Articles Posted in Admiralty and Maritime

When someone brings a wrongful death action in Florida, they will usually ask for both pecuniary and non-pecuniary damages. Pecuniary damages are damages that can be specific and represent a quantifiable monetary amount. For example, pecuniary damages may be awarded in the amount of a deceased’s medical bills, or to cover the specific funeral and burial costs in a wrongful death lawsuit. Non-pecuniary damages, on the other hand, are damages that cannot be measured precisely. For example, money to compensate for pain and suffering, emotional distress, and loss of consortium may be estimated and awarded as non-pecuniary damages.

Recently, the Eleventh Circuit released an opinion discussing pecuniary and non-pecuniary damages—and related choice of law concerns—in a wrongful death case. According to the court’s written opinion, the case arose when a Wisconsin citizen and his wife took a cruise aboard a Royal Caribbean cruise ship. While the ship was docked in Juneau, Alaska, he began experiencing shortness of breath and went to the ship’s infirmary. The ship’s physician examined him and gave him prescription medication. He then returned to his quarters, where he collapsed. He was taken to the hospital in Alaska but unfortunately died of a heart attack several days later.

The daughter of the deceased, also the personal representative of his estate, sued Royal Caribbean for negligence in medical care and treatment. She brought suit in the Southern District of Florida as required by the forum selection clause on the cruise ticket. After trial, a jury found Royal Caribbean liable and awarded the plaintiff $3,384,073.22 in damages, $3,360,000 of which represented non-pecuniary damages. Royal Caribbean appealed.

Earlier this month, a federal appellate court issued a written opinion in a case that was filed by the surviving family members of a ship worker who died after he fell 50 feet when he stepped through a hole in the ship’s grating. The case presents a relevant issue to Florida boat accident plaintiffs insofar as it discusses how maritime law applies to cases against the owners and operators of large commercial vessels.

The Facts of the Case

The plaintiffs were the surviving family members of a man who worked as an independent contractor for a recycling company that purchases steel structures, disassembles them, and sells the metal for scrap. The company that employed the plaintiffs’ loved one purchased a decommissioned oil rig from another company that was in charge of decommissioning the rig.

Prior to the sale, an employee for the selling company told the company buying the rig about a potential danger on the ship regarding the presence of oil in the ship’s pipes. However, no one warned the buying company that there were several holes cut in the metal grating on the rig’s deck.

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In Tarasewicz v. Royal Caribbean Cruises Ltd., a welder and pipefitter who was a Polish national suffered an ischemic stroke while working aboard a cruise ship off the coast of Florida. Although the man was apparently misdiagnosed initially, he was later removed from the ship and treated at a Fort Lauderdale hospital.

Less than two years later, the man and his wife filed a lawsuit against the owner of the vessel, the ship’s captain, and others in the Southern District of Florida. According to the couple’s complaint, the Polish man suffered the stroke as a direct result of the unsafe working conditions aboard the cruise ship. Because of this, the man asked the court to award him damages for negligence, breach of implied warranty, negligence under the Jones Act, failure to provide maintenance and cure, and other claims. In response, the defendants filed a motion to dismiss the man’s lawsuit because it was filed in an improper forum. According to the defendants, the United States court lacked admiralty jurisdiction.

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In Gozleveli v. Kohnke, a Florida couple bought two jet skis in 2012. Following the couple’s purchase, their 26-year-old son allowed a male friend and a 42-year-old woman with no personal watercraft experience to operate one of the jet skis. The couple’s son apparently informed the friend that the woman did not have permission to operate the machine. In addition, the son provided his friend with a tutorial regarding how to operate the jet skis. Although the woman was in the vicinity at the time of the tutorial, it was unclear whether she was paying attention.

Next, the couple’s son boarded one jet ski and his friend boarded the other with the woman riding as a passenger. The two men operated the personal watercrafts using the Intracoastal Waterway in Fort Lauderdale, Florida until they reached the Atlantic Ocean. After about three hours, the men began returning to the couple’s home. Near the entrance to the Intracoastal Waterway, the son’s friend allowed the woman to operate one of the personal watercrafts. Although the son was initially unaware his friend permitted the woman to operate the jet ski, he did not demand that the friend resume control once this was discovered. Eventually, the son told the woman to follow him home via the waterway.

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General maritime law provides that a seaman can recover compensation for food, lodging and medical services that arise when injured or taken ill while working on a ship. These forms of compensation must continue through recuperation until the seaman achieves maximum medical recovery. “Maintenance and cure” under general maritime law is separate from remedies under the Jones Act.

If you are a seaman who is hurt while employed on a cruise ship because of an employer or coworker’s negligence, the Jones Act allows you to seek damages (such as lost wages or pain and suffering), separate from maintenance and cure. Because of its proximity to the water, Florida sees many cases related to seaman injuries and illnesses. These cases may raise issues under both general maritime law and the Jones Act.

In a 2012 case a professional musician appealed after the trial court granted summary judgment in favor of a Disney Cruise Lines in his complaint for unseaworthiness, negligence, Jones Act, maintenance and cure. The musician had suffered an injury while on board a Disney cruise ship. He received medical care from a specialist in the Caribbean and then went on medical disembark. An orthopedic surgeon treated him and performed two surgeries on his shoulder, rotator cuff and elbow.

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As a coastal state, Florida derives much of its economy from sea-based commerce and activities. Cruise ships, commercial vessels, and pleasure boats all provide jobs to Florida residents and attract tourists from around the world. Owners and operators of all different types of vessels owe a duty of care to the invited guests and workmen that sail aboard their respective ships. If an injury or death occurs on board due to negligence, then suit may be filed in either state or federal court, depending on the individual circumstances of the injury.

