Cruise Ship Law

The Collection celebrates the release of "Unsafe on the High Seas: Your Guide to a Safer Cruise" written by Maritime attorney Charles R. Lipcon. Guests will receive a complimentary autographed copy of "Unsafe on the High Seas" and will have the opportunity to enter a free raffle to win a weekend with the new Maserati Quattroporte. The launch party takes place on Thursday, Jan. 31, from 6 p.m. to 9 p.m.

This eye-opening book will help the public discover the reality the cruise industry does not want them to know about: sexual assaults, shipboard disappearances, a pattern of cover-ups, noroviruses, unaccredited doctors, inadequate security and the binding ticket contract. The ultimate guide to making any cruise voyage safer, "Unsafe on the High Seas" will teach passengers how to protect themselves and their loved ones from becoming victims. Space is limited

Posted by Lipcon Law Firm at 11:32 AM | Permalink

By Jacki Donaldson
General Health

If you believe relaxation contributes to good health and you believe cruises lead to relaxation, then sailing the oceans blue might be just what you need. But if you believe there will be dependable medical care on board should your health take a detour, then you'd possibly be wrong and therefore, a cruise may not be just what you need.

Nearly 10 million Americans will set sail this year. What these 10 million may not know is that cruise lines claim no responsibility for doctors' actions. Cruise lines hire doctors, and they assign them as part of the crew -- but the buck stops there. The doctor merely has to claim to be competent. If he or she is not, cruise lines disavow any responsibility whatsoever.

This fact can be found in the fine print on tickets, Web sites, and brochures. But most of us don't read every detail and for some, discovering this hidden wording occurs too late. If cruise lines are not responsible, then the doctors must be, right? In theory, perhaps. But many doctors are foreigners who and are tough to track down in legal scenarios.

In the book Unsafe on the High Seas, Miami attorney Charles Lipcon offers advice for protecting yourself : Get travel insurance if yours doesn't have an evacuation provision, he says. And bring copies of your medical records, and tell the cruise line about pre-existing conditions. And most important: If you have a serious medical problem, maybe a cruise is not right for you.

Posted by Lipcon Law Firm at 4:28 PM | Permalink

Ten Tips From Author And Maritime Attorney Charles Lipcon

Jan. 22, 2008

Taking a cruise can be relaxing and fun, as long as you're prepared.

Charles Lipcon investigates the cruise ship industry in "Unsafe on the High Seas," examining sexual assaults, shipboard disappearances, cover-ups, noroviruses, unaccredited doctors, inadequate security and ticket contracts. Read some of his most salient tips below, and find out how to ensure that your dream cruise doesn't end in a nightmare.

1. Get shots for contagious diseases, such as flu, measles, mumps and rubella.

2. And before you step out your door, make sure someone is picking up your mail and newspapers so you won't leave any telltale signs that might attract burglars

3. Bring an extra pair of eyeglasses and your own first-aid kit, and know how to use it in case of an emergency.

4. Watch your step. To avoid bumps on the head on middle-of-the-night bathroom trips (especially if you've bought an inside stateroom), and bring a night light. Outside your cabin, and with all the serving stations on decks, spills are frequent, and slippery floors cause accidents. So you need to take care when you walk -- no head up in the clouds!

5. Check your insurance coverage. Most policies and Medicare do not cover medical treatment on cruise ships. Consider buying supplemental health insurance.

6. Notify the cruise line of any pre-existing conditions, such as diabetes, a heart problem or pregnancy. It will be better able to assist you in case of an emergency.

7. If you have serious medical problems, it is a good idea to discuss with your family doctor whether you should go on a cruise. There is a good chance that any immediate care that you might need won't be available when you need it.

8. Bring copies of your medical records noting your current medications and dosages, blood type, allergies and immunizations. Tuck extra prescriptions and over-the-counter medications in your suitcase, as well as your doctor's contact information and your next of kin's.

