personal injury and wrongful death in maritime law seminar

by Gus Martinez, Esq.

December 2008

[email protected]

I. INTRODUCTION

2

PLAINTIFFS DEFENDANTS

•SEAMAN •VESSEL

•“SIERACKI SEAMAN” •VESSEL OWNER

•LONGSHOREMEN AND HARBOR WORKERS COVERED BY LHWCA

•EMPLOYER

•NONSEAFARES (INCLUDES CIVILIANS, GOVERNMENTAL EMPLOYEES OR REPRESENTATIVES) AND OTHER MARITIME WORKERS NOT COVERED BY THE ABOVE CATEGORIES

•THIRD PARTIES

THE ACTORS

3

Legal Provision

• Article III, Section 2 of the U.S. Constitution

Purpose

• Extends the judicial power of the federal courts “to all cases of admiralty and maritime jurisdiction.”

Admiralty Jurisdiction

4

Legal Provision

• 28 USC §1333(1)

Purpose

• It implements Art. III, Section 2 of the U.S. Constitution. Grants original jurisdiction to the federal district courts, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.


5

Legal Provision

• Admiralty Extension Act, 46 USC §30101(a) (former 46 USC App. § 740)

Purpose

• Invests admiralty with jurisdiction over “all cases” where the injury was caused by a ship or other vessel on navigable water, even if such injury occurred on land.

• Compare Guttierrex v. Waterman S.S. Corp., 373 U.S. 206 (1963 with Victory Carriers, Inc., v. Law, 404 U.S. 202, 209-10 (1971)


6

Legal Provision

• Death on the High Seas Act (DOHSA), 46 USC Appx. §761

Purpose

• Extends admiralty jurisdiction to suits for damages whenever the death of a person has been caused by wrongful act, neglect, or default occurring on the high seas, beyond a marine league from the shore.


7

Legal Provision

• Admiralty Tort Jurisdiction

Purpose

• A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and connection with maritime activity.

Admiralty Tort Jurisdiction

8

WITH ADMIRALTY JURISDICTION

COMES ADMIRALTY LAW

The general rule is that with admiralty comes the application of substantive admiralty law; and, absent a relevant statute, the general maritime law, as developed by the judiciary, will apply.

9

Admiralty Law; Sources

What are the sources of admiralty law? 1. Judge-made law – Pursuant to Article III, Section 2 of the U.S.

Constitution, the federal courts have authority to develop a substantive maritime law. This substantive body law of is known as the general maritime law. It provides the rule of decision in admiralty cases in the absence of preemptive legislation.

10


What are the sources of admiralty law?

2. Federal Legislation –

The Congress' exercise of its constitutional powers under the Admiralty Clause and the Commerce Clause. General maritime law is subordinated to federal law, either by preemption, or by virtue of having been made to conform and/or comport with such legislation.

11


What are the sources of admiralty law? 3. International conventions – in the maritime field. 4. State law – could be applicable when there is a void in

maritime law. It can supplement it, as long as the state law is not hostile to the characteristic features of maritime law or is inconsistent with federal legislation.

12

PERSONIFICATION OF THE SHIP DOCTRINE

States that a vessel is a juristic person whose acts and

omissions, although brought about by her personnel, are personal acts of the ship for which, as a juristic person, she is legally responsible.

“In rem actions brought to adjudicate libelants' interests in vessels are well known in admiralty. (citation omitted). But admiralty also permits a salvage action to be brought in the name of the rescuing vessel. (citation omitted). And, in collision litigation, the first-libeled ship may counterclaim in its own name. (citation omitted). Our case law has personified vessels:

13

PERSONIFICATION OF THE SHIP DOCTRINE (2)

“A ship is born when she is

launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron . . .. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed . . .. She acquires a personality of her own.”

