February 02, 2011
Andrzej Gola v. SMT Ship Management & Transport Ltd. and Transatlantic Ship Management Ltd.
Points of Claim in Arbitration
In this document a seaman has filed a complaint in an arbitral proceedings against a defendant cruise line for his injury while working aboard the defendant’s vessel. The attorneys at Lipcon, Margulies, Alsina & Winkleman pursue crew member claims in state and federal court as well as in arbitration. Whenever a seaman pursues his or her claims in arbitration our attorneys work to ensure that the protections of U.S. law will apply to their case.
BEFORE MICHAEL GUILFORD, ESQ. AND MR. CLIVE ASTON
SMT SHIP MANAGEMENT & TRANSPORT LTD and
TRANSATLANTIC SHIP MANAGEMENT, LTD.
POINTS OF LAIM
COME NOW, the Claimant/Plaintiff, ANDRZEJ GOLA (hereinafter “GOLA”) and sues the Respondent/Defendant, SMT SHIP MANAGEMENT & TRANSPORT LTD. (hereafter referred to as “SMT SHIP”) and TRANSATLANTIC SHIP MANAGEMENT, LTD (hereinafter referred to as “TRANSATLANTIC”), and for his cause of action, alleges the following:
1. Pursuant to Defendant/Respondent’s record stipulation and agreement – and the United States District Court’s Order- all substantive claims in this matter are governed by United States Law. English law does not apply.
The claims in this matter were originally brought before the United States District Court for the Southern District of Florida, CASE NO. 09-61029-CIV-MARTINEZ/BROWN, as a case in admiralty and maritime jurisdiction. The claims, brought pursuant to U.S. law, included Jones Act Negligence under 46 U.S.C. §30104, Unseaworthiness of the ship, failure to provide maintenance and cure and failure to treat. A copy of the Complaint, filed on July 13, 2009, is attached hereto as Exhibit “1.”
On October 26, 2009, Defendants SMT and Transatlantic filed with the Court a Motion to Compel Arbitration. 09-61029 [D.E. 9], asking that all matters be submitted for resolution at arbitration.
Respondents agreed to application of U.S. law at arbitration. Subsequently, on April 7, 2010, Defendants SMT and Transatlantic filed with the Court a stipulation agreeing on the record that Gola could bring claims arising under United States law in any arbitration proceedings between Plaintiff Gola and SMT and Transatlantic. Additionally, Defendants SMT and Transatlantic stipulated and agreed to the United States District Court for the Southern District of Florida to retain jurisdiction over the case to review any decision from the arbitration tribunal.
See Defendant/Respondents’ record stipulation and agreement, attached hereto as Exhibit “2,” provides, in part at page 2:
SMT and Transatlantic stipulate and agree that Plaintiff can bring claims arising under United States law in arbitral proceedings between the Plaintiff and SMT and Transatlantic.
SMT and Transatlantic stipulate and agree that the arbitral award can be reviewed in accordance with applicable law.
See alsoDefendant/Respondents’ Emergency Motion, attached hereto as Exhibit “3” and providing, in part, at page 3:
[…] Defendants agree that Plaintiff may bring substantive tort claims under United States law in arbitration. Any arbitration award should be subject to review under the Federal Arbitration Act, 9 U.S.C. §1, et. seq., and Defendants stipulate and agree that any arbitration award may be reviewed in accordance with applicable law. Defendants agreement to application of United States law and the availability of subsequent review in United States Courts Should Cause this Honorable Court to compel arbitration of Plaintiff’s claims[..].
In light of Defendants/Respondents record stipulation and agreement that the arbitration be governed under United States law, the United States District Court entered an order compelling arbitration and retaining jurisdiction over the case, for the purpose of reviewing any decision of the arbitral tribunal.See Court Order, attached hereto as Exhibit “4.”
Therefore, pursuant to Defendants/Respondents record stipulation and agreement and the United States District Court’s order, all substantive claims in this matter are governed exclusively by U.S. law. As such, this Honorable Arbitral Tribunal is bound to apply U.S. law in its determination of the various claims at issue.
This stipulation supersedes and renders inapplicable the employment contract’s provision requiring application of English law. English law does not apply. Only U.S. law applies. See Employment Contract, including arbitration provision, attached hereto as Exhibit “5.”
2. At present, the tribunal has two arbitrators Michael S. Guilford, Esq. (designated by Claimant) and Clive Anston (designated by Respondents).
On January 25, 2011, pursuant to article 27 of the arbitral provision, the Claimant designated Michael Guilford, Esq. as arbitrator. In response, and also pursuant to article 27 of the arbitral provision, on February 8, 2011, Respondents appointed Mr. Clive Aston as arbitrator. Therefore, in light of the parties appointments, at present the arbitral tribunal is comprised of Mr. Guilford and Mr. Aston.
In the event that Mr. Guilford and Mr. Aston cannot agree on any matter relating to the arbitration, they can agree to appoint an “umpire” or a “third arbitrator.”
Defendant, SMT SHIP, is a corporation incorporated under the laws of the Bahamas, but has its principal place of business in Florida.
The causes of action asserted in this Complaint arise under the laws of the United States, particularly the Jones Act Negligence, 46 U.S.C. §30104, and the General Maritime Laws of the United States.
At all times material, Respondent, SMT SHIP, owned, operated, managed, maintained and/or controlled the vessel, M/V ARUBA PEARL, on which Claimant worked.
The acts of Respondent set out in these Points of Claim occurred in whole or in part in Florida, United States of America.
At all times material hereto, Respondents’ vessel was a Bahamian Flagged vessel.
At all times material hereto, GOLA was employed by Respondents to work on Respondents’ vessel as a cook.
Claimant, GOLA, is a citizen of Poland.
At all times material, GOLA was a seaman. As a seaman, GOLA enjoys special rights and protections afforded only to seaman under the laws of the United States.
GOLA was injured in Port Everglades, Florida when he tripped and fell over a pot with potatoes that was left on the floor by another one of Respondent’s employees. At the time he fell, GOLA, was holding a tray of bread to be put into the oven.
Claimant, GOLA, fell backward dropping the tray and hitting his back, sustaining severe injuries.
CAUSES OF ACTION UNDER U.S. LAW
1. Pursuant to U.S. Law seafarers are a protected class.
The Tribunal’s determination of the Claimant’s rights should begin with the fact that claimant, as a seafarers belongs to a protected class. “The policy of [the United States] Congress, as evidenced by [the Jones Act], has been to deal with [seafarers] as a favored class.” Bainbridge v. Merchants’ & Miners’ Transp. Co., 287 U.S. 278, 282 (1932). Similarly, “[s]eafarers from the start were wards of admiralty.” U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 355 (1971)(citing Robertson v. Baldwin, 165 U.S. 275, 287 (1897)). “From the earliest times, maritime nations have recognized that unique hazards, emphasized by unusual tenure and control, attend the work of seafarers.” See Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 728 (1943). More recently, in Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995) the Court reaffirmed the longstanding principle that seafarers are wards of the Admiralty Courts as a “feature of the maritime law compensating or offsetting the special hazards and disadvantages to which they who go down to sea in ships are subjected.” See also Isbrandtsen Marine Servs. v. M/V Inagua Tania, 93 F. 3d 728 (11th Cir. 1996):
“Seamen … are wards of admiralty whose rights [tribunals] are duty-bound to jealously protect.” Bass v. Phoenix Seadrill 78, Ltd., 749 F. 2d 1154, 1160-61 (5th Cir. 1985). Since the often cited opinion by Justice Story in Harden v. Gordon, 11 F. Cas. 480, 485 (C.C.D. Me. 1823) (No. 6047), it has been accepted that every Court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; …. They are emphatically the wards of the admiralty; …. They are considered as placed under the dominion and influence of men, who have naturally acquired a mastery over them; and as they have little of the foresight and caution belonging to persons trained in other pursuits of life, the most rigid scrutiny is instituted in the terms of every contract, in which they engage. As the Supreme Court has held, a seamen is “often ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162, 79 L. Ed. 254, 55 S. Ct. 46 1934).
COUNT I – JONES ACT NEGLIGENCE
The Jones Act, 46 U.S.C. §30104, provides a cause of action for seamen injured in the course of his employment by the negligence of his employer, the ship’s master, or fellow crew members. The Jones Act provides as follows:
Any seamen who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common law right or remedy in cases of personal injury to railway employees shall apply; and in case of death of any seamen as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right to a trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death of a railway employee shall be applicable.
The employer’s fundamental duty under the Jones Act is to provide its seamen with a reasonably safe place to work. Southard v. Independent Towing Co., 453 F. 2d 1115 (3d Cir. 1971). The duty to provide a reasonably safe place to work is absolute and non-delegable; therefore, the employer may be responsible even if he is not the owner of the ship on which the seamen serves. Bertrand v. International Mooring and Marine, 710 F. 2d 837 (5th Cir. 1983). The employer under the Jones Act is liable in damages for injury resulting in whole or in part from the negligence of its officers, agents or employees. Wilburn v. Maritrans GP Inc., 139 F. 3d 350 (3d Cir. 1998). This means that if a seaman is injured by the negligent act of a fellow crew member or the master, his employer is liable.Id.
Jones Act allegations
It was the duty of the Defendant to provide Plaintiff with a reasonably safe working environment.
On February 25th, 2007 Plaintiff was caused to and did become injured onboard Defendant’s vessel, the M/V Aruba Pearl.
3. Plaintiff, GOLA, was injured due to the fault and/or negligence of Defendant, SMT SHIP, and/or its agents, servants, and/or employees as follows:
a. Failure to provide a safe and proper work environment; and/or
b. Failure to indicate that the floor had obstacles; and/or
c. Failure to warn Plaintiff about the dangers of walking in the kitchen area; and/or
d. Failure to comply with reasonable safety standards so as to provide a reasonably safe environment for crew members on board the ship; and/or
e. Failure to promulgate and enforce reasonable rules an regulations to insure the safety and health of the employees and more particularly the Plaintiff, while engaged in the course of his employment on Defendant’s vessel; and/or
f. Failure to provide prompt, proper and adequate medical care to the Plaintiff after he sought medical treatment for it, which aggravated Plaintiff’s injuries and caused him additional pain and disability; and/or
g. Failure to exercise reasonable care under the circumstances; and/or,
h. Defendant used outmoded work methods and procedures and neglected modern material handling techniques; and/or
i. Failure to have an adequate SMS Manual in compliance with the requirements of the International Safety Management Code; and/or
f. Failure to comply with the requirements of their manual. All of the above cause the Plaintiff to be injured.
As a result of Defendant’s negligence, Plaintiff, GOLA, was injured, went through multiple medical examinations, pain killers, and operation and is still suffering from his knee injury; suffered physical pain, mental anguish, loss of enjoyment of life, disability, disfigurement, aggravation of any previously existing conditions, incurred medical expenses in the care and treatment of his injuries, and has suffered physical handicap. The injuries are permanent or continuing in nature and Plaintiff will suffer the losses and impairments in the future.
WHEREFORE, the Plaintiff, ANDRZEJ GOLA, demands judgment against Defendant, SMT SHIP MANAGEMENT & TRANSPORT LTD., for all damages recoverable under the law including loss of society, pain and suffering before death, medical expenses, loss of income, pas and future earnings, mental anguish, pre-judgment interest, post judgment interest, together with applicable costs, attorney’s fees and any further relief that this Court deems just and equitable.
COUNT II- UNSEAWORTHINESS
Pursuant to the doctrine of “unseaworthiness,” the vessel and her owner are liable for injuries received by a seaman in consequence of the unseaworthiness of the ship, or failure to supply or keep in order the proper appliances appurtenant to the ship. The Osceola, 189 U.S. 158 (1903). In order to state a cause of action for unseaworthiness, therefore, a plaintiff must allege his injury was caused by a defective condition of the ship, its equipment or appurtenances, The warranty extends to the hull of a ship, the ship’s cargo handling machinery, hand tools aboard the ship, ropes and tackle, and all kinds of equipment belonging to the ship. Gosnell v. Sea-Land Service, Inc., 782 F. 2d 464 (4th Cir. 1986). It also includes the ship’s stores – provisions of food, water, furniture, apparel – on board for the crew’s consumption or use. Martinez v. Sea Land Services, Inc., 763 F, 2d 1986 (1st Cir. 1985).
On or about February 25th, 2007, Plaintiff was a seaman and a member of the crew of Defendant’s vessel, which was in navigable waters.
