Medical Care on Cruise Ships
Video clip from Fox 11 Ten O'Clock News
View Clip [Windows Media]
Airdate: May 5, 2008
Subject: Medical Care on Cruise Ships
Program: Fox 11 Ten O'Clock News
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Video clip from Fox 11 Ten O'Clock News
View Clip [Windows Media]
Airdate: May 5, 2008
Subject: Medical Care on Cruise Ships
Program: Fox 11 Ten O'Clock News
The Bahama Journal
By Kendea Jones
After almost five years of pleading for government assistance, victims of the 2003 Sea Hauler/United Star are set to receive a $1 million payout from the government.
Minister of Labour and Maritime Affairs Dion Foulkes made the announcement in a press release on Friday.
Minister Foulkes said a comprehensive multi-agency investigation was conducted and as a result of the committee's findings, the government agreed to make an ex gratia payment since there was no finding of any wrong doing by the agency of the government.
He added that the Attorney General office is determining the specific amount to be offered to each victim.
Minister Foulkes said the government is also determining the specific amounts to be offered to each victim.
"It is a process that will be finalized within one week," he said.
The news comes as a pleasant surprise for many of the victims of the tragedy.
One of those people was Sophia Antonio, who said the money is greatly appreciated.
"Right now I am very excited that the government has finally come to terms with honoring the Sea Hauler victims in this manner," she said. "This matter has gone on for four years and is supposed to be dealt with a long time ago and I will put that in the past and just concentrate on now."
"A lot of the victims are losing their homes and can't provide for their families and we have been suffering since this accident happened," Ms. Antonio added. "Before this accident we were well people working and taking care of ourselves and our families. And since this tragedy, we have been left to pick up the pieces of our shattered lives. I'm glad that they finally decided to do something for us because we really needed it."
Paulette Dean had the same sentiments. She said since the incident she has been under a torrent of medical bills.
"I was sitting in a great deal of financial tribulations," she said. "Just to hear this news that the government has decided to give us this money is a great big deal for me because it helps me to deal with my financial problems and my medical bills."
Mrs. Dean, who sustained a broken hip, broken spine and a pelvis bone in the incident said she her medical bills mounted to at least $7,000.
"I had to be kept in the hospital for a while and I got to the point where in bad weather I would not be able to walk," she said.
Mrs. Dean said while she feels that $1 million will not be able to last between all 25 of the victims, she is happy for what she can get.
"In these times it will be hard to live on but I greatly appreciate it."
Meantime, spokesperson for the victims Lincoln Bain said the million- dollar payment was "welcomed and extremely-needed."
"I think that the amount offered is not only reasonable, it is fair as an ex-gratia payment," he said. "We feel that Prime Minister Hubert Ingraham as proven to be a man of his word and he has fulfilled what he promised the sea hauler victims that is to help them and we are extremely grateful."
Mr. Bain said while the victims are appreciative of the payout, it is unclear whether they will still proceed with suing the owner of the two boats.
"There is no decision made on that and honestly the government has not contacted us as yet to say anything to us," he said. "So the sea hauler victims will meet with their lawyers and determine where do they go from there."
The Sea Hauler/United Star tragedy occurred in August 2003. The incident claimed the lives of four persons and injured 25 others.
Sisters Brenda Smith-Ellis, 40, and Brennell Smith-Leslie, 29, were crushed to death by a fallen crane. Also killed were 38-year-old Livingstone Seymour and 14-year-old Lynden Riley.
A wreck commission convened in 2004 to look into the collision and found both the government and the boat captains liable in the matter.
It was also determined that the collision occurred partly because of blunders by the Port Department, and Bahamas Maritime Authority, which has the overall responsibility for establishing a system to ensure safety at sea.
Five years after the deadliest cruise industry accident in more than a decade, Norwegian Cruise Line has agreed to plead guilty to criminal negligence in the SS Norway explosion.
