Admiralty & Maritime Law Articles
- What every cruise ship passenger needs to know
- Sick or Injured Union Seaman's Maintenance Rate Set Out in a Collective Bargaining Agreement With the Employer Subject to Change by the Court, Maybe.
- Non Seaman Can Sue for Wrongful Death Due to Negligence That Occurs in Territorial Waters.
- A Seaman May Not Be Held Contributorily Negligent For Carrying Out Orders That Result In Injury, Even If The Seaman Recognizes Possible Danger And Does Not Delay to Consider Safer Alternative.
- Burden Of Proof On Shipowner To Prove Unequivocally That Seaman Did Not Need Surgery Where Two Doctors Had A Difference Of Opinion On The Need For Surgery.
- Where Cruise Line Passenger is Mentally Incompetent the One-Year Ticket Limitation to Bring Suit Does Not Apply in Place of the Standard Admiralty Three-Year Statute of Limitations
- Receipt of Collective Bargaining Agreement Disability Benefits Ratifies the Applicability of the Agreement to a Non-Member of the Union.
- Who is a Seaman?
- Fifth Circuit Court of Appeals Boldly Goes Where No Court Has Gone Before on the Issue of a Seaman's Maintenance Rate Including Seaman's Full Mortgage Expense
What Every Cruise Ship Passenger Needs To Know
The average person about to embark on a dream cruise ship vacation never thinks about the things that can go wrong. Fortunately, in the vast majority of cruises things go right which is why cruise ship vacations are growing at a phenomenal pace.
Things to Keep in Mind
- The ticket: You will receive a multi-page ticket with extremely small print that virtually no one ever reads. Read it. Some very important rights are affected by this ticket. If you become sick or injured due to the fault of the shipping company a lawsuit must be filed within one year or you are out of luck. Many people, including many lawyers, miss this provision in the ticket. After one year, you are out of luck. There are a few exceptions which only apply in rare instances.
- Applicable law. On the cruise ship, don't think that you are in the United States. Look at the flag of the vessel. If it is Bahamian, you are in the Bahamas. If it is Panamanian you are in Panama. There are certain exceptions to this, but not many.
- Medical care. Just because the doctor wears a nice uniform and works in the ship's hospital, don't assume he really knows what he is doing. If you have a medical condition research the standards of the shipping company that you are sailing with. Some are better than others. If you have a heart condition, you don't want to be on a ship that uses psychiatrists, as an example, as a ships doctor.
- Crimes. These occur on ships just like anywhere else. Be aware that the same crimes that occur on land can occur on a ship. Be tuned into this so that you do not become a victim. The same goes for your children. Make sure that they are never alone and under supervision. Sexual assaults against children occur even at a young age. Both boys and girls. Don't just open your cabin door without knowing who is there. Don't leave your cabin unlocked. Don't take your safety for granted.
- If something does go wrong, do not think the shipping company is motivated solely to help you. Their first instinct is to protect themselves. They will gather evidence to use against you many times. You can protect yourself by taking photographs. Get the names, addresses, and telephone numbers of all possible witnesses. Call your attorney from the high seas if necessary. Ask your attorney to find you an experienced admiralty attorney immediately to get advice on what you should do.
- Where to file suit. The cruise line ticket can specify where suit has to be filed. Most of the large cruise lines specify Miami, Dade County, Florida. If suit is filed in the wrong location and one year has gone by, you could be thrown out of court and it will be too late to file in the correct location.
These are just a few matters to keep in the back of your mind. Hopefully, you will not have to worry about any of these things. However, it is better to be aware of your rights than to stick your head in the sand.
Sick Or Injured Union Seaman's Maintenance Rate Set Out In A Collective Bargaining Agreement With The Employer Subject To Change By The Court, Maybe.
