Honolulu Personal Injury Lawyer - admiralty

Ocean Personal Injury Law - In A Jones Act Injury Case What Does It Mean To "Arrest the Ship"?

Wayne Parsons — Thu, 16 Jul 2009 12:25:16 GMT

How do you make Jones work you? If you are a “Jones Act” Seaman and you have been injured while working then the first step is file a complaint with the State or Federal Court for your employer’s Jones Act negligence. Unlike land-based employees, Jones Act seamen are able to file a negligence claim against their employer for injuries, failing to provide a safe work environment, and for an unseaworthy vessel; a seaman’s damages are not limited to worker compensation type damages. Worker’s compensation damages only cover medical benefits and lost wages. However, a Jones Act seaman who proves his employer was negligent and caused his injuries can sue for both past and future lost wages, as well as for past/future medical care, past/future pain and suffering, mental anguish, and damages for losing the ability to enjoy life because the injury inflicted.

In addition to Jones Act claims, seamen may also file a claim for Unseaworthiness, in which they do not have to prove their employer’s negligence in causing injury.

See: Unseaworthiness Claims: Overview

Under an unseathworthiness claim the seaman only has to show that the vessel was not seaworthy and that this caused his/her injuries. Unseaworthiness is a strict liability claim that is easier to prove, whereas proving the employer’s negligence can be more difficult because it requires a seaman to prove his employer either knew or should have known about the condition before the injury resulted. Craig Smith's internet resources provide pretty good detail on these tort concepts in general:

Strict liability in tort is the concept that in certain situations a defendant is liable for plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent.

Nonetheless, a seaman is not required to prove both negligence under the Jones Act and Unseaworthiness in order to be able to recover damages. A seaman must only prove one.

Sometimes obtaining a recovery means that you must arrest the ship. An injured crew member can actually name the boat as a defendant "in rem" and actually have the boat arrested. In rem gives the court the ability to exercise power over the boat as property. In order for the ship to be arrested on behalf of an injured seaman, he/she must allege that his/her injury resulted from the unseaworthiness of the ship.

After a ship is arrested the employer or owner must file a bond with the appropriate court for the amount of the injured seaman’s damages before his ship can be released. Whether or not the ship is insured determines whether or not arrest can occur. If the ship or vessel is inured then the insurance company is required to pay for the court determined damages.

The Jones Act and Passengers: The Jones Act does not apply to passengers on a boat/ship/vessel. However, its concept does apply to passengers. The concept is provided for in the Passenger Services Act (PSA), which came into effect in 1886. A claim by a passenger on a cruise ship, sightseeing tour or scuba diving excursion can be brought under general maritime and admiralty law. I will write separately about that subject.

If you have suffered an injury while at sea and think you may qualify as a seaman or have a claim of unseaworthiness against your employer then you should contact a qualified maritime lawyer to pursue your claim properly. Maritime and Admiralty claims are complex and should be handled by a qualified attorney who understands the intricacies involved in pursing such claims.

Originally posted at InjuryBoard by Wayne Parsons

Coast Guard Report Blames Death Of Teen In 2006 On Unauthorized Modifications to Tour Boat's Mast

Wayne Parsons — Fri, 01 May 2009 15:12:38 GMT

Mary Vorsino, of the Honolulu Advertiser reports that the Coast Guard has reported on two tourist deaths in separate incidents. A 13 year old boy was killed on a catamaran off Waikiki in 2006 when the mast on the tourist catamaran buckled and killed the boy and injured three passengers.

In another investigation of a 2007 incident on the ocean near Lahaina on Maui, the Coast Guard has issued a report blaming that a crack in the structure that held the mast caused the mast to collapse killing a 48-year-old man from Illinois who was struck in the head. According to the Advertiser story:

The two catamaran incidents, just four months apart, were investigated together so the Coast Guard could examine its standards for inspecting commercial catamarans. Even before the investigations were completed, the Coast Guard in Honolulu decided to beef up its annual inspection standards, which now include a more thorough examination of catamaran masts.

"We've implemented the procedures here ... (and) there is discussion as to whether these" standards will be adopted nationally, Honolulu Coast Guard Capt. Barry Compagnoni said yesterday.

On December 1, 2006 the mast of the catamaran Na Hoku II buckled in three places, struck the head of Jordan Loser of Riverside, California and pinned him face-down on the cabin top. Jordan died as a result of the injuries. The boat was returning to Waikiki about 4:30 p.m. after a trip to Mamala Bay. The cause of the mast failure was unauthorized modifications made to the mast beginning in 2000 and not detected in Coast Guard inspections as late as April 2006.