9. Inquire about the onboard medical personnel before you sign up for a cruise. If an agent tries to brush you off, keep calling until you're satisfied with the answers to your questions. Oh, and try to get those answers in writing.

10. Urge Congress to pass legislation to protect passengers in medical emergencies, and to require that cruise lines adopt stricter hiring rules for all medical personnel. (Cruise ships currently use doctors who work as independent contractors, so you have no recourse to the cruise line if something goes wrong.)

Posted by Lipcon Law Firm at 6:10 PM | Permalink

If You Receive Inadequate Health Care While Traveling, Who is Liable?

By Deboarah Roberts and Nola Safro
ABC NEWS

Who hasn't dreamed of a relaxing cruise? It sounds like the ultimate getaway.

"When people think of a cruise, they think all-inclusive floating vacation: sun, surf, sand, fun, maybe a little romance -- that's what they want," said Chris Elliot, a writer for National Geographic Traveler magazine. "I think 'The Love Boat' really started everything."

"The Love Boat," with its schmoozy crew, including good old Doc Bricker, put cruising on the map. Nearly 10 million Americans will set sail this year. And it could be good for your health as long as you don't need medical attention onboard.

Who's Responsible?
"The doctor is part of the crew, but the cruise lines claim no responsibility for the doctors' actions," said Miami attorney Charles Lipcon.

Bizarre as it may sound, he said the cruise lines are "not responsible for your overall medical care at all."

"The cruise line's responsibility in their mind ends at the point that they've hired a doctor who they claim is competent," Lipcon said. "And then if the doctor doesn't take proper care of that person, the cruise lines disavow any responsibility whatsoever."

Mike and Janice Sullivan went on a Royal Caribbean cruise that ended in disaster when, they said, Janice slipped on liquid near the buffet and was knocked unconscious.

Mike said it took 30 minutes to get help and an hour before Janice saw the doctor.

"I didn't know if she was dead or what," he said.

Janice remembers the cruise line sat her down in a chair and put ice on her head. All the while she was "hurting really bad."

According to Mike, the ship's crew never suggested that they leave the ship for additional medical treatment.

"I trusted that they would recognize a problem if it was serious," he said.

Emergency Surgery
Janice spent the rest of the trip in bed and a few days after they got home, but she soon had the scare of her life, discovering that she was paralyzed on her left side.

"When we got to the hospital, the doctor there had the CAT scan and found out there was a blood clot in her skull the size of my hand," Mike said.

The doctors scheduled an emergency surgery, and Mike said his wife almost died.

"I was angry," Mike said. "We were told by our family doctor ... that ... evidently when she fell, she had broken a blood vessel ... and that it had been bleeding for 10 days."

The Fine Print
Even worse, the Sullivans made a discovery that they couldn't believe -- the cruise line was not responsible for care provided by the medical staff.

"We didn't learn that until much later when we were trying to hold the cruise line responsible for her injuries," Mike said. "We were told by the cruise line that the doctors were independent contractors."

It's all in the fine print: on tickets, Web sites and brochures. That includes Disney Cruises, owned by the parent company of ABC News. It's information even seasoned travelers like the Sullivans often don't read until it's too late.

"I was very angry, because any profession that you're in, you have to be accountable to someone," Janice said.

From a Dream Cruise to a Calamity
Iris Cruz and her family are determined to find justice after her grandmother's dream cruise ended in tragedy.

Caridad Cruz, 70, fractured a bone in her arm while onboard.

"She would tell me, 'I am going through a lot of pain,'" said Iris. "My grandfather would tell me, 'Listen, she's not acting like herself, something's wrong.'"

Despite frantic phone calls from Iris' grandfather onboard, Iris said the medical staff played it down.

"I mean they would talk to me so calm. 'Oh, it's gonna be OK, everything's gonna be fine,' Iris said. "You kind of relax and you say, 'Ok, you know, these are nurses, these are doctors talking to you.'"

