Washington Maritime Injury Lawyer Blog

Under maritime law, vessel owners facing liability for an injured crewman can petition the court to limit their liability to the value of the vessel and pending freight. They make the request pursuant to the Limitation of Shipowner’s Liability Act (Act), 46 U.S.C. §30501. In order to limit its liability, the ship owner must show, by a preponderance of the evidence, the negligent acts or unseaworthy conditions that caused the crewman’s injury were not within their privity or knowledge. The owners of a fish tender in Alaska tried to limit their liability after a fisherman was injured by a broken crane hook. A federal court in Washington dismissed the owner’s petition.

Matthew Flora, 35, worked as a seaman on moving vessel LEO, which was owned by Coastal Villages Seafoods, LLC and other owners (petitioners). LEO is an ex-U.S. military landing and recovery craft modified to include two “knuckle” cranes installed in May 2007. The crane hooks were designed to have safety latches to keep heavy loads on the crane hook. LEO’s port side crane hook did not have a safety latch.

On June 12, 2009, LEO was being used as a fish tender vessel off the western coast of Alaska. On the first day of the voyage, within 3 miles of Alaska’s shore, LEO’s crew lowered the crane, with a brailer and scale, to a halibut catcher vessel, which loaded the fish to “lift” back to LEO. LEO’s crew would then ice the fish in totes before transporting them to shore for processing. As LEO’s crew loaded the halibut onto the vessel, the brailer and scale popped out of the crane hook. The scale struck Flora, who suffered a fractured skull and permanent brain injury. Flora sued petitioners under the Jones Act, claiming their negligence caused his injuries. Petitioners requested to limit their liability under the Act.

In this case, Flora sustained his burden of proving negligence. The petitioners, however, could not limit their liability because they knew of LEO’s unseaworthiness and were in privity with the vessel’s negligent manager. LEO was not seaworthy because its crane hook, without a safety clasp, was not reasonably fit for its intended purpose. LEO’s captain admitted he knew the crane lacked a safety latch when the vessel sailed from Seward, Alaska. The vessel manager likewise knew the hook was defective, but never took effective measures to ensure the hook was repaired. His actions and omissions constitute negligence and were the cause of Flora’s injuries. Petitioner’s knowledge of LEO’s unseaworthy condition and their negligent failure to remedy the defective equipment undermines their claim that they lacked “privity or knowledge” of the cause of Flora’s injury. Accordingly, the ship owners could not limit their liability under the Act. Their petition for limitation of liability was dismissed with prejudice.

Continue reading " Injured Alaskan Crewman Defeats Owner’s Limited Liability Claim-In the Matter of the Complaint of Leo, LLC et al. v. Flora " »

An appellate court recently confirmed a legal rule prohibiting vessel owners from limiting their liability by invoking federal court jurisdiction. Passengers who are injured en route to a vessel are entitled to fair compensation for their injuries, even if the incident did not occur “on or over navigable waters.”

MLC Fishing, Inc. (MLC) owns the fishing vessel “Capt. Mike,” which was docked at Capt. Mike’s Marina in Howard Beach, Queens. Julio Velez wanted to go fishing as a passenger aboard Capt. Mike. Velez slipped and fell on a ramp leading from the marina to a floating dock that passengers needed to traverse to board the vessel. Velez sued MLC for injuries sustained from the fall. MLC sought to limit its liability pursuant to the Limitation of Liability Act (Act), 46 U.S.C. §30501. The district court dismissed MLC’s complaint for want of subject matter jurisdiction. MLC appealed, alleging the Act provided an independent basis of jurisdiction for petitions that arose from incidents that did not occur on navigable waters. The appellate court affirmed the district court’s judgment.

Congress grants federal district courts jurisdiction over “any civil case of admiralty or maritime jurisdiction” pursuant to 28 U.S.C. §1331(1). A tort action lies within the federal district court’s admiralty jurisdiction if it satisfies both prongs of a two-part test. First, the alleged tort must have occurred on or over “navigable waters.” Second, there must be a substantial nexus between the activity giving rise to the incident and traditional maritime activity. In other words, the incident must have had a “potentially disruptive influence” on maritime commerce.

