BKR v Holland America Line

Lipcon, Margulies, Alsina & Winkleman, P.A

January 30, 2015

BKR v Holland America Line

Complaint

This is a complaint filed on behalf of a cruise ship’s doctor who suffered severe injuries while she was loading her luggage through stairs while embarking the cruise ship for work. Among the arguments raised by the maritime attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A., is that the cruise line is liable for requiring its crewmembers to load their luggage through stairs (as opposed to a ramp) when they are embarking the cruise ship. In addition, our maritime lawyers argue that the cruise line failed to provide the crewmember with prompt, proper and adequate medical care for the injuries she sustained, as cruise lines are required to under maritime law.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDAMIAMI DIVISION

B.K.R.,
Plaintiff,

v.

HOLLAND AMERICA LINE – USA INC., HOLLAND AMERICA LINE, INC., HOLLAND AMERICA LINE N.V., HOLLAND AMERICA LINE N.V. LLC, and HAL – ANTILLEN N.V.,
Defendants.
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COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff sues Defendants and alleges:

PRELIMINARY ALLEGATIONS

  1. Plaintiff, B.K.R., is a resident of Florida.
  2. Defendants, HOLLAND AMERICA LINE – USA INC., HOLLAND AMERICA LINE, INC., HOLLAND AMERICA LINE N.V., HOLLAND AMERICA LINE N.V. LLC, and HAL – ANTILLEN N.V. (at times collectively referred to as “Defendants”), are foreign corporations with their principal place of business in Seattle, Washington, and doing business in Florida as well.
  3. The matter in controversy exceeds, exclusive of interest and costs, the sum specified by 28 U.S.C. § 1332. In the alternative, if diversity jurisdiction does not apply, then this matter falls under the admiralty and maritime jurisdiction of this Court.
  4. The causes of action asserted in this Complaint arise under the General Maritime Law of the United States and the Jones Act, 46 U.S.C. § 30104, and as such, Defendants are subject to the jurisdiction of the Courts of this State under the admiralty and maritime jurisdiction of the Court, 28 U.S.C. § 1333.
  5. At all times material hereto, Defendants, personally or through an agent:
    1. 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;
    2. Were engaged in substantial activity within this state;
    3. Operated vessels in the waters of this state;
    4. Committed one or more of the acts stated in Florida Statutes, §§ 48.081, 48.181 and/or 48.193;
    5. The acts of Defendants set out in this Complaint occurred in whole or in part in this county and/or state.
  6. At all times material hereto, Defendant, HOLLAND AMERICA LINE – USA INC., owned, operated, managed, maintained and/or controlled the vessel, the M/S Amsterdam.
  7. At all times material hereto, Defendant, HOLLAND AMERICA LINE, INC., owned, operated, managed, maintained and/or controlled the vessel, the M/S Amsterdam.
  8. At all times material hereto, Defendant, HOLLAND AMERICA LINE N.V., owned, operated, managed, maintained and/or controlled the vessel, the M/S Amsterdam.
  9. At all times material hereto, Defendant, HOLLAND AMERICA LINE N.V. LLC, owned, operated, managed, maintained and/or controlled the vessel, the M/S Amsterdam.
  10. At all times material hereto, Defendant, HAL – ANTILLEN N.V., owned, operated, managed, maintained and/or controlled the vessel, the M/S Amsterdam.
  11. On or about August 4, 2012, the Plaintiff was employed by Defendant, HOLLAND AMERICA LINE – USA INC.
  12. On or about August 4, 2012, the Plaintiff was employed by Defendant, HOLLAND AMERICA LINE, INC.
  13. On or about August 4, 2012, the Plaintiff was employed by Defendant, HOLLAND AMERICA LINE N.V.
  14. On or about August 4, 2012, the Plaintiff was employed by Defendant, HOLLAND AMERICA LINE N.V. LLC.
  15. On or about August 4, 2012, the Plaintiff was employed by Defendant, HAL – ANTILLEN N.V.
  16. On or about August 4, 2012, the Plaintiff was the borrowed servant of Defendants, such that Defendants exercised control over the Plaintiff, paid the Plaintiff, furnished equipment necessary for the performance of the Plaintiff’s work; and/or had the right to terminate its relationship with the Plaintiff.
  17. On or about August 4, 2012, the Plaintiff was employed as a Lead Medical Officer (LMO) aboard the M/S Amsterdam, which was in navigable waters.
  18. At all times material hereto, Defendants required its crew members to load their luggage onboard the vessel.
  19. On or about the above referenced date (August 4, 2012), the Plaintiff sustained severe injuries after loading her luggage through stairs while embarking the M/S Amsterdam.
  20. On or about July 6, 2014, the Plaintiff suffered the same or similar injuries that she suffered following the incident that occurred on or about August 4, 2012. This was due, in whole or in part, to the delayed, inadequate and/or insufficient medical treatment received for her injuries following the incident that occurred on or about August 4, 2012.

