The Jones Act (46 U.S.C. § 30104) is the primary law used by seamen to recover compensatory damages from their employers for injuries sustained in accidents occurring on navigable waters. To recover under the Jones Act, an injured seaman must prove that employer negligence caused the accident. This means that the Jones Act is not a no-fault system for recovering compensation.

Seaman injured on the high seas are entitled to maintenance and cure benefits without regard to fault. (Under general maritime law, a seaman has the right to receive compensation for food, lodging, and medical services resulting from illnesses or injuries suffered while working aboard a ship. Vaughan v. Atkinson, 369 U.S. 527, 531 (1962); see also Langmead v. Admiral Cruises, Inc., 610 So. 2d 565, 567 (Fla. 3d DCA 1992).) Hence, unlike the Jones Act, the maintenance-and-cure system is no-fault.

An employer’s failure of duty to provide prompt and adequate medical care to a sick or injured crewman is actionable under the Jones Act — See generally Olsen v. Am. S.S. Co., 176 F.3d 891, 895 (6th Cir. 1999) — while, under general maritime law, the seaman can bring a separate claim against the employer for maintenance and cure. Are the two types of claims the same? No.The Jones Act claim seeks damages for injuries sustained by the employer’s breach of duty to provide prompt and adequate medical care. Without a discernible injury, the claim will fail. Not so with the general maritime maintenance and cure claim. A claim for M & C is cognizable where the employer has breached its duty to provide said compensation during a seaman’s recuperative period until “maximum medical recovery,” or MMI, is reached. Vaughan, 369 U.S. at 531.

Does the failure to provide maintenance and cure up to MMI constitute negligence per se (under the Jones Act)? Not according to the holding in Gabriel v. Line, Fla: Dist. Court of Appeals, 5th Dist. 2012. In a somewhat unusual opinion, the 3rd DCA allowed the cure claim for medical benefits to proceed, but disallowed the Jones Act claim because there was no evidence of negligence concerning the provision of medical care.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

NO-FAULT BENEFITS

Regardless of why a particular accident happens, every injured seaman is entitled to Maintenance & Cure benefits from his employer. These benefits are considered no-fault benefits, or benefits payable without regard to fault. Maintenance is the amount of money an injured seaman needs to sustain himself on land in a manner similar to how he was being sustained by the employer at sea. The primary elements of Maintenance are food and shelter. Employers try to pay pre-determined amounts, typically $20-$40/day, without regard to the actual facts. Employees can challenge the employer on the set amounts. For example, we recently represented an injured seaman who received $84/day. This was an unusually high amount that should not be viewed as anything other than an illustration of the point that the employer can be challenged and will sometimes voluntarily pay more than the industry standard. Interestingly, a seaman’s actual wages do not dictate how much the employer must pay, although it may influence how much the employer will pay. The reason for the higher payment is to offset the amount of money the employer may have to pay later on for past lost wages. (See below for a discussion of this element.)

Cure is medical care that is reasonable, related and necessary for the injuries.

The employer’s obligation to pay for Maintenance & Cure ends when the injured seaman reaches maximum medical cure. MMC is defined as the point beyond which there is no reasonable expectation of further medical improvement. Reaching MMC does not necessarily mean that the seaman has healed to his pre-accident state of health. MMC is determined by the treating doctor or doctors.

The third and final benefit available without regard to fault are the wages a seaman would otherwise have earned through the duration of the voyage but for the accident. In a recent case, we represented a gentleman who worked on a research vessel that was involved in projects at sea for months on end. Because he was injured during the early stages of a voyage and had to be evacuated from the vessel, as long as he remained unable to return to the vessel he was entitled to receive his full Wages.

It is not uncommon that the employer has to be sued to pay these benefits.

FAULT BASED COMPENSATION

Whether or not a seaman receives any other type of compensation for his injuries comes down to the question of whether or not there was any negligence on the part of the employer or vessel owner in causing the accident. If the answer is No, the seaman receives nothing more than the benefits described above.

Where fault is established, injured seamen may be eligible for one or more of the following types of compensation.

Past Wage Loss. The measurement of this damage element is the difference between the amount received in maintenance or contractual voyage payments and the wages the seaman would otherwise have earned but for the accident.

