The Source for Maritime Legal Information

Articles Posted in Cruise Ship Crew Member Injury Law

Florida_Injured_Maritime_WorkerA Florida Federal court has recently found that an injured maritime worker has a right to a jury trial for his Jones Act negligence, unseaworthiness and failure to provide maintenance and cure claims asserted as counter-claims to his employer’s admiralty declaratory judgment action.

Facts of the Case

In this case, a maritime worker sustained a back injury while standing watch aboard a ship.  From this incident, he demanded that the ship owners provide him maintenance and cure benefits which is benefit owed to seamen who are injured while in call of the vessel regardless of fault. Two days after receiving the maintenance and cure demand, the ship owners filed a declaratory judgment action under the Declaratory Judgment Act seeking a Florida Federal court to determine that maintenance and cure is not owed because the maritime worker failed to qualify as a seaman.  In bringing the declaratory judgment action, the ship owners invoked the court’s admiralty jurisdiction which does not carry the right of a jury trial.  The injured maritime worker answered the declaratory judgment action and filed a counter-claim against the ship owners seeking damages under the legal theories of Jones Act negligence, unseaworthiness and failure to provide maintenance and cure.  Along with the counter-claim, the injured maritime worker demanded a jury trial.  The ship owners moved to strike the jury trial demand on the basis that jury trials are not available in admiralty proceedings.

Injured_Seafarer_Arbitration-300x200Arbitration agreements are prevalent in cruise line seafarer contracts today.  This practice deprives the injured crewmembers of the fundamental right of a jury and sometimes precludes them of their statutory negligence causes of action provided to them under the Jones Act.  However, given the unique nature of maritime employment, in certain situations seafarers can avoid arbitrating personal injury despite the employment contracts requiring arbitration.

Facts of the Case

Recently a Florida Federal Court held that an arbitration provision found in a cruise line seafarer’s employment contract did not govern her on-the-job personal injury dispute.  In this case, the seafarer’s contract employer was not the owner or operator of the cruise ship.  In other words, the seafarer contracted with one company and then sent to work aboard a cruise ship owned and operated by other companies.  Once the seafarer started working aboard the cruise ship, she was managed and directed by the cruise ship’s owner and operator not the company of which she was technically employed by.  This unique set of facts allowed the seafarer to allege she was the borrowed servant of the cruise ship owner and operator who were not parties to the employment contract which contained the arbitration provision.

Tug_Boat_Accident_Case-300x228An injured tug boat captain has been awarded over 3 Million dollars due to a slip and fall accident.  In August of 2015, the plaintiff was a tug boat captain.  His job duties included steering the vessel and supervising the crew.  On the morning of the accident, the tug was pushing two loaded chemical barges towards a fleeting area.  At approximately 5:00 a.m. the captain was awakened by the sound of the tug’s engines backing down.  He left his bunk in his athletic shoes and went to the helm to assist the pilot who was struggling to align the barges in the fleeting area.  He took over the controls and radioed for another tug in the fleet to assist.  With help from the assisted tug, the plaintiff was able to straighten the barges.  As the captain was about to return to his cabin to prepare for his upcoming shift, a deckhand reported that diesel or some other fluid was spraying from a generator in the engine room.  The captain determined that the safest approach to handle the situation was to simply switch generators rather than using the emergency kill switch as that would cause the entire tug to lose power.  In order to switch generators, the captain was required to manually shut off the leaking generator which was accessible only from the engine room floor.  The captain proceeded down the ladder followed by the deckhand.  Upon reaching the engine room deck both the captain and deckhand slipped and fell on accumulated diesel sprayed from the generator.  From this fall, the captain sustained a severe hip injury including a fracture to the right femoral head.  The injured captain required emergency surgery where four screws were placed in his hip to stabilize and reduce the femoral fracture.  The captain also injured his lower back.

Unseaworthiness of the Tug

It was later learned that the leak was caused by a faulty fuel pressure gauge.  The stem which connected the gauge’s valve to the fuel filter housing had sheered in half which caused diesel to spray from the hole.  From this, the Court found that the tug was not reasonably fit for its intended purpose and was therefore unseaworthy.  The tug company argued that the captain was comparably negligent as he entered the engine room in his athletic shoes and not the steel-toed boots required by the company’s safety policy.  The Court rejected this argument finding that the captain’s wearing of athletic shoes was not the legal cause of the accident as the deckhand, who was wearing the required steel-toed boots per the company’s safety policy, also slipped on the leaked diesel.   The tug company next argued that the captain was negligent for his decision to enter the engine room to manually switch the generators as opposed to shutting down power to the tug via the kill switch.  This argument was also rejected.  The Court, applying  maritime law precedent, found that in emergency situations a seaman’s actions cannot be judged as they would be in ordinary circumstances.  The Court then reasoned that the captain had to choose between shutting off all power to the tug, which was pushing two loaded chemical barges towards the fleeting area, or entering the engine room to see if he could stop the leak by switching generators. Under these circumstances, the Court determined that the captain acted reasonably and was not negligent by entering the engine room.

