We will be posting blogs about various aspects of maritime, personal injury and wrongful death law. Since we are located in the cruiseship capital of the world, I make reference to claims involving the cruiselines. However, the discussion covers claims by passengers and crew aboard any type of vessel. Both Miami and Fort Lauderdale are large home ports for the major cruiselines, and millions of passengers sail from these ports each year. Some of the newer cruise ships have a capacity of 5,400 passengers and another 2,500 crewmembers. These are huge cruise ships, and of course the potential for accidents and injuries are great.
The wind in the wires made a tattletale sound
And a wave broke over the railing
And every man knew, as the Captain did, too,
T’was the witch of November come stealing.
They might have split up or they might have capsized
They may have broke deep and took water
And all that remains is the faces and the names
Of the wives and the sons and the daughters.
In a musty old hall in Detroit the prayed
In the Maritime Sailors’ Cathedral
The church bell chimed, ‘til it rang 29 times
For each man on the Edmund Fitzgerald.
(Gordon Lightfoot’s “Wreck of the Edmund Fitzgerald”)
As for seamen, Congress passed the Jones Act, which is found at 46 U.S.C. § 30104. Under the Jones Act a seaman has a right to sue his employer for negligence, including the negligence of any of the agents of the employer. Under Maritime Law, a medical care provider selected by the employer to provide medical care and treatment to the injured or sick crewmember becomes an agent of the employer. Accordingly, liability can be imposed against the employer for the negligence of the medical care provider. Under the Maritime Law the employer is required to provide medical care and treatment to an injured or sick crewmember, regardless of fault. The only defense to this obligation is if the illness or injury is due to the willful misconduct of the seaman. This is a very limited defense, and rarely is applicable to deny a seaman his rights to maintenance and cure, which is the seaman’s right to medical care plus an allowance for food and lodging during his medical care and treatment.
The Maritime Law has historically recognized that a seaman works in a unique type of employment. He gives up his personal freedom. It is almost like being in a jail, but with the risk and chances of drowning. Due to the harshness of working at sea, seven days a week, many hours per day, for many months without a break, the law is very favorable for a seaman who suffers an injury or illness during the course and scope of his employment.
The law protecting seamen has been dated back to medieval codes from the island of Oleron.
When the Constitution was ratified, states agreed to the need for the creation of a federal court system that could handle maritime law claims, but the Judiciary Act of 1789 contained a savings to suitors clause which provided for the rights of common law courts to retain jurisdiction over admiralty and maritime law claims. This means that a maritime claim can be filed in federal court under the common law jurisdiction if there is a basis for federal court jurisdiction other than admiralty, and an admiralty and maritime claim can also be filed in state court. This will preserve the right of a litigant to a jury trial, whereas if the case is filed under the admiralty jurisdiction of the federal court there is no right to a jury trial.
Since there is concurrent jurisdiction with state and federal courts, seamen have a right to file their cases in state court, and a Jones Act case may not be removed by the defendant. However, we are seeing an increasing number of arbitration clauses in the employment contracts of seamen. If it is a foreign seaman, the Convention on the Recognition of Foreign Arbitral Awards will apply and provides a basis for removal to the federal court so that the employer can move to compel arbitration.
In addition to a seaman’s right to bring a claim under the Jones Act for negligence, a seaman may bring an action for maintenance and cure, which enables him to seek wages plus medical care and treatment. The medical care includes medicine, treatment, and other expenses relating to the injury. The seaman also has a right bring a claim for unseaworthiness, which is a form of strict liability on the part of the owner of the ship for failing to provide a ship which is deemed reasonably fit for its intended use. The unseaworthiness claim can be based on some aspect of the ship, including the methods of work, or insufficiency of crew.
The damages available to a seaman under the Jones Act and general maritime law of unseaworthiness are the typical personal injury elements of damages.
There is a provision for wrongful death claims to be brought under the Jones Act, and the general maritime law of the United States now provides for an action for wrongful death. However, in a case involving the wrongful death of a seaman, the law does not permit for non-pecuniary damages to the survivors of the crewmember.
