The Source for Maritime Legal Information

Tampa-Yacht-Injury-Attorney-300x200An interesting decision was issued from the Federal Middle District of Florida involving a yacht captain’s personal injury lawsuit.  In this case, the captain filed a lawsuit in Florida state court asserting claims against his employers for Jones Act negligence, failure to provide him with a seaworthy vessel and failure to providing him with maintenance and cure benefits.  As part of the complaint, the seaman also demanded that a jury decide all factual issues.  Not wanting to have a state court judge and jury decide the case, the employers filed a declaratory judgment action in Federal court seeking a Federal judge, without a jury, decide whether the seaman waived his right to bring a Jones Act and maintenance and cure claim by signing an employment contract which contains a Marshall Islands law provision.  The yacht captain moved to dismiss the Federal declaratory judgment action arguing that the court should not accept jurisdiction and allow the action to proceed in state court.

The Declaratory Judgement Act

The Declaratory Judgment Act gives Federal District Courts discretionary jurisdiction to accept a claim to declare the rights and obligations between parties in cases of which it would have original jurisdiction.  Since a seaman’s contract is considered a maritime contract, a Federal court would have original jurisdiction to hear the case.  A Court considers several factors in determining whether it should exercise its discretion when there is a pending parallel litigation.  These factors include: (1) the strength of the state’s interest in having the issues raised in the federal declaratory action decided in the state courts; (2) whether the judgment in the federal declaratory action would settle the controversy; (3) whether the federal declaratory action would serve a useful purpose in clarifying the legal relations at issue; (4) whether the declaratory remedy is being used merely for the purpose of “procedural fencing”—that is, to provide an arena for a race for res judicata or to achieve a federal hearing in a case otherwise not removable; (5) whether the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction; (6) whether there is an alternative remedy that is better or more effective; (7) whether the underlying factual issues are important to an informed resolution of the case; (8) whether the state trial court is in a better position to evaluate those factual issues than is the federal court; and (9) whether there is a close nexus between the underlying factual and legal issues and state law and/or public policy, or whether federal common or statutory law dictates a resolution of the declaratory judgment action.  In addressing eight of the nine factors, the Federal Court determined that it should not accept jurisdiction.

Passenger-Overboard-Royal-Caribbean-Cruise-Ship-300x225In July 2010, Congress passed the Cruise Vessel Security and Safety Act (“CVSSA”); legislation designed to improve the security and safety of passengers aboard cruise ships.  Under the CVSSA, vessels are required “to integrate technology that can be used for capturing images of passengers who have fallen overboard, to the extent that such technology is available.”  Such requirements were to take effect 18 months after the date of the enactment of the CVSSA on or about January, 2012.  To date it is clear that cruise lines have been resistant to implementing man overboard systems.  Since the enactment of the CVSSA, there have been approximately 143 persons reported to have fallen overboard from cruise ships.  In 2017 alone, there have been 11 reported cases.

Cruise lines such as Celebration Cruise Line, claim that the Coast Guard does not enforce the CVSSA § 3507(a)(1)(D) provision and therefore compliance is optional.  Varner v. Celebration Cruise Operator, Inc., 2016 U.S. Dist. LEXIS 137588 (S.D. Fla. Sept. 30, 2016).  Disney Cruise Line is the only major cruise company that appears to have integrated an automatic man overboard system while most cruise lines still only rely on safety railings, unmonitored surveillance cameras, eyewitness accounts, and reports by family members or others that a person is missing.  Automatic man overboard systems notify the crew when a person has fallen overboard and are equipped with radar and sensors to establish a perimeter around a ship. In the absence of automatic systems, by the time a person is reported missing and a search of the ship is completed including review of closed-circuit TV video, critical time has passed, often many hours, making it practically impossible to find people that have gone overboard.

Two incidents in the past week involving passengers going overboard of cruise ships, show the difference an automatic man overboard system can make.  On May 5, 2017, a 61-year-old American man who was travelling alone on-board the Golden Princess cruise ship during a 13-day sailing through the South Pacific went missing.  A steward became concerned about the man’s whereabouts and a thorough search of the cruise ship including review of the CCTV video failed to find the man.  Thus, the incident is being treated as a man overboard incident.

On May 4, 2017, a man went overboard during a four-night sailing through the Bahamas on-board the Disney Dream.  The man went overboard in the early evening and it was immediately noticed by the staff on the ship.  Per reports, the U.S. Coast Guard arrived about 45 minutes later and the man was rescued after about 90 minutes and provided medical attention.

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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

Boat-Sinks-300x225Although Florida’s boating season lasts practically all year, the traditional start of boating season is marked by National Safe Boating Week in or about the end of May each year.  Despite not officially starting yet, Miami-Dade Fire Rescue personnel have reported an increase in calls dealing with incidents out in the water.

Over the weekend in South Florida alone, there were several water related incidents including the drowning of two men due to rip currents.

