Boating Accidents: Do you have a lawsuit?

The commercial mariner works in an industry that has an accident rate many times higher than most other industries. Your rights are governed by admiralty law, and you need an admiralty lawyer to help protect your rights. Many persons, who have been injured working on ships, boats, fishing vessels, barges, etc. are entitled to benefits under the federal law called the Jones Act, which provides compensation remedies greater than ordinary workers compensation programs. The following is a discussion of many of the rights to which commercial seamen, divers, fishermen, barge and dredgemen and other maritime workers, are entitled.

What are your rights as a cruise ship passenger injured on a cruise?

There are numerous accidents that such as sexual assault that can happen on dry land, and the very same accidents can also occur when you and your family are traveling on a cruise ship.  Accidents such as objects falling, which can cause a person injury and slips and falls are common occurrences that can happen no matter where you are, on land or at sea.  A crime such as theft is something that can also happen aboard a cruise ship.  Not only is this a crime that is committed by passengers aboard the ship, but it is also something that is done by crewmembers.  One problem that occurs regularly on cruise ships that is becoming a big concern to the U.S. Attorney General’s office is the fact that out of every four crimes that are being reported in Miami on cruise ships, three of them are sexual offenses that involve girls that are under the age of 21.

Strict Liability

46 U.S.C. §1702(6).  Under Section 3(6) of the Shipping Act of 1984, it states that cruise ships that depart from a port in the United States are considered to be a common carrier of passengers.  It is generally expected that a common carrier should maintain the special duty to safely bring passengers to their destination and to also maintain care of the highest degree to ensure they are protected against physical harm.(See New Jersey Steamboat Co. v. Brockett, 121 U.S. 637, 645-646 (1887); Restatement (Second) of Torts §314A (1965).)  The special relationship between a carrier and its passengers involves one person entrusting himself to another’s protection and care. (See Holland America Cruises, Inc. v. Underwood, 470 So.2d 19, 20 (Fla.Dist.Ct.App. 1985) (finding that common carrier has a duty to protect passengers from criminal attack.)) A cruise ship’s duty of safe transportation includes protection of the passenger from crew members’ rapes, molestations, and assaults. M.J. Norris, The Law of Maritime Personal Injuries, §3:3, at 62-63; §3:12, at 78 (4th ed. 1990).

In 1887 the Supreme Court made their first address on crewmembers assaults against passengers.  The ship’s watchman used excessive force removing a passenger from an area on the ship that was restricted in the New Jersey Steamboat case.  A passenger is entitled to being protected by the misconduct or negligence of the carrier’s servants’ by virtue of a contract for safe transportation, and the Court recognized this.  Because of the fact that the carrier relies upon the servants’ to perform the contract of transportation for the passengers, the misconduct or negligence of the servants’ would be the liability or responsibility of the ship.  Basing its findings on public policy and precedent found from railroad cases, the Court stated that it is the responsibility of a common carrier to protect its passengers from any misconduct committed by its own servant’s during the course of their employment.  Several years later the Supreme Court reaffirmed Brockett in New Orleans & N.E. R.R. Co. v. Jopes, 142 U.S. 18 (1891).  Although Jopes involved a passenger being shot by a conductor, the Court applied Brockett and further defined the common carrier liability rule.  The Court stated in Jopes that carriers are bound to make sure that passengers are protected from its own servants assaulting or injuring passengers.  Jopes expanded Brockett by removing the required employee act within the duration of his employment and held liability strictly on the carrier for acts made against passengers by its employees.  It is true that Jopes did not involve a passenger ship, but it involved a train instead, however the Court seen no difference between the modes of transportation because in both of these cases common carriers were involved.  In Morton v. De Oliveira, 984 F.2d 289 (9th Cir.), cert. denied sub nom., Carnival Cruise Lines, Inc. v. Morton, 510U.S.907 (1993), where a passenger stated that she was raped by one of the crew members while in her cabin, the issue of passengers being assaulted by crew members was reviewed by the Ninth Circuit based on the usual “reasonable care under the circumstances” standard and the ship was held liable.