Future Lost Earning Capacity. This measure is somewhat trickier to calculate than the formula for past wage loss. It includes predictions and calculations regarding work restrictions, vocational qualifications, work-life expectancy, and present value. For example, in a case we handled involving a tri-level spinal fusion surgery, we argued that our 54 year old client would never again be able to work as a crewman, which would result in a total or at least a partial loss of wages over a work-life expectancy of 10 and 15 years.Past Lost Fringe Benefits. Some employers furnish their employees with fringe benefits such as health insurance and pensions. When the employer’s contribution ends because of an accident, this is a loss to the employee for which compensation may be due. The damage can be as much as the sum of all contributions the employer would have made from the accident date to when the case is resolved.

Future Lost Fringe Benefits. The calculation for this benefit is fraught with the same uncertainties and speculation as present for the future lost wages calculation. The considerations include the seriousness of the injury, the age and education of the injured seaman, and the likelihood of some future employer offering fringe benefits.

Future Medical Expenses. Even though the employer’s obligation to furnish Cure benefits ends at maximum medical cure, an injured seaman may continue to need substantial amounts of medical care after this date, in some cases, for life. Where the employer’s and/or shipowner’s negligence has caused the accident one or both of them is at least partly responsible for compensating the Seaman for the anticipated future expenses related to the medical needs. The amount due will be determined by agreement of the parties or by final judgment from a jury verdict.

Past and Future Pain & Suffering. This may be the most elusive damage element to quantify. A monetary value must be placed on non-economic considerations such as pain, suffering, and the loss of capacity to enjoy life.

The factors listed here are just some of the many that must be taken into consideration in estimating the value of a Seaman’s personal injury case. The lawyer’s experience also plays a big part in reaching reasonable conclusions with regard to case value.

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Contact our law firm toll-free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Passengers and seamen seeking to be compensated by vessel owners for personal injuries must show that the accident was caused by a condition onboard which makes the vessel unseaworthy. (Employees may also seek compensation against their employers under the Jones Act.) Unseaworthiness is a modified negligence-based system, rather than one of strict liability, meaning that injured parties have the burden of proving that an unseaworthy condition was the proximate cause of the injury. Edynak v. Atl. Shipping, Inc.., 562 F.2d 215, 222 (3d Cir., 1977).

One of the main differences between the purely negligence-based system and the unseawothiness system, and perhaps the most severe limitation on the doctrine of unseaworthiness, is that only a “condition” renders a ship unseaworthy, and that isolated, personal negligent acts are categorically excluded as a basis for liability on the part of the shipowner. Usner v Luckenbach Overseas Corp., 400 U.S. 494, 500 (1971); see also Edynak, 562 F.2d at 224 (“[U]nseaworthiness is a condition, not an act.”); Daughdrill v. Ocean Drilling & Exploration Co., 709 F. Supp. 710, 712 (E.D. La. 1989) (“[A] vessel is not deemed unseaworthy because of an isolated act of the crew, for that would destroy the distinction between unseaworthiness and negligence.”).This limitation is counterbalanced to some degree by the rule that the shipowner is liable “no matter how the condition was brought about or who brought it about.” Franklin v. Doric Shipping & Trading Corp.., 357 F. Supp. 1132, 1135 (W.D. La. 1972), aff’d, 477 F.2d 594 (5th Cir. 1973); Cf., Harper v. Falrig Offshore, Inc., 2000-694 (La. App. 3 Cir. 12/20/00); 776 So. 2d 620 (“In determining whether a vessel is seaworthy or not, all that is necessary is that there be some defective condition of the vessel that caused the injury.”).

A vessel’s condition of unseaworthiness may arise from any number of circumstances. What follows is a list of case examples in which unseaworthiness was found to have been the cause of the injury:

• Dos Santos v. Ajax Navigation Corp., 531 So. 2d 231 (Fla. 3d DCA 1988) (butter on floor of vessel’s kitchen area), cert. dismissed, 489 U.S. 1048 (1989)
• Lane, 788 So. 2d 351 (wet foot rest)
• Drachenberg, 571 F.2d 912 (marine unloading arm defective)
• Stevens v. Seacoast Co., 414 F.2d 1032 (5th Cir. 1969) (vessel unequipped with radio and certain medical supplies)
• In re Ta Chi Navig. (Pan.) Corp., 513 F. Supp. 148 (E.D. La. 1981) (incompetent crew), aff’d, 728 F.2d 699 (5th Cir. 1984)
• Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336 (1955) (incompetent seaman)
• Hercules Carriers, Inc. v. Fla. Dep’t of Transp., 768 F.2d 1558 (11th Cir. 1985) (failure to comply with established policies rendered crew unfit)
• Morel v. Sabine Towing & Transp. Co., 507 F. Supp. 949 (E.D. Tex. 1981) (inadequate crew and medical care), aff’d, 669 F.2d 345 (5th Cir. 1982)
• Edynak, 562 F.2d 215 (improper method of unloading)
• Bradshaw v. The Carol Ann, 163 F. Supp. 366 (S.D. Tex. 1956) (unseaworthy mode of ingress and egress)
• Deal v. A. P. Bell Fish Co., 674 F.2d 438 (5th Cir. 1982) (inexperienced crew member not instructed in use of life preserver)
• Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir. 1980) (toxic concentration of benzene fumes in crew living and working areas), abrogated on other grounds by Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)

Finally, unseaworthiness is generally a question of fact reserved for the jury. Brown v. Teresa Marie IV, Inc., 477 F. Supp. 2d 266, 274 (D. Me. 2007) (quoting Jordan v. U.S. Lines, Inc., 738 F.2d 48, 50 (1st Cir. 1984)); Waggon-Dixon, 679 So. 2d at 813 (“The question of unseaworthiness is ordinarily one for the jury and only in a rare case can a vessel be unseaworthy as a matter of law.” (quoting Johnson v. Bryant, 671 F.2d 1276, 1279 (11th Cir. 1982)).

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Contact our office toll-free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Millions of passengers travel annually on cruise ships sailing from Florida ports. Thankfully, most of the voyages are uneventful in terms of negative events. However, some passengers do suffer serious personal injuries and even death through the fault of the cruise ship companies.

General Maritime Law governs cases involving cruise ship passengers, Everett v. Carnival Cruise Line, Inc., 912 F.2d 1355 (11th Cir. 1990), including for injuries and death occurring during shore excursions, so long as it happens during the “course of the cruise.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004); Howard v. Crystal Cruises, Inc., 41 F.3d 527 (9th Cir. 1995). Common reasons for holding cruise lines liable for shore excursion accidents are fault in screening, hiring, and retention of tour operators. Fojtasek v. NCL (Bahamas), Ltd., 613 F.Supp. 2d 1351 (S.D. Fla. 2009); Smolnikar v. Royal Caribbean Cruises Ltd., — F.Supp. 2d — (S.D. Fla. 2011).

General Maritime Law holds a shipowner to a duty of reasonable care under the circumstances. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). With regard to dangers or risks that are not apparent and obvious, a cruise line has a duty to warn a passenger. Luby v. Carnival Cruise Lines, Inc., 633 F.Supp. 40 (S.D. Fla. 1986) aff’d 808 F.2d 60 (11th Cir. 1986).

Here is a checklist of other important considerations for cruise ship passengers:

Statute of Limitations/Notice of Accident: The courts have given the cruise ship companies some leeway in dictating how long harmed passengers have to bring claims. The restrictions will be written into the passenger ticket/contract. Typically, the statute of limitations is set at one year, while the time period for notifying the cruise ship company of an event is 6 months. This means that notice of the harm must be given to the cruise ship company within 6 months of the event and that a lawsuit must be brought against the company within 1 year of the event. The failure of a claimant to meet either of these conditions will likely bar the claim entirely.Forum Selection: The forum is where the case is brought. Like with the category above, the courts allow the cruise ship companies to establish the forum. Most companies require that claims be brought in South Florida in Federal Court. Leslie v. Carnival Corp., 22 So.3d 561 (Fla. 3d DCA 2008.) The forum selection provision will be contained in the passenger ticket/contract. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

Sexual Assault by Crew Members: Unfortunately, this is an all too common occurrence on voyages. Vessels are large, with many secluded nooks and crannies, and passengers have a tendency to let their guard down. When a passenger is sexually assaulted by a crew member, the vessel owner is strictly liable for the assault. Nadeau v. Costly, 634 So.2d 649 (Fla. 4th DCA 1994); Doe v. Celebrity Cruises, Inc., 394 F.3d 891. In order to hold the vessel operator accountable, all that the passenger needs to prove is that the assault occurred during “the contractual period.” Doe v. Celebrity Cruises, Inc., 145 F. Supp.2d 1337 (S.D. Fla. 2000).

