Cruise Ship Law

A CRUISE BRUISE EXCLUSIVE

I had a neighbor decades ago, who was scared to death of her husband. She had good reason to be scared, he had beaten her to a bloody pulp more than once, and threatened her with death more times than I can count. I lived next door and could hear the wild accusations that he would make and the resulting beatings. He watched her every move. She couldn't go to the store without him, couldn't talk on the phone or write letters without him screening them.

She was a frail little thing, with two tiny kids, and he could have snapped her like a twig anytime the mood would strike. I stayed out of her affairs, as she requested, until one day I could no longer take the screaming, pleading and begging for help. She was up against the kitchen wall, a butcher knife to her throat, screaming for somebody to call the police because he was going to kill her. So, I did.

When the police arrived they could see the scene through the window, drew their guns and kicked in the door, screaming at him repeatedly to "drop it". Long story short, she refused to press charges, he stayed in the house that night and I was the villain. I have never been able to understand that.

I understand her decision to not have him locked up, it is a pattern of partner abuse mirrored millions of times in this country. I just don't understand how calling the police when begged to do so, made me the bad guy.

I will say, with two small children at her feet, lacking a high school education, no car of her own, and no income of her own, it is easy to see how she would feel trapped after many years of systematic abuse.

I am telling you that story, because it mirrors, in many respects the latest letter I have received from a Carnival Cruise Line crew member. The letter is so sincere, so filled with emotion, pleading for help, that I have once again made an exception for posting a story on this site. I am using my rules for posting sexual abuses cases, in this case, equally as appauling and disgusting. Abuse by any name is still abuse.

There is enough personal identifying information in this letter, that there is good reason for the crew member to be fearful that I might post it all and the crew member would be doomed. I feel so strongly that this crew member is at risk, I will not even post whether the person is female or male.

This is the fifth crew member to come forward in the past few days, all of them saying they are working for Carnival Cruise Lines. Some, seem more complaining than pleading for help. But, all are inspired by the case of Lady Africa and her bravery to make public her dire situation.

From what I can see, they have every reason to complain. But, complaining and pleading for help while out lining human rights violations are two very different things.

Crew Member #5 Contacts Cruise Bruise

Crew member #5 says that the ship has refused to give back their passport too as with Lady Africa as they call her and say they have been trapped on the ship for many months. Contracts are suppose to be for only a few months. What is going on here?

In addition, though crew member #5 gives a full name, the ship name, length of employment on the ship, country of origin, and a complete history of their family, they are terrified to give an email address.

The letter reads, ". . . some people tell me even my guest tell me get lawyers here to take action. . ."

Crew member #5 says in addition to holding the passport and refusing to let the person off the ship, they also have the email addresses crew members use, and monitor their activity. So, this person has asked to have a response posted here.

The final question posed in the email asks, "Is there some way to get justice if I have no money for lawyer in this country [America], also no B2 visa?

To that I answer, "Yes". The conditions, wages, hours worked and intimidation the crew members are saying they suffer under, are not only illegal in this country, they have resulted in employers getting jail time.

It is a crime in the U.S. to work people in double shifts without breaks, seven days a week, to not pay them overtime, to force them to work in job positions they did not agree to, to hold them hostage in the employer's place of business, and forbid them to leave. Without their passports these crew members might as well be shackled to their employer's sweat shop work tables.

Now, let me come back again to another story recently posted. The towns in this country that beg for cruise industry ports-of-call, and refuse to join together to force the industry to fly the American flag and employ people under American labor law standards are assisting in the slave labor trade of some cruise lines. Shame, shame, shame on them.

It is high time the citizens living in these American ports, find a backbone, stand up for human rights and demand their elected officials refuse deals with any ship not flagged in the U.S. This industry can not afford to leave our seas, and sail away from the millions of passengers who live in the U.S. and would be lost if they left our ports.

We can bomb foreign countries to end abuse of those who can not defend themselves, while spending billions of American tax payer dollars to do so. But, we can't write legislation to force passengers ships in our ports to fly the American flag and offer basic labor protections? I'm absolutely disgusted.

