Recently in Maritime Wrongful Death Category

July 19, 2016

74 Year Old Passenger Medevaced Off Carnival Breeze

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Defense Imagery and Video System reports that the U.S. Coast Guard medevaced a 74 year old passenger from the Carnival Breeze on July 18, 2016. The Coast Guard Command center received a call around 3:20 p.m. reporting that a man was unconscious and had been revived by Carnival medical staff. The cruise ship was approximately 379 miles southwest of St. Petersburg, Florida.

The helicopter crew arrived at approximately 8 p.m., hoisted the man and flew him to Tampa General Hospital where he arrived at about midnight. According to reports, the man was in stable condition upon arrival.

Cruise lines often tout that their medical facilities provide similar quality standards to medical facilities ashore. However, more often than not, passengers have to be medevaced to hospitals for further treatment. The incident above underscores how crucial it is for shipboard medical staff to timely evaluate patients as the process for emergency medical evacuations can take many hours, time which could be crucial if a person is critically injured or sick.

Source and Image Credit:

Coast Guard Medevacs Man 379 Miles Southwest of St. Petersburg, July 19, 2016

July 14, 2016

Law Enforcement Investigating Florida Boating Accident Wherein Child Died from Injuries

Florida Law Enforcement Boat Accident.jpgLaw enforcement is conducting an investigation into a boating accident that killed a 7-year-old child in Charlotte County, Florida. The incident occurred about 9 a.m. on the morning of July 9th near the Stump Pass area of Placida. The boy was in a 20-foot boat with his father and 11-year-old brother. Reports indicate that the boy was sitting at the back of the boat when his father turned on the engine. Unfortunately, the father applied too much throttle which caused the boy to fall off the back of the boat and into water. The boy made contact with the engine's propeller severely injuring him. The child was transported to the Englewood Emergency room where he later died from his injures.

Officer Stuart Spode of the Florida Fish & Wildlife Conservation Commission stated "at this time we believe it was just an unfortunate accident.". No charges are pending against the father.

June 6, 2016

Maritime Law Found to Apply to Recreational Boating Personal Injury Claim

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Background of Case

Matthew Ficarra was a guest on Bruce Germain's 38-foot motor boat, Game Day during an recreational excursion on the shore of Lake Oneida near Brewerton, New York. Mr. Ficarra, Mr. Germain and three others headed to Three Mile Bay, a shallow popular recreational swimming spot. After a day spent on the water, the decision was made to return to Brewerton. While Mr. Germain and others prepared the vessel for the return trip, Mr. Ficarra dove off the port side into the water. He climbed back on board and entered the water again, this time doing a back flip from the back of the boat. Mr. Ficarra struck his head on the lake floor and sustained severe injuries including serious spinal cord injury causing paralysis and quadriplegia.

Mr. Ficarra sued Mr. Germain in New York State Supreme Court, asserting claims of negligence under New York law. Mr. Germain, through his insurance company's appointed lawyers, removed the law suit to the United States District Court for the Northern District Court of New York and filed a Petition for Exoneration from or Limitation of Liability under the Limitation of Liability Act of 1851. Mr. Ficarra moved to remand the action to state court and dismiss the limitation proceedings for lack of matter jurisdiction. He argued that the claims alleged in his complaint were not within the scope of federal admiralty jurisdiction.


Trial Proceedings

The trial court judge dismissed Mr. Germain's petition for lack of subject matter jurisdiction "holding that a recreational injury occurring on a recreational vessel anchored in a shallow recreation bay of navigable waters could not disrupt maritime commerce and did not bear a sufficient relationship to traditional maritime activity" and remanded the case back to New York state court.

Appellate Proceedings

The remand and dismissal was appealed. The appellate court rejected the emphasis that the trial judge placed on the recreational nature of the vessel and its passengers as well as the location of the incident in shallow waters noting that "the Supreme Court has never indicated that it matters whether the navigable waters at issue were shallow or deep." Instead, the appellate court focused on the fact that the incident occurred on a vessel and in open water. The appellate court recognized that there are many instances where vessels sail along shallow waters and they may still effect maritime commerce, for example fishing boats or boats taking paying passengers to shallow, hard-to-reach bays for snorkeling, diving, and countless other situations. Applying the multi-part inquiry test for admiralty tort jurisdiction stated by the Supreme Court in Sisson v. Ruby, the appellate court held the underlying claim fell within the scope of admiralty tort jurisdiction because it met the location test, as it occurred on navigable waters.