14

PERSONAL INJURY REMEDIES UNDER MARITIME LAW

PLAINTIFF LAW

SEAMAN

1. MAINTENANCE AND CURE (against employer and vessel)

2. JONES ACT, 46 U.S.C.A. § 30104 (against employer)

3. GML – UNSEAWORTHINESS (against vessel or vessel owner) 4. GML – NEGLIGENCE; STRICT

PRODUCTS LIABILITY (against third Parties)

15


PLAINTIFF LAW

SIERACKI SEAMAN

1. GML – UNSEAWORTHINESS (against vessel, or vessel owner)

2. GML - NEGLIGENCE (against vessel, vessel owner and

third parties) 3. GML – STRICT PRODUCTS

LIABILITY (against third parties)

16


PLAINTIFF LAW

LONGSHORE-MEN AND HARBOR WORKERS

1. LHWCA, 33 U.S.C. §901 et seq. 2. GML - NEGLIGENCE (against

vessel (905b) or third parties (933))

3. GML - STRICT PRODUCTS LIABILITY (against third parties other than vessel owner)

NONSEAFARERS OTHER MAR. WORKERS

• GML-NEGLIGENCE and STRICT PRODUCTS LIABILITY

17

II. MAINTENANCE AND CURE

18

The Right of Maintenance and Cure

Is the right of a seaman to recover, against his employer, the ship, or the ship owner, without regard to the seaman’s fault:

Maintenance

Cure, and

Wages

Slide 1 of 2

19

The Right of Maintenance and Cure

in case the seaman falls sick, or is wounded, “in the service of the ship”, at least so long as the voyage is continued.

It has been recognized to exist in American maritime law since 1823. One court has traced its origins to the Laws of Oleron, a code of maritime law published in the 12th century (1150). The purpose is to marine encourage marine commerce and the well being of seamen.

20

MAINTENANCE AND CURE ELEMENTS OF CAUSE OF ACTION

21

WHO IS A SEAMAN?

The elements for seaman status are:

(1) the employee's duties must contribute to the function of the vessel or to the accomplishment of its mission;

(2) a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.

22

BLUE WATER SEAMAN IN THE “SERVICE OF THE SHIP”

Blue water seamen - on ocean-going vessels who are long term employees and only have interim shore leave during their vessels' voyages.

Includes situations when seaman is:

Departing on shore

Returning from shore leave

During shore leave, even when he has at the time no duty to perform for the ship and is just relaxing

23

BROWN WATER SEAMAN IN THE SERVICE OF THE SHIP

The concept “in the service of the ship” is much narrower .

Brown water seaman or “commuter seaman” are those employees who commute to and from their place of employment but are not required to live aboard the vessel where they are employed. For such seaman, “in the service of the ship” includes injuries incurred while ashore if the seaman is “generally answerable to the call of duty.”

24

WHO IS RESPONSIBLE FOR MAINTENANCE AND CURE?

The employer; the duty to pay maintenance and cure arises out of the contract of employment. It is implied in the contract of employment.

The vessel; the right to sue in rem arises from the peculiar relationship existing between the seaman and his vessel, not on the theory that the vessel owner owes these duties by virtue of his ownership.

25

WHO IS RESPONSIBLE FOR MAINTENANCE AND CURE? (2)

Between ship owner and employer, maintenance, cure, and wages remain, the particular responsibility of the employer, unlike the liability for unseaworthiness, which arises directly from ownership of the vessel.

A seaman cannot sue a non-employing owner in personam for maintenance, cure, and wages.

26

SCOPE OF THE DUTY OF MAINTENANCE AND CURE

is a per diem subsistence allowance designed to provide the seaman with compensation sufficient to cover his food and lodging. It is intended to encompass the reasonable cost of food and lodging comparable to that received aboard the vessel.

Quantum may be fixed by collective agreement.

It’s paid only for the period the seaman is incapacitated to do seaman’s work and until maximum medical improvement (“MMI”) is reached.

MAINTENANCE

27


If no collective bargaining agreement sets forth an agreed daily rate, the maintenance amount is determined based upon evidence of the seaman's actual expenditures for food and lodging.

MAINTENANCE

28


In such case, the seaman must bring forth prima facie evidence of his expenses; evidence that he spent money for food and lodging ashore which was the equivalent of that on the vessel. His testimony as to expenses is sufficient to satisfy this burden.

MAINTENANCE

29


represents the cost of therapeutic, medical and hospital expenses during the seaman's affliction until the point of MMI. The duty exists until:

MMI is reached, or

It is determined that the condition has been cured or is incurable or of a permanent nature.

CURE

30


does not extend to alleviating the condition; only to improvement. Continued maintenance and cure for palliative purposes after seaman has reached the point of total disability has not been allowed.

Seaman can demand reinstatement if new medical techniques become available that will improve his condition.

CURE

31

MAINTENANCE AND CURE AND THE COLLATERAL SOURCE RULE

Seamen can only recover expenses actually incurred; therefore, the collateral source rule is not applicable. The defendant is relieved of the obligation to pay that part of plaintiff's cure furnished by others at no expense to the seaman.