Here, Velez fell on a ramp connected to the marina. Like a pier or dock, this ramp is considered an “extension of land” for purposes of determining admiralty jurisdiction. In this case, neither the ramp nor the floating dock leading to Capt. Mike possessed the characteristics associated with maritime objects; both were extensions of land. Thus, Velez’s injury did not occur on or over navigable waters. As such, MLC could not satisfy the locality prong of two-part test to invoke admiralty jurisdiction.

Further, the Act does not provide an independent basis for federal jurisdiction over this action. The Act limits the liability of a vessel owner to the value of the vessel and pending freight in cases of loss, damage, or injury. Although the Supreme Court has declined to determine whether the Act provides an independent basis for jurisdiction, every court of appeals that has ruled on the issue has concluded it does not. Here, the district court did not address the issue, but the appellate court clarified that it would “join [its] sister Circuits” in holding the Act did not confer admiralty jurisdiction in cases where the alleged incident did not occur on or over navigable waters.

In reaching this conclusion, the court looked to the Act’s relevant statutory language and found it did not grant subject-matter jurisdiction. Rather, it was only intended to grant vessel owners a private right of action to limit their liability assuming the court otherwise had jurisdiction. If courts interpreted the Act to grant cover controversies that did not occur on navigable waters, this would exceed the scope of the constitutional grant of admiralty jurisdiction. Accordingly, the district court properly dismissed MLC’s petition to limit its liability for want of jurisdiction.

Continue reading " Ship Owner Cannot Limit Liability Where Passenger Slips on Ramp-MLC Fishing, Inc. v. Velez " »

An article in the Miami Herald discussed lawsuits being instituted in behalf of passengers aboard the COSTA CONCORDIA. Two New York lawfirms claim to be representing "hundreds" of passengers.

The shipowner has offerred 11,000 euros, or about $14,500, to settle claims by the 3,206 passengers who were not physically injured. It has been noted that the settlements would total about $46 million, or 12 days of projected Carnival Cruise profits for 2012.

The Miami Herald article reports that maritime plaintiff lawyers in Miami and Los Angeles have valued the claims in the range of $60,000 to $100,000.

Both the shipowner and the lawyers treat the claims as if there were coupons. They are not. Claims for psychological damages suffered by passengers are based upon the experience of the individual person and the consequences in terms of emotional pain and suffering.

It is likely many passengers will suffer the effects of post traumatic stress disorder ("PTSD"). The nature and extent of this condition cannot be immediately known. No passenger should consider final settlement of his or her claim unless and until the emotional effects, which may be latent, are evaluated by a professional.

PTSD is a well established medical condition. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revisions (DSM–IV-TR) states:

The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person's response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganized or agitated behavior) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F). DSM–IV-TR, p.463. [Emphasis supplied.]

The manual goes on to discuss the various symptoms of PTSD, including flashbacks, avoidance, sense of foreshortened future, anxiety, sleeplessness, recurrent nightmares, outbursts of anger, as well as painful guilt feelings about surviving when others did not survive.

Symptoms of PTSD usually begin within the first three months after the trauma, although there may be a delay of months, or even years, before symptoms appear. DSM–IV-TR, p.466.

According to the National Center for PTSD, an agency of the U.S. Department of Veterans Affairs, symptoms of PTSD may come and go over many years. About half (40% - 60%) of people who develop PTSD get better at some time. But about one out of three people who develop PTSD will always have symptoms.

As stated by the National Center for PTSD:

Symptoms of post traumatic stress disorder (PTSD) can be terrifying. They may disrupt your life and make it hard to continue with your daily activities. It may be hard just to get through the day.

It is to be hoped that only a small percentage of the passengers who survived the wreck of the COSTA CONCORDIA will suffer from full-blown PTSD. But it would be naive for anyone who survived the ordeal to discount the possibility of emotional consequences.

The lawfirm of Anderson, Connell & Carey has represented survivors of shipwrecks who have suffered psychological effects and have been compensated accordingly. In one case, the recovery for PTSD exceeded $1,000,000. In most cases, the effects are not so profound as to warrant an award of that magnitude, but the condition can be serious and the suffering profound.

The Iliuliuk Family and Health Services clinic in Dutch Harbor has been caring for injured fishermen for decades. It is a beacon of compassion and competence in the North Pacific. It's commitment to professionalism is reflected in its decision not to permit a T.V. show to invade the privacy of the clinic.