Personal Injury Case - Reasonable Care Standard

The court recognized first, in the context of a slip-and-fall accident of a crew member being visited by a man while on board a vessel that is docked at a pier, that duty falls on the ship owner of “reasonable care under the circumstances” towards individuals that are lawfully on board the vessel.  (Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).)  In support of this particular conclusion, the Court cited admiralty cases that deal with personal injury aboard a vessel.  The issue was whether invitee-licensee distinctions as they were in common law, were recognized in admiralty.  It was found that these distinctions were brought about from legal concepts that were completely different than the law of the sea.  In conclusion, the Court found that it only made sense to take away distinctions that was based on the plaintiff being licensee or an invitee and a general standard of reasonable care should be applied.  In referencing personal injury cases that were shipboard and that involved non-crew members, the Court supported its conclusions.  In the First, Fifth, and Ninth Circuits, Kermarec is interpreted as creating a negligence standard of “reasonable care under the circumstances” for cases that were of personal injury, and retained Brockett’s stronger standards for misconduct towards passengers by a crew member.

Venue Selection Clauses

There is a forum selection clause on most cruise passenger tickets that can usually be found on the back of the ticket in microscopic type.  Because they normally control the venue in a case as well as the controlling law, careful attention must be paid to the clauses.  A California Court is generally designated when cruises depart from a California port such as Long Beach and San Francisco therefore, California law and 9th Circuit law control.  Cruise lines that are Miami-based will normally specify Miami as the venue.

Even though they frequently fail, objections can be made to the enforcement of the venue selection clause.  Before being overruled by the Supreme Court, the Ninth Circuit did hold that, it was held by the Ninth Circuit that like other contracts of adhesion with non-negotiated terms, cruise line tickets with forum selection clauses are not enforceable. (Shute v. Carnival Cruise Lines, Inc., 899 F.2d 377, 388 (9th Cir. 1990).) The U. S. Supreme Court disagreed. (Shute, 499 U.S. 585.  The U. S. Supreme Court disagreed. Shute, 499 U.S. 585.)  The Court held by extending the analysis of “reasonableness”, that there are two different reasons why a non-negotiated forum selection clause might be reasonable in the cruise line business.  1.  “[b]ecause a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. …” 2. A forum selection clause would save the parties and the courts time and money by eliminating venue motions and would benefit passengers by reduced fares “reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued.” Intentional torts by a crew member is one claim that can be made and it lies outside the Court’s primary rationale because only an alleged intentional act is involved, and not one of a “mishap”.  In Johnson v. Commodore Cruise Lines, supra, it drew this distinction, where cruise ship tickets were limited another exceptional protection adhesion clause, which is a provision of a shortened time-to-sue for bodily injury suits as authorized by 46 U.S.C. §183b.  Based on an alleged conspiracy to conceal a rape by a crewmember, plaintiffs sued for intentional infliction of emotional distress and other wrongs.  Under the law of Mississippi, where plaintiffs bought their tickets, the contractual limitations period was much shorter than what was provided in this law. 

Rejecting this defense, the court wrote:

“Congressional concern in enacting the statutes in which § 183b was a part was to limit the liability of a shipowner for events arising in the general course of shipping and navigation. [Citation.] There is no suggestion in either the language of the statutes or in their legislative history of any intention to limit the liability of a shipowner for the affirmative misconduct or its mismanagement toward passengers. Accordingly, we find that § 183b does not preempt Mississippi’s prohibition against contractually shortening limitations periods and, therefore, that the six-month time-to-sue provision in plaintiffs’ tickets is invalid.Id., at 745.

Finally, plaintiff may assert that defendant’s forum selection clause was unfair as applied to plaintiff because he/she had no opportunity to reject the clause without financial forfeiture. A forum selection clause may be unreasonable as applied to a passenger who does not learn of it until after the ticket is purchased and lacks opportunity to reject the contract without a penalty. Under these circumstances, the clause may be deemed unreasonable as to the plaintiff. (See, Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1011-1012 (D. Haw. 1992) (clause not enforced); Kalman v. Cunard Line, Ltd., 904 F. Supp. 1150 (D. Haw. 1995) motion to dismiss denied pending resolution of disputed facts); cf. Cross v. Kloster Cruise Lines, Ltd. 897 F. Supp. 1304 (D. Or. 1995) (10 days’ notice, $400 penalty, clause enforced).)