32


In addition to proving maintenance and cure, employer must pay seaman wages for the remainder of the voyage, but “[i]f employment is for a period other than the voyage, such as coastwise articles for six months or for a definite time, the end of the voyage concept does not apply and wages are due him for the period of employment”.

WAGES

33

WAGES; DOUBLE PENALTY

Under 46 USC 10313 (f) and (g) (foreign and intercoastal voyages) a seaman:

Is entitled, at a minimum, to 1/3 of his wages at the time he is discharged;

Slide 1 of 2

34

WAGES; DOUBLE PENALTY (2)

The rest must be paid when the cargo has been discharged and 24 hours have passed, or, when the seaman has been discharged and four days have passed without getting paid, whichever is earlier.

If payment is not made when due, a seaman has the right to recover from master or owner two days’ wages for each day payment is delayed, unless sufficient cause justifies the delay.

35

DETERMINING DATE OF MMI

Who determines seaman has reached MMI? A physician.

What happens when there is dispute as to the date of MMI?

The questions is for the jury. The date is the date the jury determines most credible, not the date of judicial determination.

36

MAINTENANCE AND CURE; DEFENSES

Injury did not occur during the service of the ship.

Injury or sickness is due to the willful act, default or misbehavior of the sick, injured or deceased person. If it is fault, it must be a “positively vicious conduct - such as gross negligence or willful disobedience of orders”.

37


McCorpen defense - applies when an injured seaman has "willfully concealed from his employer a preexisting medical condition." Employer must show that the seaman intentionally misrepresented or concealed medical facts; the non-disclosed facts were material to the employer's decision to hire the seaman; and a connection exists between the withheld information and the injury complained of in the lawsuit.

38


NOT VALID DEFENSES:

Contributory negligence, the fellow-servant doctrine, and assumption of risk

No need to allege and prove negligence: does not rest upon negligence or culpability on the part of the owner or master,

No need to allege and prove causation: it is not restricted to those cases where the seaman's employment is the cause of the injury or illness.

39

MAINTENANCE AND CURE; NON-CITIZENS/NON-RESIDENT ALIENS

A non-citizen or no resident alien, who at the time of the injury or death was employed by a person engaged in the exploration, development, or production of offshore mineral or energy resources, has no COA under American maritime law for maintenance and cure, personal injury or death if the injury occurs in the territorial waters of another country. The restriction does not apply if the individual can establish that a remedy is not available under the laws of the country where the incident occurred or the laws of his country of citizenship or residency at the time of the incident.

40

MAINTENANCE AND CURE;

STATUTE OF LIMITATIONS

LACHES, OR

46 USC 30106 (3 years)

41

MAINTENANCE AND CURE; STATUTE OF LIMITATIONS (2)

Maintenance and cure suits are not affected by the Uniform Statute of Limitations for Maritime Torts. Maintenance and cure is contractual in nature and a continuing obligation. However, the failure to furnish cure is a personal injury which gives rise to a tort remedy and therefore is subject to the three year limitation period. The doctrine of laches applies in maintenance and cure suits. Generally, a state statute of limitations applicable to a similar injury on land may by analogy furnish a suitable yardstick to determine what constitutes laches.

42

MAINTENANCE AND CURE; WHERE TO FILE THE LAWSUIT?

FEDERAL COURT

Law side - pursuant to §1332 - must meet minimum amount and there is right to jury trial

Admiralty side - pursuant to §1333 – no right to jury trial

STATE COURT

In law as provided in §1333 (saving to suitors provision; right to jury trial if provided under state law)

43

MAINTENANCE AND CURE;

ATTORNEY’S FEES AND PUNITIVE DAMAGES

Both,

punitive damages and

attorney’s fees

may be legally awarded if the seaman proves that his employer willfully and arbitrarily withheld or terminated maintenance and/or cure payments.

44

MAINTENANCE AND CURE

Does a claim for M & C survive the seaman’s death?

Yes, for all that was accrued prior to his/her death.

45

III. JONES ACT

46

JONES ACT

Pre Jones Act:

Prior to the enactment of the Jones Act in 1920 a seaman injured in the service of a ship because of the negligence of the vessel owner, master or fellow employees was not entitled to any compensation for injuries other than maintenance and cure, unless the injuries were directly caused by an unseaworthy condition of the vessel.

