more complex when it comes to cargo vessels or cruise ships that are not based in the United States. This article is meant to assist injured seafarers in determining whether United States law applies to their personal injury claims.

The courts determined the word "seaman" found in the Jones Act is not limited to American citizens or residents. A foreign seaman can take advance of Unites States law including the Jones Act, Penalty Wage Act as well as general maritime law claims of unseaworthiness and failure to provide maintenance and cure. In other words, just because a seaman is a citizen of another country it does not necessarily mean the seafarer cannot bring a Jones Act negligence or general maritime law claim in the United States.

The Supreme Court set forth eight (8) factors to consider when deciding the question of whether United States or foreign law applies to a seaman's injury claim. These factors have been given varying degrees of importance by the courts and are thus explained:

Place of Injury

This factor has been given less importance because of the fortuitous nature as the accident usually occurs on a ship that that sails form place to place. When a seafarer is injured on a ship engaged in international trade the local government or citizens of the country where the accident happened to occur generally have little interest in the situation. That is why courts given this factor little importance.

Flag of the Ship

Originally, the flag of the ship was given great importance. However, as shipping companies decide to register or "flag" their ships in whatever country that offers the best tax rate, courts have began to give this factor less importance.

Domicile of the Seafarer

The seafarer's domicile is "especially significant in [the] choice of laws analysis" The reason for the heaver weight of this factor is that each country has an interest in protecting its citizens.

Domicile of the Employer or Shipowner

As with the flag of the ship factor, the domicile of the employer or shipowner has been given less importance over the years. Often times, maritime employers and ship owners incorporate overseas in an effort to avoid taxes. In fact, every major cruise line is incorporated in a foreign countries eventhough their corporate headquarters are in the United States.

Place of Contract

The importance of this factor is generally dependant upon whether the contract contains a choice of venue or forum clause. However, if there is not venue selection clause this factor has been given medium weight.

Accessibility of the Forum

This factor is given significant weight. However, this factor only applies when the injured crewmember has no access to the foreign court such as in times of civil unrest of if the judicial system is corrupt to the point the seaman will not have an impartial trial. The fact that foreign law may provide less remedies than United States law, trial may not be conducted by jury or there is no contingency fee system are not reasons to support a finding that the foreign forum is not assessable.

Law of the Forum

Courts have generally given this factor minimal significance. As one court pointed out, "merely because the [American] court has jurisdiction over the parties involved in the claim does not necessarily support application of the Jones Act"

Base of the Employer's and Shipowner's Operation

The maritime employer or shipowner's base of operation had been given varying degrees of importance. However, the mere fact that the base of operation is in the United States alone will not cause a court to apply United States law.

As you can see, the answer to whether United States law applies to a foreign seaman's claim can be quite involved. However, applying the above factors in a realistic way a maritime lawyer can advise his client on the likelihood of whether a court will apply the Jones Act and general maritime law to his person injury claim.

For the past six years, cruise lines such as Carnival, Royal Caribbean, Celebrity and Norwegian (NCL) have attempted to require their crewmembers who get hurt on the job to forgo the right to jury trial and compel them to have arbitrators decide what compensation they deserve. Most times the cruise lines bury this jury trial waiver / arbitration provision in the employment contract's fine print. Worst still, cruise lines such as Royal Caribbean and Celebrity, have language in the employment contracts that references the terms of collective bargaining agreement are incorporated into the employment agreement. The problem is the seamen have no representation in the "union" who negotiated the collective bargaining agreement and are often not given a copy of the collective bargaining agreement. As such, many seafarers have no idea they are waiving their jury trial rights.

The purpose of this article is to provide a brief summary on the cruise lines' efforts in compelling crewmember personal injury claim to arbitration and the recent order obtained by Brais & Brais remanding a seafarer's case to a Miami, Florida State court for jury trial.