I am appealing to all cruise ship passengers, boarding from American ports to refuse to sail on these ships, write your legislators and insist on laws to better protect crew members, and to find it in your heart to take action for crew member #5 and the others, so they might enjoy the same human standards in the work place that you and I enjoy.

Say "no" to cheap cruises and say "yes" to a better standard of living for those who work as slave labor on those cheap cruises. Embark on your own personal crusade for these victims, and create such a fuss, these victims voices will not remain muffled in the belly of ships.

At minimum, I give permission to every webmaster, around the world, to post this case, word for word, so we can let EVERYONE know these people need our help. Enough is enough. It is time to speak out.

Two crew members ( 1 2 ) have gone missing at sea this month alone. One from the same ship "Lady Africa" says she was enslaved on. We can only imagine why. Was it desperation after an inability to continue to endure these substandard employment practices? We will never know.

Crew member #5, you know this story is about you, though I do not call you by your name or nickname.

I urge you to contact me with your email address, so I can begin to help you. I promise you that your email address will be kept in complete confidence by the legal professional I contact on your behalf. You asked me to give you hope, and I am reaching out to you, offering it now. I am giving you one chance, in this single, one time, posting to change work conditions for yourself and all the crew members also suffering.

If you can not give your email for fear of retribution, at least contact me again and give me permission to send a copy of your complete letter to a specialized attorney who will work for you without charge unless the attorney can get your back wages for you and help you out of your dire situation.

I assure you that you will not pay the attorney if their team can not help you, and IF they can get you paid back wages and compensation, they will deduct their fees from the money you collect. Don't worry, you can get help without any money up front.

UPDATE: February 27, 2008 : 0100 hours

Cruise Bruise has received contact from a maritime attorney. The attorney says they can investigate Crew Member #5 claims, and other crew member claims by depositioning all the crew members within the same department, without revealing who made the original complaint. You will be protected.

Posted by Lipcon Law Firm at 8:26 AM | Permalink

Settlement from Francisco v. NGC Will Support Education

The American Numismatic Association has received a $447,095
donation to support educational programs and produce a much-needed
consumer awareness booklet with helpful information on coin
collecting.

The donation is from the settlement of a class action lawsuit,
Francisco v. Numismatic Guaranty Corporation, concerning First
Strikes designation. While admitting no wrongdoing or liability,
NGC settled the case and discontinued the use of First Strikes,
believing that controversy from the lawsuit would not be in the
best interests of the hobby.

The parties, with the court's approval, agreed that the lion's
share of the proceeds go to the ANA to further support its mission
of collector education.

"This donation allows the ANA to implement new strategies as well
as enhance its delivery of numismatic education to a vastly larger
audience," said ANA President Barry Stuppler. "We are obviously
greatly appreciative of NGC's commitment to best practices in our
hobby, and to its efforts to support education, which is a
fundamental value of our Association."

"The ANA is the hobby's premiere organization, and no one is better
at developing and delivering educational programs," said NGC Chief
Executive Officer Steve Eichenbaum. "Coin collecting is a very
complex hobby and everyone benefits when collectors are
knowledgeable and well educated."

Stuppler said the ANA would soon begin work on an educational
consumer awareness booklet that will include consumer tips as well
as basic information on grading, authentication and conservation.
The booklet also will discuss the minting process and what
constitutes a "first-strike" coin, plus feature a rich frequently-
asked-questions section as well as a comprehensive listing of
helpful resources for collectors.

The booklet will be distributed for free to all ANA convention
attendees, ANA dealers and their customers, attendees of all ANA
club coins shows and events and to all new Association members. Its
contents will be featured and updated regularly on www.money.org.

"We have wanted to produce a consumer booklet like this for years,
but finances were always a concern," Stuppler said. "Everyone in
the hobby as well as those with only a casual interest in coin
collecting will benefit greatly by having easy access to this
information."

Stuppler said the ANA also will include information on "First
Strikes" as part of its curriculum for Summer Seminar grading
classes.