At all times material hereto, the vessel was owned, managed, operated and/or controlled by Defendant.
Defendant had the absolute non-delegable duty to provide Plaintiff with a seaworthy vessel.
4. On or about the previously stated date, the unseaworthiness of Defendant’s vessel was a legal cause of injury and damage to Plaintiff for the following:
a. Failure to provide adequate storage and arrangements in the kitchen so as not to have pots lying on the floor in an area where people walk;
b. Failure to provide proper warning and signs to indicate danger;
c.The vessel was not reasonably fit for its intended purpose;
d.The vessel did not have a fit crew;
e.The vessel did not have adequate infrastructure for its workers;
f. Failure to provide proper safety measures and procedures and to follow such measures and procedures, as required under the International Safety Manuel.
Without proper and reasonable living infrastructure, the crew becomes injured, inefficient and the ship remains unseaworthy.
As a result of the unseaworthiness of the vessel, the Plaintiff was injured about Plaintiff’s body, 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 and continuing in nature and Plaintiff will suffer the losses and impairments in the future. In addition, Plaintiff in the past has lost fringe benefits that come with Plaintiff’s job, including, but not limited to found, free food, free shelter, free medical care, free uniforms, vacation, and free air line ticket home and back.
WHEREFORE, Plaintiff demands all damages entitled by law.
COUNT III: FAILURE TO PROVIDE MAINTENANCE AND CURE
Maintenance and Cure is an ancient common-law maritime remedy for seamen who are injured while in the service of the vessel. Courts in the United States have described the action as follows: “The seaman’s action for maintenance and cure may be seen as one designed to put the sailor in the same position as he would have been had he continued to work: the seamen receives a maintenance remedy because working seamen normally are housed and fed aboard ship; he recovers payment for medical expenses in the amount necessary to bring him to maximum cure; and he receives an amount representing his unearned wages for the duration of his voyage or contract period. Govindarajan v. Carnival Corporation, 09-23386-CIV (Hon. Judge Jordan) (S.D. Fla. 2010) [D.E. 23]
Failure to Provide Maintenance & Cure Allegations
1.On or about the previously stated date, Plaintiff was injured while in the service of the vessel.
2.Plaintiff first went to see the ship’s captain and requested to go see a doctor; the ship captain refused.
3.The ship’s captain arranged for a doctor to come onboard, who recommended that Plaintiff, GOLA, see an orthopedic specialist. The captain did not arrange for Plaintiff to go see a specialist while the vessel was still in Ft. Lauderdale.
4.The vessel left Port Everglades and Plaintiff, GOLA, was forced to and did work in pain for five (5) months.
5.In China, Plaintiff, GOLA, could not bear the pain any longer and was finally allowed to go see a doctor.
6.After the appointment with the doctor in China, Plaintiff, GOLA, requested to be sent home. The request was rejected.
7.During the time Plaintiff was injured, Defendant failed to provide maintenance payments or sick wages in violation of his rights under the law.
8.Under General Maritime Law and by operation of treaty, 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, whichever is longer.
9.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.
10. 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 with maintenance and cure, which aggravated his condition and caused Plaintiff to suffer additional compensatory damages, including, but not limited to, 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 earning or earning capacity, and medical and hospital expenses in the past and into the future.
WHEREFORE, Plaintiff demands all damages entitled by law, attorney’s fees.
COUNT IV: FAILURE TO TREAT
1. On or about the previously stated date, Plaintiff was employed by Defendant as a seaman onboard Defendant’s vessel while it was in navigable waters.
2. It was the duty of Defendant to provide Plaintiff with prompt, proper and adequate medical care.
3. Defendant, through the ship’s physicians and nurses, negligently failed to provide Plaintiff with prompt, proper, adequate medical care after he sought treatment for his injuries. This conduct includes, but is not limited to:
a.Defendant not giving Plaintiff medical care in a timely manner after his initial injury; and/or
b.Defendant sending Plaintiff back to work after he became injured, which aggravated his injuries and made them worse; and/or
c.Defendant continually clearing the Plaintiff to return back to work after his initial injury and each subsequent time that the Plaintiff returned to the ship’s medical facility and complained of his condition;
d.Defendant refusing to allow Plaintiff to go see a specialist when it was recommended; and/or