This means what are your rights as a cruise ship passenger injured on a cruise will depend in large part what jurisdiction the case will be filed in. 

What are your rights if you were inured on a recreational boat?

There is in place general maritime law which provides protection to all persons who are injured on vessels. If you have been injured on a personal watercraft (waverunner), a sailboat, or motorboat, for example, you may have important legal rights that can be asserted in court for your damages.

What if I work on the water?

Seaman's Right to Maintenance and Cure.

Employers must provide maintenance and cure benefits to a Jones Act seaman who suffers an injury or illness while in the service of the ship.  All to commonly Seaman think of maintenance and cure as being one and the same with worker’s compensation insurance.  However, the right to payment of maintenance and cure generally covers things that are otherwise not covered by workman's compensation.  The obligation to pay maintenance and cure arises if the injury occurs, or if it manifests, while the seaman is in the service of the ship. Maintenance and Cure benefits are paid and defined differently from other damages covered under the Jones Act.  Employers are not obligated under the law to immediately pay an injured workers Jones Act injury claim, however the duty to begin paying maintenance and cure begins upon the occurrence of the injury or manifestation of the illness. 

Damages Caused by Unseaworthy Vessel.

Unlike the Jones Act claims, which is against the seaman's employer, an unseaworthiness claim is made against the vessel's owner. In many cases those actions will be against the same party. An unseaworthiness claim will bring the owner into a lawsuit as an additional source of recovery for the seaman.The vessel owner owes the seaman a strict and absolute duty to provide a seaworthy vessel. A seaworthy vessel is one that is reasonably fit for its intended use, it should be a safe place to work and live; should be equipped with appropriate safety gear and equipment, safe recreation facilities and a complete crew. The duty owed to a seaman is absolute and above and beyond the seaworthiness promised in the carriage contract. Unseaworthiness does not mean the vessel is ready to sink.  Unseaworthiness can be conditions on the vessel such as equipment failure, insufficient crew, or a condition such as gas, oil, grease or rust exists where it where it is not intended to exist.

The Jones Act and Claims for Negligence

The seaman has the right to recover under the Jones Act for injuries suffered as a result of the negligence of the owner of the vessel, its agents, or the vessel's crew. Under the Jones Act the seaman may be compensated for pain and suffering, impairment of earning, capacity, medical bills and other damages. The seaman only has to prove that some negligence, however slight, caused his injuries.

Am I covered by the Jones Act?

If your a Commercial Fisherman:

With the popularity of shows portraying the life of commercial fishermen, the dangerous nature of this occupation has fascinated many viewers. If your a fishermen working on fishing boats, you know this firsthand, but what you may not know is that you are covered by the Jones Act,  which entitles you to maintenance and cure, a claim for vessel unseaworthiness and the right to sue your employer for negligence.

If your a Commercial Diver:

Commercial diving is a dangerous occupation. The most common injuries occur due to poor dive supervision and can lead to decompression illness (DCI) and decompression sickness (DCS), aka the "bends". When taking the plunge divers can be injured by poor dive supervision such as: where there is a failure to to create a safe dive profile or enforce the dive tables, a failure to hire a back-up diver, or who where dive supervisors do not know the basics of emergency treatments for decompression illness. Divers can also be injured by burns due to underwater welding, being crushed by underwater equipment and so forth.

If you perform other seafarer duties:

You may work on a barge, tug, oil rig,or other type of vessel, all of which are covered under the Jones Act. 

The Longshore and Harborworker's Compensation Act:
Under the Longshore and Harborworker's Compensation Act, there is a federal workers' compensation program for employees of stevedores, shipyards, dockbuilders and other maritime workers. As with regular worker's compensation, with some limitations, covered employees have the right to sue third-parties for their work-related injuries