Federal prosecutors on Friday charged Norwegian Cruise Line with gross negligence almost five years after a boiler explosion on the historic SS Norway killed eight crew members and seriously injured 10 others in the Port of Miami.
The U.S. attorney's office said Norwegian agreed to plead guilty to the criminal charge, which alleges the cruise line operated the vessel in a ``grossly negligent manner that endangered the lives, limbs and property of the persons on board.''
Norwegian is liable for at least $500,000 in criminal penalties for the deadliest accident on a U.S.-based ocean liner in more than a decade. The cruise line also has agreed to carry out safety inspections of its vessels with an independent consultant.
Coast Guard Rear Admiral Robert Branham called the May 25, 2003, explosion a ``preventable tragedy.''
''Hopefully, this case will send a message to the maritime industry that marine safety should be the paramount consideration in maintaining their vessels,'' he said in a statement.
The cruise line said Friday evening that it has cooperated with federal authorities since the explosion and will continue to do so. ''The safety and security of our passengers and crew has been and always will be of the utmost importance,'' Norwegian's statement said.
A National Transportation Safety Board report on the accident, quietly completed in November, showed NCL engineers had expressed concerns since the late 1990s about the condition of the four boilers that powered the elegant ship. The massive high-pressure boilers, each holding 20 tons of 528-degree water, had a history of cracks, leaks, corrosion and repairs.
''We must realize that we have reached a point where the operation of the vessel is not safe,'' one unnamed NCL port engineer wrote in a 1998 e-mail to the company's vice president of ship operations, the NTSB report said. The engineer cited ''numerous boiler tube failures'' that were subsequently repaired.
PATCH JOBS
The NTSB found the primary cause of the explosion was the fracture of a weld on a seam of a high-pressure drum. The scalding water flashed into steam, swept through the engine spaces and some adjacent crew berthing areas and killed eight crew members while injuring nearly a dozen others. No passengers were hurt.
Investigators also found questionable welds and crack-repair efforts; inconsistent water chemistry that led to corrosion; inadequate inspections from both NCL and Bureau Veritas, an international inspection agency, and an operating schedule that exposed the aging boilers to extreme thermal stresses.
In January and July 2002, a year before the boiler burst, NCL port engineers e-mailed NCL management with concerns that the ship's routes and busy schedules forced crew to fire up and cool down the boilers more rapidly than the operating manual called for.
The report was also critical of NCL's handling of persistent cracks in the boilers, which first appeared in original welds in the 1970s. Cracks were ground down until boiler walls reached a minimum allowable thickness then built back up with weld repairs. The length and width of the welds, the NTSB found, probably accelerated pitting and cracking.
At some point, copper -- an unacceptable metal for repairs -- also appeared to have been deliberately applied to cracks on the boiler that exploded.
''The only explanation for the presence of the copper is that it was introduced to mask the crack, impede inspection and avoid necessary repairs,'' the report said.
Investigators also found a lengthy gap in formal inspections, ``even though it was known that they were susceptible to cracking and were in fact cracked in 1996.''
The report found that the header, the part of boiler No. 23 that failed, had not had a material test or appropriate visual inspection since 1990.
The cruise line was charged in an ''information,'' not a criminal complaint or indictment. That means Norwegian executives and prosecutors negotiated the misdemeanor charge.
''Charges such as those today are necessary to show that companies operating and managing ships have a duty to take reasonable measures to assure the safety of all onboard -- passengers and crew,'' said U.S. Attorney R. Alexander Acosta.
In addition, the NTSB noted that NCL had agreed to improve its fleet emergency response, safety measures and maintenance records. Though few ships, aside from Naval vessels, still rely on large high-pressure boilers for primary power, smaller low-pressure ones are routinely used to heat water or for other shipboard systems.
FAMILIES CAN'T SUE
Miami attorney Charles Lipcon, who represented many of the victims and is the author of the new book, Unsafe on the High Seas, praised the criminal charge.
