Maritime Law Blog

It has been widely reported a passenger aboard the Royal Caribbean Liberty of the Seas died early morning on Monday, January 30, 2012 after falling down a flight of stairs. The Broward Sheriff's Office states the passenger, Barbara Wood, a 47-year-old Massachusetts woman, fell on a flight of stairs and struck her head. Royal Caribbean confirmed the woman died aboard its cruise ship. The accident occurred approximately at 1:48 a.m near the Catacombs nightclub. At the time of the death, the Liberty of the Seas was traveling from the Bahamas to Ft. Lauderdale, Florida.

This is the second reported falling death of a passenger on a Bahamian cruise within a week. As reported in our article Carnival Cruise Passenger Falls to his Death Aboard the Fantasy, the first death involved a 26-year-old South Carolina man who died aboard the Carnival cruise ship Fantasy on January 28, 2012 while at dock in Nassau.

Multiple media sources are reporting a passenger aboard the Carnival cruise ship Fantasy fell to his death from one of the upper decks of the ship's atrium to the lobby level on January 27, 2012. The Carnival Fantasy was on a five day trip from Charleston to the Bahamas and was docket at Nassau when the tragic event occurred. The Bahamian authorities boarded the Carnival Fantasy to investigate the incident. Although the ship was cleared to sail by Bahamian authorities the next morning, the delay caused by the investigation caused Carnival to cancel the cruise liner's visit to Freeport. The victim's identity was not released but it was obtain that he was a 26-year-old passenger from South Carolina. Carnival Corporation is the parent company of Costa Cruises, whose Costa Concordia liner ran aground off the Italian coast this month, killing at least 17 and injuring several others.

On September 13, 2010, we posted an article about cruise lines' liabilities for injuries and deaths occurring on shore excursions. Recently, a Miami, Florida Federal court determined a cruise line can be held liable for the wrongful death of a passenger during a shore excursion if the cruise line misstated the required skills, safeness and/or physical level of the tour in the cruise materials.

Many cruise lines' websites list the types shore excisions available for the specific ports of call. Along with the list are descriptions about the various activities. Some cruise lines even rate the activities' physical level so that passengers can determine whether they are physically able to participate.

In this case, daughters of a passenger sued the cruise line for the wrongful death of their mother who drowned during a snorkeling tour in the Cayman Islands. The daughters claimed the cruise line's materials discussing the excursion misrepresented the activity and such misrepresentations lead to their mother's death. The cruise line attempted to dismiss the case arguing a claim for misrepresentation does not exist under maritime law. The court disagreed, and determined cruise lines can be liable for the inaccurate or misleading written materials it produces about shore side activities. If it is proven the cruise line's materials misrepresented the activity, the passenger justifiably relied on the misrepresentation in her decision to participate and was injured or died because of the inaccurate or misleading description, the cruise line will be held liable. The court further found the misrepresentation need not be intentional for the passenger or passenger's family to recover.

There is a well known South Florida regatta that takes place each year on Columbus Day Weekend in Biscayne Bay off Miami, Florida. Many "spectators" do not come so much to watch the race but, to party. In fact, the party that takes place along side the regatta (but is in no way sponsored or affiliated with the regatta) is often described as a "floating Mardi Gras". Drinking and boating, however, don't mix; and, there are many accidents including deaths surrounding the partying that co-insides with the regatta in years past. The below explains Florida's Boating Under the Influence Statute as well as the criminal and civil ramifications of drinking and boating.

Boating under the influence is taken seriously in Florida. A blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood is considered boating under the influence. That is roughly 3-4 drinks per hour for the average male adult. Penalties for boating under the influence are:
Fines of:

a. Not less than $250 or more than $500 for a first conviction.
b. Not less than $500 or more than $1,000 for a second conviction; and

a. Not more than 6 months for a first conviction.
b. Not more than 9 months for a second conviction.

Should boating under the influence cause a fatality, the operator will be subjected to Florida's manslaughter laws. Recently, a Destin man was convicted to just over 40 years in prison for boating under the influence which led to the death of 3 people. In that case, an 18-foot Bayliner collided with a 21-foot Sea Hunter near Marler Park in the Choctawhatchee Bay. Though the operator of the Sea Hunter survived, the 3 guests aboard were killed in the accident. The Florida Fish & Wildlife Report indicated several empty beer bottles and an empty bottle of vodka were found in the Bayliner and that the operator's blood-alcohol level was 0.19 (over twice the legal limit). It also should be noted that the operator of the Sea Hunter's blood-alcohol level was 0.7 (just under the legal limit); and, the report concluded, "both operators judgment was impaired to some extent and contributed to the collision."

Besides criminal ramifications, there are civil penalties for injuring or killing someone while operating a boat under the influence. Since the Florida statute governing boating under the influence is designed for safety, an operator will be found liable for the accident in a civil court unless it is proven the drunkenness did not cause the accident and could never have caused the accident. This is extremely hard to prove; and, a person convicted of boating under the influence will likely be found liable for the accident in a civil court.

A person injured due to boat operator's violation of Florida's Boating Under the Influence statute is entitled to fair and adequate compensation for damages experienced in the past and to be likely experienced in the future. These damages include:

1. Compensation for bodily injury resulting in pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, the loss of capacity for the enjoyment of life;
2. The expense of hospitalization, medical and nursing care and treatment; and,
3. Any earnings for work time lost.

Survivors and the estate of a person who died due to boat operator's violation of Florida's Boating Under the Influence statute are also entitled to damages. Given the partying surrounding the regatta occurs within one marine league from shore, maritime law dictates Florida's wrongful death damages will apply.

