Washington Maritime Injury Lawyer Blog

As stated 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.

While 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.

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

The London newspaper Guardian reported yesterday that Carnival Cruise Lines has opened talks on compensation with the survivors of last week's shipwreck.

One may assume that, in keeping with the practice of vessel owners and their underwriters in other shipwreck cases, Carnival is trying to settle quickly with claimants, before they retain lawyers to investigate the facts and make claim for the full amounts due under the maritime law.

Based upon facts which are coming to light, enormous sums will be due to compensate the families of the dead and survivors who have been traumatized by the disaster.

Eleven passengers and crew are known to have died, and 21 are still not accounted for.

Prosecutors investigating the disaster were, according to the Guardian report, anxious to explore why more than an hour had elapsed between the moment at which the liner hit a rock, and the order to abandon ship.

Investigators wanted to know whether the 68-minute period that elapsed during the course of these calls was because Schettino had underplayed or underestimated the gravity of the damage sustained by the liner, or because Costa Cruises, a subsidiary of Miami-based Carnival, had been reluctant to sanction a decision to evacuate that might cost it millions of euros in compensation, the paper said.

If the latter motive impeded Carnival's response to the shipwreck in any degree, this would seem to provide sound basis for punitive damage claims under the maritime law. These are damages awardable for callous, wilful and outrageous behavior.

The company has tried to place the entire blame for the incident on the captain. At a news conference the company's chairman said the captain had not sought permission to deviate from his route in order to skirt the shoreline of Giglio, reportedly as a tribute to a retired skipper living on the island.

But new evidence has emerged of another "salute" made by the COSTA CONCORDIA as it passed within a few hundred yards of a different Italian island.

Evidence of Costa Cruises' enthusiasm for "salutes" can be found on the firm's blog in an entry describing how, in September 2010, the Costa Concordia under Schettino's command passed close to the island of Procida in the bay of Naples.

The blog said the salute provided "great excitement not only for the islanders but also for the numerous tourists present ... [It was] doubtless a joy and a novelty for all, including the guests of the Costa Concordia, ready with their cameras on the external decks to immortalise that unique moment and celebrate and salute with flags and handkerchiefs."

Costa Cruises' chairman said the company had reviewed the COSTA CONCORDIA's intended course and that the vessel was not to pass within 500 yards of the island.

But his assertion has been called into question by the London maritime daily Lloyds List, which published a map based on Lloyds List Intelligence tracking data. This indicated that the earlier course took the Costa Concordia within 230 metres of land, close to the point at which the ship hit the rocks last Friday.

All indications are that Carnival's Italian subsidiary was at fault in several respects:

1. An incompetent captain was placed in command of the ship.

2. The practice of "saluting" (one might as well say "buzzing") islands was not only tolerated but, in fact, encouraged by the ship operator.

3. No abandon ship drill was conducted at the outset of the voyage.

4. The order to abandon ship may have been delayed on the basis of financial
considerations.

Much further investigation of each of these and other allegations of shipowner's fault will be conducted. However, any maritime lawyer viewing this disaster will recognize that Carnivel Cruise Lines' subsidiary was negligent at the very least. For punitive damages to be awarded, more than negligence will need to be shown, and it appears more than negligence may be necessary to break limitation of liability under the applicable law. (See, previous BOATLAW Blog post.) Early reports indicate that more than mere negligence may well have been involved.

To those of us who live in Puget Sound country, the Italian cruise ship tragedy calls to mind a similiar episode in our local waters. In 1983, the 2800 gross ton state ferry ELWHA grounded on a reef just off Orcas Island, in the scenic San Juans. In that case, the skipper deliberately deviated from the ferry's customary course through the center of Harney Channel to gain a better view of a house on the shore of Orcas and struck a rock. He did this to show a female passenger (who was in the wheelhouse in violation of regulations) how her house looked from the water. Severe damage to the hull of the vessel resulted, but there was no serious injury or loss of life. The incident is recalled almost whimsically in maritime lore, the female passenger referred to mythically as the "Siren of the San Juans."

