John Doe v. Royal Caribbean

December 19, 2013

John Doe v. Royal Caribbean

Complaint

Our maritime lawyers fight to protect the rights of injured passengers and crewmembers aboard cruise ships. In this complaint, our cruise ship lawyers bring suit against Royal Caribbean for a heart injury sustained by a crewmember working aboard its ships over a period of years. Lipcon, Margulies & Winkleman, P.A. successfully handled a similar case for an injured Maersk crewmember in the landmark case of Skye v. Maersk Lines, Ltd. If you are a crewmember who suffered injury due to fatigue and/or hazardous working conditions, it is critical that you immediately contact an experienced maritime lawyer like those at Lipcon, Margulies & Winkleman, P.A.

IN THE CIRCUIT COURT OF THE 11^TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.
JOHN DOE,
Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.,
Defendant.
______________________________________/

SEAMAN’S COMPLAINT AND DEMAND FOR JURY TRIAL

COMES NOW, JOHN DOE, by and through undersigned counsel, and hereby sues Defendant ROYAL CARIBBEAN CRUISES, LTD., and for good cause alleges:

JURISDICTION, PARTIES, AND VENUE

1. Plaintiff is a citizen of Saint Vincent, West Indies.

2. Defendant Employer, ROYAL CARIBBEAN CRUISES, LTD. (hereinafter “ROYAL CARIBBEAN”), is a Liberian business entity with its principal place of business in Miami, Florida.

3. This is an action for damages in excess of $15,000.
4. Plaintiff is a seaman within the meaning of 28 U.S.C. 1916 and can file suit without paying the filing fee or costs.

5. Defendant, at all times material hereto, personally or through an agent:

a. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
b. Was engaged in substantial activity within this state;
c. Operated vessels in the waters of this state;
d. Committed one or more of the acts stated in Florida Statutes, §§ 48.081, 48.181 or 48.193;
e. The acts that Defendant set out in this Complaint occurred in whole or in part in this county and/or state.

6. Defendant is subject to the jurisdiction of the Courts of this State.

7. The causes of action asserted in this complaint arise under the Jones Act, 46 U.S.C. §688, and the General Maritime Law of the United States.

8. For nearly a decade Kevern James worked as a waiter onboard various Royal Caribbean cruise ships. He was routinely exposed to excessive working conditions in violation of international law[1], including working twelve hours a day, seven days a week, for upwards of six months at a time. These working conditions and the constant fatigue imposed by Royal Caribbean created physical injuries to Plaintiff’s heart that caused or contributed to Plaintiff suffering two cardiac arrest while working for Royal Caribbean and further necessitated that the Plaintiff receive a pacemaker. Plaintiff’s first cardiac arrest occurred on March 22, 2012. Plaintiff suffered his next cardiac arrest on May 20, 2012. In short, Plaintiff twice died, but was brought back to life both times. Plaintiff could not have learned that Royal Caribbean’s negligence was causing him harm prior to these occurrences.

COUNT I – JONES ACT NEGLIGENCE

Plaintiff realleges, incorporates by reference, and adopts paragraphs one through eight as though originally alleged herein:

9. At all times material, Plaintiff was employed by Defendant as a seaman and was a member of the vessel’s crew. The vessel was in navigable waters.

10. It was the duty of Defendant to provide Plaintiff with a reasonably safe place to work.

11. Plaintiff was injured while working aboard Defendant’s vessels as follows: Reduced manning and other conditions caused excessive work and work hours in direct violation of international law. Each time Plaintiff worked an extended shift or went without rest for a prolonged period of time, it caused a physiological response in his body that damaged his heart.[2] The continuous damage and prolonged exposure to these conditions[3] and the fatigue imposed by Royal Caribbean, caused physical damage to Plaintiff’s heart, such that Plaintiff is no longer able to work as a seamen.

12.Plaintiff’s injuries are due to the fault and negligence of Defendant, and/or its agents, servants, and/or employees as follows:

a. Failure to use reasonable care to provide and/or maintain proper and adequate machinery, crew and/or equipment, causing Plaintiff to work excessive hours creating extreme physical fatigue and sleep deprivation;
b. Failure to use reasonable care to provide Plaintiff a safe place to work;
c. Failure to promulgate and/or enforce reasonable rules and regulations, including but not limited to mandating mandatory rest periods, to ensure the safety and health of the employees and more particularly the Plaintiff, while engaged in the course of his employment on Defendant’s vessels;
d. Failure adhere to adhere to the work hour limitations imposed by the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996, and the Maritime Labour Convention of 2006;
e. Failure to provide adequate instruction, and supervision to crew members and Plaintiff;
f. Failure to limit Plaintiff’s duties and duty time in accordance with generally accepted safe practices;
g. Failure to provide Plaintiff and other crew members who were associated with plaintiff or plaintiff’s work giving rise to this action, reasonable hours of employment so as to not overwork them to the point of not being physically unfit to carry out their duties. Defendant’s employees are overworked to the point of fatigue and physical exhaustion;
h. Defendant failed to learn and apply the common and well known principles of industrial ergonomics on their vessel;
i. Defendant used outmoded work methods and procedures and neglected modern material handling techniques;
j. Defendant failed to train workers adequately;
k. Defendant failed to provide Plaintiff with mechanized aids commonly available in other industries to lessen the physical demands of Plaintiff’s employment;
l. Failure to ascertain the cause of prior similar injuries so as to take measures to prevent their re-occurrence, and more particularly Plaintiff’s injury;
m. Failure to follow sound management practices with the goal of providing Plaintiff a reasonably safe place to work;
n. Prior to Plaintiff’s incident Defendant failed to investigate the hazards to Plaintiff and then take the necessary steps to eliminate the hazards, minimize the hazard or warn Plaintiff of danger from the hazard;
o. In addition, Defendant violated the International Safety Management Code and failed to have a proper, adequate and safe Safety Management System Manual.

All of the above caused the Plaintiff to be injured.

13. Defendant knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that the Defendant in the exercise of reasonable care should have learned of them and corrected them.

14. As a result of the negligence of Defendant, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and his working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. In addition Plaintiff in the past and in the future has lost the fringe benefits that come with Plaintiff’s job, including but not limited to pension, health insurance, found, free food, free shelter, free medical care, free uniforms, vacation, and free airline ticket home and back.

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

COUNT II –UNSEAWORTHINESS

Plaintiff realleges, incorporates by reference and adopts paragraphs one through eight as though originally alleged herein:

15. On or about the previously stated date, Plaintiff was a seaman and a member of the crew of Defendant’s vessel, which was in navigable waters.

16. At all times material hereto, the vessel was owned, managed, operated and/or controlled by Defendant.

17. Defendant had the absolute non-delegable duty to provide Plaintiff with a seaworthy vessel.

18.On or about the previously stated date the unseaworthiness (and unfitness) of Defendant’s vessel was a legal cause of injury and damage to Plaintiff by reason of the following:

a. Failure to provide plaintiff with reasonable hours of employment;
b. Failure to provide plaintiff with reasonable rest and/or hours of sleep; iii. failure to provide plaintiff with adequate manning to perform required tasks;
c. Failure to warn plaintiff of the dangers of reduced manning and sleep deprivation
d. Failure to adhere to international law regarding work hours for seaman; as well as the International Safety Management Code and other applicable international treaties; all of which caused the plaintiff to be injured.
e. The vessel was not reasonably fit for its intended purpose;
f. The vessel’s crew was not properly trained, instructed or supervised;
g. The vessel did not have a fit crew;
h. The vessel did not have adequate manpower for the task(s) being performed;
i. The crew and Plaintiff were overworked to the point of being exhausted and not physically fit to carry out their duties; all of which caused the plaintiff to be injured.

19. As a result of the unseaworthiness of the vessel, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. In addition Plaintiff in the past and in the future has lost the fringe benefits that come with Plaintiff’s job, including but not limited to pension, health insurance, found, free food, free shelter, free medical care, free uniforms, vacation, and free airline ticket home and back.

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

COUNT III – NEGLIGENCE PER SE

Plaintiff realleges, incorporates by reference and adopts paragraphs one through eight as though originally alleged herein and further alleges:

20. Defendant violated one or more safety regulations, designed to protect persons such as Plaintiff, including, but not limited to the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996, and the Maritime Labour Convention of 2006.

21. These treaties are expressly intended to provide for increased safety for seafarers like the Plaintiff by requiring compliance with sufficient standards for safety, including minimum rest requirements and limitations on work hours. These treaties were promulgated for the protection of seafarers, a class, which included the Plaintiff, and against the type of harm which the Plaintiff suffered.

22. Defendant’s violations of these treaties amount to negligence per se.

23. As a direct and proximate result of the negligent and wrongful acts of Defendant in violating said treaties, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. In addition Plaintiff in the past and in the future has lost the fringe benefits that come with Plaintiff’s job, including but not limited to pension, health insurance, found, free food, free shelter, free medical care, free uniforms, vacation, and free airline ticket home and back.