After Caridad had a second fall, the ship's doctor recommended an air evacuation … but before that could happen, she died. An autopsy blamed an embolism brought on by the fracture. Lipcon is their attorney.

"If her grandmother had gotten off the ship in Mexico and flown home on travel insurance, there's a good chance she'd be alive today," said Lipcon.

Royal Caribbean Cruises disputes the allegations in these cases and defends the actions of the onboard doctors. But remember -- they're not legally responsible anyway. Plus, Lipcon said, doctors are often foreigners, who quickly move on to the next job.

"They tell us, 'Well go ahead and sue the doctor.' Well sure, find the doctor, you know, we've tried to do that, you can't find them to sue them," said Lipcon.

In his new book, "Unsafe on the High Seas," Lipcon offers advice to keep yourself safe: Get travel insurance if yours doesn't have an evacuation provision, bring copies of your medical records and tell the cruise line about pre-existing conditions, and if you have a serious medical problem, maybe a cruise is not right for you.

As for Iris' family and the Sullivans, they're continuing to pursue their cases in court.

"I mean, we're captive aboard ship. If we can't depend on medical personnel there, who can we depend on? Somebody's gotta be responsible," Mike said. "Somebody's gotta be accountable."

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ABC has a great discussion thread about this article going. Add your comments here, there or both places!

And we will be posting the video from 20/20 in the next few days so be sure to check back for it.

Posted by Lipcon Law Firm at 9:57 AM | Permalink

Video clip of 20/20 segment "Charles Lipcon and Cruise Lines"

View Clip [Windows Media]

Airdate: January 18, 2008
Subject: Charles Lipcon and Cruise Lines
Program: 20/20

Posted by Lipcon Law Firm at 4:24 PM | Permalink

The cruise lines always say that the chance of rape is less on a ship than on land. This article reflects a different result.

From the International Cruise Victims message board:
Your risk of being sexually assaulted is much higher on a cruise ship than in the average American city.

Thats the message that Ross Klein, professor at a Canadian university, brought to Congress last week. One has a 50% greater chance of sexual assault on a Royal Caribbean International ship as compared to the US generally, Klein told a House of Representatives subcommittee on March 27. He explained that the figures for Royal Caribbean are comparable to those for the industry as a whole and were used for the sake of clarity.

Klein, professor of social work at the Memorial University of Newfoundland, has written numerous books, articles, and reports on the cruise industry and maintains two blogs concerned with the industry.

Dr. Foxs, hired by the cruise lines to develop crime rates for March 7, 2006 Congressional Hearings, had asserted that the rate of sexual assault on cruise ships is 17.6 per 100,000. Dr. Klein testimony, however, indicated that on the most conservative basis, the actual crime rate is almost three times greater, 48.065 per 100,000. As a result of his testimony, the reliability of any judgments based on those industry figures must be called into question.

A summary of his findings our shown in the following chart:

Rate of Sex Related Shipboard Incidents
(Based upon data released as a result of a Court Order and published in the LA Times on January 20, 2007)

Annual rate of all sex-related shipboard incidents (per 100,000): 161.996
Annual rate of sexual assaults (per 100,000): 48.065
US rate for sexual assaults (per 100,000): 32.200

The numbers indicate that the cruise industry has a problem and they appear either unwilling or unable to deal with it, Klein added. His testimony added further evidence to support the belief of ICV that cruise ship passengers are ill-served, sometimes fatally so, by the current security efforts of cruise lines.

Kendall Carver, President of ICV, indicated, the testimony of Professor Klein is a valuable addition to the growing store of data that point to major problems in the cruise industry. Through advertising, the industry has created the sense that cruise ships offer a carefree, no-risk vacation. Far too many people have learned at their own cost that this is untrue. ICV exists to promote the safety of passengers and crew and to prevent more victims.