Injured-Jones-Act-Seaman-LawsuitWhen bringing a lawsuit dealing with an injured Jones Act seaman claim, much thought must be given to what court system, federal or state, the lawsuit should be filed and whether it is preferable to have a judge or jury decide the facts of the case. Maritime law affords injured seaman several options each of which has its pros and cons. In the case of Bell v. Westbank Fishing LLC, the decision was made to file the seaman’s injury claim in federal court without asking for a jury. Once filed in the federal court, Westbank, the defendant employer, filed formal demand seeking a jury, not the federal judge, decide the facts of the case, if it was liable for the accident, and if so, how much compensation the injured seaman is entitled to receive.

The Injured Seaman Has the Right to Demand a Jury Trial

The injured seaman sought to strike his employer’s jury demand arguing his employer has no legal right to a jury trial because of the way the compliant invoked the federal court’s jurisdiction. The complaint filed by the seaman indicated that the court had jurisdiction by what is known as a federal question. Federal courts have jurisdiction to decide claim brought under a federal statute. The Jones Act, which provides injured seamen a negligence claim against their employers, is a federal statute. The complaint was silent as to any other basis of federal jurisdiction. The employer argued that when jurisdiction is based upon the Jones Act, both the injured seaman and the employer have a right to demand a jury. The employer also argued that it has a Constitutional right to a jury trial under the Seventh Amendment to the Constitution.

Cruise-Arbitration-Agreement-300x200According to court records, Michelle Haasbroek was employed by Steiner Transocean Limited and worked as a spa facialist on board the M/S Crown Princess, a vessel owned and operated by Princess Cruise Lines, Ltd.  Ms. Haasbroek alleges in court filings that she was raped by Eddie Yamile Santa Cruiz Reyes (“Reyes”), a cruise line employee, while off duty in a crewmember residential cabin.  As a result of the rape, Ms. Haasbroek became pregnant and gave birth to a child.

Ms. Haasbroek signed an employment agreement with Steiner which provided that her duties were “to perform services in the company’s spa, salon or fitness facility on the vessel.”  Pursuant to the employment agreement.  Ms. Haasbroek agreed to resolve any and all disputes by final and binding arbitration in Nassau, The Bahamas.

Per court filings, Ms. Haasbroek met Reyes at the church aboard the vessel and she considered him strictly a platonic friend.  On the day of the incident, Ms. Haasbroek went to Reyes’ cabin to pick up his computer so she could bring it ashore for him to be repaired and he assaulted and raped her.

Jones_Act_Status_LawAn interesting case has been decided as to whether a pleasure yacht captain properly alleged Jones Act seaman status entitling him to seek damages under the federal personal injury statute as well as the maritime law maintenance and cure obligation.  The captain started working aboard the private pleasure yacht in 2010 to perform maintenance and repair jobs on the yacht.  He was eventually hired to take over the position of the yacht’s captain on a part-time basis in additions to his general maintenance and repair duties.  In late 2014, the part-time captain position became full-time.  Under the terms of the employment agreement, he was paid a salary of $3,500 per month and lived aboard the yacht.  As the yacht’s master, he operated the vessel during moves to Savannah, Georgia and Charleston, South Carolina for boat shows and prepared the yacht for visits by the owners.  On April 25, 2016, while preparing to move the yacht from Hilton Head Island to Charleston, when he fell approximately 7 feet onto the concrete dock and landed on his elbows.  Injuries sustained from the fall required multiple surgeries.  He was terminated two months later.

The captain filed a lawsuit against his employer for failure to pay maintenance and cure and for damages arising out of the negligent failure to provide medical treatment under the Jones Act. The employer moved to dismiss the complaint arguing that the complaint failed to plead facts in support of his status as a seaman under the Jones Act.

Legal Analysis

Estis_Rig_23-300x188The Federal Fifth Circuit Court of Appeals have affirmed a trial court’s damages award in a Jones Act seamen’s wrongful death and personal injury lawsuit.  The case involved an accident aboard a barge supporting a truck-mounted drilling rig (pictured to the right).  On March 9, 2011, crewmembers of the barge were attempting to straighten a catwalk extending from the rig’s derrick which had twisted the night before.  While preforming this maneuver, the truck and rig toppled over fatally pinning one crewmember between the derrick and the mud tank.  Three other crewmembers sustained personal injuries in the accident.

The personal representative of the decedent seaman, along with the injured seaman, filed lawsuits under the Jones Act and general maritime law against the employer drilling company.  The drilling company conceded liability but contested the damages sought by the estate and the survivors.   After a trial lasting a week, the judge issued a judgment awarding damages to the decedent crewmember’s estate for pre-death fear and conscious pain and suffering as well as lost of past and future financial support of his dependent daughter.  The court also awarded, among other categories of damages, future medical expenses and lost future earnings to the surviving seamen.  The drilling company appealed the award.

Challenge to Damages Awarded to the Decedent Seaman

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.

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.

Ruby Princess Crew Member Medevac.jpgA 47-year-old crew member of the Ruby Princess cruise ship was airlifted during the early hours of Saturday morning by the U.S. Coast Guard after reports that he was having symptoms of a heart attack.

The cruise ship was located approximately 9 miles southwest of Point Loma, San Diego at the time of the report. The crew member was hoisted to the helicopter at around 2:00 a.m. and was taken to San Diego San Diego where EMS was awaiting to take him to UCSD Health- Hillcrest Hospital. The man’s condition is unknown at this time but we wish him a speedy recovery.

Sources and Photo Credit: