The Source for Maritime Legal Information

Cruise-Arbitration-Agreement-300x200The major cruise lines insert a provision into their crewmember employment contracts requiring any dispute between them and their seamen employees, including personal injury claims, to resolved at arbitration. Often times these employment contracts require the arbitration to occur outside the United States and to apply foreign law. This means that if a crewmember is injured on the job, he or she will have to bring an arbitration claim in a myriad of foreign locations, but not in the United States and not under United States law. The reason cruise lines are forcing their crewmembers to foreign arbitration is because it is more likely that the arbitrators, who are compensated by the cruise lines, will favor the cruise lines position and will be reluctant to give the injured seamen high money awards.

A treaty called the New York Convention on the Enforcement of Foreign Arbitration Awards allows the cruise lines to compel personal injury claims to arbitration where there is a written agreement to arbitration between citizens of two different countries or where the contract contemplates foreign performance. However, after the parties arbitrate, the treaty provides that a court of competent jurisdiction can review the arbitration award and vacate or find it unenforceable on various grounds including public policy.

A recent case filed in the United States District Court for the Southern District of Florida challenges such an arbitration award. In that case, the crewmember brought a claim against a cruise line for an injury sustained by the medical malpractice of the doctor selected by the cruise line to fulfill its obligation to provide medical care to the seaman. The employment contract required the seaman to arbitrate his claim in Monaco under Panamanian law. The arbitration went forward in Monaco and the seaman’s claim was dismissed under Panamanian law. The crewmember filed an action in the Southern District of Florida asking the Federal Court to vacate or, alternatively, refuse to recognize the award the arbitration award.

Crusie_Passenger_Falls_From_Balcony-300x169A Southern District of Florida judge has recently allowed a case concerning the death of a Carnival Cruise passenger to proceed to the jury.  This case involves couple who were passengers onboard the Carnival Dream.  The cruise was a round trip Mexican voyage leaving from and returning to New Orleans, Louisiana.  On the day in question, the couple were served 22 alcoholic beverages by the cruise line over the course of twelve hours.  Most of the drinks were Long Island Iced Teas which contained high amounts of alcohol.  The couple attended dinner where the husband was inebriated but did not slur his words or stumble.  After dinner the couple went to the ship’s casino.  At the casino bar, the husband fell off the bar stool.  About an hour after the fall in the casino bar, the couple bought a final round of drinks.  The decision was made to go to the ship’s nightclub.  The wife went into the club while the husband stayed behind to finish a cigarette.  He never arrived at the club.  He, instead, went back to the stateroom.  At about 1:00 a.m., the husband fell off the cabin’s balcony onto a deck below.  He died from his injuries.

The wife, as the personal representative of her husband’s estate, brought a negligence claim against Carnival Cruise Lines for its part in overserving alcoholic drinks which allegedly was the proximate cause of his death.  The cruise line filed a motion for summary judgment asking the court to find as a matter of law that it was not negligent.  Under maritime law, a cruise line owes its passengers the duty of reasonable care for their safety and well being.  As part of this legal duty cruise lines must take reasonable steps to protect an intoxicated passenger from danger.  Cases addressing this legal duty require a showing that the cruise line should have been aware that the passenger was subject to an impending danger from the over-service of alcohol.  As such, the behavior exhibited by the intoxicated passenger is relevant to whether a jury could find the cruise line was on notice.

The issue addressed in the motion is whether the husband’s actions leading up to his death placed Carnival on notice that he was at risk of falling off a cabin balcony.  The wife argued that Carnival’s drink servers and bartenders training requires them to observe behavioral sings of intoxication which should have alerted the cruise line to the husband’s intoxication.  The wife also testified at deposition that her husband showed visible signs of intoxication which included falling off a barstool.  The cruise line pointed to the facts that the husband did not slur his words at dinner and disputed the reason for him falling off the stool.

Knorr-Overboard-MSC-Divina-300x193Authorities are reporting a 74-year-old passenger on-board MSC Divina is missing and presumed overboard.  The man’s disappearance comes just days after a 22-year-old man and a 74-year-old woman went overboard the Royal Caribbean’s Independence of the Seas and the Queen Mary 2, respectively.