Robert Durfor bought an action for Jones Act damages for back injuries he allegedly sustained while working on a vessel in DUFOR v. - K-SEA TRANSPORTATION CORP. In addition Dufor sued for maintenance which is money for his food and shelter while sick or injured during the period of time that medical care is being received. Dufor moved for an increase in his maintenance since he could not afford to live on $15 a day. Dufor was in a union that had a collective bargaining agreement in effect which limited the amount of maintenance that Dufor was to receive. Dufor requested the Court award him for money for food and shelter greater than the $15 daily amount set out in the union's agreement with Dufor's employer.
The court ruled in Dufors favor and awarded $27.12 daily.
This is a very interesting case because the courts around the country are divided on whether to enforce a low maintenance rate in a collective bargaining agreement. The employers argue that the collective bargaining agreements provide other benefits and that the maintenance rate needs to be considered in context with the entire agreement. On the other hand a sick or injured crew member cannot afford to live on $15 a day and winds up getting hand outs, borrowing money, or going on welfare. At the moment of the seamanºs greatest need, the collective bargaining agreement provides for the least amount of benefits. This has created many problematic situations. The seaman's unions need to be sensitive to their members needs who cannot work when negotiating these agreements, since most courts in the United States enforce them. The ship owner or employer should be more sensitive to paying a decent maintenance rate, since the suffering of the seaman can result in higher damage awards for related Jones act and unseaworthiness claims.
Non Seaman Can Sue For Wrongful Death Due To Negligence That Occurs In Territorial Waters.
The mother of Christopher Garris in NORFOLK SHIPBUILDING & DRYDOCK CORPORATION v. CELESTINE GARRIS, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER GARRIS, DECEASED No. 00-346 SUPREME COURT OF THE UNITED STATES 121 S. Ct. 1927; 2001 U.S. LEXIS 4125sued for the death of her son after he sustained injuries on April 8, 1997, that caused his death one day later. The injuries were suffered while Garris was performing sandblasting work aboard the USNS Maj. Stephen W. Pless in the employ of Tidewater Temps, Inc., a subcontractor for Mid-Atlantic Coatings, Inc., which was in turn a subcontractor for Norfolk Shipbuilding & Drydock Corporation. The injuries were caused by claimed negligence. Because the vessel was berthed in the navigable waters of the United States when Garris was injured, federal admiralty jurisdiction was claimed and damages under general maritime law andthe Virginia wrongful death statute were sought.
The District Court dismissed the complaint for failure to state a federal claim, for the reason that "no cause of action exists, under general maritime law, for death of a nonseaman in state territorial waters resulting from negligence. The United States Court of Appeals for the Fourth Circuit reversed and remanded for further proceedings, explaining that although this Court had not yet recognized a maritime cause of action for wrongful death resulting from negligence, the principles contained in in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970), made such an action appropriate. 210 F.3d 209, 211 (2000). The United State Supreme Court took the case and ruled that a claim could be made for death of a non seaman in territorial waters due to negligence.
This decision is very logically as it extends a prior decision in which only the doctrine of unseawothiness was involved. However the concepts are basically the same and as such the U.S. Supreme Court has extended further protection to non seaman.
A Seaman May Not Be Held Contributorily Negligent For Carrying Out Orders That Result In Injury, Even If The Seaman Recognizes Possible Danger And Does Not Delay To Consider A Safer Alternative.
In SIMEONOFF v. HINER and CLAREHINER the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 2001 U.S. App. LEXIS 8518; 2001 Cal. Daily Op. Service 3621;2001 Daily Journal DAR 4461 the court dealt with an extremely important issue, that being under what circumstances would a seaman be negligent for following an order that put the seaman in danger. At sea, there is no time for a seaman to leisurely consider the safety of orders that are received. If each seaman were charged with that duty, chaos could follow. If seaman could pick and choose which orders to follow, orders would lose their meaning.