The lawsuit, filed by Thomas Francisco on Nov. 7, 2006 in U.S.
District Court Southern District of Florida, alleged that he and
other similarly situated purchasers of 'First Strikes' coins
nationwide were under the impression that U.S. bullion coins NGC
designated as 'First Strikes' were among the first coins struck by
the U.S. Mint and were, therefore, worth more than the same type
and grade U.S. bullion coins that were not designated as 'First
Strikes.' The plaintiff, who was represented by Miami lawyer and
coin collector Charles Lipcon as well as co-counsel Tucker Ronzetti
and David Pollack, sought injunction relief, restitution, damages
and attorneys' fees.

NGC denied liability and asserted that a clear definition of 'First
Strikes' was contained on its website, that there were a lack of
complaints regarding any confusion over NGC's definition of 'First
Strikes,' and that NGC competitors had previously used the term to
signify coins that were released by the U.S. Mint within 30 days of
issuance.

The parties agreed to mediate the case, which was heard on June 21,
2007, and presented a settlement to the court on July 16. As a
result of that settlement, NGC agreed "to cease designating coins
as 'First Strikes' unless they were certified to be one of the
first coins struck as part of a ceremonial striking by the U.S.
Mint on the first day of minting and to establish a $650,000
settlement fund to be distributed, net of attorneys' fees and
expenses plus the class representation award, to the American
Numismatic Association, for the purpose of educating the public
about coins and terminology."

A check for $447,095.26 was received by the ANA on Feb. 13.

"These funds will enable the ANA to provide invaluable consumer
awareness information to tens of thousands of Americans interested
in collecting coins," Stuppler said. "Our Congressional Charter
states that the ANA shall advance the knowledge of numismatics and
charges the Association to acquire and disseminate trustworthy
information. We take this responsibility very seriously."

The American Numismatic Association is a nonprofit organization
dedicated to educating and encouraging people to study and collect
money and related items. The ANA helps its 32,000 members and the
public discover and explore the world of money through its vast
array of programs including its education and outreach programs,
museum, library, publications, conventions and seminars. For more
information, call 719-632-2646 or visit www.money.org.

Posted by Lipcon Law Firm at 11:28 AM | Permalink

BY DONNA BALANCIA
FLORIDA TODAY

Attorneys for Reshma Harilal, a crew member who has filed a lawsuit against Carnival Corp., alleging she is being held against her will on the ship, are hoping she will be removed from the Carnival Glory today, when the cruise ship docks in the Bahamas.

Her attorney, Tonya Meister, an associate with Miami-based Lipcon Margulies & Alsina, said Harilal is working aboard the Port Canaveral-based Glory, which left last Saturday for a Caribbean cruise and is due to return this Saturday to its home port. It was expected to make a port-of-call stop today in the Bahamas.

Harilal this week filed a lawsuit against Carnival in federal court, accusing the Miami-based cruise line company of "forced labor, slavery and/or human trafficking" of her and other crew members aboard Carnival ships. She contends she was hired to work as a stateroom stewardess, but was told she had to take a lower-paying position after she boarded the ship last Saturday.

In court papers filed in U.S. District Court for the Southern District of Florida in Miami, attorneys for Harilal, a 33-year-old citizen of South Africa, ask that she be removed from the Glory and be paid wages that she agreed to work under.

In a statement, Carnival said: "The allegations contained within the suit are patently false, and the company looks forward to vigorously defending itself."

In the meantime, Carnival issued another statement Thursday that updated its earlier position that Harilal is working as a stateroom stewardess on the Glory. The current statement says, in part: "In early February 2008, she was assigned to the Carnival Glory. A stateroom stewardess position was not immediately open on the ship. However, she was advised that, within a maximum of two weeks, she would be placed in a stewardess position. In the interim, she was given a temporary, alternate assignment."

Contact Balancia at 242-3647 or dbalancia@floridatoday.com.

Posted by Lipcon Law Firm at 2:58 PM | Permalink

A female crew member working on a Port Canaveral-based cruise ship filed a lawsuit today in federal court against Carnival Cruise Lines, accusing the Miami-based cruise line of forced labor, slavery and human trafficking.