47

JONES ACT

46 U.S.C.A. § 30104 (Formerly cited as 46 App. USCA § 688)

30104. Personal injury to or death of seamen

A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee [FELA, 45 USC §§51-60] apply to an action under this section.

48

JONES ACT ELEMENTS OF THE CAUSE OF ACTION

Seaman

Suffered injury during the course of employment, or died

as a result of such injury.

Negligence – According to the 11th Circuit, employer’s

subject to “high degree of care” “slight negligence”

standard. (1). Violation of safety regulation is negligence

per se. (2)

Causation-contributing cause of the injury. (3)

49

JONES ACT; Seaman’s Duty to Protect Himself

“Because of the heavy responsibility the owner of a vessel bears to provide safe working conditions, the seaman’s duty to protect himself is less than in an average working environment. ‘His duty is to do the work assigned, not to find the safest method of work. This is specially true when his supervisor … knows the working method used by the seaman, and does nothing about it.’”

50

JONES ACT; SITUS

AS LONG AS THE PLAINTIFF SHOWS HE WAS IN THE SERVICE OF THE VESSEL AT THE MOMENT OF THE ACCIDENT, THE INJURY OR DEATH MAY OCCUR EITHER ON TERRITORIAL WATERS, THE HIGH SEAS, OR ON LAND.

51

WHAT IS A VESSEL?

1 U.S.C. § 3 provides the controlling definition of “vessel” for LHWCA and Jones Act purposes: every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, regardless of its primary purpose or state of transit at a particular moment. But when a vessel is permanently moored or otherwise rendered incapable of movement, the craft will not be considered a vessel for maritime law purposes.

52

JONES ACT; VESSEL IN NAVIGATION

"A vessel is in navigation `when engaged as an instrument of commerce and transportation on navigable waters.'" McKinley v. All-Alaskan Seafoods, Inc., 980 F.2d 567, 569 (9th Cir. 1992). The "in navigation" principle includes vessels in dry docks if undergoing only routine or minor repairs. Sea Vessel, Inc. v. Reyes, 23 F.3d 345 (11th Cir. 1994); Waganer v. Sealand Service, Inc., 486 F.2d 955 (5th Cir. 1973). Vessel which is undergoing major renovations and "[is] not usable for its intended purpose at the time of the accident" is not "in navigation." 980 F.2d at 571-72.

54

JONES ACT; VESSEL IN NAVIGATION (2)

Williams v. Avondale Shipyards, Inc., 452 F.2d 955, (5th Cir. 1971):

Shipbuilder's employee, who was injured during shipbuilder's sea trial of vessel, was not seaman for purposes of recovering under Jones Act, in that vessel was not yet at such time an instrumentality of commerce and therefore was not “in navigation.”

55

JONES ACT; NAVIGABLE WATERS

"A body of water is navigable for purposes of federal admiralty jurisdiction [and Jones Act purposes] if it is one that, by itself or by uniting with other waterways, forms a continuous highway capable of sustaining interstate or foreign commerce."

56

JONES ACT; FLEET SEAMAN DOCTRINE

Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea.

Part of the test for determining who is a seaman is whether the injured worker seeking coverage has a substantial connection to a vessel or a fleet of vessels.

Fleet refers to an identifiable group of vessels acting together or under one control and common ownership.

57

JONES ACT; FLEET SEAMAN DOCTRINE

Fleet of vessels in this context does not mean any group of vessels an employee happens to work aboard.

Prior employments with independent employers in making the seaman-status inquiry, should not be considered. Otherwise, one cannot predict who will be covered by the Jones Act (and, perhaps more importantly for purposes of the employers' workers' compensation obligations, who will be covered by the LHWCA) before a particular work day begins.

58

JONES ACT; COMPULSORY PILOTS

ARE NOT SEAMAN

See: Bach v. Trident S.S. Co., Inc., 947 F.2d 1290 (5th Cir. 1991), cert denied., 504 U.S. 931 (1992)

59

THE JONES ACT STANDARD OF CARE

FIFTH CIRCUIT: Same SOC for employers as for seamen:

Due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation.

60

THE JONES ACT STANDARD OF CARE

SECOND CIRCUIT: (Jones Act remedial view) The standard is “slight negligence”.

Seaman only has a “slight duty of care” to protect himself .

ELEVENTH CIRCUIT: same as in the Second Circuit and 5th Circuit case law prior to 1982.