Liability for Shipboard Medical Care: The court holdings on this issue are mixed. The theories applied in those courts that hold vessel operators accountabiilty for the negligence of onboard medical providers are: (1) negligent hiring and retention; (2) apparent agency, Warren v. Ajax Navigation, Inc., 1995 AMC. 2609 (S.D. Fla. 1995); and (3) joint venture, Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204 (5th Cir. 1978), Bay Casino, LLC. v. M/V Royal Empress, 1998 AMC 2226 (E.D. N.Y. 1998).

Releases: Cruise lines insist on obtaining releases from passengers before certain activities may be performed. Thankfully, the law does not enforce these agreements for personal injury or death caused by the negligence of the vessel or its crew, or to give up the right to a jury trial. 46 U.S.C. Section 30509, which was formerly designated as 46 U.S.C. Section 183c.

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Contact us toll free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Hurray for the Miami Heat. Boo (and shame on) Micky Arinson, the billionaire owner of the Heat.

Micky Arison also owns Carnival Corporation, the world’s largest cruise operator. While the company operates many of its ships from American ports, enjoying the laws and protections only America can afford, it hides behind a labyrinth of one-sided procedures and antiquated laws that effectively limit the ability of its passengers to be fairly compensated for serious losses suffered on the high seas, including the most serious loss of all, the loss of life.

First, the procedural issues:

• Pursuant to the passengers’ ticket, passengers who are injured on cruise ships operated by Carnival, Celebrity, Norwegian, Costa, or Royal Caribbean are required to bring claims in Federal Court in South Florida.
• Within six months of an accident, injured passengers must submit a detalied letter to the defendant describing the accident. Failure to do this may bar further action by the victim.
• A one-year statute of limitations. In other words, a lawsuit must be brought within one year of the accident.
• The victim must travel to Miami to be deposed. In addition, the defendant has the right to perform a medical examination on the victim in Miami, and the mediation and the trial take place in Miami. These venue issues can present significant hardships to the plaintiff, who usually resides in another state or another country altogether.

Perhaps the greatest affront is the limited recovery afforded survivors of loved ones who die on the high seas as a result of negligence occurring onboard a ship. This limitation is prescribed by the Death on the High Seas Act (DOHSA). Where a plaintiff dies on the high seas beyond a marine league [i.e., three nautical miles] from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the survivors of the decedent are limited to pecuniary losses – essentially related medical bills and funeral expenses. Non-economic damages such as pain and suffering, loss of society, services and comfort of spouse, parent or child cannot be claimed. (Contrast these limits to Florida’s Wrongful Death Act, which affords certain survivors the right to recover these damages.)That the law has so little regard for the loss of human life is unconscionable. Cruise ship companies lobby Congress hard to keep this law firmly in place. Shameful.

Making high seas cruising even dicier for passengers is that the medical staff onboard vessels, typically not of the highest caliber to begin with, are considered independent contractors, and therefore, not the cruise ship company’s legal responsibility when negligent care is provided. This means that a passenger harmed by the negligent care of onboard medical staff is stuck trying to recover his or her damages from the medical provider only, instead of also from the cruise ship company. This is not an easy task. Not only do these providers rarely carry adequate medical malpractice insurance coverage, but they are mostly non-Americans who are moving from port to port or no longer onboard at all, making service of legal papers virtually impossible.

The legal authority for this unfair and illogical status between onboard medical staff and the cruise ship companies is Carnival Corp. v. Carlisle, 953 So.2d 461 (Fla. 2007).

So, while Micky Arison and his fellow cruise ship owners enjoy the spoils of favorable rules and laws to rake in millions of dollars, cruise ship passengers cruise the high seas at great peril to their health, safety, and welfare.

NOTE: “Crewmen” are afforded greater rights than cruise ship passengers for loss of life and injury due to medical negligence.

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Contact us at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.