The grounding of the COSTA CONCORDIA will never be recalled with anything but sadness and perhaps, when all the facts are known, a sense of outrage. Initial reports suggest malfeasance on the part of the cruise line. Although the shipowner has been quick to lay all blame on the skipper, this is a standard ploy. But upon more thorough investigation, it is likely that Carnival Cruise Lines, will be shown to have compromised marine safety in service of profit. This is a recurrent theme in cases of shipwreck.

In the Italian case, it appears cruise lines had routinely permitted the practice of "buzzing" the islands to please passengers and, presumably, prospective customers ashore. Yet when this practice resulted in grounding, as could have been anticipated by prudent shipowners, all blame was immediately heaped upon the master who breached the often tested edge of the envelope.

The early reports also raise questions about the adequacy of abandon ship drills. Once again, this sort of activity makes no contribution to and may detract from the perceived pleasure of the passengers. The overriding motive being profit, safety practices suffer.

An archaic principle of maritime law permits a ship owner to limit its liability arising from a maritime casualty to the value of the vessel and pending freight. Under U.S maritime law, this protection can be claimed if the casualty occurred without the "privity or knowledge" of the vessel owner. Historically, operational negligence of the master has often been deemed to be outside the owner's privity and knowledge -- hence Carnival's knee jerk reaction, to blame a discrete and unexpectable act of the captain.

Under international maritime law, unaltered by U.S. statute, a shipowner may limit liabilty even if he was negligent, provided it is not proven that "the loss resulted from his personal act or omission, committed with the intent to cause such a loss, or recklessly and with knowledge that such a loss would probably result." Convention of Limitation of Liablity for Maritime Claims. Under this standard, breaking limitation may be a tall order.

In the first days following this tragedy, even as the death toll remains unknown, it is too early to predict the outcome of litigation. But it seems highly likely that a measure of fault will, in the end, be laid at the doorstep of Carnival Cruise Lines management. Unlike the owners or the TITANIC, the owners of the COSTA CONCORDIA permitted a vessel equipped with radar and GPS to run aground on a charted reef. This seems unimaginable in the absence of managerial negligence. One question is whether the captain's fault can be imputed to management. Another is whether the shipowner's own conduct will be shown to have reached the level of recklessness.

The Mediterranean situs of the wreck makes it difficult to resist the Odyssean metaphor invoked in the ELWHA case. For reasons as yet undetermined, the captain of the COSTA CONCORDIA seems to have been lured by sirens on Giglio. As Carnival management was no doubt aware, other skippers had been similiarly inclined. But they could have easily been chained to the mast by strictly enforced rules and computer actuated alarms. Why were they not?

More than £300m has been wiped off the paper fortune of the multibillionaire boss of the company that owned the stricken cruise liner Costa Concordia.

Micky Arison, the flamboyant chairman, chief executive and majority owner of Carnival, saw a large chunk of his $4.5bn (£2.9bn) holdings dissolve on Monday as the company's shares lost almost a fifth of their value.

The shares collapsed by as much as 23% before ending the day 17% lower at £18.65 – their biggest fall for a decade. That wiped more than £1bn off the market value of the company and £300m from Arison's 30% stake.

The fall was precipitated by fears that the shipwreck will put holidaymakers off booking cruises for this year's summer holidays and Carnival warned that it was "not possible to determine" the full cost of the wreck, which killed at least six people. Carnival said the Costa Concordia would be out of action until at least November and put initial estimates of the cost at $95m (£62m).

However, analysts said the final amount is likely to be greater. "This tragedy will be a black mark on the cruise industry and a negative headline for Carnival," said Tim Ramskill, an analyst at Credit Suisse. "If the industry didn't already face enough challenges, this unfortunate event will reverberate on the group over the near-term. While these accidents are extremely rare, the extensive media coverage will likely curtail some booking activity and pressure pricing during the critical season."

Wyn Ellis, an analyst at Numis Securities, warned that the incident will put people off booking cruises in the "key point in the booking cycle" as people begin to plan summer holidays. About a third of cruise bookings are made between January and March. "People will cancel, and others will look at alternatives," he said. "There will, justifiably, be questions about the adequacy of management and emergency operational procedures on board which may have longer term cost implications."