COUNT I – NEGLIGENCE

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty (20) as though alleged originally herein and further alleges:

  1. At all times material hereto, it was the duty of Defendants to provide Plaintiff with a reasonably safe place to work.
  2. On or about August 4, 2012, Defendants and/or their agents, servants, and/or employees breached their duty to provide Plaintiff with a reasonably safe place to work.
  3. Plaintiff was injured due to the fault and/or negligence of Defendants, and/or their agents, servants, and/or employees as follows:
    1. Failure to investigate possible hazards associated with requiring crew members to load their luggage onboard the vessel; and/or
    2. Failure to modify or eliminate the hazards associated with requiring crew members to load their luggage onboard the vessel; and/or
    3. Failure to adequately warn Plaintiff concerning the hazards associated with loading luggage onboard the vessel; and/or
    4. Failure to provide proper and adequate training to the Plaintiff and/or other crew members as to the loading of luggage onboard the vessel; and/or
    5. Failure to provide proper and adequate assistance and/or equipment to the Plaintiff and/or other crew members to load their luggage onboard the vessel; and/or
    6. Failure to use a ramp and/or gangway without steps and/or stairs when crew members are embarking the vessel with luggage; and/or
    7. Failure to promulgate and/or enforce reasonable rules and regulations to ensure that crew members use a reasonably safe route that does not involve steps and/or stairs when loading luggage onboard the vessel; and/or
    8. Failure to promulgate and/or enforce reasonable rules and regulations to ensure that crew members are physically capable of loading their luggage onboard the vessel safety; and/or
    9. Failure to promulgate and/or enforce reasonable rules and regulations to ensure the reasonable safety of Plaintiff while engaged in the course of her employment; and/or
    10. Failure to provide the Plaintiff reasonable job duties that she is physically fit to carry out safely; and/or
    11. Failure to perform an adequate pre-employment physical on the Plaintiff in order to ascertain her ability to carry and/or load luggage onboard the vessel; and/or
    12. Failure to follow sound management practices with the goal of providing Plaintiff a reasonably safe place to work; and/or
    13. Failure to learn the common and well known principles of industrial ergonomics and to apply them to Defendants’ industry; and/or
    14. Failure to select and utilize competent, skilled and properly trained medical care providers, trained in the proper medical specialty to be able to properly diagnose and treat the Plaintiff; and/or
    15. Failure to send Plaintiff to a shore side specialist doctor in a timely manner; and/or
    16. Allowing Plaintiff to return to work after her injury, and/or requiring Plaintiff to work with an injury, and/or allowing Plaintiff to return to work after her injury on medication designed to mask the pain and enable the Plaintiff to condition working with a false sense of wellbeing, and/or requiring Plaintiff to continue to do manual labor while having injuries; and/or
    17. Failure to properly manage Plaintiff’s medical care after Plaintiff was injured and up to the time when she was declared at maximum medical improvement; and/or
    18. Failure to provide prompt, proper, and adequate medical care to the Plaintiff, which aggravated her injuries and caused her additional pain and disability; and/or
    19. Failure to comply with the ISM Code as it relates to sections which include, but are not limited to, requiring that Defendants’ safety management system: (1) provide for safe practices in vessel operation and a safe work environment; (2) establish and implement safeguards against all identifiable risks; (3) establish and implement actions to continuously improve safety management skills of personnel ashore and aboard vessels; and/or (4) ensure compliance with mandatory rules and regulations.

