Honolulu Personal Injury Lawyer - maritime

Congress and Cruise Ships, Peepholes and Latches!

Wayne Parsons — Tue, 28 Jul 2009 13:56:05 GMT

There you go again! Those are the memorable words of Ronald Reagan in a Presidential campaign debate. Those words came to mind as I listened to Congress brag about making cruise ships safer by passing a law mandating peepholes and latches. Here is what Senator Kerry said about his get tough legislation in 2008:

“Over the past year our organization and other victims of cruise crimes have met numerous times with cruise lines executives in an effort to have them voluntarily take the necessary steps as outlined in our proposals,” said Carver, President of International Cruise Victims. “The cruise line industry has failed to step up to the challenge and make any significant changes to improve safety. That resistance to change is a clear signal to us that the only alternative left is for the United States Congress to move forward with legislation. I’m grateful to Senator Kerry and Rep. Matsui for their support in this endeavor.”

“It is absolutely appalling that the cruise industry does not have basic reporting and prevention mechanisms in place to keep their patrons safe,” said Rep. Matsui. “When a goliath like the cruise industry will not act in the best interest of the customers who are entrusting it with their personal well-being, then Congress has a responsibility to step in and shed some sunlight on the problem.”

“It’s important we continue the efforts to improve cruise ship safety which began in the last Congress, when I chaired the National Security Subcommittee,” said Rep. Shays. “The bottom line is, the crime statistics provided by the cruise industry are inaccurate and inadequate. This must change.”

Well that sounds pretty good so why do I complain? Well after the lobbyists from the "goliath cruise industry" (Senator Kerry's words) got their hands on the law, it fixed a problem that didn't exist. That's right. 90% white wash, 10% substance. In hawaii we call that shibai!

Over 90% of the cruise ship industry had already put in peepholes and latches in their ships. And crime reporting is a good thing but the real meat of the prpoblems were left out of the final bill. What Congress didn't tell you is that they rejected many legislative provisions that would actually protect cruise ship passengers. In particular the cruise industry lobbyists got the gullible legislators to delete a provision that would allow the family of persons killed at sea to recover damages for their losses under the Death on the High Seas Act (DOHSA):

The industry requested one major concession: deletion of an amendment to the Death on the High Seas Act that would have allowed surviving relatives to recover damages for emotional suffering and bereavement, as well as any pain and suffering the victim may have experienced before death.

Under the existing law, survivors of people who die at sea can recover only lost wages or burial expenses.

If a retired person died, for example, family members would get little if any money, Miami maritime attorney James Walker said.

Who are we talking about? Twenty three (23) brothers and sisters of dead victims of the U.S. Cole bombing tragedy were given zero damages in a federal court case for there wrongful deaths. The federal judge called it a legal tragedy but he no choice because of the law. So you can cheer for Congress if you want to for mandating peepholes and latches that the ships already had but I fell more like voting these folks out of office. The deal was done behind closed doors and you can bet that no cruise ship passengers were in there with the lobbyists and the legislators smoking cigars and drinking scotch.

The Cruise Vessel Security and Safety Act of 2009 in revised form-- just not the original. Here are some of the key points that appear in the revised version of the bill:

- The bit that could have the most impact on the most passengers has to do with the height of railings on balconies and open decks. The bill states that ship railings must conform to a minimum height requirement: 4.5 feet high in the original version, but 3.5 feet high in the revision. For perspective, Carnival Cruise Lines' railings are 44 inches high, in compliance with international and federal regulations -- actually two inches taller than the minimum height stated in the amended bill. The bill as it was originally written would require about another 10 inches to be added to those railings.

- As for other on-board changes, the bill states that cruise ships must add peepholes (some lines, like Carnival and Royal Caribbean, already have them), safety latches and time-sensitive key technology to cabin doors. Also, medical staff must be trained to conduct sexual-assault examinations.

- The bill also clarifies the procedures for reporting cruise ship crimes, including contacting the FBI as soon as possible and submitting a written report to the Coast Guard. Ships must also keep logs of on-board crimes and make them available to the FBI, Coast Guard or other law-enforcement officials. The information will also be published on the Coast Guard Web site.

- One important change from the original to the revised version is the removal of an amendment to the Death on the High Seas Act that would allow the families of passengers who died while cruising to sue the cruise lines for pain and suffering.