Arison, whose father Ted founded Carnival in 1972, said: "At this time, our priority is the safety of our passengers and crew. We are deeply saddened by this tragic event and our hearts go out to everyone affected by the grounding of the Costa Concordia, and especially to the families and loved ones of those who lost their lives. They will remain in our thoughts and prayers."

Ranked the world's 169th richest person by Forbes magazine, Arison collected $7m in pay and bonuses from Carnival in 2010. The company's board is due to publish his pay for last year later this month. His bonus, which came in at $2.25m last time, is likely to be scaled back. The company's annual report states that its compensation committee considers safety and security matters, among other factors, when determining executive compensation.

Last year Arison, who also owns NBA basketball team Miami Heat, was fined $500,000 for tweeting about the basketball league's pay negotiations with star players.

The disaster is likely to become the biggest insured loss in maritime history, with analysts putting the total payout by insurers at up to $1bn.

The ship, which cost €450m (£372m), is insured for €405m by insurers including XL, RSA and Generali, according to industry sources. Joy Ferneyhough, an analyst at Espirito Santo, said injury and other liability claims could push the total cost to insurers as high as $1bn.

"Initial comments from various insurers and underwriters over the weekend suggest that the insurance loss from the Costa Concordia will likely be $500m-$1bn," she said.

One of Carnival's biggest institutional shareholders, who did not wish to be named, said: "The statement confirming insurance cover is reassuring. The big unknown for investors now is what happens to customer confidence in the Costa brand.

"Micky Arison is well-liked in the industry – staff and investors. Unlike many children who take over businesses founded by their fathers, he has a real grasp of detail and the numbers – and works tirelessly for the company."

The boss of Carnival's Italian subsidiary again blamed the Costa Concordia's captain for the tragedy. Pier Luigi Foschi, chief executive of Costa Crociere, said at a press conference: "The company will be close to the captain and will provide him with all the necessary legal assistance, but we need to acknowledge the facts and to protect all the other 24,000 employees and we cannot, unfortunately, deny human error."

Carnival at a glance

• The world's biggest cruise operator. Brands include Cunard and P&O.

• Eleven brands operate 98 ships with 191,000 berths. Ten new ships scheduled to join the fleet by May 2014.

• Europe generated 38% of its $14.4bn revenues in 2010, with its Genoa-based Italian subsidiary, Costa Crociere, the continent's largest brand.

• Carnival bought P&O Princess Cruises in 2003, three years after it was spun off from Peninsular & Oriental Steam Navigation Co. It also operates Holland America Princess Alaska Tours, the leading tour company in Alaska and the Canadian Yukon.

• The full list of Carnival brands is: Carnival Cruise Lines, Holland America Line, Princess Cruises, Seabourn, AIDA Cruises, Costa Cruises, Cunard, Ibero Cruises, P&O Cruises (UK) and P&O Cruises (Australia).

Source: The Guardian, London.

Rescue efforts aboard the sunken Costa Concordia luxury cruise liner off the coast of Tuscany were halted Monday morning when rough seas caused the ship to shift, endangering divers and rescue workers who have been searching around the clock for survivors. Hours before operations were suspended, a male victim was found in an above-water section of the ship with his lifejacket on, bringing the number of fatalities from the Friday the 13th maritime disaster up to six. Three survivors have been rescued since the ship was evacuated in the early hours of Saturday morning.

In Genoa, Pierluigi Foschi, president of the Costa Crociere cruise line, held a press conference in which he blamed Capt. Francesco Schettino, 52, for “deviating from the authorized route” and taking matters into his own hands. He reserved judgment on the captain’s action until the company has access to the ship’s black box to study the evidence—but he conceded that “it may well be grave human error.”

Schettino faces up to 15 years in prison if he is convicted of manslaughter and abandoning ship. He is under house arrest with the ship’s first mate, Ciro Ambrosio, who is also under investigation. Schettino’s lawyer, Bruno Leporatti, told an Italian wire service that his client was the last to leave the ship—even though local media reported seeing him on the shore as lifeboats were still making landfall the night of the accident. The local Giglio newspaper reported that some crew members urged Schettino to go back to the ship at one point during the evacuation. Leporatti says Schettino’s actions showed “great nautical skills and allowed many passengers to reach safety.” A judge will make a ruling on Tuesday about whether Schettino should remain in custody during the investigation. More than 100 crew members and some passengers have been interrogated since the crash occurred.

