Our Jones Act lawyers here at LM&W have often reported on several cases where cruise ship crew members have been denied their right to justice following an accident, injury, or illness stemming from a ship operator’s negligence. Prior to the enactment of the Jones Act, seafarers who sustained injuries while in the service of their vessel could only do so if the injuries were caused by the “unseaworthiness of the ship”. However, if the injuries were sustained because of the negligent actions of the ship’s master or other crew members, seamen were prohibited from recovering damages. The Jones Act has radically changed the way seamen’s rights are protected, but even then, there are times when those rights are challenged.
Recently, Carnival Cruise Line’s employment contracts have come under scrutiny, as one crew member takes his case to the U.S. Supreme Court. The employee, Vitalii Pysarenko, a Ukrainian national, hurt his back while working on the Carnival Dream in 2010. According to Pysarenko, he was required to perform heavy lifting on his own without appropriate safety equipment. Carnival avoided liability under the Jones Act by using an arbitration clause in its employment contract that requires cases to be tried in London, Monaco, Panama City, or Manila.
In particular, Carnival has asked that the case be heard under Panamanian law. Unfortunately, the law in Panama currently doesn’t supply that same benefits to workers under the Jones Act. Aside from the aforementioned benefits, crew injured at sea during the course of their employment can use the Jones Act to seek damages against their employers, even if the ship was located in international waters when the injury occurred. Yet, Carnival is fighting to avoid responsibility.
Our Jones Act lawyer, Carlos Felipe Llinás Negret, is representing a group of nearly 600 former cruise ship crew members who have filed amicus briefs in support of the worker, alleging they were forced to work without gratuities. Along with the cruise workers, the Workers’ Injury Law & Advocacy Group has also asked the U.S. Supreme Court to hear the injured cruise ship crew member’s petition, claiming that Carnival’s employment contract took away the victim’s statutory right to have a jury trial under the Jones Act.
The Jones Act was put in place to protect the rights of seamen while working on the high seas, such as by limiting a maritime operator’s ability to overwork their staff and ensuring that proper safety protocols are followed. Yet, Carnival’s contract would seemingly appear to strip employees of this right. Many argue that if the high court doesn’t stop Carnival, it could set a precedent whereby other cruise lines can strip employees of their legal employment rights, leading to hazardous working conditions for other employees – as well as cruise passengers.
Unfortunately, staff on board cruise ships have little power when it comes to determining what provisions are and aren’t included in their contracts. The result is crew members being overworked and underpaid, a dangerous mix that can lead to cruise ship accidents and injuries.
Seafarers often report that they log in seven day workweeks before getting even one day off. Yet, current labor laws may not always apply to U.S.-based companies when they register their ships in foreign companies, commonly referred to as flying a flag of convenience. And, as it happens, most cruise lines usually do.
Another unfortunate fact is that several lower courts have upheld these arbitration agreements, essentially allowing large companies like Carnival to evade liability in the face of national and federal employment law.
Pysarenko’s claim against Carnival was initially rejected by a South Florida Court under the Federal Arbitration Act. The consequences of the acceptance of these arbitration acts for other employment contracts could be immense. If employers can bypass federal law by using arbitration, they likely will, as this could save them thousands of dollars over the long run, all the while harming workers, passengers, and ultimately, themselves if crew members are unable to perform their duties successfully and safely because they are being overworked, underpaid, or exposed to unsafe workplace conditions.
It seems that now, it is up to the U.S. Supreme Court to decide whether cruise lines can build in arbitration clauses that can bypass the Jones Act. The hope is that the Supreme Court will rule in favor of seafarer protections.