A second passenger standing on the front left side of the vessel was struck on the head by falling rigging and knocked out. Two other passengers, in the front of the vessel near the cabin, also suffered injuries: one had a broken foot and pelvis, the other cuts to her shoulder and hand.

The Coast Guard report also notes that the master of the catamaran and one of its crew members tested positive for marijuana immediately after the incident. According to the Advertiser story:

The Coast Guard report said it is unclear whether marijuana use affected the crew members' abilities "to respond to changing conditions on-scene in a manner that might have prevented the casualty." Passengers on board the vessel said the two crew members did not appear to be impaired.

The maximum fine for failing to report a modification to the Coast Guard is $6,500 per modification.

Our thoughts go out to the families. A tribute to Jordon Loser was made that celebrates his life and mourns the loss.

http://www.youtube.com/watch?v=8BExbYiSDOs

In the Maui incident aboard the Kiele V on March 25, 2007 the "microscopic" failure in the structure that supports the mast occurred about 10 minutes from Ka'anapali Beach. The mast and rigging crashed down on Hal Pulfer, 48, of Highland Park, Illinois, killing him and injuring 2 other passengers. The Kiele V was carrying 47 passengers and five crew members at the time. After the mast fell, the catamaran started taking on water and later was abandoned and broke apart in rough seas overnight. An inspection of the Kiele V in September 2006 found no problems.

Nothing can make up for this these tragic incidents. We hope they will spur new efforts by tour boat operators to make the vessels safe for passengers.

Originally posted at InjuryBoard by Wayne Parsons

Hawaii Boat Injuries To Crew: The Jones Act

Wayne Parsons — Sat, 25 Apr 2009 16:17:53 GMT

When an employee on a ship is injured, the law that covers the injury is in the category of laws called admiralty or maritime law. A specific law passed by Congress that can be used for an injury claim is The Jones Act, 46 U.S.C.App. § 688 (1958) which allows a crew member to allege that he or she sustained injuries due to the boat owner’s negligence. Under the Jones Act

[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, ... and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.

It is interesting to look also at The Federal Employers' Liability Act (FELA), 45 U.S.C. § 51. The Jones Act and FELA have similar requirements. FELA applies to workers in Fede4ral jobs on land. The Jones Act applies to crew members on all ships and boats.

In passing the Jones Act, Congress extended the same special statutory protection to seamen as it had extended to railway workers because of a high rate of injury to workers in these fields. Cases that describe this history can be found easily on the Internet. Here are some leading cases: Lewy v. Southern Pacific Transportation Company, 799 F.2d 1281, 1288 (9th Cir.1986); Buell v. Atchison Topeka and Santa Fe Railway Company, 771 F.2d 1320, 1321-1322 (9th Cir.1985); Toscano v. Burlington Northern, 678 F.Supp. 1477 (D.Mont.1987).

Under FELA, and The Jones Act, an employer has a statutory duty to provide a safe place to work, including an emotionally safe place to work.

What Does A Seaman Need to Prove In A Jones Act Case?

A difference between an injury on land under standard legal tort doctrines and claims brought under FELA or the Jones Act is that the legal causation burden under FELA and the Jones Act is minimal. If the employer's negligent act or omission played any part, however slight, in bringing about the injury, the employer is liable. The most famous cases that describes this standard are Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957); Taylor, 787 F.2d at 1313. The “slight negligence” necessary to support an action under FELA is defined as a failure to exercise great care and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions. You can read more detail by looking at the case: Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969).

In Rogers the Court held that:

[u]nder this statute [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. 352 U.S. at 506, 77 S.Ct. at 448.

“Since liability under the Jones Act is the same as that established by Congress under the FELA, the Supreme Court has adopted the Rogers statement of causation with respect to Jones Act proceedings.”

What Is General Maritime Law And Is It Different Than The Jones Act Claim?

General maritime law is another way for a crew member on a boat to bring an injury claim. Unlike the Jones Act claim, proximate cause must be proved in a General Maritime case, so the standard is higher for the injured person, than it is in Jones Act cases. The case of Litherland v. Petrolane Offshore Const. Services, 546 F.2d 129, 132 (5th Cir.1977) sets that standard:

“Under the Rogers standard, plaintiff need not show that the conditions aboard ..., or the stresses and strains placed upon [plaintiff] were the sole cause or main cause or even a significant cause of his injuries; they need only have been a contributing cause.” Curry, 327 F.Supp. at 164.