All of which caused the Plaintiff to be injured.

  1. Defendants 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 Defendants, in the exercise of reasonable care, should have learned of them and corrected them.
  2. As a direct and proximate result of Defendants’ negligence, 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 in 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 free food, free shelter, free medical care and vacation.

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT II – UNSEAWORTHINESS

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty (20) as though alleged originally herein and further alleges:

  1. On or about August 4, 2012, Plaintiff was a seaman and a member of the subject vessel’s crew, which was in navigable waters.
  2. At all times material hereto, Defendants had a non-delegable duty to provide Plaintiff with a seaworthy vessel.
  3. On or about August 4, 2012, the unseaworthiness of Defendants’ vessel was a legal cause of injury and damage to Plaintiff by reason of being unsafe and unfit due to the conditions created by Defendants as follows:
    1. Failure to investigate possible hazards associated with requiring crew members to load their luggage onboard the vessel; and/or
    2. Failure to modify or eliminate the hazards associated with requiring crew members to load their luggage onboard the vessel; and/or
    3. Failure to adequately warn Plaintiff concerning the hazards associated with loading luggage onboard the vessel; and/or
    4. Failure to provide proper and adequate training to the Plaintiff and/or other crew members as to the loading of luggage onboard the vessel; and/or
    5. Failure to provide proper and adequate assistance and/or equipment to the Plaintiff and/or other crew members to load their luggage onboard the vessel; and/or
    6. Failure to use a ramp and/or gangway without steps and/or stairs when crew members are embarking the vessel with luggage; and/or
    7. Failure to promulgate and/or enforce reasonable rules and regulations to ensure that crew members use a reasonably safe route that does not involve steps and/or stairs when loading luggage onboard the vessel; and/or
    8. Failure to promulgate and/or enforce reasonable rules and regulations to ensure that crew members are physically capable of loading their luggage onboard the vessel safety; and/or
    9. Failure to promulgate and/or enforce reasonable rules and regulations to ensure the reasonable safety of Plaintiff while engaged in the course of her employment; and/or
    10. Failure to provide the Plaintiff reasonable job duties that she is physically fit to carry out safely; and/or
    11. Failure to perform an adequate pre-employment physical on the Plaintiff in order to ascertain her ability to carry and/or load luggage onboard the vessel; and/or
    12. Failure to follow sound management practices with the goal of providing Plaintiff a reasonably safe place to work; and/or
    13. Failure to learn the common and well known principles of industrial ergonomics and to apply them to Defendants’ industry; and/or
    14. Failure to select and utilize competent, skilled and properly trained medical care providers, trained in the proper medical specialty to be able to properly diagnose and treat the Plaintiff; and/or
    15. Failure to send Plaintiff to a shore side specialist doctor in a timely manner; and/or
    16. Allowing Plaintiff to return to work after her injury, and/or requiring Plaintiff to work with an injury, and/or allowing Plaintiff to return to work after her injury on medication designed to mask the pain and enable the Plaintiff to condition working with a false sense of wellbeing, and/or requiring Plaintiff to continue to do manual labor while having injuries; and/or
    17. Failure to properly manage Plaintiff’s medical care after Plaintiff was injured and up to the time when she was declared at maximum medical improvement; and/or
    18. Failure to provide prompt, proper, and adequate medical care to the Plaintiff, which aggravated her injuries and caused her additional pain and disability; and/or
    19. Failure to comply with the ISM Code as it relates to sections which include, but are not limited to, requiring that Defendants’ safety management system: (1) provide for safe practices in vessel operation and a safe work environment; (2) establish and implement safeguards against all identifiable risks; (3) establish and implement actions to continuously improve safety management skills of personnel ashore and aboard vessels; and/or (4) ensure compliance with mandatory rules and regulations.
  4. 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 pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions there from, 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 free food, free shelter, free medical care, and vacation.