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

COUNT IV – FAILURE TO PROVIDE MAINTENANCE AND CURE AGAINST ROYAL CARIBBEAN

Plaintiff realleges, incorporates by reference, and adopts paragraphs one through eight as though originally alleged herein and further alleges:

24. On or about March 22, 2012 and May 20, 2012, Plaintiff, while in the service of the vessel as a crew member, suffered cardiac arrest. Plaintiff died twice, and was twice brought back to life.

25. Under the General Maritime Law, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendant, until he is declared to have reached maximum possible cure. This includes unearned wages (regular wages, overtime, vacation pay and tips), which are reasonably anticipated to the end of the contract or voyage, which ever is longer. Maintenance and cure is an ongoing obligation of the Defendant from the date of Plaintiff’s injury up through trial and at times beyond, as Plaintiffs are allowed to bring serial lawsuits for maintenance and cure purposes. Although maintenance and cure can be properly terminated at the point when the crew member reaches Maximum Medical Improvement (MMI) and/or Maximum Medical Cure (MMC), it must be reinstated if the Plaintiff suffers a relapse of his condition that once again requires treatment to return the Plaintiff to an MMI/MMC status or if a cure becomes available that was not available to the Plaintiff at the time of the declaration of MMI/MMC. In addition, if an MMI/MMC declaration is challenged by another physician, the conflict must be resolved in favor of the crew member receiving the additional care (treatment/cure) that is recommended.

26. Defendant willfully and callously delayed, failed and refused to pay Plaintiff’s entire maintenance and cure so that Plaintiff has become obligated to pay the undersigned a reasonable attorney’s fee. In addition, Defendant is late in paying the maintenance and cure.

27. Defendant’s failure to pay Plaintiff’s entire maintenance and cure is willful, arbitrary, capricious, and in callous disregard for Plaintiff’s rights as a seaman. As such, Plaintiff would be entitled to attorney’s fees under the General Maritime Law of the United States. Further, Defendant unreasonably failed to pay or provide Plaintiff’s entire maintenance and cure which aggravated his condition and caused Plaintiff to suffer additional compensatory damages including, but not limited to, the aggravation of Plaintiff’s physical condition, disability, pain and suffering, reasonable fear of developing future physical and medical problems, mental anguish, loss of enjoyment of life, feelings of economic insecurity as well as lost earnings or earning capacity, and medical and hospital expenses in the past and into the future.

WHEREFORE, Plaintiff demands all damages entitled by law, attorneys fees and demands jury trial of all issues so triable.

COUNT V – FAILURE TO TREAT

Plaintiff realleges, incorporates by reference and adopts paragraphs one through eight as though originally alleged herein and further alleges:

28. On or about March 22, 2012 and May 20, 2012, Plaintiff was employed by Defendant as a seaman and was a member of Defendant’s vessel’s crew. The vessel was in navigable waters.

29. It was the duty of Defendant to provide Plaintiff with prompt, proper and adequate medical care.

30. Defendant, through the ship’s physicians and nurses and/or the shore-side medical facilities that Defendant sent Plaintiff for treatment, negligently failed to provide Plaintiff with prompt, proper, adequate, and complete medical care. This conduct includes, but is not limited to:

a. Defendant not providing the Plaintiff adequate medical care and medical management after his initial cardiac arrest, including sending Plaintiff back to work too soon despite not being able to diagnose the cause of Plaintiff’s sudden cardiac arrest; and/or
b. After Plaintiff’s second cardiac arrest and the surgical implant of a pacemaker, Defendant discontinued providing medical care to Plaintiff when that pacemaker later failed. Defendant cut off Plaintiff’s medical care despite the recommendation of Plaintiff’s doctor; and/or
c. Despite the failure of Plaintiff’s pacemaker and the prescription of certain medications and ongoing medical management and follow-up, the Defendant has refused to provide same; and/or
d. Defendant not providing the Plaintiff the complete, ongoing and comprehensive medical care he needs to treat his condition.

31. As a direct and proximate result of Defendant’s failure, Plaintiff suffered additional pain, disability and/or Plaintiff’s recovery was prolonged. In addition, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred additional medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

LIPCON, MARGULIES, ALSINA & WINKLEMAN P.A
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Fax: (305) 373 – 6204

By: s/ Eric C. Morales
ERIC CHARLES MORALES
FL BAR NO.: 91875

Dated: December 19, 2013

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[1] Such law includes the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996, and the maritime labour convention of 2006.

[2] This physiological change can be compared to death by a thousand pin pricks. Each such pin prick was a physical impact on Plaintiff’s body causing injury, and the cumulative effect of this repeated impact ultimately caused Plaintiff’s two cardiac arrests.

[3] That as noted above were in violation of international law.