Unfortunately, maritime personal injuries and wrongful death occur on a consistent basis similar to land-based accidents. Vessels, personal watercraft, etc. are the automobiles and motorcycles of the ocean. There are, however, significant differences in how a maritime personal injury and/or wrongful death claim is handled and the laws that are applicable depending on who is injured and where. The legal rights and remedies of employees, crew, business invitees, passengers, seafarers, and longshoreman, etc. are different from those that are injured on land. The legal rights and remedies of business invitees, passengers, seafarers, employees, crew, and longshoreman, etc. can also different from each other. For over 25 years, the attorneys at McLeod Brock have represented individuals and business clients to evaluate, pursue and defend disputes arising from:
- Passenger Claims
- Crew Claims
- Longshore, Harbor Worker and Stevedore Claims
- Recreational Boating Accidents
- Commercial Vessels and Ships
- Cruise Line Claims
- Gambling Vessels
- Rape or sexual Assault
- Shipboard Medical Malpractice
- Excursion Incidents
- Tender Boat Accidents
- Assaults by passengers or crew
- Injuries due to defective ship equipment and maritime casualty
- Jet skis, parasailing and personal watercraft accidents
- Yacht and sailboat accidents
- Barge and Platform accidents
- Defective & Unsafe Marine Product
- Surveyor Liability
- Slips, trips, and falls
Passenger Claims Arising on Cruise Ships
South Florida is the cruise capitol of the world. The ships are built larger and larger every year and are similar to giant floating hotels. The majority of cruise line passenger claims are similar to premises liability claims occurring on land or arise from accidents occurring during shore excursions. Ship owners and operators are held to a reasonable duty of care even though they are carrying passengers for hire. Ship owners and operators are not held to a “heightened” duty as a common carrier on land would be.
While the typical cruise line claim is for negligence, the terms of the cruise ticket govern the relationship between the parties to a large degree. The ticket will generally provide that notice of a claim must be provided to the carrier within x months of the incident and any suit must be filed within one year of the incident. The cruise ticket will commonly contain a provision requiring suit to be filed in a specific location such as South Florida, Los Angeles, and/or Seattle.
Given the very short time period to provide notice of the claim and to file suit, it is very important that the passenger and the ship owner/operator act diligently to investigate and document every incident as close in time to the incident as possible. There is no time to waste.
Given that cruise line liability is often negligence based, a good amount of time is spent by both the passenger and the carrier determining whether or not the vessel owner had notice of the condition causing the incident and an opportunity to cure it before the incident happened. If the cruise line had notice for example of a defective stairway and failed to remedy the defect before an injury occurred, the cruise line may be responsible for the injury. If the cruise line had no notice, however, the cruise line may argue that there was no duty owed to the passenger.
The attorneys at McLeod Brock have represented passengers and small and large cruise lines over the course of the past 25 years. McLeod Brock has also represented the tender vessels bringing passengers to and from shore here in the continental United States and in the Caribbean.
Seafarer claims can arise from incidents occurring on nearly any type of commercial vessel from large cruise ships, cargo ships, fishing boats, and private yachts to small dive and excursion vessels. Seafarer claims are governed exclusively by admiralty and maritime law.
Typically, a seafarer has three avenues of recovery. A seafarer can recover for negligence under the Jones Act, for unseaworthiness, and for failure to pay maintenance and cure which are commonly referred to as the “trilogy” of a seaman’s claims. Suit must be filed within three years of the incident.
The federal Jones Act was passed to allow seafarers to recover for their employer’s negligence. A seafarer who proceeds under the Jones Act can recover monetary damages for injuries that occur as a result of his employer’s negligence, including but not limited for the employer’s failure to provide a safe work environment, failure to maintain safe equipment and crew, failure to avoid unsafe weather conditions.
Only “seamen” are able to recover under the Jones Act. Seaman status is determined under the general maritime law by looking at factors such as whether the worker is more or less permanently attached to a vessel in navigation contributing to the function and mission of the vessel. Given that establishing status as a seaman is a threshold issue, it is frequently litigated.
While the standard for determining negligence under the Jones Act is similar to the land based standard of failure to act with reasonable care, the standard for determining causation is drastically different and has been referred to as “featherweight”. This often motivates a worker to seek status as a seaman. In certain instances when a rule intended to promote maritime safety is broken, it also may be possible to shift the burden of proof to the defending employer.