If a worker gets sick or injured while onboard a commercial vessel, they may be able to sue for maintenance and cure. Maintenance and cure are long-standing remedies provided by federal maritime and admiralty law. Maintenance is a daily allowance given to those injured during their period of recovery until they reach maximum medical improvement or, in the alternative, are ready to report to duty in the same physical condition they were in prior to the injury. Cure is payment for reasonable and necessary medical expenses including doctor visits, medical equipment, testing, and transportation for medical appointments.

The Jones Act is federal maritime and admiralty legislation that allows injured seamen to recover damages sustained. The Jones Act may award compensation for lost wages, medical bills, pain and suffering, and future wages. The Jones Act was created to maximize recovery and compensation for injured workers, while limiting litigation. Damages for maintenance and cure can be recovered without showing the vessel operator or owner was negligent, but courts limit the amount of recovery to expenses actually incurred. If it can be shown the employer was negligent, then the injured party may be able to recover pain and suffering.

Families may be able to recover for injured seamen through a wrongful death action or suit under the Death on the High Seas Act (DOHSA). DOHSA pre-empts state causes of action when the event that led to the death occurs more than three nautical miles from shore. A personal representative may try to pursue on behalf of a child, dependent relative, husband, or wife for pecuniary damages, which are defined as loss of support, services, and inheritance. Proof of these damages must be supported by facts with a reasonable amount of certainty.

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News of the now-infamous Carnival cruise ship, Triumph, has filled Twitter accounts, web pages, and air waves with tales of long lines for food and failed toilets. Pictures of disembarked travelers kissing the ground wearing Carnival robes marked the end of five days at sea floating in the Gulf of Mexico, following an engine room fire that knocked out power. Analysts and talking heads assessed the likelihood of success for those who choose to sue Florida-based Carnival for their week-long ordeal, pointing to the signed contract attached to the ticket that limits where you can sue and the liabilities of the cruise ship company owners.A cruise ship ticket contract is generally considered enforceable so long as it is fundamentally fair. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990), the Supreme Court upheld a contract clause that limited all law suits to Florida. However, a cruise line cannot contract away all of its liability, especially when it comes to personal injury. An 11th Circuit Court of Appeals case that originated from the Southern District of Florida, (Johnson v. Royal Caribbean Cruises, Ltd., 802 F. Supp. 2d 1316, (S.D. Fla., 2011)), pointed to 46 U.S.C.S. § 30509, which prohibits the owner or agent of a vessel transporting passengers between a port in the United States and a port in a foreign country from including in a contract a provision limiting the liability of the owner or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents.

In that case, Royal heavily relied on contract law as grounds for a summary judgment against a passenger who injured herself participating in an onboard cruise activity. She signed up to use a surf and boogie board simulator and signed an “onboard activity waiver” that released Royal and its employees from any liabilities resulting from injuries. The passenger injured her ankle while attempting to do a maneuver on a boogie board, which was against the safety guidelines for that activity on the ship. The lower courts initially agreed with Royal, but the Court of Appeals reversed, stating that the passenger could still sue the company as the ship clearly met the requirements of a vessel described in 46 U.S.C.S. § 30509 and her injury was the result of Royal’s employee instructing her to perform an unsafe maneuver.

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The tragic wreck that killed 32 passengers and crew off the coast of Giglio, Italy, has led the cruise industry to create ten new safety policies. The main change is for passengers to undergo “muster drills”, or passenger emergency drills, before the boat leaves the dock, as opposed to within 24 hours of departure.

In 2011 there were 922,491 total vessels registered in Florida. 742 boat accidents were reported to the Florida Fish and Wildlife Conservation Commission. If you have been injured in a boating accident, whether it was a cruise ship or privately owned boat, contact the Florida maritime lawyers at Friedman, Rodman & Frank, P.A. They have taken on several Florida-based cruise ship companies for injuries that have happened on and off board, and are here to help you, even if you live elsewhere.

The amount of chaos and confusion that resulted from the Costa Corcordia captain’s negligence is overwhelming. Passengers and affected businesses have filed suit against Costa Crociere’s parent company, Carnival Corp., which is based in Miami, Florida. Some have run into logistical problems, as many have already been turned away saying that the only forum available to file suit is in Italy. Carnival Corp., in turn, has alleged in other related civil suit documents that the passengers’ injuries are partially or wholly to blame due to their own negligence.

Carnival Corp., has had a large part in the history of forum clauses – clauses often printed on the back of tickets that says the purchaser agrees to settle a dispute in a forum that the ticket issuer has listed. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990), the U.S. Supreme Court ruled in favor of forum clauses that are not obtained by fraud or overreaching. In the underlying case, a couple from Washington state bought tickets to a cruise from Carnival Corp., based in Florida, that started in California and ended in Mexico. The wife sustained injuries when she slipped and fell on a deck mat while the boat was at sea off the coast of Mexico. The couple filed suit in her home state, and Carnival claimed that, per the forum clause, they had to file suit in Florida. The couple countered that they were physically and financially incapable of filing suit in Florida.

The lower, appellate court sided with the couple, agreeing that the couple would be denied their day in court, given their limitations, and that the forum clause was not “freely bargained for”. The Supreme Court disagreed, saying that it was a standard commercial clause, that Carnival Cruise Lines has the right to limit the forum for suit, and that this particular clause did not appear to discourage cruise passengers from pursuing legitimate claims. They did note, however, that all forum clauses are subject to scrutiny and should be fundamentally fair.

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