Additionally, the claim met the connection test: 1) that the general type of incident has a potentially disruptive effect on maritime commerce; and 2) the general character of the activity giving rise to the incident bears a substantial relationship to traditional maritime activity. Based upon this legal analysis, the appellate court found that the underlying negligence claim falls within federal admiralty jurisdiction.

This opinion highlights the fact that many injuries which occur on navigable waters are considered maritime claims. It is imperative that people injured while boating are aware that their negligent claims could be governed by maritime law as opposed to state law. Often times different damages can recovered, there could be shorter time for which claims have to be filed in court, and the boat owner may seek to limit liability under federal law.

If you were injured while recreational boating and would like to learn more about your legal rights under maritime law, feel free to contact our firm. We are an established maritime and admiralty firm exclusively focused on protecting the rights of people injured by the negligence of boat owners and operators.

May 16, 2016

Woman Goes Overboard from Galveston, Texas Based Carnival Cruise

Samantha Broberg Carnival Liberty.jpgThirty-three year old passenger, Samantha Broberg, was reported missing by friends on the Galveston, Texas based Carnival Liberty Friday morning. Upon being notified that Ms. Broberg, a mother of four, was missing, Carnival performed a ship wide sweep and review of CCTV footage. The cruise ship's CCTV system captured video footage of a female passenger falling overboard at approximately 2 a.m. It is reported that approximately 10 hours later, Carnival notified the Coast Guard that Ms. Broberg went overboard. The Coast Guard began a search but on Sunday night, after a 20 hour operation covering over 4,300 square miles, the Coast Guard announced that the search operation was suspended. The Carnival Liberty was approximately 195 miles from Galveston, Texas when Ms. Broberg went overboard. The ship was sailing on a four-day Mexican cruise.

The Federal Cruise Vessel Security and Safety Act of 2010 requires cruise lines to integrate technology that can be used for capturing images of passengers or detecting passengers who have fallen overboard. It is uncertain why it appears that Carnival took 10 hours to confirm Ms. Broberg went overboard. Notwithstanding the Federal law requiring cruise ships to have technology which will alert and confirm that a person went overboard, cruise ships also have a duty to perform a search and rescue operation, and to notify the U.S. Coast Guard in a timely fashion once it is discovered that someone has fallen overboard. Such search and rescue procedures are required for all overboard occurrences, whether involving a passenger or crew member.

Passengers and crew falling overboard from a Carnival ship departing Galveston is nothing new. In March of 2015, a male passenger's body was recovered after falling overboard from the Galveston based Carnival Triumph. In February of 2012, a Carnival crew member slipped and fell from a Galveston based cruise and was later rescued. In September of 2011, a man went overboard from the Carnival Conquest. The full circumstances surrounding how and why Ms. Broberg ended up overboard are still under investigation. It is not uncommon for cruise lines to issue press releases stating that passengers went overboard intentionally. In numerous instances, however, the excess service of alcohol is linked to a passenger's disappearance. The service of alcohol is a major profit center for the cruise lines. We will continue to monitor this incident and report of any additional information learned.

Photo Credit: New York Daily News

May 4, 2016

Florida Panhandle Diving Accident Leaves One Commercial Diver Dead

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A Florida panhandle diving accident leaves one commercial diver dead and one injured in an accident last month near Tyndall Air Force Base near Panama City, Florida. The accident occurred on April 7th, 2016, but very few details of the accident have emerged. Media report that four divers were operating out of an inflatable zodiac boat when the accident occurred around 2:00 in the afternoon causing the death of one diver and another diver to be hospitalized with injuries. The Coast Guard is investigating.

Commercial diving is a high risk career which involves all of the risks of recreational diving such as drowning, hypothermia, decompression sickness, air embolism, and equipment failure but commercial divers often face additional hazards of underwater construction zones which include power tools, welding, cutting and demolition. When accidents happen it can leave the diver with disabling injuries or, in the event of death, the diver's family may not only lose their source of support, but they may also be left with many unanswered questions about what caused the accident that took their loved one.