''I'm pleased to see that the U.S. attorney stepped up to the plate and got involved,'' he said. But he called it ''unfortunate'' that the crew members and their families were not able to press civil lawsuits against Norwegian in federal court in Miami.
The dead and injured seamen were mostly Filipino. Their contracts with Norwegian called for settling claims in arbitration, so their lawsuits were dismissed from federal court in Miami. The cruise line negotiated settlements afterward.
A cruise industry representative called the criminal case a strong signal.
''We take safety very seriously as an industry, and we hope this gets resolved and look forward to a resolution,'' said Michael Crye, executive vice president of the Cruise Lines International Association, a trade group.
The SS Norway had a storied past. It was launched as the SS France in 1960. At 1,035 feet, it was the longest passenger ship afloat and could carry more than 2,000. It was too long and too wide for the Panama Canal.
Deemed unprofitable in 1974, the ocean-liner was mothballed in France. In 1979, Norwegian Cruise Line bought it for $18 million -- its value in scrap metal -- and revamped it at a cost of $120 million. After a ''farewell cruise'' to Europe in 2001, the SS Norway returned to Miami for seven-day cruises in the eastern Caribbean. It was among the last ocean-liners powered by high-pressure steam boilers.
It has been out of commission since the boiler explosion five years ago. The company has since sold it for scrap.
The Miami Herald
By JAY WEAVER AND CURTIS MORGAN
MARK L MCLAURIN; TAWANA MCLAURIN, Plaintiffs-Appellants v. NOBLE DRILLING (US) INC; NOBLE DRILLING CORPORATION; NOBLE DRILLING SERVICES INC; JOHN DOES 1-100, Defendants-Appellees
No. 07-60402
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 11054
May 22, 2008, Filed
PROCEDURAL POSTURE: Plaintiffs, an injured worker and his spouse, appealed a judgment from the United States District Court for the Southern District of Mississippi granting summary judgment to defendant, the owner of a vessel. Plaintiffs challenged the district court's finding that their state-law tort claims against the vessel owner were preempted by 33 U.S.C.S. § 905(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. §§ 901-950.
OVERVIEW: The worker's arm was crushed by materials that fell from an unattended crane while he was performing carpentry work on a mobile offshore drilling unit, which was moored in his employer's shipyard. After receiving medical and disability compensation from his employer under the LHWCA, he sued the vessel owner, alleging that it had assumed control of the project and negligently failed to observe safety procedures. Plaintiffs appealed the dismissal of their state-law tort claims. On appeal, the court held that the district court correctly found that plaintiffs' claim under 33 U.S.C.S. § 905(b) of the LHWCA failed as a matter of law, but it erred in finding that § 905(b)'s exclusivity provision preempted plaintiffs' state-law tort claims against the vessel owner. Plaintiffs failed to allege a § 905(b) claim for vessel negligence because the worker was injured ashore, not while located on the vessel itself; thus, the claim did not meet the test for a maritime tort. However, although plaintiffs failed to state a cognizable claim under § 905(b), 33 U.S.C.S. § 933(a) did not preempt their state-law negligence claims against the vessel owner as a third-party tortfeasor.
OUTCOME: The court affirmed the district court's dismissal of plaintiffs' claim for vessel negligence under the LHWCA. The court reversed the district court's dismissal of plaintiffs' state-law tort claims against the vessel owner.
DON HAMRICK, Plaintiff, v. DR. RICHARD S. HOFFMAN, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
2008 U.S. Dist. LEXIS 36283
May 6, 2008, Decided
PROCEDURAL POSTURE: Defendants, a shipping company that operated a seafaring vessel, a physician, and a seafarers' union, moved to dismiss a suit filed by plaintiff, a pro se seaman. The seaman alleged that the company wrongfully discharged him as unfit for duty after waiving a preemployment exam by the physician and that the union failed to fairly represent him. The seaman did not sue the holding company that owned the vessel. The seaman moved to recuse the judge.