As the investigation moves forward, there is little doubt that the ship was traveling far too close to the tiny tourist island of Giglio when it hit a reef or rocky sandbar (one rock is still visibly embedded in the ship’s crumpled hull). Residents of Giglio confirmed that it was a regular occurrence for these giant ships to “buzz” the island. Giglio’s mayor, Sergio Ortelli, said that it was a common practice for cruise-ship captains to “fly by” the island, flash their lights, and blow the ship's horn three times to greet friends of the ship’s officers. Ortelli said he didn’t know if that’s what happened Friday night, but he admitted that it seemed “probable.” Last August, Ortelli even wrote a letter of thanks to the cruise line for making the pass and delighting the tourists and residents.

For now, search and recovery efforts have been hampered by changing weather conditions. Heavy sea storms are forecast in the area for Wednesday, causing concern that this accident may turn into an environmental disaster. Italy’s environmental minister, Corrado Clini, has called a group of experts to study just how they can prevent a major fuel spill. The cruise ship was carrying some 2,400 TOE (tons of oil equivalent) of fuel, separated into 17 reinforced compartments, but some fuel has already leaked into the Mediterranean Sea. “The risk of a spill for the entire area is extremely high,” Clini said. “We’re doing everything we can to monitor the situation.”

But efforts to secure the partially sunken ship are proving to be a logistical nightmare. Maritime-salvage experts have said they will eventually try to lift the ship onto giant balloons, anchored by cranes, but it may take weeks to put that system in place. Meanwhile the ship is vulnerable and could even drift farther out into the sea, making rescue efforts even more difficult. On Monday the massive wreckage suddenly shifted nine centimeters vertically and 1.5 centimeters horizontally, causing a scraping noise that sent rescuers scrambling.

Officials on the ground say there are still 10 missing passengers and as many as six missing crewmen, according to Luca Cari, the spokesperson for the fire brigade overseeing rescue operations in Giglio and Porto Santo Stefano, but Foschi refused to confirm an exact number, calling the situation fluid. Cari speculated that perhaps the cruise line didn’t have an exact list of crew members on file and that the discrepancy is the product of careless recordkeeping. Of the 10 missing passengers, two may be Americans. The American Embassy in Rome tweeted, “The US Embassy has revised the estimated number of Americans aboard the #Costa #Concordia down to 120, of which 118 have been accounted for.” It also confirmed it has helped 100 Americans get emergency passports since Saturday morning.

On Monday afternoon, an official from the German Consulate in Rome told Ansa News Service that there were 11 Germans missing in the accident, calling into question the accuracy of the reports.

What worries authorities on Giglio is that there may actually be more than 16 people unaccounted for. Many family members have come forward to report missing relatives, bringing the number of missing higher than 16. The discrepancies have caused anger and frustration among survivors, as has, in their view, a total lack of accountability by the cruise company. Benji Smith and his newlywed wife are staying at a hotel in Rome but on Sunday had still not heard anything from the cruise company. Smith told CNN that the company has not reached out to them or reimbursed them for their lost possessions despite their efforts to reach out. “It’s as if no one is in charge,” he said.

Residents confirmed that it was a regular occurrence for these giant ships to “buzz” the island.
Costa Crociere posted some news and a letter of condolence on its website, and some survivors and family members have created a Facebook page where they are posting pictures and comments and airing frustrations with the way the aftermath of the disaster was conducted.

With stormy seas suspending rescue operations, the hopes of finding anyone alive are greatly diminished, and the mystery of why this giant ship found its way to rest on the rocky shores of Giglio may take many more months to solve.

Source: The Daily Beast

The ARICA, a factory trawl fishing vessel at a dry dock on the east side of Lake Union, began taking on water one day last week. Crews members were pumping out water from the boat when they lost power and called the Seattle Fire Department around 5:15 a.m.