The written testimony of Dr. Klein and of other witnesses from the House Transportation & Infrastructure Committee hearing (entitled Crimes Against Americans on Cruise Ships) is posted on the Committees website: http://transportation.house.gov/hearings/hearingdetail.aspx?NewsID=112

For more information about the International Cruise Victims Association, please visit www.internationalcruisevictims.org or write to info@internationalcruisevictims.org, phone 425-753-7711, fax 206-374-2944.

Posted by Lipcon Law Firm at 10:12 AM | Permalink

Bad steering, improper training caused 2006 Crown Princess' tilting

ORLANDO, Florida - Improper training and bad steering by the second officer on a Princess Cruises ship caused the vessel to tilt suddenly in 2006, injuring almost 300 people, the National Transportation Safety Board determined Thursday.

The NTSB said the Crown Princess' captain and crew failed to realize how fast they were going in shallow water, which threw the ship off course. The second officer disengaged autopilot to correct it, then steered the wrong way, the board determined.

"The errors of the captain and staff captain in operating the integrated navigation system resulted from inadequate training," the board said in a synopsis of the accident.

Princess Cruises apologized to passengers Thursday and said it has already made changes requiring further navigation training for crews and better oversight for deck officers.

"We want to assure our passengers, or those who may be thinking about traveling with Princess, that the highest priority for our company is the safety and well-being of our passengers and crew," the Santa Clarita, California-based company said in a statement.

The Crown Princess was headed from Port Canaveral in Florida to New York City to close a 10-day Caribbean trip on July 18, 2006, when it suddenly tilted up to 24 degrees, hurling passengers and objects about the boat.

The captain was not on the bridge at the time, and should have been, the NTSB determined.

The ship had been in service about a month, and the board said there was nothing wrong with it mechanically. Weather and sea conditions were also uninvolved.

Princess Cruises faces a class-action lawsuit in Los Angeles from about 35 passengers who claim severe injury and distress. Dan Rose, an attorney with Kreindler and Kreindler, which represents the class, said the report was not surprising.

"Since the beginning of our investigation we knew that there had been some obvious misconduct by the crew," Rose said. "What is troubling is the lack of training that this crew was given, and the lack of supervision that the captain provided."

As a result of the investigation, the NTSB will recommend enhanced training on navigation systems for International Maritime Organization certification and members of the Cruise Line International Association.

Posted by Lipcon Law Firm at 10:22 AM | Permalink

A boiler explosion that killed eight crew members on what was once the world's largest passenger ship was likely caused by Norwegian Cruise Line's improper operation, maintenance and inspection of the steam chamber, federal investigators said.

Part of the boiler on the SS Norway had "extensive fatigue cracking" and deteriorated materials that weakened the metal and caused it to rupture under the intense steam pressure in May 2003, the National Transportation Safety Board said in a report quietly adopted in October.

The line's only steam-powered ship was docked in Miami when the boiler exploded and spewed steam, smoke and debris through engineering spaces, burning eight crew members seriously enough to kill them. Seventeen workers were injured, but none of the 2,135 passengers was hurt.

Evidence "indicates that NCL shipboard engineers were aware of the cracking condition but did not take appropriate action to fix the problem," the report said.

The investigation also found evidence that the cruise line heated and cooled the boiler too quickly, which stresses the metal by expanding it and contracting it under great pressure.

The Miami-based cruise line, owned by Malaysia's Star Cruises and private equity firm Apollo Management LP, said it has improved safety procedures that are audited by the U.S. Coast Guard and took responsibility for the accident.

"None of the management or contractors who were involved in the operation, maintenance or inspection of the Norway's boilers are employed by NCL," line CEO and President Colin Veitch said in a statement.

The boiler cracks were first found in the 1970s, when the ship was owned by another company and known as the SS France. Norwegian bought the ship in 1979, detected more cracks over the years and patched them up with "questionable weld repair procedures," the NTSB report said.