The tragic events concerning the boiler explosion of the aging NCL cruise ship Norway which killed at least six crewmembers and injuring other serves as the backdrop for the first time an appellate court reviewed the legality of the cruise lines attempt to compel arbitration of workplace injury claims. In Bautista v. Star Cruises, the Eleventh Circuit court found, despite the plan language in the Federal Arbitration Act which excludes seaman from employment being compelled to arbitrate their work related injury claims, that cruise lines can force their crewmembers to arbitrate personal injury claims. This decision opened the floodgates for nearly every major cruise line to include arbitration of personal injury claims as a condition of employment.

Not satisfied with only depriving their crewmembers of the right to jury trials, the cruise lines started inserting foreign choice of law clauses into their employment agreements. The purpose of this is to foreclose crewmembers of the liberal Jones Act, Penalty Wage Statute and general maritime law rights for lesser, more pro-shipping company, rights afforded under foreign law. The Eleventh Circuit had an opportunity to review this practice in Thomas v. Carnival. The court found that the cruise lines efforts to deprived crewmembers of their U.S. statutory rights violated public policy. The impact of this decision was that many trial courts analyzing seafarer employment contracts deemed the foreign choice of law provision null and void and/or found the entire employment contact, including the arbitration provision, unenforceable.

Two years after the Thomas opinion, a separate panel of the Eleventh Circuit re-reviewed whether Federal courts can deem foreign choice of law provisions placed in crewmember employment agreements null and void. In a lengthy opinion named Lindo v. NCL, two of the three judges case concluded Thomas was wrongly decided. The Lindo court found crewmembers must first go to arbitration, and only if the arbitrators refused to apply U.S. statutory law, they have the right to address the public policy issue in the Federal court system. The third judge on the Lindo panel wrote a decanting opinion finding Thomas was rightly decided and a Federal court has the authority to review the public policy issue prior to arbitration.

With the above history, this article now focus on a case concerning Hector Pavon, a Honduran crewmember who was injured while working as a stateroom attendant for Carnival. Mr. Pavon filed his case against Carnival Cruise Lines in Miami, Florida State court at a point in time between the Thomas and Lindo opinions. Carnival removed the case to Federal court seeking an order compelling the claim to arbitration based upon the employment contract. The Federal court, basing its decision on Thomas, found Carnival's employment contract requiring the application of Panamanian law violated Mr. Pavon's right to bring U.S. statutory claims of Jones Act negligence and the Penalty Wage Statues. The court deemed the provision null and void as to those U.S. statutory claims and remanded the case back to a Miami, Florida State Court for a jury trial his claims for Jones Act Negligence and Carnival's violation of the Penalty Wage Statute.

Two days after Lindo was decided, and a month before the case was set for jury trial, Carnival re-removed Mr. Pavon's Jones Act case from Florida State court back to Federal court for the purpose of compelling the statutory claim to arbitration. The cruise line argued Lindo created a change in the law and the remand order based upon Thomas was wrongly decided. Brais & Brais' Florida Board Certified Maritime attorneys argued a later Lindo panel of the Eleventh Circuit cannot overrule a prior Thomas panel and the Carnival lacked a basis to remove the case for a second time. The Court agreed with Brais & Brais' legal analysis finding the Lindo opinion does not overrule the Thomas opinion and remanded the case back to Miami State Court so Mr. Pavon can have a jury decide his case.

The cruise lines' arbitration experiment is far from being solidified. Though many crewmembers' employment contracts contain arbitration provisions, many courts have different opinions as to how far the cruise lines can go in their quest to limit seafarers' rights. The impact of the Pavon decision is injured crewmembers can at least argue to courts deciding this issue that they should be allowed to have their Jones Act negligence and Penalty Wage Act rights decided without first having to participate in a potentially meaningless arbitration.

Our clients often ask us if their employer (whether it is a cruise line or shipping firm) can fire them for simply filing a maritime personal injury lawsuit. Our answer is that they can, but they will open themselves up to a claim for retaliatory discharge.