The second avenue of recovery for a seaman is for the unseaworthiness of the vessel on which the incident occurred. Unseaworthiness is sometimes referred to as a strict liability claim as notice of the unseaworthy condition is not necessary to give rise to a duty of care. Any condition that could render the vessel not reasonably fit for her intended use or for the intended voyage could render her unseaworthy. The condition can be transitory. For example, an oil spill on the deck that results in a slip and fall injury could support an unseaworthiness claim. Liability could arise even if the oil was on the floor momentarily and the ship owner did not have notice of the spill or opportunity to clean it up before the fall occurred.
The third avenue of recovery for a seaman is a claim seeking maintenance, cure and unearned wages. The admiralty and maritime law implies an affirmative non-delegable duty requiring an employer to promptly investigate and pay maintenance and cure to any seaman falling ill or injured during the course of his employment. This duty is “no fault” similar to land based worker’s compensation and the employer may be subject to punitive damages and other penalty for not responding.
The duty to pay “Cure” is the duty to pay for a seaman’s medical care until he returns to employment in his chosen profession or reaches maximum medical improvement. The duty to pay “maintenance” is the duty to pay for the seaman’s reasonable living expenses for the same time period. The duty to pay “unearned” or “sick” wages is the duty to pay the seaman’s wages to the end of the voyage on which he fell ill or injured.
Given the many unique maritime issues intertwined in a seafarer personal injury claim and the potential for improperly responding, qualified maritime counsel should be consulted. The attorneys at McLeod Brock have investigated, presented and defended seafarer personal injury claims for over 25 years on the east, west and gulf coasts of the United States, the Florida Keys and in the United States Virgin Islands.
Water Sports and Recreational Boating Claims
Watersports and recreational boating incidents occur nearly every day and involve vessels of all types and sizes. Parasailing, diving, snorkeling, paddle boarding, kayaking, wake boarding, surfing, etc., can involve property damages and personal injury as severe as recreational boating incidents involving larger yachts, fishing boats, sail boats, wave runners, pontoons, canoes, and are within the scope of the general maritime law. While participating in these types of activities can be fun, incidents can happen arising from collisions, allisions, defective products, improper instruction, negligent operation, hazardous weather conditions, lack of training and supervisions, unsafe speed, etc.
The vast majority of recreational boating incidents will involve a negligence allegation under the general maritime law. Depending on the significance of the property damage and/or personal injury, the Limitation of Liability act discussed above may also come into play. McLeod Brock have investigated, presented and defended watersports and recreational property damage and personal injury claims for over 25 years on the east, west and gulf coasts of the United States, the Florida Keys and in the United States Virgin Islands.
Longshore & Platform Workers
Status as Longshoremen and/or Harbor Worker is mutually exclusive from status as a Jones Act seaman meaning that the worker falls into one status or the other, but can’t be both. Personal injury suffered by a longshoreman and/or harbor worker is governed by the Longshore and Harbor Worker’s Compensation Act (“Act”) which is a no fault recovery scheme similar to land based worker’s compensation providing compensation for injuries that result in disability, death, and disease.
The Act is a no-fault system and allows for longshoremen to recover regardless of who was at fault for the incident. Longshoremen can include ship builders, crane operators, vessel repair workers, and gas and oil rig operators. Compensation is generally determined based on a schedule and does not include pain, suffering, mental anguish, etc., but may include an entitlement to attorney fees if the claim is improperly denied.
Generally, alongshore and harbor worker may assert a claim under the Act against his employer only. When the worker is injured on a vessel, however, there are provisions of the Act that may permit the worker to assert a general maritime law negligence claim against the vessel and pursue all damages available under the general maritime law including pain, suffering, mental anguish, etc.
In many instances, the maritime worker will assert alternate status as a Jones Act seaman and as a Longshore and Harbor Worker. These claims bring a myriad of employment status and jurisdictional issues with them in addition to the unique aspects of the Jones Act, General Maritime Law and LSHWCA. Accordingly, even claims involving minor injury may present very difficult legal issues. McLeod Brock have investigated, presented and defended claims involving longshore and harbor workers for over 25 years on the east and west coasts of the United States.
In Rem Liability
Significantly, maritime personal injuries and wrongful death claims give rise to maritime tort liens against the vessel involved no matter how large or small the vessel is. Accordingly, there are occasions where the involved vessel may be seized via the process of maritime arrest to secure the claim during litigation.