Fire department crews arrived and began helping pump out water. A fire department boat, police boat and the Coast Guard also responded.

Pumps were able to bring the water level down to 15 inches. The shore power, which was lost earlier in the morning, was restored and boat crews have resumed pumping out water. Seattle Fire Department crews have left the scene.

There were no reports of injuries and all crew members were accounted for. Responders say the vessel is at no threat of sinking into the lake.

Crews at the scene believe the sea chest, a device at the base of the boat that lets in sea water into the boat, may have a leak. Crews plan to send divers to pinpoint the problem.

"They're still trying to assess what's going on inside the ship. They had a couple of explanations, so that's why that want to get divers into the water," said Seattle Fire Department spokesman Kyle Moore.

Moore said no fuel has leaked into the water on Lake Union. The water from the boat is being pumped into a sewage drainage system, so no oily water from the engine room gets into Lake Union.

The Arica has been at the dry dock the past couple of weeks. It was set to go to Alaska on a fishing expedition in January. Boat crews say they don't plan on taking the vessel anywhere until they determine what the problem is.

The facts of the tragic sinking of the SWANLAND resemble those in Alaska fish boat cases.

Although, as noted in our earlier post, the SWANLAND is a Russian vessel, it was British managed. The British Maritime and Coastguard Agency is therefore conducting an investigation, much as the U.S. Coast Guard would conduct a marine casualty investigation.

The cargo ship which sank in the Irish Sea off Gwynedd, Wales with the loss of six crew had been at the center of repeated safety concerns, the BBC reported.

An analysis of safety inspection records for the SWANLAND reveals a high number of failings.

Members of the crew claim the vessel was vulnerable in rough seas because of a history of unsafe loading. This has been a recurrent issue in Alaska shipwreck cases.

The ship's operator, Torbulk Limited, said it had been regularly inspected and any faults "promptly rectified". This is the typical response by vessel interests after a loss such as this, but the 34-year-old British-managed ship had a history of defects, according to safety inspections by the Maritime and Coastguard Agency. Over the past five years, 85 faults were highlighted - including cracks in the ship's decks and defective life-saving equipment identified in May this year. Marine safety management expert Dr Phil Anderson said that, even allowing for the ship's age, the number of defects seemed surprisingly high.

"You wouldn't expect to see that number of deficiencies. It's quite serious. It could indicate a systemic breakdown of safety systems."

Former crew members have also raised concerns about the techniques used to load the ship.

Alexander Tsybin, a former Russian captain who worked on board the Swanland for 11 years, believes the vessel's hull had been weakened by the way the cargo was sometimes loaded to save time on each voyage.

Instead of loading evenly from either end, it would be deposited in the middle.

"While the ship was being loaded, it would cave in a little, and while it was being unloaded, it would bulge out," he said.

"So the middle of the ship would always be subject to pressure which meant that in the end it became weakened."

Maritime safety experts have also told the BBC that loading heavy, unsecured cargo into a single hull could cause displacement which might cause a ship to roll in bad weather.

They say the combination of the crew's concerns about loading and the historical defects involving structural safety and cracked decks "give rise for concern".

The vessel was caught in a gale force 8 storm off the Lleyn Peninsula, north Wales, at the end of November.

According to Vitaliy Karpenko, one of the two survivors from the all-Russian crew, the ship's hull suddenly cracked.

"It broke in half right across the middle. I saw it with my own eyes," he said. "We saw through the porthole that it was hopeless trying to save her."

The ship's Grimsby-based operator Torbulk Shipping said in a statement that it understood the vessel was loaded in accordance with good practice, adding: "Any working sea-going cargo vessel... will be inspected on a regular basis and may incur minor deficiencies.

"These deficiencies are required to be promptly rectified or the vessel would not be permitted to trade.

"We are unable to comment on specific instances. However, we can state that any deficiencies identified are always rectified within the time-scale specified [by the authorities]."

The vessel, which was British-owned, was flagged to the tiny Cook Islands in the Pacific.

The islands have a higher number of ships with safety problems, and the international shipping authorities regard their flag as inferior to those from European maritime regulators.