According to reports, Mr. Jeon Pierre Knorr, a French citizen traveling with his wife stepped onto the room’s balcony for some fresh air at approximately 3:00 a.m. on Monday and did not return. When his wife got up several hours later, she realized he had not returned and reported him missing.

The circumstances of his fall, however, remain unknown.  Cruise ship officials searched the entire cruise ship and made callouts through the public announcement system with no success.

Boat-Collision-Accident-300x177An interesting decision involving the Shipowner’s Limitation of Liability Act was recently handed down in a ferryboat / speed boat collision case.  The accident occurred on February 16, 2013.  The ferryboat, carrying approximately five hundred passengers, was ten minutes into its thirty-minute voyage when it collided with the speed boat.  One man aboard the speed boat died from injuries and another was hospitalized.  No one aboard the ferryboat was hurt.   The captains of both the ferryboat and privately owned speed boat (pictured to the right) claim they did not see each other until it was too late to take corrective action to avoid the collision.  Evidence established that the ferryboat captain was using his mobile phone immediately prior to the accident.  The decedent’s estate and the injured victim claim that the ferryboat captain was distracted by using his phone and was therefore negligent in causing the fatal collision.

A favor tactic of defendants (and their insurance company appointed attorneys) in serious boating accidents is to file what is known as a petition for exoneration from or limitation of liability.  Under a century and a half old federal law, a defendant shipowner is allowed to file a lawsuit asking a federal judge to determine liability and to even limit an injured plaintiff’s recovery to the post lost value of the vessel.  This means that the damages available for plaintiff who is seriously injured could be capped at the value of a severally damaged vessel.  This federal law has been widely criticized by the courts some going as far as stating its, “a holdover from the days when encouraging commerce by sea was considered more important than providing full redress to victims of maritime accidents.”  Though generally not liked by the courts, the Limitation Act is still the law of the land and will be applied under the right circumstances.

In order to limit one’s liability under the federal law, the shipowner must provide that any negligence causing the accident was not within its “privity or knowledge.”  In order words, the shipowner was unaware and could not become aware of the negligent act where a reasonable investigation would have led to the request knowledge.  In this case, the owner of the ferryboat filed a limitation case in federal court arguing that it should be able to limit its liability to the value of the ferryboat at it was unaware the captain’s negligence of using his mobile phone.  The federal court rejected the ferryboat owner’s argument.  It found that there was no company policy that its captain could not use their phones when operating the ferryboats and that it knew that captains carried personal mobile phones while operated the ferries and permitted their use.  Based upon these factual finding, the court denied the ferryboat owner’s petition to limit liability to the vessel’s post loss value.

Christmas-Miami-Boat-Accident-300x171A boating accident occurred in Miami’s Biscayne Bay between Northeast 87th Street and Northeast Bayshore Drive Christmas night.  Witnesses state that a boat carrying fourteen people flipped over after hitting a wave while trying to enter a canal at the western edge of the bay.  An area resident who witnessed the incident stated that everyone was at the front of the boat.  Other witnesses stated that they did not see any of the boater wearing life jackets.  Another resident, Ron Stamey, attempted to help the group from his kayak.  He was able to get four of the fourteen out of the water.  Ultimately, Miami Fire Rescue responded to the scene.  Unfortunately, a woman was trapped under the boat.  By the time the woman was freed, she did not have a pulse and was not breathing.  The victim, identified as 80-year-old Lidia Tapanes, was transported to North Shore Medical Center.  Her condition is currently unknown.

 

 

sEARCH-FOR-MISSING-BODY-300x169Monday afternoon, around 3:30 p.m., a man disappeared while jet skiing in the waters of Blue Lagoon in Miami, Florida in the area off the Dolphin expressway east of 57th avenue. It is unknown how the accident occurred but 32-year-old Manuel Aponte was heading back to shore with other riders when his jet ski came to a sudden stop and he flew head first into the water and vanished.  According to witnesses, it was as if he had hit something with his jet ski because the jet ski stopped short and Mr. Aponte flew over it landing head first into the water. Fellow jet ski riders attempted to find Mr. Aponte without success.  Monday evening and Tuesday Florida Fish and Wildlife Commission continued the search for Mr. Aponte’s body until it was recovered at 7:00 a.m. this morning.  The investigation into how the accident occurred is ongoing and will likely continue for weeks.