On Saturday morning, three fishermen were rescued when their boat sank near Key Biscayne.  The men managed to call 9-1-1 from a cell phone they had packed in a plastic jar and which floated to them as they were clinging to a beer cooler.   None of the victims were wearing life jackets when they were rescued from the water.  The rescue took place Saturday morning with the assistance of a U.S. Coast Guard helicopter and a diver who stayed with the group until a Miami-Dade Police boat arrived.

The Carnival Sensation, a 855 foot cruise ship, returned to the Port of Miami Sunday Morning after a passenger fell ill.  The ship started its voyage the day before was approximately 90 miles from port when a crewmember alerted the Coast Guard and Miami-Dade Fire Result of the medical emergency.   The Sensation arrived near the Port of Miami where the passenger and two family members attempted to disembarked onto a rescue boat.  However, the sea conditions where too rough in open waters.  The cruise she then entered Government Cut, where the transfer took place in calmer waters.  After the passenger disembarked, the cruise ship returned to its scheduled voyage. There has been no update on the passenger’s condition.

boatrunsoverscull-300x22916-year-old Dominic Pagan of West Palm Beach was injured late Friday when a 32-Foot motor boat operated by Jay Vass ran over the scull which Pagan and his racing partner were rowing.  Pagan is a skilled rower recently placing seventh in a state rowing competition.

Vass admitted he did not see the dark-hulled scull and had no idea he had hit anything until he saw the scull’s hull sticking out of the water against his boat.  Vass immediately cut the engines and pulled Pagan onto his boat.

The impact of the collision trapped Pagan in the shell beneath the 32-foot boat and sent Pagan’s racing partner, Jonathan Blecher 16, about eight feet into the water.

Windsurfer-Killed-in-Crash-1-300x247
According to the Florida Fish and Wildlife Conservation Commission, Dr. Thomas Connelly, a 68-year-old man and resident of Stuart, Florida in Martin County was windsurfing and heading south on the east side of the Stuart Causeway.  Bobby Ray Hall Jr., a 50-year-old man of Little River, South Carolina, was driving a 21-foot Sea King center console boat heading southwest toward the causeway from the eastside of the water way and was accompanied by a 12-year-old boy.

While traveling about a half-mile north of the causeway, the windsurfer and the vessel collided.  The operator of the vessel, Mr. Hall stopped and pulled Dr. Connelly out of the water and began administering CRP while returning to the Indian River Plantation dock.   Thereafter, Dr. Connelly was transported to Martin Memorial North Hospital, where he died.

Per news sources, Dr. Connelly was a dermatologist practicing skin cancer surgery and he reportedly treated over 75,000 cases of skin cancer.  Dr. Connelly is also described as a pillar of the Stuart community.

A 5-year-old boy nearly drowned in a South Florida Apartment Complex pool.  The incident happened on April 14th at a new apartment complex on Paseo Boulevard in downtown Doral, a city within Miami-Dade County.  Paramedics responded and found the child in full cardiac arrest. Lt. Felipe Lay of Miami-Dade Fire Rescue said that when they arrived a person had already performed cardiopulmonary resuscitation on the boy.  First responders, however, had to revive the child from unconsciousness.  The boy was transported him to Palmetto General Hospital for further care.  The police are investigating the incident.

Coast-Guard-Assists-in-Medical-Evacuation-of-71-year-old-Woman-off-Carnival-Ecstasy-300x200A 71-year-old woman slipped onboard the Carnival Ecstasy sustaining a head injury that required her to be medevaced.  The U.S. Coast Guard deployed a helicopter to assist in her medical evacuation.  The vessel was 75 miles off the Florida coast at the time and on its return to its home port of Charleston.

The passenger and an onboard nurse are reported to have been hoisted on to the hilicopter and were flown to a Florida hospital.  A passenger of the Carnival Ecstasy is recovering after suffering a head injury during the ship’s return to its home port of Charleston.

Copyright 2017 WCSC.

Media has reported two separate medevac situations involving the Royal Caribbean cruise ship Grandeur of the Seas occurring over a two week period.  The first incident occurred on March 29th and involved a 70-year-old male passenger who experienced abdominal pains.  Upon reporting the incident to the Coast Guard, a MH-60 Jayhawk helicopter along with a C-130 aircraft departed from Air Station Elizabeth City, North Carolina.  The air team met the cruise ship approximately 150 miles Cape Hatteras, North Carolina.  The passenger was hoisted onto the helicopter then taken to New Hanover Regional Medical Center in Wilmington, NC.

The second incident occurred on April 8th.  This time an 80-year-old male passenger collapsed while the cruise ship was near the Maryland coast.  Coast Guard Station Annapolis launched a 45 foot cutter to intercept the cruise ship.  The passenger, his family and ship medical personnel boarded the rescue boat and were transferred to the Coast Guard Station where emergency response crews were waiting.  Upon arriving ashore, the man was transferred to Anne Arundel Medical Center.  Maryland State Police assisted in the rescue.

Launched in 1996, the Grandeur of the Seas is 915-foot cruise ship which has the capacity of carrying 2,446 passengers and 760 crew.  The cruise ship is conducting regular cruises from Baltimore, Maryland.  The current status of the two passengers are unknown at this time.