As the official British maritime investigation and civil litigation proceed, it seems unlikely that vessel interests will be able to sustain their burden of showing that they exercised due diligence to see that the SWANLAND was seaworthy when she departed Wales enroute to the Isle of Wight. An oceangoing ship should be able to withstand Force 8 winds without breaking in half.

The NTSB recently completed its investigation into the sinking of the Fishing Vessel Katmai on October 22, 2008.

The National Transportation Safety Board released their report on the disaster, and it concluded that the boat had a number of stability problems that made it unable to withstand extreme storm conditions in the Bering Sea. As a result, seven lives were lost when the head-and-gut vessel flooded in 2008.

The marine accident brief stitches together testimony from the four survivors who were aboard the 92-foot boat. At the time of the sinking, the Katmai was traveling through Amchitka Pass, about 120 miles west of Adak. It was heading toward Unalaska with 120,000 pounds of frozen cod when a severe storm hit. The Katmai lost its ability to steer, and the boat started taking in water just before midnight on October 21, 2008. The skipper called for an evacuation of the boat shortly after that. One of the eleven crew members is believed to have gone down with the ship. Six others were lost when the two life rafts aboard rolled in rough seas. The four survivors were ultimately rescued by the Coast Guard over 15 hours after the sinking.

The National Transportation Safety Board came to many of the same conclusions that the Coast Guard reached during their investigation. They found that the probable cause of the sinking was that watertight doors were left open and that the vessel was carrying twice the recommended amount of cod.

In its report, the Coast Guard listed 35 discrepancies which contributed to cause the sinking of the KATMAI.

We often have occasion to praise the princely courage of our Coast Guardsmen, their valor in rescuing mariners in peril. British news sources now report an instance of an actual prince rendering courageous service of the same sort. RAF Search and Rescue and Prince William have been praised for rescue efforts following the November 27 sinking of a Russian-crewed cargo ship in the Irish Sea.

The Russian Ambassador to the UK, Alexander Yakovenko, has written a letter to the Duke of Cambridge praising his role in saving the lives of two Russian seamen, following the sinking of the cargo ship Swanland in the Irish Sea off the Llyn peninsula in North Wales.

Mr Yakovenko wrote:

Your Royal Highness,

All day long we were anxiously following the rescue operation searching for Russian seamen from the sunk Swanland vessel.

We know that you took an active part in the rescue and that the two seamen were saved thanks to your selfless effort under the bad weather conditions.

Let me express to you and your colleagues my deepest gratitude for saving the lives of the Russian citizens.

In his role as an RAF Search and Rescue helicopter co-pilot, the Duke was part of a crew which flew from their base in Anglesey in response to the Swanland’s distress call in the early hours of Sunday, November 27.

The operation involved four helicopters and seven coast guard vessels, but their work was hampered by severe weather conditions.

Two of the eight all-Russian crew were pulled from the water clinging to liferafts; a third man was recovered from the sea but pronounced dead. A search for the remaining 5 crewmembers was underway at last report, with hopes fading.

The 265ft SWANLAND was carrying 3,000 tons of limestone from Llanddulas to the Isle of Wight when it was hit by what the men described as an “enormous wave”.

Continue reading "Russian Ship SWANLAND Sinks, Prince William Assists in Rescue" »

Those who earn their living at sea have an additional reason to be thankful this year:

The U.S. Supreme Court, and lower courts, have recently made rulings of benefit to injured seamen. The Supreme Court has affirmed the historic principle that a seaman may recover damages if vessel negligence contributed in any degree, no matter how slight, to cause his injury. The Supreme Court has also ruled that punitive damages are available in maritime cases. These damages are awardable where vessel interests have been wilful in failing to provide a seaworthy vessel, or in failing to pay maintenance and cure to an injured seaman.

There are still shoal waters to be navigated in prosecuting a claim for maritime personal injury. But a couple of the available passages have been dredged! For this crewmembers can be thankful.