The Deadliest Catch's access to scenes of injured fishermen inside the clinic has been cut off. The board of directors of the clinic unanimously declined permission to the production company to film in the building.

Before the vote was taken, clinic health care providers were asked by board chair Michelle Callaham how they felt about being rock stars and TV stars on the show that airs on the Discovery Channel featuring Bering Sea crab boats.

None spoke in favor.

As noted in our last blog post, in the 1991 U.S. Supreme Court case of Carnival Cruise Lines v. Shute, a "choice of forum" clause in a cruise ship ticket was upheld.

In dissent, Mr. Justice John Paul Stevens explained the purpose of choice of forum clauses like the one contained in the COSTA CONCORDIA tickets:

"Clauses limiting a carrier's liability or weakening the passenger's right to recover for the negligence of the carrier's employees come in a variety of forms. Complete exemptions from liability for negligence or limitations on the amount of the potential damage recovery, requirements that notice of claims be filed within an unreasonably short period of time, provisions mandating a choice of law that is favorable to the defendant in negligence cases, and forum-selection clauses are all similarly designed to put a thumb on the carrier's side of the scale of justice."

In the Shute case, the plaintiff was a lady from Arlington, Washington. She and her husband
purchased tickets through a local travel agent. She was injured aboard the Carnival ship TROPICALE, enroute from Los Angeles to Puerta Vallarta, Mexico. The ticket called for suit in Florida.

The Ninth Circuit Court of Appeals ruled that the forum selection clause was unenforceable. The Supreme Court reversed, relying on it's previous opinion in Bremen v. Zapata Offshore (1972). That case involved a clause in a contract for towage of an oil rig from Louisiana to a location in the Adriatic Sea, calling for litigation in London. To those of us representing injured passengers, it seemed a stretch to extend the Bremen doctrine to require a lady in Arlington to travel to Florida to seek redress for injury.

Justice Stevens would have none of it. Joined by Justice Marshall, he said that the clause in question was "the product of disparate bargaining power between the carrier and the passenger" which "undermine[d] the strong public interest in deterring negligent conduct."

If the courts will not permit suit against Carnival in this country, the Congress should act to rectify the injustice resulting from Carnival v. Shute and its progeny.

Although the parent company of the owner of the stricken Costa Concordia is based in Miami, passengers who want to file a lawsuit in U.S. courts over the cruise ship disaster will encounter obstacles in the tickets issued by the cruise line.

That's because of fine print on the tickets purchased and signed by the 3,000-plus passengers before the ship capsized Jan. 13 off the coast of Italy, killing at least 16 and leaving another 16 missing. The ticket contract includes what's known as a "choice of forum" clause stating that lawsuits must be filed in Italy.

In a 1991 case of Carnival Cruise Lines v. Shute, the U.S. Supreme Court held that such a provision in a cruise ticket was enforceable. The result has been that many claims by injured cruise ship passengers have been deterred by the expense of filing a lawsuit in a foreign court.

For a Costa cruise that touches any part of the U.S., the clauses say lawsuits should be filed in federal court in South Florida. Same for Carnival Cruises – which owns Costa – and many other major cruise lines. But for cruises such as the Concordia that involve only foreign travel, the Costa ticket says lawsuits must be brought in Genoa, Italy where much of the subsidiary's operations are based.

The clauses in the cruise industry are not as common in other forms of travel. Lawsuits against airlines, for example, can be brought virtually anyplace they do business for domestic flights; for international flights, lawyers can generally sue in the airline's home location or where the flight departed, among other venues.

Last August, the 11th U.S. Circuit Court of Appeals ruled in favor of a forum clause in a case involving Regent Seven Seas Cruises Inc. A California woman, Nina Seung, fell and broke her leg aboard a cruise ship sailing from Tahiti, then tried to sue in Fort Lauderdale federal court. Her ticket required foreign cruise lawsuits to be filed in Paris, and the appeals court rejected her challenge.

Seung, who was 74 at the time of her accident, said in court papers that the clause essentially barred the door for her.

"I do not have any savings of note right now, I am going further and further into debt each month and because I cannot work, I don't see how I can ever afford this," she said in an affidavit. "So if I am forced to go to Paris, France, I just will not be able to bring my claim."