Several injured Filipino crew members and victims' survivors sued the cruise line, but a federal appeals court ruled that they had to pursue their financial claims in the Philippines according to their employment contracts.

The ship sustained about $20 million of damage from the blast and was retired from service. It is now being scrapped off the coast of India, despite opposition from environmentalists who claim it is full of toxic materials.

Also known as the Blue Lady, it was made in France and launched in 1960, at the tail end of the era of trans-Atlantic ocean travel. At 1,035 feet, it was four feet longer than the Queen Elizabeth, and 153 feet longer than the tragic Titanic.

By JOHN PAIN

Posted by Lipcon Law Firm at 10:26 AM | Permalink

Video clip of The Morning Show With Mike and Juliet segment "Unsafe on the High Seas"

View Clip [Windows Media]

Airdate: January 8, 2008
Subject: Unsafe on the High Seas
Program: The Morning Show With Mike and Juliet

Posted by Lipcon Law Firm at 4:19 PM | Permalink

In the Matter of the Complaint of Bluegrass Marine, Inc., as Owner pro hac vice of the M/V TITLETOWN U.S.A. Official No. 289724, and Marquette Transportation Company, Inc., For Exoneration from or Limitation of Liability
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, PADUCAH DIVISION
2008 U.S. Dist. LEXIS 1038
January 4, 2008, filed

PROCEDURAL POSTURE Limitation petitioners, owners and interested parties in a vessel filed a motion seeking limitation or exoneration of their liability under the Limitation of Liability Act, 46 U.S.C.S. ¤Ê181 et seq., filed a motion for partial summary judgment against plaintiff wife, as personal representative of a deceased's estate. The wife had filed an action after the deceased was killed in a barge accident.

OVERVIEW: The vessel at issue was pushing 15 barges on the Ohio River when it collided with a houseboat, killing the deceased and two other men, and injuring a fourth person. The incident was the subject of two separate law suits that were consolidated. The limitation petitioners filed a claim for exoneration under the Limitation of Liability Act, former 46 U.S.C.S. ¤Ê181 et seq. and a stipulation on liability was granted. The limitation petitioners sought to judicially estop the wife from asserting a claim for loss of support, based on income claims that the wife and the deceased husband had made in November 2003 in a Chapter 13 bankruptcy proceeding that indicated that the deceased, at that time, did not provide income to the family, The court was not convinced that the factors for judicial estoppel were met. The wife's loss of support claim was not clearly inconsistent with the representations made in the earlier bankruptcy proceeding or on earlier tax returns. The wife's loss of support claim did not allow the wife to receive an unfair advantage or impose an unfair detriment on the limitation petitioners. The wife was entitled to produce evidence on the loss of support claim.

OUTCOME: The court denied the motion for partial summary judgment filed by the limitation petitioners.

Posted by Lipcon Law Firm at 9:34 AM | Permalink

MCRAE B. SOUTHARD, III, Plaintiff - Appellant, versus PAUL LESTER; OREGON INLET FISHING CENTER, INCORPORATED, Defendants - Appellees.
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
2008 U.S. App. LEXIS 230
January 7, 2008, Decided

PROCEDURAL POSTURE Appellant passenger sought review of a decision of the United States District Court for the Eastern District of North Carolina, which granted Fed. R. Civ. P. 56(c) summary judgment in favor of appellees, a fishing boat and its captain, in his negligence lawsuit seeking recovery for personal injuries sustained when a wave struck the boat. The passenger also sought review of the district court's denial of his motion to alter or amend the judgment.