John Simeonoff injured his foot while crab fishing on a commercial vessel, the F/V SAGA ("SAGA"). Simeonoff brought a claim pursuant to the Jones Act, 46 U.S.C. § 688 et seq., and general maritime law against the SAGA and ship owners, Clare and Todd Hiner ("Hiners") claiming negligence and unseaworthiness. After a bench trial, the district court found the SAGA and the Hiners seventy percent negligent and Simeonoff thirty percent negligent. The court found $163,500 total damages and, reducing that by thirty percent, awarded $114,450 to Simeonoff.
On appeal Simeonoff argued that the district court erred in finding appellant contributorily negligent. The appeals court reversed the district court's judgment on this issue. The court found that Simeonoff could not be held contributorily negligent for responding to an urgent, yet general, call to the vessel's crew for assistance; therefore, the district court clearly erred by reducing his monetary award based on a finding of contributory negligence
The appeals court commented on this issue as follows:
"When given any order, a seaman might be aware of potential injury if the order is followed, but reasonably might sacrifice personal safety for the good of the ship or crew. An order given from superior to seaman on the open sea should constitute the result of the superior's consideration of risk to the seaman balanced against the value of the task to the safety and mission of all. It is more reasonable for a seaman to follow an order without assessing alternatives than to weigh alternatives beyond the immediate order. To assess alternatives is to second-guess a superior's assessment of the situation. Disruption of the chain of command at sea, and delays by seamen in executing orders, may imperil crew and vessel."
The court went on to point out that a seaman could still be negligent under certain circumstances. The issues raised by this case are important to ship owners since they must give orders that will not result in injury to their seaman. The case is important to seaman who can follow their orders without having to stop and have a debate with themselves or others about the risks involved.
In the end, a vessel at sea must have discipline because ultimately the safety of all aboard could be involve with respect to any given order.
Burden Of Proof On Shipowner To Prove Unequivocally That Seaman Did Not Need Surgery Where Two Doctors Had A Difference Of Opinion On The Need For Surgery.
Luigi Malta was injured while working on a ship owned by the Defendant United States of America. After plaintiff Malta received treatment, defendant USA's doctor declared that Mr. Malta had achieved maximum medical cure. A second doctor disagreed as to no further medical care being needed and recommended a second operation on plaintiff's knee. Plaintiff sued, seeking maintenance and cure benefits based on the second opinion as to the need for surgery.
The case was tried to the court in Malta v the United States 2001 U.S. Dist. LEXIS 4769 (March 30, 2001). Both doctors testified during the bench trial. The court found that both were credible and that they simply had a difference of opinion.
Thus, relying on defendant's burden to prove unequivocally that plaintiff had reached the maximum medical cure, the court found for plaintiff. Plaintiff's expert testified that he hoped a second surgery on plaintiff's knee would both alleviate plaintiff's pain and improve the functioning of plaintiff's knee. Since the surgery was not to be merely palliative, plaintiff was entitled to receive maintenance and cure.
Equally strong evidence supported each party's position; thus, the outcome turned on who bore the burden of proof. The burden, and thus the loss, fell on defendant.
The principals applied in this decision are extremely important both to ship owners and to seaman. A seaman should get a second opinion from another doctor in those situations where he or she feels that they have not made a satisfactory recovery. Ship owners and employers of seaman should follow the suggestions of the doctor giving the second opinion even if they disagree with the primary doctors opinion. A ship owner that willfully and arbitrarily fails to provide a seaman with full maintenance and cure could be liable for the seaman's attorney's fees and in some jurisdictions, punitive damages.
Where Cruise Line Passenger Is Mentally Incompetent The One-Year Ticket Limitation To Bring Suit Does Not Apply In Place Of The Standard Admiralty Three-Year Statute Of Limitations
In BOEHNEN vs. CARNIVAL CRUISE LINES, INC., CASE NO. 3D99-2001 COURT OF APPEAL FLORIDA, THIRD DISTRICT 2001 Fla. App. LEXIS 2487; 26 Fla. L. Weekly D 666, the issue of the statute of limitations for an action by a mentally incompetent against a cruise lines was raised. By statute, a cruise line with a properly worded ticket can limit the time for the filing of a lawsuit to a period of not less than one year. Normally the statute of limitations for an admiralty action would be 3 years. However almost every, if not every, cruise line uses a one-year limitation.