Yesterday the U.S. Supreme Court preserved a legal rule which has for 50 years helped railway workers and Jones Act seamen recover fair compensation for their injuries. Despite a vigorous dissent by the Chief Justice, the majority in CSX Transportation, Inc. v. McBride held that if employer negligence plays any part in causing injury to a railway worker (or seaman), no matter how slight, the employer is liable for damages. This is a more liberal standard than the common law rule of “proximate causation,” and prevents defendants from escaping liability by arguing that employer negligence was not a direct or immediate cause of the injury.

The Jones Act standard of causation is a citadel of seamans’ rights. The lawyers for CSX mounted their assault on the rule by challenging the interpretation given a 1957 Supreme Court decision by every federal circuit court which has considered the issue of causation under the Federal Employer’s Liability Act (“FELA”) and the Jones Act (which incorporates FELA). Justice Ginsberg, writing for the majority, adopted the reasoning of all federal appellate courts and adhered to the rule of causation which has served the interests of justice for half a century.

Ironically, the so-called conservative justices urged that the well-established rule be cast aside. They would have replaced the rule created by Congress as interpreted by the Supreme Court in 1957, with an English common law rule which would have assisted shipowners in avoiding liability for their negligence.

Especially in cases involving mariners, the relaxed standard of causation is justified. The ocean is a dangerous place and crewmembers aboard vessels are at the mercy, not only of the elements, but of those in whose employ they are subjected to the perils of the sea. Above all other employers, shipowners must be held accountable for their carelessness, because the risks are so great and the stakes are so high. With this in mind, English and American courts sitting in admiralty have for centuries treated seamen as their “wards,” whose rights must be jealously guarded.

The decision of the Supreme Court in CSX v. McBride, upholds the ancient judicial tradition of solicitude toward those who go down to the sea in ships. We at Anderson, Connell & Carey applaud the ruling and look forward to continuing the task of securing fair compensation for injured seamen.

The National Transportation Safety Board ("NTSB") has determined that the reason that the Empress of the North ran aground on July 23, 2008 was the negligence of the captain. The captain allowed an inexperienced, newly licensed junior third mate to the bridge watch from midnight to 4 a.m.. The NTSB commented that the decision of leadership on the vessel failed to consider every option as critical decisions were made. The NTSB recommended that the Passenger Vessel Association ("PVA") inform its members about the accident and the circumstances giving rise to the casualty.

On Friday, the Department of Transportation and Communications (DOTC) offered a bonus to a salvage contractor to retrieve industrial fuel and dangerous chemicals inside the sunken M/V Princess of the Stars. The ship sank somewhere near Roblon Province. The company Titan Salvage, is owned by Crowley Maritime Corporation. Crowley Maritime Corporation is the largest maritime service corporation in the world with its headquarters in Florida. Government officials are concerned that the sunken vessel could cause considerable environmental damages owing to the toxic chemicals aboard. Because of the potential harm the DOTC is considering tightening regulatory controls on freight forwarders.

The owners of the ill fated fishing vessel the Alaska Ranger have begun legal maneuvering to avoid liability for the deadly sinking in March. The lawyers for the Fishing Company of Alaska ("FCA") have invoked an archaic piece of maritime law that limits the amount of money that can be sought by survivors or the families of the dead. In order to prevail, the owner of the vessel must show that the vessel was seaworthy, properly manned and equipped, and that the owner had no prior knowledge of the problems that ultimately sunk the ship. Crew members have related stories of drunk officers, power struggles, water below deck and leaking watertight doors. Given these facts, it appears unlikely that the defendant will be successful in its efforts to limit liability.

The United States Supreme Court ruled recently on several issues related to maritime casualty. The opinion, Baker v. Exxon Shipping Co., deals with the availability of punitive damages under maritime law. Prior to this decision, the Supreme Court had yet to directly rule on whether punitive damages are appropriate under some circumstances. Before this ruling, it was generally believed that punitive damages can be awarded for tort damage to property. Exxon v. Baker looked also to studies of punitive damage awards in civil matters and found that there was a median ratio of 1:1. The Court held that the conduct of Exxon Shipping Co. was not one of "exceptional blameworthiness." Under these circumstances a 1:1 ratio is a fair upper limit in such maritime cases.