FELA “encompasses all reasonably foreseeable injuries which result from a railroad's failure to exercise due care with respect to its employees.” Buell, 771 F.2d at 1322. However, the foreseeability requirement has been minimized. It is “not necessary that respondent be in a position to foresee the exact chain of circumstances which actually led to the accident.” Ferguson, 352 U.S. at 523, 77 S.Ct. at 458. It is only necessary that the injuries be true and significant. Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir.1986)rehearing en banc denied797 F.2d 256 (1986).

This same standard applies to the Jones Act.

Other Laws that may apply are The Death On The High Seas Act and The Longshoeman's And Harbor Workers Act. These complex laws have evolved over a period of 200 years.

Death on the High Seas (DOHSA)

“Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent, may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.”

Understanding which law applies to a particular injury is not a simple matter and requires careful consideration of the facts.

Originally posted at InjuryBoard by Wayne Parsons

"They Told Me That I Waived My Rights When I signed the Contract" .... Can They Do That?

Wayne Parsons — Wed, 22 Oct 2008 14:41:43 GMT

Did you realize that almost every ticket you buy and every contract you sign has some form of "waiver" of rights in it? Waiver of Rights is a new tool that corporations use to avoid the law. The law is what the legislatures pass as bills and what the constitution says. But corporations try to circumvent the law by having their customers sign fine print documents that say that they agree to completely different standards. Are these kind of agreements legal?

The bad news is that the courts across the country have ruled in favor of the corporations and against consumers in many situations. Appointment of conservative judges over the past 25 years has been a trend and these judges favor corporations over people in the cases before them, a trend that has dramatically changed this area of the law over my career.

Let's examine some particular situations.

Cruise lines almost always have a clause in the fine print that says any claim you bring must be filed in Miami, Florida. That's right, Miami. Why? There are two reasons. First, most of the cruise lines - and their cadre of attorneys - are based in Miami. Second, they know that most passengers won't be able to go to Miami to pursue a claim. These clauses are called "forum selection clauses" and most courts allow them to be enforced. So be aware that you can easily find a Florida attorney to bring a claim on your behalf even if you live in Des Moines of Kalispell and, for many injury claims, the attorney will work on a contingency fee. Ask an attorney in your town to refer you to an attorney in Miami and they can find someone for you or use The Injury Board search feature to locate and contact a Florida attorney who does cruise ship injuries.

Be careful with cruise lines to note if they also require that you bring a claim within a certain period of time. In Hawaii an injured person has 2 years to file a claim. But cruise line contracts or tickets often state that you must bring a claim within 6 months or 1 year. Can they do that? Can they change the law? The answer is "maybe" as courts look at all facts before deciding if the time rquired will be enforced. Since your rights are at stake, act quickly, read your ticket or contract and get some legal advice by an attorney who has handled cruise line cases.

Dinner sunset sails and other local day boat trips in vacation areas also have waivers in the papers you sign before taking the short trip. These waivers also are seen in most crusie line contracts. They state that you "assume the risk" of injury from any cause. They usally go on to state that you relieve them of all liability for everything. Can they do that?

The more dangerous the activity the more often courts enforce these waivers. Scuba diving and paragliding are more hazardous activities than a sunset dinner sail. But a faulty scuba dive regulator or a dinner sail that negligently ventures into known rough seas may get the claim past the waivers in the ticket or contract. Most of my clients in these cases tell me that signed no waivers and got no ticket on these type of excursions. When I get the file from the company it almost always includes a document waiving rights signed by the client.

Even attorneys who regularly handle these cases, have a hard time predicting at the outset what a court will do when the company tries to knock out a claim with a waiver. The facts of each case are important in determining whether the waiver is effective against the passenger. In Hawaii our courts have abolished the "assumption of risk" doctrine except in "ultrahazardous" activities. But that doesn't mean that a waiver won't be enforced.

The law has a policy of not enforcing contracts that would essentially result in waiving the right to bring a claim against someone who negligently - or intentionally - injures another person. But as the courts have become much more conservative in the past 25 years we are seeing the corporations winning many of these legal battles.

Do not make any assumptions about your situation until an attorney who handles these cases has evaluated the facts of your injury. Most of the time the claim is allowed despite the waivers of liability.

Originally posted at InjuryBoard by Wayne Parsons