In court papers filed in U.S. District Court for the Southern District in Florida, attorneys for Reshma Harilal, a 33-year-old resident of South Africa, ask that she is removed from the Carnival Glory cruise ship, where she is currently working. The suit also asks that her passport is returned to her, and that she be paid wages that she agreed to work under.

“Based on what our client has told us, there are other crew members who are also working in lower positions and at a lower pay than they agreed when they boarded the vessel,” said Tonya Meister, an associate at the Miami-based law firm Lipcon Margulies & Alsina. “This case stands for more than money. Human beings should not be treated this way. They should not be forced to work under conditions they did not agree upon, and that’s what this case is about.”

Carnival officials could not immediately be reached for comment today.

With Harilal aboard, the Carnival Glory left Port Canaveral on Saturday.

Court documents claim that Harilal traveled from South Africa to take a position as a cabin steward on the Glory, after signing a contract indicating that would be her position. While already aboard the ship, Harilal was told to work as an assistant cabin steward instead, the suit claims. The cabin steward job pays $1,500 every two weeks, and the assistant job pays $250 to $300 every two weeks, the suit claims.

The Glory was in Belize on Tuesday, was expected to dock in Bahamas on Friday, and was scheduled to return to Port Canaveral on Saturday.

Attorneys have faxed the complaint to the ship, and are hopeful that Harilal will be removed from the ship Thursday or Friday, when the ship is in the Bahamas, and then will be brought back to Miami.

Harilal holds a tourist visa, and would stay with her daughter, who lives in Florida, attorney Meister said.

Read a copy of the lawsuit (PDF).

BY DONNA BALANCIA
FLORIDA TODAY

Posted by Lipcon Law Firm at 5:37 PM | Permalink

Florida Today

A crew member has accused Miami-based Carnival Cruise Lines of forced labor, slavery and human trafficking for allegedly violating her contract by putting her in a lower-paying job, Florida Today reports.

Attorneys for 33-year-old Reshma Harilal, a resident of South Africa with a U.S. tourist visa, filed suit in U.S. District Court for the Southern District in Florida.

They want her taken off the Carnival Glory and returned to Miami. The suit also wants her passport returned, and seeks the wages agreed to under the contract she signed.

Read the entire lawsuit (pdf).

"Based on what our client has told us, there are other crew members who are also working in lower positions and at a lower pay than they agreed when they boarded the vessel," Tonya Meister of the Miami law firm Lipcon Margulies & Alsina told Florida Today. (Like USA TODAY it is owned by Gannett.)

No response yet from Carnival.

The suit alleges that Harilal traveled from South Africa and signed a contract to work as a cabin steward. Once aboard, however, she was told to work as an assistant cabin steward instead, the suit claims. Cabin stewards are paid $1,500 every two weeks, while the assistant earns $250 to $300 biweekly.

The complaint has been faxed to the Glory, which is in Belize today. It's expected to arrive in the Bahamas by Friday, and Harilal's attorneys hope she'll then be returned to Miami. The ship is due back at Port Canaveral on Saturday.

Update at 7:25 a.m. ET: Carnival Cruise Lines is denying the allegations. Here's an excerpt from the statement they released last night:

Reshma Harilal has worked for Carnival since 2000. She joined the company in the position of stateroom stewardess and is presently employed as a stateroom stewardess. Over the past seven years, she has returned for multiple contracts with the cruise line. The allegations contained within the suit are not only completely false, but baffling, and the company looks forward to vigorously defending itself.

Posted by Lipcon Law Firm at 3:33 PM | Permalink

Florida Today

In a case that left us all breathless, a courageous young woman stood up against Carnival Cruise Line today, when she contacted an attorney in Miami, Florida while allegedly being held against her will aboard Carnival Glory, forced into labor, used as slave labor, and alleges Carnival Cruise Lines is trafficking in slave labor, with other crew members also being held against their will.

Reshma Harilal, age 33, says she is being held against her will aboard the cruise ship still at sea, her passport was taken away from her, and that the cruise line lured her from her native home in South Africa with the promise of a cabin stewardess job earning $3000 a month, but instead she got the old bait and switch. She says that she has a signed contract for the better job description and pay, and wants the money that's coming to her per her contract.