The millions of passengers who board the cruiseships in Miami and Fort Lauderdale each year are issued a passenger ticket. The passenger ticket contains a number of terms and conditions that the law has found enforceable. As can be expected, the terms and conditions mainly limit liability of the shipowner. They do not provide for any rights to the passenger.
One of the terms and conditions of the passenger contract that is important is the time limitation in which to file a lawsuit on behalf of an injured passenger. The maritime law permits the cruiseship owners to limit the time to file a lawsuit to one year from the time of the accident. The ticket also provides that notice of the claim must be given to the shipowner within six months. These are very short time limitations that most lawyers are unfamiliar with. Our firm receives many phone calls from lawyers after this time period has past inquiring from us whether these time limitations are enforceable. They are indeed enforceable, and permitted under a United States statute.
As with crewmembers, the savings to suitors clause allows an admiralty and maritime claim of a passenger to be brought in state court. However, the cruiselines have now begun to insert into passenger tickets a forum selection clause which requires passengers to file suit in the federal court. The forum selection clauses also dictate the particular geographical location the lawsuit must be filed in. Most of the major cruiselines require the lawsuits to be filed where they are based. Most of the major cruiseline companies are based in Miami, Florida or Fort Lauderdale. Holland American Lines is in Seattle.
In addition to the geographical location, and the requirement to file suit in federal court, the issue with passengers is whether the forum selection clause results in depriving the passenger of their right to a jury trial. If the action can be filed in state court, or in federal court at law, the right to a jury trial is preserved. However, there must be a basis for jurisdiction in the federal court other than admiralty and maritime. If a forum selection clause requires the passenger to file suit in federal court, and there is no diversity of jurisdiction, the case must be brought under the admiralty and maritime jurisdiction in the federal court. There is no right to a jury trial in such cases. The argument then is the forum selection clause is an impermissible denial of the passenger’s right to a jury trial. There is case law addressing this issue, and it is an evolving area of law. However, it appears that the forum selection clauses at this time will be enforced.
A passenger’s claims for personal injury and wrongful death are governed by the general maritime law. The general maritime law requires the cruiseship company to exercise reasonable care under the circumstances to provide a safe voyage for the passengers. The courts have rejected the highest degree of care standard applied to common carriers. There are many aspects to a cruise, which results in duties owed to the passenger, including the duty to provide for the passenger’s safety during embarkation and disembarkation at the various ports the ship sails to. There are also requirements for providing for safety of the passengers with respect to criminal activity. There are instances of sexual assaults and crimes onboard cruiseships, as well as disappearances of passengers during a cruise. Intoxication often plays a major role in these claims. The cruiseship companies does have a duty not to over serve its passengers to the point of obvious intoxication, and then has a duty to protect an obviously intoxicated passenger from any dangers associated with the intoxication.
A complex area of maritime law involves wrongful death of passengers under the general maritime law. The issue becomes whether non-pecuniary damages are available under the general maritime law, and whether any state law can be applied to wrongful death cases brought by passengers. This is a complex and confusing area of law, with a majority of the opinions restricting non-pecuniary damages in cases involving passenger claims under the general maritime law. Regarding any deaths that occur while the vessel is on high seas, which is most often the case, a federal statute, the Death on the High Seas Act, is applicable. The Death on the High Seas Act restricts damages to pecuniary damages only. The harshness of the Death on the High Seas Act has been publicized following the BP oil spill disaster, because its applicability limits the recovery of the survivors of the victims of the BP oil spill to pecuniary damages only. The Death on the High Seas Act was amended years ago to allow non-pecuniary damages in cases involving airplane accidents when the Death on the High Seas Act applies; however, there has yet to be an amendment to the Death on the High Seas Act that would apply to deaths which occur onboard vessels.
This has been a very brief introduction to some of the issues involving seamen and passenger claims. I hope to address many issues that arise under the admiralty and maritime law involving claims of personal injury and wrongful death in the upcoming blogs.