On September 10, 1995, Tonya Boehnen accompanied her mother Vivian Boehnen on a seven-day cruise aboard Carnival's cruise ship "Sensation." At the time of the cruise, Tonya was a nineteen-year-old mentally handicapped young woman with the intellectual capacity of a fourth grade student. During the cruise, Froilan Mariano, a thirty-seven year old entertainer employed by Carnival, sexually assaulted Tonya. As a result, Tonya became pregnant and, in June 1996, gave birth to a boy.
On September 10, 1998, Tonya brought suit against Carnival, in her own capacity, alleging breach of contract of carriage and vicarious liability for sexual assault and battery. The trial court dismissed the claims as time barred due to a provision in the ticket, which required any action against Carnival be brought within one year of the alleged injury. Vivian then had Tonya formally declared incompetent, had herself appointed as limited Guardian, and filed an amended complaint on Tonya's behalf on March 29, 1999. The trial court held that the action was still time barred and dismissed the amended complaint with prejudice.
The appellate court reversed the dismissal of the law suit on the basis that the statute that allows for a shortened limitation period of one year was not applicable to a mentally incompetent persons when no legal guardian has been appointed by reason of 46 U.S.C. § 183b. The court held that since the mentally incompetent filed suit within three years, it was timely, even though a guardian was not appointed until after the three-year period.
The lesson to be learned from this case is that when dealing with a situation where a guardian or representative has to be appointed the one-year ticket limitation may not apply. It might be that the court was looking for a way to help the mentally incompetent passenger. The next court might not be so understanding. As such, the safest course of action would be to have the representative appointed and suit brought within one year.
Receipt Of Collective Bargaining Agreement Disabiliity Benefits Ratifies The Applicability Of The Agreement To A Non Member Of The Union.
On January 14, 1995, plaintiff, Andrezj Sawicki ("Mr. Sawicki"), a citizen and resident of Poland, was injured while serving as the first engineer aboard the M/V STAVANGER PRINCE, a Norwegian flag vessel. The accident occurred as Mr. Sawicki was replacing the cams on the main engine. Specifically, Mr. Sawicki was tapping on the cams when a metal splinter lodged into his left eye, causing damage to his retina. When the vessel reached New Orleans, Mr. Sawicki underwent surgery to remove the piece of metal lodged in his eye and to reattach the retina. After surgery, Mr. Sawicki was instructed to keep his head in a facedown position for a month in order for the retina to reattach. The eye injury has caused the Polish Government to classify Mr. Sawicki as thirty-five (35%) percent permanently disabled. At the time of the accident, the M/N STAVANGER PRINCE was in international waters approximately 30 miles off of Galveston.
The M/V STAVANGER PRINCE is owned by KS Stavanger Prince, a Norwegian partnership, and managed by DSD Shipping ("DSD"), a Norwegian corporation. Mr. Sawicki was employed for three contractual periods of engagement covering a period of three years (1993, 1994, and 1995). Mr. Sawicki's 1995 employment contract, the contract at issue, explicitly incorporated a collective bargaining agreement. Specifically, line 10 on the employment contract states:
"wages/overtime pay and other conditions according to collective agreement between ASO[*3] and POLISH SEAMEN UNION." n1
Further, Section 11 of the employment contract states:
NORWEGIAN LAW APPLIES:
This agreement is subject to Norwegian law and the jurisdiction of the courts in Norway.
The contracts of engagement between the Company and the seafarers shall have provisions which indicate that the contracts of employment are subject to Norwegian law and jurisdiction of Norwegian Courts. Legal action against the Company concerning an employee's service on board the vessel, may, however, be brought either in the courts of Norway or in the courts of the country where the employee is domiciled.
