A Washington Federal Court has recently allowed an injured crewmember to seek punitive damages against Holland American Cruise Line. In that case, an American crewmember from Massachusetts worked as a cast member on Holland America’s ZAANDAM cruise ship. One day she decided to take a crew-only spin class. Unbeknownst to her, the bike seat was not yet fastened and when she attempted to mount the bike, the seat slid backward and the metal post penetrated her vulva, lacerating her right vagina. The ship’s infirmary staff examined her and decided against suturing the wound. The crewmember discharged with ice, a topical analgesic, pain medication and antiseptic wipes. She continued to experience pain and sought treatment ashore when the cruise ship call on Juneau, Alaska. The crewmember alleged the emergency physician at the Juneau hospital told her that the wound should have been sutured but that it was too late to do so at that point. The crewmember returned to the cruise ship where she twice saw the ship’s doctor to address a golf-ball sized growth that had formed in her vagina. The crewmember alleged that the infirmary staff told her that the growth needed to be drained, but that the head office would not allow that to happen on the cruise ship. Instead, the crewmember claimed she was told that she could bathe her wound in the infirmary’s bath. This did not provide any relief. Still in considerable pain, the crewmember departed the cruise ship in Alaska and returned home to Massachusetts. There, she sought treatment from an obstetrician and gynecologist.
The injured crewmember filed a lawsuit alleging that the cruise ship was not reasonably safe for its intended purpose, Holland America was negligence under the Federal Jones Act and that the cruise line willfully, arbitrarily or capriciously failed to provide her appropriate medical care and treatment under the maintenance and cure obligation. All the alleged claims were brought under United States maritime law. Holland America moved to dismiss the lawsuit arguing that the laws of the Netherlands apply to the incident and punitive damages are not afford under Dutch law. The Court reviewing the case noticed the existence of a collective bargaining agreement between the cruise line and the crewmember which called for the application of British Virgin Island Law and asked the parties whether the British Virgin Island choice of law clause is applicable.
The cruise line acknowledged that the British Virgin Islands choice of law clause could be applied but asked, in the alternative, that Netherlands law to be applied to the lawsuit. The crewmember argued the choice of law clause violated section five of the Federal Employer’s Liability Act for which the Jones Act is based upon. Section Five provides, “Any contact,… the purpose or intent of which shall be enable any common carrier to exempt itself from any liability created by the chapter, shall to that extent be void.” The court agreed with the crewmember and found the British Virgin Island choice of law provision is void as it would require the crewmember to forego her Jones Act claim entirely thereby allowing Holland America to evade liability.
Finding the British Virgin Islands choice of law provision void, the court turned to whether United States or Netherlands law applies. In deciding this issue, the court embarked on an analysis which applied the eight factor test articulated in the Supreme Court cases Laurtizen v. Larson and Hellenic Lines Ltd. v. Rhoditis. These eight factors are: (1) the place of the wrongful act, (2) the vessel’s flag state; (3) the injured party’s allegiance or domicile; (4) the shipowner’s allegiance; (5) the place of contract; (6) accessibility of a foreign forum, (7) the law of the forum and (8) the shipowner’s base of operations.
Applying the Laurtizen/Rhoditis test, the court found: (1) The place of the wrongful act to place was in the United States; (2) the cruise ship’s flag state is the Netherlands; (3) the injured crewmember’s allegiance and domicile is the United States; (4) the shipowner’s allegiance is unclear and not helpful in the analysis; (5) the contract of employment was formed in the United States; (6) the accessibility of the foreign was not a factor in the court’s analysis; (7) the law of the forum is United States law; and, (8) the Holland America corporations, though technically formed under the laws of Curacao and must follow Dutch law, truly operate from the United States. Weighing these factors, the court found Untied States law applies to the lawsuit. Under United States maritime law, a seaman can be awarded punitive damages for an employer’s willful, arbitrary or capricious failure to provide medical care. Since United States law governs the lawsuit, the court found the crewmembers claim for punitive damages can survive.