Once she arrived in Florida and boarded the ship, with little money to care for herself, she says the cruise line told her she could not work in the promised job description and instead placed her in a position as an assistant to a cabin steward making only $500-600 a month.

When she refused to work in the lower paying position, and requested to be sent home, she says her request was refused, she was held aboard against her will, and has asked a Florida court to force the cruise line to release her from the cruise ship Carnival Glory where she alleges she is being forced to work as slave labor.

Carnival Glory was in Port Canaveral on Saturday February 9th, and that is when Harilal requested her passport so she could leave the ship and go back home. Instead, she says officers refused to give her back her passport, holding her aboard and then left port with her aboard.

The passport Reshma holds is not the usual C1/D1 work visa other employees have, she is on a tourist visa. Holding her against her will is wrong on numerous levels. She has a daughter in Florida, and wanted to get off the ship while it was in port there to be with her daughter.

In addition, her petition alleges when she became ill suffering from a rash, they refused her medical care and told her if she insisted on getting medical care, she would be terminated.

Other crew members on cruise ships have told the public, that if the cruise lines decide you are not medically fit for work, it means being dumped in the nearest port, without money or any means to get home. Since Glory is cruising the Bahamas at this point in time, it would be a long way home for Reshma.

Then, Reshma alleges when she became desperate to get medical care and requested to be removed from the ship, officers prevented her from exiting the ship. She alleges in her complaint the the cruise line has enslaved crew members including herself and that the line is trafficking in human slavery.

Ms. Harilal alleges she is not the only slave aboard Glory, that other crew members are suffering the same horrible conditions, being held against their will and being paid wages way below what they were promised in signed contracts.

Reshma's complaint outlines the damages she seeks, and that includes the seizure of the vessel used to commit the crime of forced labor, slavery and human trafficking, a penalty that is allowed by U.S. Law.

Carnival denies the allegations.

Cruise Bruise is asking other crew members who have worked for, are working for Carnival Cruise Lines, to come forward if you were held on the ship against you will, the ship's officers refused to get back your passport, you signed contracts for one pay description and grade but were paid for lower pay grades, were refused medical treatment or were forced off ships in foreign ports because you were deemed medically unfit to work. Tell us your story.

Another incident also took place on Saturday February 9, 2008. The bomb squad was called to Terminal 10 at Port Canaveral where Carnival Glory was docked. A suspicious package shut down operatiions at the port until the package was identified and the owner was located. Passenger were beginning to board Carnival Glory for this same cruise, when the incident took place.

Less than two weeks ago, on February 1, 2008, another crew member mysteriously disappeared off of Carnival Glory in the middle of the night. That crew member was never found. The case is here

A copy of the official court petition is - here

Posted by Lipcon Law Firm at 3:30 PM | Permalink

by CruiseBruise.com

Unsafe On The High Seas is available now at Amazon.com. I had the opportunity to read the book recently, and found it to be the most beneficial information for the cruising public, outside of Cruise Bruise.

Maritime attorney and author Charles Lipcon, outlines a checklist of safe at sea passenger practices, and goes beyond to bring public attention to cases not readily available anywhere else, including on Cruise Bruise.

He gives good, sound legal advice, and explains the rights passengers have as well as the rights the industry has, when it comes to U.S. law.

Lipcon goes behind the cruise industry scene as well, to outline sweetheart deals the industry has made with U.S. government that many citizens might not be aware of which include secret meetings to protect their tax-free status in the U.S. while the government awarded one cruise line a government contract that rented cabins at twice the posted rate on travel sites, without putting the contract up for bids.

He touches on the hot topic of passenger travel documents and the changing date of passport deadlines that have come, gone, and been changed at the urging of the cruise industry. You will learn just how influential the industry is, and why passengers rights are not an important issue with legislators.

Other issues covered include the industry ticket language that protects the cruise lines from their own pricing errors, even after you have booked and paid for a cruise, you can be subject to additional fees to cover their own pricing errors. In one major case, this additional amount was over $500 per person, according to Lipcon's book. This is an area of the book, you will definitely want to pay close attention to.

