The Source for Maritime Legal Information

Articles Posted in Cruise Ship Crew Member Injury Law

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:

Norwegian-Breakaway-Falling-Death.jpgA second crewmember has died from the July 20th incident wherein a lifeboat fell from the NCL operated Norwegian Breakaway while docked at Kings Wharf, Bermuda. As previously reported by The Maritime Law Blog, four crewmembers fell into the water when a lifeboat they were manning during a drill broke from its tether. Four of the crewmembers were taken to an area hospital were Diogenes Carpio died from his injuries. One of there other crewmembers, Ben Buenaventura, who was a waiter aboard the Norwegian Breakaway, was medevaced to Jackson Memorial Hospital in Miami wherein he was admitted into the intensive care unit. It was reported that Mr. Buenaventura suffered a traumatic brain injury along with fractured legs, hip and right arm. After spending over a month in intensive care, Mr. Buenaventura succumbed to his injuries.

NCL is not the only cruise line that had a fatal lifeboat drill in recent months. On September 13th, a seaman died when a lifeboat fell from Royal Caribbean’s Harmony of the Seas while calling on Marseilles, France.

Photo Credit: The Royal Gazette

lifeboat falls from fifth deck of Harmony of the Seas.jpgOne crew member was killed and four others were injured-two critically, after a lifeboat became detached and fell from the fifth deck of the Royal Caribbean Harmony of the Seas during a security drill while the ship was docked in Marseille, France. The lifeboat is estimated to have fallen from a height of approximately 32 feet with the five men inside of it. The man killed is reportedly a 42-year-old man from the Philippines.

The Harmony of the Seas is the world’s largest cruise ship at 1,188 feet from bow to stern it is longer than the Eiffel Tower. The ship is cruising the Mediterranean and is expected to continue its sail to Naples, Italy.

Earlier this year, we reported on a similar accident that occurred aboard the Norwegian Breakaway, which resulted in the death of a crew member and injuries to three other crew members.

Viking Freya Allision with Bridge.jpg
A German River Cruise ship traveling from Erlangen, Germany to Budapest, Hungary with 181 passengers and 47 crewmember onboard struck a low bridge killing two officers navigating the ship from the retractable wheelhouse. According to news reports, the Viking Freya, has a retractable wheelhouse that may be lowered for the ship to pass below low bridges. It appears that at the time of the accident, the wheelhouse was not retracted in time and it allided with the bridge in Erlangen. The two officers were in the wheelhouse and died due to the injuries suffered during the allission. The men killed were 49 and 33 years old and were Hungarian. We extend our deepest sympathies to their families and loved ones.

Rescue workers evacuated the passengers and crew members and transported them to local hotels. The cruise line is giving passengers the option to continue cruising on a modified itinerary or to return home.

Viking and local authorities continue to investigate to find out what happened.

Crewmember-Overboard-Norwegian-Pearl.jpgIt is being reported that a 25-year-old female crew member went overboard from the Norwegian Pearl on the morning of September 8th and is currently missing. The cruise ship, operated by Miami, Florida based, NCL, was navigating through Lynn Canal off the coast of Southeast Alaska when the crewmember went overboard. The crewmember was reported missing from cabin. The ship’s security staff confirmed the crewmember went overboard upon review of the ship’s CCTV surveillance system.

The cruise ship notified the Coast Guard that the crewmember went overboard. The 17th Coast Guard District command center coordinated a search and rescue mission including helicopter crews, response boat crews and the cutter Liberty. The Alaska State Trooper participated in the search with a fixed-wing aircraft. After looking for the crewmember for 42 hours, covering 340 square miles and using 13 different search patterns, the Coast Guard suspended the search at 4:28 p.m. September 10th. The fate of the crewmember is unknown.

Seal.pngA Georgia woman has filed suit against Norwegian Cruise Lines in the U.S. Southern District of Florida alleging she was raped by a bartender of the cruise line while she was a passenger aboard the M/V Norwegian Sky. According to the Complaint, the bartender singled out the woman and plied her with alcohol and/or spiked her beverage.

The woman claims the bartender took her to into an isolated crew-only storage room on deck 12 and shut the door, moments later the bartender entered the storage room and refused to let the woman out despite her repeated pleas. The last event the woman recalled before coming to on deck 11, was the man pushing her head down toward his penis and telling her to be a “good girl.”

Upon coming to the woman claims she was sore in her private parts. She immediately reported the events to a security officer who rather than taking her directly to the infirmary took her to her room and had her drink water and eat while interviewing her. The complaint alleges that crew officials intentionally disregarded rape kit protocols, interfered with the collection of evidence and/or spoliated evidence from the sexual assault and potentially any substance in the alcoholic beverages she consumed.