On August 26, 1996, DSD paid Mr. Sawicki $10,800.00 in disability compensation pursuant to the collective bargaining agreement. On January 13, 1998, Mr. Sawicki filed suit against K/S Stavanger Prince and its insurer, Assuranceforeningen Skuld, alleging that K/S Stavanger Prince committed an intentional or negligent tort in Louisiana. Mr. Sawicki obtained quasi-in-rem jurisdiction by way of a non-resident writ of attachment on the M/V STAVANGER PRINCE. On January 15, 1998, the M/V STAVANGER PRINCE was released after the defendants' posted $750,000.00 in security.
The trial court ruled that the case filed in Lousiana was in the wrong forum and that the case should have been brought either in Norway or in Poland pursuant to the collective bargaining agreement.
On appeal Mr. Sawicki argued that the collective bargaining agreement did not apply to him since he was not a member of the union that entered into the agreement. The appellate court rejected this argument, since Mr. Sawicki had collected disability benefits under the collective bargaining agreement and by accepting those benefits had ratified the applicability of the agreement to him. ANDREZJ SAWICKI VERSUS K/S STAVANGER PRINCE AND ASSURANCEFORENINGEN SKULD NO. 99-CA-1459, COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT, 99-1459 (La.App. 4 Cir, 12/27/00); 2000 La. App. LEXIS 3545 December 27, 2000
The injuries suffered by Mr.Sawicki under United States Maritime law would have been worth significantly more money that he received under the collective bargaining agreement. Had Mr. Sawicki not taken the disability payments he could have stayed in the courts of the United States. Although the case report does not indicate whether or not Mr. Sawicki was aware that he was making that choice when he accepted the disability benefits. Most likely he just took what was offered to him without checking out the ramifications. This is an example of that old saying, "Be careful what you ask for, you might get it."
Who Is A Seaman?
By Charles R. Lipcon
Seamen enjoy the protection of specific laws that apply exclusively to them, such as the Jones Act, the doctrine of seaworthiness and maintenance and cure. In practical terms, this usually means more money is awarded to sick or injured workers if they are classified as seamen, as opposed to other categories such as passengers, longshoremen or harbor workers.
The seaman status issue was recently raised in the case of "Re: In the Matter of the Complaint of Endeavor Marine, Inc., United States Court of Appeals for the Fifth Circuit" 2000 U.S. App. Lexis 31624 December 11, 2000.
On April 4, 1996, Kevin Baye sustained disabling knee and back injuries when he was struck by a mooring line while working aboard the Frank L. Baye was an employee of Crane Operators, Inc., a company that provided personnel on an as-needed basis to businesses that own or operate cranes and other heavy lift equipment.
The accident occurred in the Mississippi River while the tugboat Tako Endeavor was pushing the Frank L alongside a cargo vessel that the Frank L was assigned to unload. Baye was standing near the head of the Frank L waiting for the barge to be positioned so he could pass a mooring line to the deck hands aboard the cargo vessel. While being pushed into position by the Tako Endeavor, the stern mooring cable of a nearby derrick barge, the Agness, snagged on the Frank L's hull. The line snapped and popped up onto the deck of the Frank L striking Baye in the leg.
Baye brought suit under the Jones Act. The Trial Court determined he was not a seaman because the vessel he was working on did not go to sea. This would have limited Baye's recovery of funds to Longshoreman and Harbor Workers Act benefits. Baye maintained he was not a longshoreman or harbor worker, but a seaman.
Courts use a two-part test to determine if a worker is a seaman. First, an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission; second, a seaman must have a connection to a vessel in navigation, or to an identifiable group of such vessels, that is substantial in terms of both its duration and nature. Baye's employment clearly satisfied the first part of the test, but the second part was troublesome.