OVERVIEW: Before the boat reached the fishing grounds, the captain saw a large wave. He slowed down as quickly as possible, but the captain could not avoid the wave. When the boat struck the wave, it caused the passenger to be lifted out of his seat and sustain serious injuries. In granting summary judgment for appellees, the district court found that the Pennsylvania Rule, requiring a ship to show that its fault was not one of the causes of a collusion, did not apply, and that there was no evidence that the captain breached his duty of care when he failed to avoid the "rogue" wave. On appeal, the court upheld the district court's ruling, agreeing that the Pennsylvania Rule did not apply because there was no collision, since only one boat was involved, and that the record evidence concerning the timing and formation of the "rogue" wave and the captain's response to it did not create a genuine issue of material fact warranting a trial. Due to the court's conclusions regarding the summary judgment ruling, it further found that the district court did not abuse its discretion in denying the motion to alter or amend the judgment.

OUTCOME: The court affirmed the district court's decision.

Posted by Lipcon Law Firm at 9:33 AM | Permalink

IN RE: GREAT LAKES DREDGE & DOCK COMPANY, L.L.C. COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG
2008 Tex. App. LEXIS 281
January 10, 2008, Opinion Delivered

PROCEDURAL POSTURE An employee filed suit against relator employer asserting claims under the Jones Act, 46 U.S.C.S. ¤ 30104. The employer moved to dismiss or, in the alternative, moved to transfer venue. The 92nd District Court of Hidalgo County, Texas, denied the motion. The employer filed a petition, requesting that the instant court issue a writ of mandamus ordering respondent district judge to enforce a venue-selection agreement.

OVERVIEW: In order for a writ of mandamus to issue, the employer was required to show an abuse of discretion for which an appeal was inadequate. The employer asserted that the trial court abused its discretion in refusing to enforce a forum-selection agreement. In response, the employee asserted that the mandatory venue statute in place at the time suit was filed, former Tex. Civ. Prac. & Rem. Code Ann. ¤ 15.018 (2002) (current version at Tex. Civ. Prac. & Rem. Code Ann. ¤ 15.0181 (2007)), provided that the employee's Jones Act claim could have been brought in the county where the employee resided. Contrary to the employer's arguments, the instant court held that the Texas Supreme Court's recent decisions regarding forum-selection clauses, rejecting the "ouster" doctrine, did not supplant firmly established Texas law regarding the enforcement of venue-selection agreements that contravened a mandatory venue statute. Texas law prohibited parties from contracting away mandatory venue. The trial court, therefore, did not abuse its discretion when it refused to enforce the venue-selection agreement between the employee and the employer.

OUTCOME: The petition was denied.

Posted by Lipcon Law Firm at 9:29 AM | Permalink

TIMOTHY DOYLE; GREG HAGAMAN; BRIAN LAGUE; ANTHONY W. RICHARDS; ERIC EDWARDS, Plaintiffs, Appellants/Cross-Appellees, v. HUNTRESS, INC.; RELENTLESS, INC., Defendants, Appellees/Cross-Appellants, GREG BRAY and KYLE GOODWIN, Defendants.
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
2008 U.S. App. LEXIS 1436
January 25, 2008, decided

PROCEDURAL POSTURE Plaintiff fishermen sued defendant vessel owners, alleging that, as the owners did not reduce to writing their compensation arrangements, they had violated 46 U.S.C.S. ¤ 10601. The U.S. District Court for the District of Rhode Island granted partial summary judgment in favor of the fishermen, finding that a cause of action was created under 46 U.S.C.S. ¤ 11107. At issue on interlocutory appeal was the application of the doctrine of laches.

OVERVIEW: The fishermen, while paid, worked on voyages from 1993 to 2000 under lay share contracts that did not comply with 46 U.S.C.S. ¤ 10601. The vessel owners asserted a laches defense, which the federal district court found meritorious as to all claims before August 1, 1998, three years before the filing of the complaint. Neither ¤ 10601 nor 46 U.S.C.S. ¤ 11107 contained a statute of limitations; the initial determination, therefore, was the most analogous statute of limitations. According to the federal court of appeals, the district court correctly chose R.I. Gen. Laws ¤ 28-14-20, which provided for the coverage of unpaid wages, and which comported with the hospitable view that the law had traditionally taken toward seaman. Further, the lay shares met the R.I. Gen. Laws ¤ 28-14-1(4) definition of wages. Moreover, the district court's reasoning-that it was inequitable to require the vessel owners, who had paid all wages from 1993 to 1998, to come up with additional monies, particularly as the fishermen had been determined not to be as valuable as others to the success of the enterprise-was within its discretion. So too was its calculation of amounts due for claims after August 1, 1998.