Under Florida's wrongful death statute survivors may recover the following:

1. The value of lost support and services from the date of the decedent's injury to the date of death as well as future loss of support and services from the date of death. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
2. The surviving spouse may also recover for loss of companionship and protection and for mental pain and suffering from the date of injury.
3. Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
4. Each parent of a deceased minor child (under 25 years of age) may also recover mental pain and suffering from the date of injury. Each parent of an adult child (25 years of age and older) may also recover for mental pain and suffering if there are no other survivors.
5. Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

The estate of the decedent may recover the following:

1. Loss of earnings of the deceased from the date of injury to the date of death;
2. Loss of the prospective net accumulations of an estate which might reasonably have been expected but for the wrongful death may also be recovered if the decedent's survivors include a surviving spouse or lineal descendants; and,
3. Medical or funeral expenses due to the decedent's injury or death that were charged against the estate or that were paid by or on behalf of decedent, excluding amounts paid by, and awarded to, a survivor.

It is common knowledge that commercial fishing is the most dangerous and deadly job in the United States. Thankfully maritime law provides benefits to those who lost a loved one while working the sea.

We recently posted an article discussing commercial fishermen wrongful death and survival claims which can be brought against their employer under the Jones Act. As the article explained, the Jones Act applies to commercial fishermen wrongful deaths occurring upon inland waterways or within 3 nautical miles from shore. But what happens if an accident occurs beyond 3 nautical miles? Maritime law provides an entirely different statute for such claims.

The Death on the High Seas Act ("DOHSA") applies to all maritime deaths resulting from accidents occurring beyond 3 nautical miles from shore. Unlike most wrongful death statutes, DOHSA applies to the actual site of the accident, not where the death actually occurs or where the wrongful act causing the accident may have originated. Thus, if an accident occurs beyond 3 nautical miles from shore, but the fisherman ultimately dies within 3 nautical miles or even in a hospital on shore, DOHSA applies.

Unlike the Jones Act, which only allows for the fishermen's employer to be sued, DOHSA allows an estate or family member to sue any responsible party. This may be the fisherman's employer, but also the boat owner (if different than his employer), vessel manufacturer, equipment installer/manufacturer, the captain of another boat if the death resulted from a collision and any other person, company or government who contributed to the accident which resulted in the death.

Like most maritime claims, DOHSA lawsuits must be brought within 3 years from the date of the accident and can be brought either in state or federal court. Though DOHSA does not provide a right to a jury, a jury can be requested if the case is brought in state court or in federal court if diversity jurisdiction is avilable.

Unlike the Jones Act where a survival claim can seek non-pecuniary damages, DOHSA claims are limited to only pecuniary damages such as:

• Loss of Support;
  
• Loss of Services;
  
• Loss of Nurture, Guidance and Care to Minor Children;
  
• Funeral Expenses; and,
  
• Loss of Inheritance.
  

Commercial fishing is the most dangerous occupation in the United States. The Centers for Disease Control and Prevention reported during 1992-2008 an average of 58 deaths occurred annually. This equates to a staggering 128 deaths per 100,000 workers! Thankfully, maritime law protects the rights of the loved ones of fishermen who unfortunately lost their lives while working the sea.

One of the methods families of deceased fishermen can seek recourse is through the Jones Act. The Jones Act is a federal statute which allows the personal representative of fishermen's estates, spouses and dependent children to bring negligence claims against the employers. A lawsuit brought on behalf of a fisherman's estate is known as a "Survival Claim". A lawsuit brought by the family of a deceased fisherman is a "Wrongful Death" claim. Survival and Wrongful Death claims under the Jones Act can only be brought if the accident occurred upon inland waterways or within 3 nautical miles from shore. Deaths resulting from accidents occurring beyond 3 nautical miles can only be brought under the Death on the High Seas Act. (See our article entitled Commercial Fishermen Wrongful Death and Survival Claims under the Death on the High Seas Act)

Under the Jones Act, an employer owes the duty to exercise reasonable care and prudence in providing its employees with a reasonable safe place to work. It is the plaintiff's burden to prove the employer breached its duty and the breach was the cause of the death. While the plaintiff must show the employer's negligence was the cause of death, the law holds the plaintiff need only show the breach of duty contributed in any way, no matter how slight, to the death will be deemed sufficient for recovery under the Jones Act.

Only "pecuniary damages" are recoverable under a Jones Act for wrongful death claim. These are damages the family could have expected to receive from the fisherman if he lived. Such damages include:

Loss of support and services includes all financial contributions the decedent fisherman made to his family had he lived. To recover loss of support, it is necessary for the beneficiary to show dependency on the decedent.

Loss of services includes the household services performed by the deceased fisherman and an award is usually measured by the costs of paying someone else to perform the same services.

Loss of nurture to minor children damages are intended to compensate for the loss of parental guidance and intellectual and moral training to a child.

Funeral expenses are recoverable to the extent they have actually been incurred by a family member.

Loss of inheritances are recoverable where the family member can prove the probability of an inheritance and the amount that would have been inherited

In addition to pecuniary damages allowed under its wrongful death provisions, the Jones Act also provides for the recovery of non-pecuniary damages under its survival provisions. Non-pecuniary damages may only be awarded to the personal representative of the fisherman's estate on behalf of the family. Any amount of non-pecuniary damages awarded does not become part of the estate's general assets, is not subject to debts and is not distributed under any statue of descent destitution. Non-pecuniary damages include:

These damages compensate for the pain and suffering the fishermen endured before death. However, to recover these damages, it must be proved that the fisherman was conscious between the time of his injury and death.

These are wages the fisherman would have earned between the time of his injury and death as well as wages he would have reasonably been able to earn though the course of his life.

All medical and hospital expenses actually paid by the fisherman between the time of his injury and death.