OVERVIEW: After the union's hiring hall referred the seaman for duty on a vessel operated by the shipping company, the seaman reported for a preemployment exam, as required by his collective bargaining agreement (CBA). After his blood pressure was taken but before the exam began, a union representative ordered the seaman to report for duty immediately. The physician reported that his blood pressure was high, causing the seaman to be sent home after arriving in a foreign port. The seaman argued that, by interrupting the exam, the company had waived the CBA's exam requirement. The court refused to recuse itself based on its rulings in the seaman's separately pending case because they did not demonstrate lack of impartiality in the instant case. The court held that the seaman failed to prove personal jurisdiction over the physician and that the shipping company could not have breached the CBA because it was not a signatory. The union did not breach its duty of fair representation because it was pursuing a grievance the seaman had filed and was not required to file a brief in support of the seaman's argument that he should be exempt from court filing fees under 28 U.S.C.S. § 1916.
OUTCOME: The court granted the company's, the physician's, and the union's motions to dismiss the complaint. The court denied the seaman's motion for recusal. The court dismissed the case.
STEPHEN L WILLIS; CORINNA J WILLIS, Plaintiffs-Appellants v. FUGRO CHANCE, INC, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2008 U.S. App. LEXIS 10838
May 21, 2008, Filed
PROCEDURAL POSTURE: In a diversity suit, plaintiffs, an injured worker and his wife, appeal a judgment from the United States District Court for the Eastern District of Texas granting defendant, a Louisiana corporation, summary judgment on their negligence claims under the Merchant Marine Act of 1920, 46 U.S.C.S. §§ 30104-30105, commonly known as the Jones Act. After the suit was removed from state court, the district court denied the worker's motion for remand.
OVERVIEW: The worker was employed by the corporation as a survey party chief who assisted in moving vessels and other devices, such as semi-submersible drilling rigs, from dry-docks and harbors to drill site locations. Using a satellite telephone, the worker was responsible for consulting global positioning satellites, maps, and the corporation's database and notifying rig movers of potential underwater hazards. While aboard a submersible offshore drilling rig leased, owned, and crewed by parties other than the corporation, the worker was exposed to mercury and other toxic chemicals, resulting in severe damage to his brain and central nervous system. The district court found that the worker did not qualify as a "seaman" for purposes of the Jones Act, as determined under the U.S. Supreme Court's Chandris rule. The Chandris rule required that a maritime worker spend 30 percent of his time on vessels under the common ownership or control of his employer. The worker performed his job on various vessels as the need arose, none of which were owned or controlled by the corporation. Because the worker did not qualify as a seaman, he could not recover damages for negligence under 46 U.S.C.S. § 30104(a).
OUTCOME: The court affirmed.
JERRY WALKER, Plaintiff-Appellee, v. CARNIVAL CRUISE LINES, INC., a Corporation, CARNIVAL CRUISE LINES, a Corporation, and CARNIVAL CORPORATION, a Panama Corporation, doing business in the United States, Defendants-Appellants.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
2008 Ill. App. LEXIS 461
May 21, 2008, Filed
PROCEDURAL POSTURE: Plaintiff passenger sued defendant cruise ship line in the Circuit Court of Cook County (Illinois). The trial court denied the line's motion to dismiss, under 735 Ill. Comp. Stat. Ann. 5/2-619(a)(9) (2006), which was based on a forum-selection clause in the passenger's contract, and certified two question for review under Ill. Sup. Ct. R. 308. The line appealed, requesting review of the first certified question.