Maritime law provides a seaman crew member a claim for "retaliatory discharge" where his "employer's decision to discharge him was motivated, in substantial part, by the knowledge that the seaman intends to, or has, filed a personal injury action against the employer." Baiton v. Carnival Cruise Lines

Should the maritime employer fire a seaman crew member in retaliation to filing or the possibility of filing a personal injury lawsuit, the law entitles the seaman crewmember compensatory damages. Compensatory damages include the seaman crew member's expenses of finding new employment, lost earnings while he/she seeks another position, and lost future earnings if the seaman crew member's new job pays less than that earned while the he/she was employed by the company that wrongly fired him/her. In addition to these compensatory economic losses, the discharged seaman crew member may be entitled to recover compensatory damages for mental anguish that he/she may suffer as a result of the wrongful discharge.

Even though an employer may fire you because you are about to file or have filed a personal injury lawsuit, the law gives you the right to recover against your employer. If you are injured or think your employer fired you because it thought you will file a lawsuit and would like to ask us questions, feel free our board certified maritime lawyers.

As previously reported, many cruise lines including Carnival, Royal Caribbean, Celebrity and Norwegian Cruise Lines (NCL) have arbitration provisions in their crewmember / seafarer employment contracts. Depending upon the cruise line and when the employment contract was signed, the terms may impose foreign law to be applied to the crewmember / seafarer's personal injury claim and require arbitration to be conducted in a foreign country.

A federal court in Miami, Florida recently found the Carnival Cruise Lines arbitration provision requiring the crewmember / seafarer to arbitrate his personal injury claim under Panamanian law in Panama violated his substantive Jones Act rights. Despite Carnival stipulating to United States law and having a clause written in the contract which severs (deletes) any language that is null and void, the Court declared the entire arbitration agreement. The import of this decision is that the entire case was referred back to state court to be tried before a jury. This case represents a recent trend by some courts to not enforce cruise line arbitration provisions instead allowing the crewmembers / seafarers to have their cases be decided by juries.

Under the Jones Act, an employer has the duty to provide its seaman employees with a reasonably safe place to work. An employer breaches that duty if it does not act with ordinary prudence. In other words, if a maritime employer disregards a danger that it knew or should have known and that danger causes a crewmember's injury, it will be found liable under the Jones Act. Generally, an employer violates the Jones Act when it fails to maintain an area such as a deck, fails to properly instruct an employee on how to safely go about performing his job duties or does not provide the crewmember with appropriate safety gear. These situations, though common, are not the only ways an employer can breach its duty owed to its crewmembers.

Another way an employer can violate the Jones Act is through navigational errors or omissions by the ship's captain. In a recent case, a court found that a jury can decide if the captain's decision of keeping the vessel "in the field" during rough weather instead of seeking protected waters constitutes a violation of the employer's Jones Act duty. In the case, the crewmember seaman fell down a ladder in heavy seas after being order by the captain to go inside the vessel. The court reasoned the decision to keep the vessel in rough seas combined with the captain's order for the crewmember to go inside is enough evidence for a jury to return a verdict in the seaman's favor and denied the employer's motion to find no liability.

As we reported in our article Court Requires Carnival Cruise Lines to Produce Contract in Order to Force an Injured Seaman Crew Member Employee to Arbitrate His Claim, a Miami Federal Court denied Carnival Cruise Lines' attempt to preclude its crew member's right to have a jury of his peers decide his personal injury claim in an American court by forcing the claim to be arbitrated in Panama. After Carnival's attempt to force foreign arbitration failed, the Magistrate Judge recommended to the Judge presiding over the case that Carnival be fined $10,521 for its actions. Click to see the Magistrate Judge's Recommendation to Sanction Carnival. On November 29, 2010, the presiding Judge accepted the Magistrate's recommendation and ordered Carnival to pay the $10,521 fine. Click to see Order Fining Carnival.