When the Shute case was decided by the U.S. Supreme Court, lawyers representing injured passengers were discouraged. It was obvious that passengers do not meaningfully agree to the fine print on the back of tickets issued by the cruise line. This is a classic "contract of adhesion," in which one party has never had any choice but to accept the terms, no matter how unconscionable.

Rescuers pulled more than 200 survivors from the ocean on Thursday (February 2) as the search for more passengers from a packed ferry that sank off the coast of Papua New Guinea was set to extend into Friday, rescue officials said.

The fate of scores of others aboard the ferry, the MV Rabaul Queen, was unknown.

Rescue agencies estimated that the MV Rabaul Queen had been carrying 300 to 350 people when it sank early Thursday about 10 miles off the northern coast of Papua New Guinea. Nearby commercial ships rescued 238 people from the sea, said Capt. Nurur Rahman, the rescue coordinator for Papua New Guinea’s National Maritime Safety Authority.

The ferry sank between 5 a.m. and 6 a.m. local time, Captain Rahman said, as it was traveling from Kimbe on the island of New Britain to the town of Lae on the main island. The ferry sent a distress signal that was received in Australia and relayed to the maritime authority in Papua New Guinea.

The MV Rabaul Queen has a capacity of 300 passengers, but Captain Rahman said he did not know how many were aboard. The Australian Maritime Safety Authority said in its online updates that as many as 350 people were believed to be aboard the ferry.

The cause of the accident was not known, Captain Rahman said.

“Right now, we’re making all efforts to fast-track rescue operations while the sun is still up,” he said.

Whether rescue operations would continue through the night remained unclear. Captain Rahman said the search would likely be suspended until dawn Friday because of rough weather, The Associated Press reported. But the Australian maritime agency said Thursday night that search ships “remained in the area.”

Strong northwesterly winds and sea swells of up to 5 meters, or about 16 feet, were reported by ships at the scene of the sinking, the Australian maritime agency said.

Prime Minister Peter O’Neill of Papua New Guinea said the authorities would investigate the cause of the sinking, according to the Australian Broadcasting Corporation.

Earlier on Thursday, Prime Minister Julia Gillard of Australia, whose country coordinates maritime rescue operations with Papua New Guinea, warned of a heavy loss of life. Speaking to reporters in Melbourne, Ms. Gillard described the sinking as a “major tragedy.” Australia sent an airplane to join at least six ships and three helicopters Papua New Guinea had deployed to find survivors.

“Given the likely very high loss of life here, I think when this news comes to the attention of Australians around the country they will be thinking about the people of P.N.G. as they respond to this tragedy,” Ms. Gillard said, The A.P. reported.

Ferries are commonly used for travel around the archipelago nation of seven million people. While rich in natural resources, Papua New Guinea remains relatively poor, beset by the high cost of developing infrastructure and continuing political instability.

Papua New Guinea has a history of political violence, including a decade-long civil war involving the mineral-rich island of Bougainville. Last month an attempted coup against Mr. O’Neill failed.

Source: New York Times

A boat exploded last night at the John Wayne Marina in Sequim, Washington, seriously injuring a man on board.

The 40-foot boat blew up about 5:45 last night at the "C" dock in the marina.

Fire District Three spokesman Patrick Young says the explosion was so large, boats within 75 yards were also damaged. One couple on a boat two slips away was knocked down due to the force. An unidentified 78-year-old man was in the hull of the boat which exploded, covered in debris. He was removed from the water and taken to Olympic Medical Center with serious burns.

Fire and Coast Guard crews spent the night containing spilled fuel and oil that came after the boat sank.

The cause of the explosion is still under investigation.

A dry cargo ship sank off the Black Sea coast of Turkey Tuesday and eight members of the 11-strong Polish crew were missing, Turkish media said.

The Cambodian-registered dry cargo ship Vera was sailing from Russia to the Turkish Aegean port of Aliaga and sank in a storm one mile off the coast of the Black Sea port of Zonguldak, CNN Turk said.

Three members of the crew were saved and taken to hospital, the television channel said, but coast guards and police were still searching for the eight others.

Turkey has been hit by extreme weather and snow storms over the past week. There were gale warnings Tuesday for parts of the Marmara, Black Sea and Aegean, a shipping agent said.

Source: Reuters