OUTCOME: The judgment of the federal district court was affirmed.

Posted by Lipcon Law Firm at 9:27 AM | Permalink

Thomas Leslie, etc., et al., Appellants, vs. Carnival Corp., etc., et al., Appellees
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
2008 Fla. App. LEXIS 9; 33 Fla. L. Weekly D 105
January 2, 2008, Opinion Filed

PROCEDURAL POSTURE Appellant passengers commenced maritime personal injury actions against appellee cruise line in the Circuit Court for Miami-Dade County (Florida). The court dismissed the complaints. The passengers appealed.

OVERVIEW: The passengers contended that the trial court erred by enforcing a forum-selection clause in form contracts issued by the cruise line to the passengers, two of the cruise line's fare-paying customers, prior to embarking on their respective cruises. The clause directed that passenger law suits arising out of a passenger's cruise were to be filed exclusively in the United States District Court for the Southern District of Florida. The passengers' chief grievance regarding the clause was that it stripped them of their constitutional right to a jury trial, and instead afforded them a jury trial in their federal forum only with the consent of both parties, pursuant to Fed. R. Civ. P. 39(c). The cruise line represented in its answer brief that it had no intention of opposing the passengers' request for a jury trial in their pending federal actions. On appeal, the court interpreted the cruise line's statement to mean that if the United States District Court lifted the stays in the passengers' federal admiralty actions, the cruise line would consent to a jury trial in their cases. The court concluded that the forum-selection clause was enforceable under the general maritime law.

OUTCOME: The orders of dismissal were affirmed.

Posted by Lipcon Law Firm at 9:25 AM | Permalink

DAVE ROBINSON, Plaintiff-Appellant, v. ALTER BARGE LINE, INC., Defendant-Appellee.

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
2008 U.S. App. LEXIS 871
January 16, 2008, Decided

PROCEDURAL POSTURE Plaintiff former deckhand sued defendant barge owner in the United States District Court for the Southern District of Illinois under the Illinois Whistleblower Act, 740 Ill. Comp. Stat. 174/20, the Seaman's Protection Act, 46 U.S.C.S. ¤ 2114(a)(1)(A), state common law for retaliatory discharge, and admiralty tort law. The district court granted summary judgment for the barge owner. The deckhand appealed.

OVERVIEW: The deckhand claimed that he was discharged in retaliation for having complained to management that barge crew members were using illegal drugs while on duty. The court of appeals found that the Illinois Whistleblower Act, which prohibited retaliation based on an employee's refusal to participate in an illegal activity, was inapplicable because there was no indication that the deckhand was fired because he refused to use drugs. Nor did the Seaman's Protection Act apply, as the deckhand had not reported and was not about to report the use of illegal drugs to the Coast Guard or any other federal agency when he was fired. The district court erroneously found that the deckhand's state common law retaliatory discharge claim was preempted by the Seaman's Protection Act and admiralty law. There was no indication that the Seaman's Protection Act was intended to occupy the entire field of retaliatory discharge of seamen, and the saving to suitors provision of 28 U.S.C.S. ¤ 1331(1) precluded automatic preemption of state remedies by admiralty law. The deckhand forfeited a claim that a preemptive admiralty tort existed that prohibited discharge for raising safety concerns.

OUTCOME: The district court's judgment was reversed as to the deckhand's state law retaliatory discharge claim; the judgment was otherwise affirmed. The case was remanded.

Posted by Lipcon Law Firm at 9:22 AM | Permalink