I am attending the American Association of Justice (AAJ) annual convention in San Francisco this week and learned a lot from the great admiralty attorneys like Paul Edel and John Hickey. I asked Mr. Hickey about this subject and he allowed me to quote him in this article. Here is what he has to say on the subject:

“The Death on the High Seas Act has to be changed now for the safety and security of our families. This outdated, inadequate Federal law allows little or no damages to the families of people who die as a result of the negligence of a cruise line where the accident or negligence occurs on the high seas. The cruise lines get off Scott free when their negligence causes the death of an older or younger passenger. How does it figure that the family of someone who dies where the person who dies was not yet making money because they are young or not making money anymore because they are retired gets nothing? State wrongful death laws provide this. Why not the law of the sea? Congress should step up to the plate and change this now.”

I wonder if any member of Congress is listening? I know that they listen to the cruise industry lobbyists. Maybe they think that you aren't paying attention and won't notice that the laws they pass are like party favors given to the rich and powerful who fund their campaigns. I think that they may be mistaken. The voice of the people is coming alive in Blogs and web sites and Facebook conversations. That new voice is talking about things that matter like health and safety. The old barriers that kept the smoke and the truth inside the smoke filled rooms in Washington, are coming down.

The public through social media is throwing the windows open and demanding answers. They were important in the last election, those names on Facebook and Twitter and this Blog. While identity theft is a major front page story in the New York Times and the Wall Street Journal, I suggest that the most important identity that politicians and insiders should pay attention to is the groundswell of conversations that is happening with the explosion of social technology like The Daily Kos and Politico and The Huffington Post. Those conversations and rising like a thunderstorm and they are people, with names and real identities who will vote and demand health, safety and justice. And they will get it.

Peepholes and latches. I can see the Congressmen and women looking out through those peepholes. I hope they unlatch the door, shoo the lobbyists out into the open and pass a law that protects people from injury and death on cruise ships.

I'll fall out of my chair if we hear anything back from Senator Kerry or others in Congress about the Cruise Vessel Security and Safety Act of 2009 (HR.1485 House Number - S.588 Senate Number) or DOHSA.

What do think?

Originally posted at InjuryBoard by Wayne Parsons

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

Scuba Diving Should Be Safe But Be careful In Choosing A Dive Company

Wayne Parsons — Wed, 22 Oct 2008 14:11:02 GMT

Hawaii has some of the best scuba diving in the world and people come from all over the world to enjoy the exploration of the world beneath the surface of the waters surrounding these remote islands. With proper supervision, professional instruction and proper ecquipment, scuba diving is a completely safe activity. However, since th diver - and particularly a novice diver - is relying on the company that leads the dive, care should be taken to make sure the company will protect against the risks of diving.

The "bends", also know as "decompression sickness" is a leading cause of scuba diving injury and death. The Bends occur when a diver returns to the surface too rapidly. The air from the tank the diver is breathing causes nitrogen to dissolve in the diver's body and when the diver returns to the surface nitrogen bubbles can form in the blood stream causing a variety of serious problems. The results can be blindness, paralysis, brain injury or even death. Joint pain and skin problems are less serious consequences.

Decompression sickness usually occurs immediately after the dive while the diver is on the boat but it can occur 24 to 48 hours later if the diver goes to high altitude in the mountains or takes an airplane flight. If you dive, avoid flying or going to altitude for 48 hours after the dive.

Professional supervision is the most important aspect of a scuba tour and this is particularly true when you are diving far from home in an unfamiliar environment and with rented equipment. Tourists have a lot of things on their mind and tend to go along with whatever is presented in terms of equipment and location and details of dives.

The company should have adequate supervision so that all dangerous portions of the dive can be monitored to prevent injury. Make sure that everything is explained to your satisfaction and that the parameters of the dive are clearly explained. You don't want to be in a position where you thought the dive was going to limited to certain conditions and then they change the dive and you are put in a situation that is beyond your ability. You also want to make sure that a dive instructor is aware of and supervising all critical aspects of the dive. Talk about these things before you sign up and reconfirm the conditions and supervision before you start the dive. If anything changes while you are underwater find the instructor and do a "careful" ascent.

Most people tend to go along with the dive company supervision (or lack of supervision) and assume that everything must be okay. Usually it is all okay, but be proactive and make sure that nothing changes. The consequences are high.

Originally posted at InjuryBoard by Wayne Parsons