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May 3, 2016

Commercial Diving Accidents and Injuries

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Commercial divers injured during diving accidents may have legal rights to recovery under federal admiralty and maritime law. While a non-maritime legal expert may be familiar with state negligence or wrongful death law, a maritime attorney will best be able to determine whether maritime law applies. This could mean the difference between the amount of recovery for your injury, the time period in which you must file your injury or wrongful death claim, and even whether recovery is possible at all.

What to do if you are injured in a diving accident

It is important to know your rights and to know what benefits you may be entitled to if a diving injury or tragedy happens to you. The Board Certified Admiralty and Maritime Law Attorneys at Brais Brais Rusak represent diving accident victims and their loved ones with over 70 years of combined experience. Brais Brais Rusak have recovered for victims under maritime law through the Death on the High Seas Act, the Jones Act, failure of employers to provide maintenance and cure, and unseaworthiness among other maritime or state law based causes of action.

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April 18, 2016

Florida Parasailing Accidents and Pre-Injury Releases

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Florida parasailing operators often use liability waivers or releases to attempt to escape responsibility when customers are injured under their care. Another common defense parasailing operators try to use to escape liability is the assumption of risk defense, meaning that the customer "assumed the risk" and is liable for his or her own injuries.

Pre-injury releases do not always provide the defense that negligent parasailing operators rely on. Courts consider pre-injury releases to be against public policy in cases where an operator ignores laws that are meant to prevent accidents.

The Florida Board Certified Admiralty and Maritime Lawyers at Brais Brais & Rusak ("BBR") specialize in representing injured clients against parasailing operators and jet-ski rental companies that require their customers to sign pre-injury releases. When a tourist's parasailing adventure turns into a tragedy and he or she finds themselves in a trauma center with life altering injuries, parasailing companies and their lawyers are immediately preparing to defend themselves with pre-injury release forms, assumption of risk defenses, and even with old Maritime laws like the Shipowner's Limitation of Liability Act. A good Maritime attorney knows how to get around these common defenses in order to help injured clients and their families hold negligent business owners/operators liable so that they can start to heal and get their lives back on track.

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November 9, 2015

Families of the El Faro Victims Have Only Until December 21, 2015 to File Wrongful Death Claims

El_Faro_Claims_Must_be_Filed_by_December_21_2015.jpgIn a move that is both unfortunate but expected, TOTE Maritime and Sea Star Lines obtained an order from a Federal Judge requiring the families of the 33 crew members who died while serving aboard the El Faro to file their wrongful death claims by December 21, 2015. This means that the families through a personal representative of the crew members' estates must file their claims in the Federal Middle District of Florida by the December 21, 2015 deadline or risk losing the right to sue TOTE Maritime and Sea Star Lines for the deaths of their loved ones.

Besides forcing grieving families to participate in a lawsuit which they may not be ready to emotionally address, the limitation proceedings initiated by TOTE Maritime and Sea Star Lines give the shipowners other distinct tactical advantages. First of which the limitation proceedings may entitle them to limit the total amount TOTE Maritime and Sea Star Lines have to pay the grieving families to $15,309,003.50. The order setting the December 21, 2015 filing deadline also stayed the various state court lawsuits brought against the El Faro's owners requiring them to refile their claims in the Federal limitation proceedings. The limitation proceedings also preclude the families from having a jury of their loved one's peers decide the case. Instead, a Federal Judge will be the sole fact finder.

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November 3, 2015

TOTE and Sea Star Lines File Limitation Proceedings in El Faro Sinking Case

Tote Seeks to Limit Liability in El Faro Sinking.jpgAs predicted by our Florida Board Certified Maritime Attorneys, TOTE Maritime and Sea Star Lines have filed a Petition for Exoneration from or Limitation of Liability for any damages associated with the death of the 33 sailors aboard the El Faro. The lawsuit is pending in the Federal District Court for the Middle District of Florida. The aim of the offensive suit is to exonerate, or if that fails, cap the amount payable to the families of the merchant mariners who lost their lives in the service of the ill-fated cargo ship. The question for those following this catastrophe is why TOTE who publicly stated "Our focus has been on supporting and caring for the family members, loved ones, and friends of those aboard the El Faro" is now seeking a Federal Court to exonerate it from any responsibility or limit the amount it must pay the families? The answer is simple. TOTE and Sea Star Lines' marine insurer has taken control of the defense of the case and the shipping companies are required under contract to cooperate in this legal maneuver so that the insurance company could lessen the amount of money it has to pay the victims' families.