OVERVIEW: The trial court certified whether it erred in applying the law in denying the line's motions to dismiss and reconsider, and whether its orders denying the line's motions were appealable under Ill. Sup. Ct. R. 304, 306 or 308. The appellate court held the first question improperly sought a review of the trial court's application of the law to given facts, but it was necessary to address the propriety of the trial court's underlying order. The forum selection clause was enforceable because (1) the contract's physical characteristics reasonably communicated the forum-selection clause's existence, and (2) undisputed facts showed the passenger had an adequate chance to read the contract. She did not dispute that she had a reasonable time to read the contract, so undisputed facts showed she had a chance to become meaningfully informed of the contract's terms. While the cost of litigating her claim in the designated forum might deter her from bringing suit there, it did not bar her claim or satisfy the high burden required to void a forum-selection clause. It did not impose an unreasonable burden by mandating litigation in a "remote alien forum," so it bound the passenger.
OUTCOME: The first certified question was answered in the affirmative, and the matter was remanded to the trial court.
DANIEL C. PRICE, Plaintiff and Appellant, v. CONNOLLY-PACIFIC CO., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
2008 Cal. App. LEXIS 695
May 13, 2008, Filed
PROCEDURAL POSTURE: After his employment was terminated, plaintiff commuter seaman, who suffered from a vector-borne sickness known as West Nile Virus as a result of being bitten by mosquitoes, sued defendant barge owner, contending that he was entitled to "maintenance and cure." The Los Angeles County Superior Court, California, entered judgment for the owner, finding that the seaman failed to carry his burden of proof. The seaman appealed.
OVERVIEW: The seaman worked on board the barge owner's derrick barge five days a week. Because the seaman's home was so far from the job site, the owner gave the seaman permission to park his camper truck in its parking lot near the job site so he could live there during the work week. The court concluded that the seaman was not entitled to receive maintenance and cure under the Ship Owner's Liability Convention. The stipulated scientific evidence that was presented at trial indicated that the seaman was far more likely infected with the disease at night while he was camping out in the owner's parking lot than during the day while working on the barge. While spending the night in his camper in the parking lot, the seaman was under no obligation to perform any services for the owner and was not in any way answerability to the "call of duty." That the seaman's illness may have been contracted between the date he was hired and the date his employment on the barge ended did not justify an award of maintenance and cure. The owner's generosity in allowing the seaman to use his camper in its parking lot, without more, was an insufficient basis on which to award him maintenance and cure.
OUTCOME: The judgment was affirmed.
EDMUNDO R. STIWARD VERSUS UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2008 U.S. Dist. LEXIS 37181
May 7, 2008, Decided
PROCEDURAL POSTURE: In plaintiff injured seaman's suit asserting Jones Act negligence and unseaworthiness claims against defendant United States of America under the Suits in Admiralty Act, 46 U.S.C.S. § 30903, the court issued findings of fact and conclusions of law after a nonjury trial. The United States was the owner of a merchant vessel operated by a former defendant, a private marine transport line.
OVERVIEW: The seaman alleged that the transport line, which operated the vessel as an agent of the United States, negligently failed to provide him with medical assistance over the course of a week after he developed acute diabetes during a transoceanic cargo trip. As a result, the seaman had to be evacuated by helicopter and developed life-threatening injuries resulting in amputation of his forefeet. Sitting as factfinder, the court found the operator and the vessel's crew negligent under the Jones Act for breaching its duty of care by failing to stock insulin and to medically train its third mate, who failed to inform and consult with the ship's captain about the seaman's medical decline until it was too late to avoid the amputations. The discretionary function exception under the Federal Tort Claims Act, 28 U.S.C.S. § 2680(a), did not apply because there was no justification for such inaction. Additionally, the vessel's lack of medical supplies rendered it unseaworthy. The seaman was not comparatively negligent for failing to report his medical condition because he had never been diagnosed with diabetes. The court awarded damages for past and future wages and pain and suffering.
OUTCOME: The court found in favor of the seaman on his claims for negligence and unseaworthiness. The court ordered the United States to pay economic damages and pain-and-suffering damages, with prejudgment interest on both awards accruing at a rate of four percent per year from the date the action was filed. The court also awarded costs to the seaman.