The one case that touched me the most was the case Lipcon presents of a cruiser dumped in a foreign land half way around the world from his home, where English was not spoken, because the ship's doctor incorrectly thought he had a contagious disease. He had travel insurance, but in did not cover this particular problem. The details of that case are shocking and because the case is similar to thousands of other cases each year, you really need to be informed about how this all went terribly wrong.

Some important areas of the book cover the provisions of that all-inclusive voyage, that is anything but all-inclusive. What is covered and not covered is outlined on the pages of this book and it is a long list.

But, more importantly, Lipcon outlines for the passenger how the cruise line will charge passengers for things not included in the all-inclusive cruise, such as beverages, even when the passenger never used nor received the item and how the cruise line gets away with it.

One really surprising note in the book is on the topic of disabled passengers. You would think that a disabled passenger who had made special arrangements to accommodate his disability when he booked his ticket, could at least count on those accommodations when he arrived on the ship. Not so says Lipcon, who outlines a sad case of bait of switch.

With all the sexual assaults we are hearing about, many within the passenger cabin, Lipcon gives the one piece of advice that will protect a woman from an intruder in any cabin on any ship. You won't want to miss that important piece of advice found on page 63.

Real cases are sprinkled throughout the book, including a case of a famous athlete who was severely injured including a fractured spine and a stroke from the head injury when the ship's tender took off as he was still exiting the boat. The athlete later died and never saw justice. This case tragically depicts how negligent the cruise line can be, and how seriously that negligence can affect the passenger. That case is on page 89.

While I could on and on about the many great benefits of reading this book, it would take another book to do it. Simply put, the book is a tremendous insider's look at the industry, and is a must read.

The book is on sale now at Amazon.com - click here

Posted by Lipcon Law Firm at 3:10 PM | Permalink

OLGA DE LEON; DAURYS BLADIMIL DE LEON; RAFAELA DE LEON; FRANKLIN ROA; JOSE GUERRERO MARTE; CRISTIAN ENCARNACION, Plaintiffs-Appellants v. SHIH WEI NAVIGATION COMPANY LTD; DONG LIEN MARITIME SA PANAMA, Defendants-Appellees

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 5464
March 13, 2008, Filed

PROCEDURAL POSTURE: Plaintiffs, surviving stowaways and heirs of decedent stowaways, initiated an admiralty and maritime tort action seeking damages for personal injuries allegedly suffered by the stowaways. Plaintiffs appealed from the United States District Court for the Southern District of Texas, challenging a dismissal for lack of personal jurisdiction over defendants.

OVERVIEW: The stowaways boarded a vessel in an ill-fated attempt to enter the United States (US) illegally. While the vessel was in international waters en route to Houston, Texas, the stowaways were discovered by the crew and then either left voluntarily on a raft or were forcibly thrown overboard by the crew. Considering the isolated and sporadic nature of the calls made on US ports by defendants' vessels, the lack of control defendants possessed over the calls, and the absence of any other contacts with the US in the Asarco framework, defendants lacked the requisite "continuous and systematic" contacts with the forum to support the exercise of general personal jurisdiction. Defendants' sole contacts with the forum were calls made on forum ports in the years preceding the incident at issue. Defendants were not licensed or authorized to do business in the US; they had never advertised or solicited any business in the US; they did not maintain a place of business or office in the US; they had no employees or agents located in the US; they had never maintained a telephone number or mailing address in the US; and they never owned, leased, or possessed any interest in property in the US.



OUTCOME: The dismissal was affirmed.

Posted by Lipcon Law Firm at 10:28 AM | Permalink

ALLISON MARIE DUNBAR GUILLORY, Administratrix of the Estate of Patrick Guillory, and as Parent and Next Friend of WINTER LAPATRIA GUILLORY and ARIEL JU'NEA KEON GUILLORY, Plaintiff, v. REASON GUKUTU and CHRISTIAN PERSONNEL, INC. d/b/a CHRISTIAN CONSTRUCTION, INC., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
2008 U.S. Dist. LEXIS 11728
February 13, 2008, Decided

PROCEDURAL POSTURE: Defendants, an employee and a staffing company, moved jointly for summary judgment on all claims brought against them by plaintiff administratrix. The administratrix's decedent was killed while working at a shipbuilding company, when the man-lift that the employee had been operating pinned the decedent between the man-lift basket and the controls. The staffing company had sent the employee to work for the shipbuilding company.