Mr. Aponte was a husband and father of a 1-year-old boy. He was born in Cuba and had immigrated to the United States 9 years ago.  We extend our deepest condolences to his family and loved ones.

Passenger-Overboard-Royal-Caribbean-Cruise-Ship-300x225A 22 year-old male Royal Caribbean passenger on-board the Independence of the Seas was reported as having intentionally jumped off the ship’s twelfth deck in the early morning hours of Thursday, December 22, 2016.  The ship was approximately 33 miles southeast of Key Largo and was heading back to South Florida after a four-night trip.

The ship contacted the U.S. Coast Guard which took over the search of the man by air and sea.  After a 38-hour search for the missing man, the Coast Guard suspended the search Friday afternoon.

Just a day after the 22-year-old man was reported missing, news sources reported a 74-year-old British woman on-board the Queen Mary 2 ocean liner was missing and presumed overboard. The ship had left New York Thursday morning and was en route to St. Martin in the Caribbean.  The woman was reported missing in the early hours of Friday morning when the ship was around 100 miles south east of Atlantic City in New Jersey.  The search for the woman was called off Friday evening.

Alma_Lee_Loy_Bridge-300x225Jimmy Graves, a 15-year-old boy who attended Vero Beach High School, died after being thrown off his friend’s boat into the Indian River Lagoon.  The incident is being investigated by Florida’s Fish & Wildlife Conservation Commission who stated the operator, a 14-year-old boy, have a boating license.

The boating accident occurred around 11 a.m. on December 4th.  It is being reported that Graves was thrown into the river when the boat hit a wave while towing another person on either a wake board or skis.  He was not wearing a personal flotation device and did not come to the surface.  Authorities are investigating whether Graves hit the propeller of the outboard motor when he fell into the water.  Shortly after the incident, a search began and tragically concluded hours later when Graves’ body was found by a St. Lucie County Sheriff’s Office dive team near the Alma Lee Loy Bridge.  A candlelight vigil was held on December 5th at Memorial Island Park in Riverside Park.

Passenger Overboard Asian Based Cruise ShipA 60-year-old Singaporean male passenger on-board the SuperStar Gemini cruise ship is missing after falling overboard near Babi Besar Island, located off the Malaysian south-east coast.  Mr. Wuan Poh Fatt was traveling from Singapore to Penang with five others.  According to on-board closed-circuit camera footage, Mr. Wuan fell overboard on Sunday, November 27, 2016 at 11:05 p.m. However, it was not discovered that he was missing until the next day when he failed to respond to announcements.  After a headcount confirmed he was missing, the ship’s Captain contacted Malaysian authorities who began a search of the area. According to the Malaysian Maritime Enforcement Agency, search and rescue operations are ongoing.

The SuperStar Gemini is a 1,750 passenger cruise ship operated by Star Cruises, an Asian based cruise line.  In October 2015, reports surfaced of a 30-year-old Indian national man who disappeared from the SuperStar Gemini while traveling in the Strait of Malacca. The man was traveling with his extended family and they too did not realize he was missing until the next day.  The cruise line claimed the man had committed suicide but the family strongly disputed that allegation instead suggesting he had been the victim of foul play due to a fight he had with one of the ship’s officers.

On average there are 20-30 overboard incidents each year.  Although technology exits to alert cruise ships of a passengers falling overboard, not all cruise lines make use of the technology.  Additionally, despite heavily promoting alcohol use, cruise ships often have minimal security personnel guarding the ship.

British Passenger Killed in Bus Crash Azure ship.jpgA British passenger traveling on board the P&O Cruises ship Azura was killed last Wednesday as a result of a collision involving a bus operated by a shore excursion provider in the island of Dominica. Nine other passengers of the twelve passengers traveling on the bus were also injured as a result of the accident. They were treated at local hospitals and most have been discharged since. The cause of the accident is not yet known.

The Azura ship set sail from Southampton on October 28, 2016 with more than 3,000 passengers on board.

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