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT III – FAILURE TO PROVIDE MAINTENANCE AND CURE

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty (20) as though alleged originally herein and further alleges:

  1. On or about August 4, 2012, Plaintiff was injured while in the service of the subject vessel as a crew member.
  2. Under the General Maritime Law and by operation of treaty, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendants until she is declared to have reached maximum medical improvement. Maintenance and cure include unearned wages (regular wages, overtime, vacation pay and tips) which are reasonably anticipated to the end of the contract or voyage, whichever is longer.
  3. Under General Maritime Law and by operation of treaty, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendants until she is declared to have reached maximum possible cure or maximum possible improvement. 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. Maintenance and cure is an ongoing obligation of the Defendants from the date of the 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/her 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.
  4. Defendants willfully and callously delayed, failed and/or refused to pay Plaintiff’s entire maintenance and cure so that Plaintiff became obligated to pay the undersigned a reasonable attorney’s fee. In addition, when they did pay maintenance and cure, Defendants were late in payment.
  5. Defendants’ failure to pay Plaintiff’s 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, Defendants unreasonably failed to pay or provide Plaintiff with maintenance and cure, which aggravated her 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, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT IV – FAILURE TO TREAT

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty (20) as though alleged originally herein and further alleges:

  1. On or about the previously stated date, Plaintiff was employed by and/or a borrowed servant of Defendants as a member of the vessel’s crew. The vessel was in navigable waters.
  2. It was the duty of Defendants to provide Plaintiff with prompt, proper and adequate medical care.
  3. Defendants negligently failed to provide Plaintiff with prompt, proper, adequate medical care after she sought treatment for her injuries. This conduct includes, but is not limited to:
    1. Failure to give Plaintiff medical care in a timely manner after her initial injury and reporting of same; and/or
    2. Failure to select and utilize competent, skilled and properly trained medical care providers, trained in the proper medical specialty to be able to properly diagnose and treat the Plaintiff; and/or
    3. Failure to send Plaintiff to a shore side specialist doctor in a timely manner; and/or
    4. Allowing Plaintiff to return to work after her injury, and/or requiring Plaintiff to work with an injury, and/or allowing Plaintiff to return to work after her injury on medication designed to mask the pain and enable the Plaintiff to condition working with a false sense of wellbeing, and/or requiring Plaintiff to continue to do manual labor while having injuries; and/or
    5. Failure to properly manage Plaintiff’s medical care after Plaintiff was injured and up to the time when she was declared at maximum medical improvement; and/or
    6. Denying Plaintiff’s demand(s) for treatment and payment of medical bills.
  4. As a direct and proximate result of Defendants’ 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 in the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions there from, incurred additional medical expresses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and Plaintiff’s work 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.
  5. This Count is alleged separately from Jones Act Negligence pursuant to Joyce v. Atlantic Richfield Company, 651 F.2d 676 (10th Cir. 1981), which states, in part, “negligent failure to provide prompt medical attention to a seriously injured seaman gives rise to a separate claim for relief [for which separate damages are awardable].”

WHEREFORE, the Plaintiff demands all damages entitled by law and trial by jury.

COUNT V – RETALIATORY DISCHARGE

Plaintiff realleges, adopts, and incorporates by reference the allegations in paragraphs one (1) through twenty (20) as though alleged originally herein and further alleges:

  1. At all times material hereto, Plaintiff was employed in good standing onboard the vessel, the M/S Amsterdam.
  2. Defendants discharged and/or terminated the Plaintiff from employment as retaliation against the Plaintiff for:
    1. Demanding maintenance and cure; and/or
    2. Seeking legal assistance; and/or
    3. Employing an attorney; and/or
    4. Making a claim against Defendants; and/or
    5. Filing this or a similar lawsuit against Defendants.
  3. As a direct and proximate result thereof, Plaintiff lost her job and suffered mental anguish, shame, humiliation, hurt feelings and depression. In addition, Plaintiff suffered damage and/or injury to her reputation, impaired ability to obtain employment in her profession(s), impaired earning capacity and lost earnings. The damages occurred in the past, are continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

WHEREFORE, Plaintiff demands all damages entitled by law and trial by jury.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204

By:  /s/ Jason R. Margulies       ­­­­­­­­­­­­­
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358