The Source for Maritime Legal Information

Rivero-19-Killed-in-Boating-Accident-300x199Chance Rivero, a 19-year-old Vero Beach resident was killed Saturday night when the boat he was a passenger of hit a channel marker, ejecting him from it and into the water.  Per the Florida Fish and Wildlife Conservation the boat, the 17-foot Carolina Skiff was carrying six people on board, heading north in the Indian River Lagoon, when it struck an Intracoastal Waterway channel marker a mile south of the Alma Lee Loy Bridge.  After the impact, Rivero was thrown into the water and the boat was able to turn around and pull him out of the lagoon.  Michael Ketcham, 20, was also injured in the mishap sustaining lacerations on his spleen and other potential internal injuries.  Although the accident is still under investigation, it appears to be alcohol related.  We extend our deepest condolences to Rivero’s family and loved ones and wish Ketcham a speedy recovery.

 

Tragedy-Calls-for-Changes-to-DOHSA-300x169

Photo credit: JON LEVY/AFP/Getty Images

On July 17, 1996, at approximately 8:30 p.m., a Boeing 747-131 aircraft, operated by Trans World Airlines as TWA Flight 800, departed from John F. Kennedy Airport in New York City for Rome, Italy, carrying 230 passengers and crew.  As the aircraft flew over the ocean near Long Island, all radio communications abruptly ceased and the flight data recorder stopped recording data. The pilot of an Eastwind Airlines Boeing 737 reported seeing TWA Flight 800 suddenly explode, break apart in mid-flight, and crash in to the sea.  All 230 passengers and crew onboard the aircraft perished.

The TWA Flight 800 tragedy captured the attention of the American public and Congress and ultimately resulted in the passage of what is known as the Commercial Aviation Exception to the Death on the High Seas Act (DOHSA) or 46 U.S.C. § 30307. The Commercial Aviation Exception made damages for loss of care, comfort and companionship, known as nonpecuniary damages, for wrongful death of a decedent recoverable if the death resulted from a commercial aviation accident occurring on the high seas. The stated purpose of the bill was to help ensure that families of airline accident victims would receive fair treatment under the law regardless of where the accident occurred.

Cruise-slip-fall-case-sign-300x225Slip and fall accidents occur with regularity on cruise ships.  One defense that all the major cruise lines assert in such claims is that they did not have the requisite notice that the deck was wet and slippery.

The Notice Defense

In slip and fall cases, the mere fact that an accident occurred or that the deck was slick dose not automatically make the cruise line liable for a passenger’s injuries.  Where a deck becomes wet due to weather or spills caused by non-crewmembers, maritime law requires the injured plaintiff to prove that the cruise line either had notice of the risk-creating condition.  Notice comes in two varieties, “actual” and “constructive” “Actual notice” is when the defendant knows of the risk-creating condition.  “Constructive notice” is when it could be shown that the dangerous condition has existed for such a period of time that a reasonable shipowner would have known the condition was present.  A recent case from the Southern District of Florida exemplifies how an injured passenger can prove a cruise line was on notice of a slippery deck.

Two-Killed-in-Boating-Accident-on-Intracoastal-300x156On Saturday at about 10:30 p.m. a 31-foot catamaran operated by Max Irvine, 36, collided into a 22-foot Twin Vee Center console boat operated by Andre Neves, 37. The two boat operators were friends and had agreed to meet at Bokamper’s Sports Bar & Grill in Fort Lauderdale. According to witnesses, the catamaran was following the Twin Vee at a speed of 40 to 50 mph and it came up behind the Twin Vee, cut from right to left and took out the Twin Vee.  It appears that the Twin Vee was idling as it was approaching the sports bar.  Per rescue crews, the catamaran straddled the Twin Vee.

Neves, the operator of the Twin Vee and Juliana Da Costa Maria, 29, were killed as a result of the crash. Neves died Monday after doctors removed him from life support. Two other passengers of the Twin Vee sustained non-life threatening injuries.  Neves was survived by his wife, Marcia and their son, Logan. A Gofundme page has been set up to raise money for Neves’ medical expenses.  We extend our deepest condolences to the families and loved ones of Neves and Da Costa Maria.  The Florida Fish and Wildlife Conservation Commission continues to investigate the accident.

boating-explosion-300x169On Sunday, three boating incidents in the waters of Broward and Miami-Dade left a total of 11 people hospitalized.

Just after midnight Sunday morning, two boats collided in the Intracoastal Waterway sending four people to the hospital, two of them with life-threatening injuries. Per reports, one of the boats did not have its headlights on. According to a witness, several bottles of alcohol were found inside the boat.  However, it is not clear whether alcohol played a role in the collision.  The four people were transported to Broward Health Medical Center.

In a separate incident, at approximately 9:00 a.m. rescue personnel responded to a boat fire involving a 1988 23′ Donzi at Black Point Marina.  Per reports, the vessel was docked at the marina with seven people on board, including minors and it appears that the engine compartment flashed due to fumes.  One adult and one minor were airlifted to Jackson Memorial Hospital and two other minors were transported by ground to Kendall Regional Medical Center. According to officials the victims suffered serious burns.

Airboat-Accident-kills-UM-Graduate-Elizabeth-Goldenberg-300x168Elizabeth Goldenberg-22, her parents, and sister were participating in an airboat tour operated by The River of Grass Adventures when the airboat they were riding in stopped suddenly throwing them and the captain of the boat off the airboat.  Tragically, Elizabeth was pinned under the boat’s engine cage and died from her injuries at Kendall Regional Medical Center.

Per the captain of the boat, Steve George Gagne, the boat “left the trail and when the vessel returned to the trail, it stopped abruptly.”  The Florida Fish and Wildlife Commission is investigating the accident and is not currently releasing any more information.

This death has deeply saddened the Miami community as Elizabeth had graduated the day prior to the accident at the top of her class.   Rep. Joseph Abruzzo, D-Boynton Beach, whose family member was also graduating, attended the graduation ceremony and has expressed his sadness over Elizabeth’s death. Abruzzo says he plans to speak with the Florida Fish and Wildlife Commission to determine whether safety standards need to be updated and if so he’d be willing to file that legislation next session.

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

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