Faced with a worker whose primary duties aboard the vessel were in the nature of longshore work, the court concluded that Baye's connection to the Frank L was not substantial in terms of its nature because his duties did not carry him to sea.
Fortunately for Baye, the appellate court reversed the trial court determination, basing its decision on whether or not Baye was regularly exposed to the perils of the sea, as opposed to whether or not his duties carried him to sea. Even though the vessel was not going to sea, per se, Baye as a worker on the vessel was exposed to the hazards that are common to workers on board vessels, such as mooring lines that could snap and cause injury.
In admiralty matters, The Fifth Circuit Courts of Appeals decisions are very persuasive since this court has a long tradition of handling these types of cases. However the final say may be up to the United States Supreme Court if the case goes to the next level.
In recent years the issue of seaman status has appeared often. Some decisions even go into what percentage of time the employee spends on the vessel. Generally, these cases indicate that more than 30% of the time spent on the vessel doing seaman's work qualifies the person as a seaman. These issues can be quite confusing, with the final outcome left to a jury to decide, or a judge if there is no jury. As a practical matter for those workers who labor for their employer both on land and on a vessel, some type of record should be kept to track the amount of time spent on land-based work versus vessel-based work. After an accident it can be very difficult to reconstruct this information, which could translate into the loss of substantial amounts of money and other benefits.
Fifth Circuit Court Of Appeals Boldly Goes Where No Court Has Gone Before On The Issue Of A Seaman's Maintenance Rate Including Seaman's Full Mortgage Expense
In HALL and STUART v NOBLE DRILLING (U.S.)INC.; NOBLE DRILLING SERVICES, INC., 2001 U.S. App. LEXIS 2149 (C.A. 5th Circuit) February 14, 2001, a landmark appellate decision was handed down on the issue of maintenance including a seaman's full mortgage payment.
Both Hall and Stuart worked on offshore rigs when they were injured. Suits were filed which included claims for maintenance. The cases were consolidated for a trial on the issue of the daily maintenance rate. Maintenance is money that an injured seaman receives for food and shelter until the point of maximum medical improvement is declared.
Both Hall and Stuart lived with their families and both were obligated to pay the full mortgages for their houses. The shipping companies argued that the mortgage payments should be prorated with the other family members and only that portion applying to the seaman included in the maintenance rate. The appellate court rejected this position and reasoned that would result in a seaman who lived alone in a large home getting one hundred percent of his mortgage but that a seaman who lived with family in a small home and for whom prorating was applied receiving much less even though the smaller home had a much smaller mortgage than the larger home.
Also the appellate court indicated that prorating would cause problems if a new child was born or part of the family moved out. Different prorating would have to be done based on the number of people in the house, which would add to the difficulty in establishing a daily maintenance rate.
The appellate court noted that if the full mortgage payment were not paid the seaman would lose his house.
The court in defining lodging stated. "Lodging" includes expenses "necessary to the provision of habitable housing," such as heat, electricity, home insurance, and real estate taxes.... Other expenses, such as telephone service, clothing, toiletries, and travel, are not part of maintenance."
Therefore the maintenance rate could include some other items besides the mortgage payment.
The court noted that prorating might be appropriate in the following circumstances:
"Costs of heat, electricity, and water, to the extent such expenses vary with the number of people in the household, can be prorated. But to the extent that additional family members do not increase a seaman' s expenses, proration would not be appropriate. For example, the costs of heating a home may be lower when more people occupy the same space."
All in all, this is a very good decision for seaman. Unfortunately it does not apply in those circumstances where there is a union and a collective bargaining agreement. These collective bargaining agreements typically limit maintenance to $8 a day. This is a totally unreasonable amount of money and is carried over from rates that were agreed to in the 1950's.
Injured seaman should gather up their housing expenses including mortgage payments, electricity, water, gas, insurance, property taxes and submit them to their employer. The employers should look into whether or not these expenses are increased to the presence of other family members.