Typically, a shipping company obtains liability insurance in the case of an injury or death occurring aboard its ship. The shipping company self-retains a portion of the exposure. This self-retention amount could range between one thousand to one million dollars. After that money is exhausted (either by paying defense attorneys or paying claims), the insurance company is responsible to pay the balance of the damage up to the policy limits (if there is a policy limit). As such, TOTE and Sea Star Lines' exposure is already capped at their self-retention. Consequently, the Limitation of Liability lawsuit filed on their behalf really only benefits the insurance company.

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October 29, 2015

El Faro Lawsuits and the Limitation Act

Fatal Course of the El Faro.pngOur maritime lawyers have recently been contacted by the media to provide legal insight on how the Shipowner's Limitation of Liability Act may impact the lawsuits filed in the El Faro disaster. It is important from the outset to note that the Limitation Act is an over 150-year-old statute designed to encourage United States shipping enacted in a time when insurance was rarely extended to American shipowners. The reasoning behind the Limitation Act was to provide shipowners with a safety net to lessen their financial exposure should a maritime disaster strike. Congress hoped this, in turn, would encourage businesses to invest in shipping and operate vessels within the United States. In modern times, however, every shipping firm has marine insurance to protect them financially from a catastrophic loss such as a ship sinking. Given the common use of insurance, many courts have commented that the Limitation Act is outdated and no longer serves its intended purpose. Congress, however, has not removed the law from the books and a judge must apply the Limitation Act if invoked. The purpose of this post is to discuss how the Limitation Act may be used in the El Faro lawsuits.

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October 11, 2015

Was the El Faro Unseaworthy?

Was_El_Faro_Unseaworthy.jpgAs was widely reported, the Coast Guard has suspended its rescue mission for the crew of the 40- year-old El Faro which sank off the coast of the Bahamas during Hurricane Joaquin. Since this incident made international news, stories are being shared about life aboard the ill-fated cargo ship. CNN reported that Kurt Bruer, a former quartermaster with six months of experience aboard the El Faro, stated that the ship had holes in its deck. Marvin Hearman who sailed on the ship as late as last August said there was rust everywhere. Hearman also revealed to CNN that the areas of the vessel such as the chief cook's room leaked water and that the ship has issues with drainage. Chris Cash, another former crew member, told CNN that the ship's owner Tote Services just bandaged the ship rather that preforming a proper repair. Tote disputes these claims and states the ship was properly maintained.

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October 6, 2015

Cargo Ship El Faro with 28 American Crew Members aboard Sunk Off the Bahamas

El_Faro_Sinking_Law.jpgThe United States Coast Guard confirms that the 790 foot cargo ship El Faro went down off the Bahamian coast with 28 American crew members aboard. The 41-year-old vessel was sailing from Jacksonville, Florida to San Juan, Puerto Rico to deliver cargo. It is reported that the vessel lost power while trying to sail around the approaching Hurricane Joaquin near Crooked Island. With no power the crew took a direct hit from a weather system which had estimated 140 mile per hour winds producing waves up to fifty feet. The Coast Guard found a 225 square mile debris field from the El Faro days after communication was lost. Within it was the awful discovery of a deceased crew member in his survival suit. At the time of this blog entry, no survivors have been found. The Coast Guard is continuing its search. The El Faro's owner, Tote Maritime, has set up a website providing periodic updates.

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September 23, 2015

Fatal Boating Collision off Watch Hill Light, RI

Krupinski Peggy K Death.jpgThe U.S. Coast Guard has reported that a 60-foot Princess yacht collided with a 25-foot commercial fisherman's vessel, southwest of Watch Hill Lighthouse. The collision occurred early Tuesday morning at approximately 10:00 a.m. The collision caused the fisherman's vessel to capsize, and the 81-year-old fisherman aboard the vessel sadly died.