OVERVIEW: The employment status of the employee under the Longshore and Harbor Workers' Compensation Act (LHWCA) determined the potential liability that he and the staffing company faced. Therefore, the primary issue before the court was whether the employee was a borrowed servant of the shipbuilding company at the time of the accident, because if he was, both he and the staffing company were cloaked from liability by the immunity enjoyed by the shipbuilding company. The court found the Fifth Circuit's nine-part test a useful rubric by which to assess the question of control in the context of borrowed servant status. Denying the motion for summary judgment, the court noted that, although the staffing company may have had continued contact with the employee, the actual work performed at the shipbuilding company was directed, controlled, and overseen by the shipbuilding company alone. Applying the nine factors as a part of a "control" inquiry, the court concluded that the employee was the shipbuilding company's borrowed servant. Because the employee and the decedent were persons in the same employ, compensation benefits were the administratrix's sole available remedy against the employee.



OUTCOME: The court granted summary judgment on all counts

Posted by Lipcon Law Firm at 9:55 AM | Permalink

IN THE MATTER OF THE COMPLAINT OF DELMARINE, INC., AS OWNER OF A CERTAIN 1973 18' SIGNA BOWRIDER FOR EXONERATION FROM OR LIMITATION OF LIABILITY.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 9216
February 1, 2008, Decided

PROCEDURAL POSTURE: Claimants, husband and wife, collided with another boat and the wife was injured. The owner of the boat commenced a maritime claim under the limitations of Shipowners' Liability Act, 46 App. U.S.C.S. § 181 et seq., now 46 U.S.C.S. § 30503 et seq. The court found the boat's operator 85 percent liable and the husband 15 percent liable. Before the court was, inter alia, the issue of reducing the wife's future damages award to present value.

OVERVIEW: Claimant wife was awarded $ 750,000 for her injuries and pain and suffering, $ 500,000 for future pain and suffering, and $ 23,422.10 for past medical expenses. The court noted that the award for future pain and suffering had to be reduced to its present value. The determination of the appropriate discount rate was discretionary with the court. Claimant wife argued that the court should discount her award for future pain and suffering by two percent pursuant to the U.S. Court of Appeals for the Second Circuit's decision in Doca. The owner and the operator argued that based on current market information a discount rate of 4.15 percent would reasonably represent a conservative long-term investment. The court held that the Doca discount rate of two percent was a reasonable representation of the present value of the claimant's award for future pain and suffering. Here, the parties had stipulated that if the court applied the two percent Doca discount rate, the present value of claimant wife's $ 500,000 future pain and suffering was $ 347,898.

OUTCOME: The court ordered that the clerk of the court was directed to enter final judgment in favor of claimant wife against the boat operator in the amount of $ 953,122. The court ordered that the owner and operator disclose the remaining policy limits of their insurance coverage.

Posted by Lipcon Law Firm at 9:54 AM | Permalink

RICHARD L. TAYLOR, Plaintiff-Appellee, v. TECO BARGE LINE, INC., Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2008 U.S. App. LEXIS 3497; 2008 FED App. 0085P (6th Cir.)
February 20, 2008, Decided

PROCEDURAL POSTURE: Plaintiff former deckhand sued defendant former employer alleging claims under the Jones Act, 46 U.S.C.S. § 688 et seq., and general maritime law. A jury returned a verdict in favor of the employee and awarded him $ 1 million dollars in damages. The United States District Court for the Western District of Kentucky discounted the award and denied the employer's motions for judgment as a matter of law and for a new trial. The employer appealed.