Authorities have not yet released the identity of the deceased fisherman. However, the WesterlySun.com has reported that the fisherman's friends at Walker's Dock have identified him as Walter Krupinski, a commercial rod-and-reel fisherman who apparently sold his catch at Stonington Town Dock. The identity of the yacht operator has also not been released, but the operator was reportedly not injured. The Coast Guard escorted the yacht away from the collision scene.

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September 21, 2015

One Dies Four Injured in Florida Intracoastal Waterway Boating Accident

Pompano Beach Boat Accident.jpgSeveral news agencies are reporting a fatal boating accident which occurred last Saturday night in the Pompano Beach, Florida Intracoastal Waterway. Though no eye witnesses have yet to be identified, at least one person heard the accident. Tracia Latino stated that she was watching television at her home when she heard a crash which sounded like thunder. Florida's Fish and Wildlife Conservation Commission, which is investigating the incident, said two boats, one carrying five people and the other carrying two collided around 8:21 p.m. Authorities were notified that one person went missing after the crash. The Coast Guard halted all boat traffic for several hours in order to conduct a search for the missing boater. After a long search by several agencies throughout the night, the body of the missing man was recovered Sunday afternoon. Law enforcement later identified the man as William Alfred Ineson, Jr.

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June 28, 2015

Eight Holland American Line Cruise Passengers Tragically Die While on an Alaskan Shore Excursion Sight-Seeing Tour

Alaska_Plane_Crash_Kills_9.jpgEight Holland American Line cruise ship passengers tragically died on Thursday, June 25, 2015 when a DeHavilland DHC-3 Otter float plane crashed, some 25 miles northeast of Ketchikan, Alaska. The crash occurred at approximately 2:00 p.m., at about 800 feet above a lake in the Misty Fjords area. Onboard the sightseeing flight at the time of the crash were the eight cruise passengers plus the pilot. Despite some investigation by authorities, the cause of the horrible crash into a cliff has not yet been identified. Alaska State Troopers, however, have identified the victims as: Hal Cheney, 71 and Mary Doucette, 59, both of Lodi, California; Glenda Cambiaso, 31 and Hugo Cambiaso, 65, both of North Potomac, Maryland; June Kranenburg, 73 and Leonard Kranenburg, 63, both of Medford, Oregon; Margie Apodaca, 63 and Raymond Apodaca, 70, both of Sparks, Nevada; and the pilot, Bryan Krill, 64, of Hope, Idaho.

All eight passengers were sailing on the MS Westerdam, a Holland American cruise ship that departed Seattle, Washington on Saturday, June 20, 2015 for a seven-day round-trip cruise. News outlets have reported that the sightseeing airplane ride was a shore excursion sold through the cruise line Holland American Line. The actual float plane is owned by a company named Promech Air, self-identified as the largest "air taxi" operating in southeast Alaska for 30 years. According to the Alaska Dispatch News, just two years ago in 2013, another Promech Air float plane crashed on Prince of Wales Island, injuring four people. It is unknown whether Holland American Line was aware of this prior incident.

Generally, shore excursions sold through a cruise line contain exculpatory clauses that purport to relieve a cruise line and/or a shoreside excursion company from any liability resulting from an accident or injury that may occur during a shoreside excursion. While narrow and unambiguous exculpatory clauses have been enforced by certain courts in favor of cruise lines and shore excursion operators, cruise lines may still be held responsible for the negligent selection of a shore excursion company. We will continue to follow the investigation into this devastating crash, including whether Holland American Line was aware of Promech Air's prior incident but nevertheless continued to offer and sell the company's tours to its cruise ship passengers.

Our deepest sympathies and condolences go out to the families of the crash victims.

ADDITIONAL RESOURCES:

http://www.cnn.com/2015/06/26/us/alaska-plane-crash/
http://www.seattletimes.com/nation-world/plane-missing-in-alaska-with-nine-on-board/

PHOTO CREDIT: http://skift.com/2015/06/26/8-holland-america-cruise-passengers-killed-in-alaska-tour-plane-crash/