OVERVIEW: The deckhand developed a skin rash after he was ordered to clean out a water tank. The deckhand was given no protective equipment and emerged from the tank covered in dust. He sought medical treatment but the rash continued to worsen. About three years later, the deckhand was again ordered to cleaned the tank and again he developed a reaction. The other employees who cleaned the tank with him also suffered chemical burns. The deckhand sued for personal injuries due to his exposure to coal tar that left him with a permanent, severe skin reaction. The appellate court found that even if the admission of the 2006 photographs was error, the admission did not alter the outcome of the trial because there were uncontested photographs from 2003 which also showed the inflamed condition of the deckhand's skin. The district court did not abuse its discretion when it admitted the material safety data sheets. Even if OSHA did not apply, the testimony regarding OSHA would not have affected the unseaworthiness claim. The jury instructions provided the employer with ample opportunity to establish cleaning substance's harmlessness. The jury's award was supported by the evidence presented.



OUTCOME: The judgment was affirmed.

Posted by Lipcon Law Firm at 9:53 AM | Permalink

ROCKY H CAIN, Plaintiff - Appellee v. TRANSOCEAN OFFSHORE USA, INC; SEDCO FOREX CORP, Defendants - Third Party Plaintiffs - Appellants v. FONTANA CENTER LLC, Third Party Defendant - Appellee

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 3643
February 21, 2008, Filed

PROCEDURAL POSTURE: The United States District Court for the Western District of Louisiana denied defendant employer's motion for summary judgment in plaintiff workers's negligence action under the Jones Act, holding that the semi-submersible drilling rig under construction and on which the worker was injured was a vessel because it was capable of transporting workers and equipment over water, and thus, the worker was a "seaman." The employer appealed.



OVERVIEW: The employer argued that under established precedent, the rig was not a vessel in navigation, and therefore the worker was not a Jones Act seaman, because the rig was still under construction at the time of the injury. It further argued that the United States Supreme Court's decision in Stewart did not change prior case law. The appellate court agreed. The rig was still under construction at the time of the injury. Although it was capable of self-propulsion and had run some test pipe, it lacked vital equipment to make it fully operational. An engineer for the employer testified that no contractor would have found the rig fit to drill a deepwater well in the Gulf of Mexico as it was intended to do when complete. An incomplete structure not yet put into navigation as an instrument of commerce was not a vessel. That it was not yet certified as operational and in compliance with all safety requirements cast doubt as to the practicality of its use as a means of transportation. It was not a vessel in navigation and the worker was not a Jones Act seaman; he was not entitled to relief under the Jones Act for his injury.



OUTCOME: The district court's denial of summary judgment on the Jones Act claim was reversed and the case was remanded.

Posted by Lipcon Law Firm at 9:48 AM | Permalink

JOHN MORRELL & CO., Plaintiff, vs. ROYAL CARIBBEAN CRUISES, LTD., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION
2008 U.S. Dist. LEXIS 9575
February 8, 2008, Decided

PROCEDURAL POSTURE: Plaintiff, an employer, brought an action against defendant, a cruise ship operator, asserting claims for subrogation or reimbursement of worker's compensation benefits made to an employee, who was injured during a shore excursion while on a employer-sponsored cruise. The employer alleged claims of negligence and negligent supervision against the operator, and the operator filed a motion for summary judgment under Fed. R. Civ. P. 56.



OVERVIEW: The injured employee had purchased a ticket for a dune buggy shore excursion sponsored by a tour company having an oral agreement with the operator to provide the excursion. The dune buggy accident occurred when a moped struck the dune buggy causing the dune buggy to roll over. Both of the negligence claims against the operator were premised on the an alleged failure to warn that the dune buggy was dangerous and might be involved in an accident with another vehicle. The court granted the operator's motion for summary judgment. Applying Florida law, the court found that the operator had no duty to warn about the obvious danger that the dune buggies used in the excursion, like automobiles, might be involved in collisions with other vehicles driven carelessly by others. The dangerous instrumentality doctrine did not apply because there was no evidence that the operator owned, leased, or otherwise had a property interest in any of the vehicles involved in the accident occurring the shore excursion. Finally, the employer failed to show that even if there had been a breach of a duty to warn by the operator, the breach was the proximate cause of the employee's injuries.



OUTCOME: The court granted the operator's motion for final summary judgment and by separate order entered judgment for the operator.

Posted by Lipcon Law Firm at 9:35 AM | Permalink