Employers are held to a “high degree of care in providing a safe work environment” and even the “slight negligence” is enough to establish liability.

61

JONES ACT AND THE EMPLOYERS’ VIOLATION OF STATUTORY DUTIES

When an employer violates a statutory duty and such violation causes injury to a seaman, the employer will be liable regardless of the employee’s negligence. It is negligence per se, which means that there is no need to prove negligence.

Unlike the land based analog, it is irrelevant whether or not the seaman is within the class of persons the statute is designed to protect, or that the harm caused the seaman is of the type the statute was designed to protect.

62

THE JONES ACT NOT COMPLETE DEFENSES

The following are not complete defenses:

Contributory negligence

Assumption of risk

Fellow servant doctrine

63

THE JONES ACT NOT COMPLETE DEFENSES

What if the employer violates a safety regulation?

Neither contributory (or comparative) negligence nor assumption of risk can be used to diminish plaintiff ’s recovery. 45 USC §§ 53 and 54.

Likewise, assumption of risk is no defense when seaman is injured or killed as a result, in whole or in part, of the negligence of any of the master or other crew members. 45 USC § 53.

64

THE COMPARATIVE NEGLIGENCE DEFENSE

Reduces liability in proportion to each party’s fault.

It is the GML rule; not just applicable to Jones Act cases, but also to claims for unseaworthiness, negligence and products liability under GML.

When Case Involves Settlement with one of multiple potential defendants - payment only reduces jury award in proportion to the settling’s party proportionate fault, regardless of amount paid.

65

THE PROPORTIONATE SHARE RULE

In admiralty the proportionate share rule (money paid extinguishes claim against released party and also diminishes the liability of other tortfeasors by the amount of the equitable share of the obligation of the released) applies when there has been a settlement.

Liability is joint and several.

66

THE JONES ACT The Walker Doctrine Defense

Holds that if a plaintiff's injuries arise from his own

failure to perform his employment obligations his

Jones Act claim is barred. It applies only to ship officers

who are charged with the duty of maintaining the ship.

For this defense to apply the injured officer must know

about the existence of the unseaworthy condition

before the accident occurs.

67

THE JONES ACT CAUSATION

The Standard of Causation is slight.

1. It only needs to play “any part, even the slightest”, in producing the injury or death.

2. Same causation standard applies to employer negligence and employee comparative negligence in FELA cases. Even under the Jones Act, however, a party must establish more than mere "but for" causation. The negligence must be a 'legal cause' of the injury.

68

THE JONES ACT DAMAGES

A seaman can only recover pecuniary damages:

1. Loss of wages

2.Loss of future earning capacity

3. Past and future medical expenses

4.Loss of future earnings

5. Pain and suffering; mental anguish (see In re Denet Towing Service, Inc., 1999 WL 329698, (E.D.La.,1999).

6.Other expenses

69

THE JONES ACT Prejudgment Interests

FELA - prejudgment interest are not allowed. See Monessen v. Morgan, 486 US 330, 339 (1988).

But a COA has been allowed under GML to recover prejudgment interests regardless of Miles.

70

FEDERAL COURT

Law side - pursuant to §1332 (diversity) or §1331 (federal question)


STATE COURT

In law as provided in §1333 (saving to suitors provision; right to jury trial if provided under state law). Action is not removable under 28 U.S.C. §1445(a).

72

IV. GENERAL MARITIME LAW a. Unseaworthiness

74

WARRANTY OF SEAWORTHINESS WHAT IS IT?

It is an absolute duty, arising under general maritime law, of a shipowner or a bareboat/demise charterer (owner pro hac vice) to provide a vessel that is reasonably fit for its intended purpose, i.e., the voyage. It is not a duty to provide an accident free ship. It is a species of liability without fault and the duty is also “continuing, and nondelegable”, an incident of vessel ownership.

75

WARRANTY OF SEAWORTHINESS HOW DOES IT BECOME UNSEAWORTHY?

A vessel becomes unseaworthy as a result of a condition of the vessel, its appurtenances, cargo or crew, not because of the individual isolated negligent act of a plaintiff ’s co-worker. The latter type of action is covered by negligence law, i.e. Jones Act.

76

WARRANTY OF SEAWORTHINESS WHO IS LIABLE?

1. • The ship; in rem

2 • The ship owner

3. • Bareboat charterer

77


What happens if it is unknown who caused the unseaworthy condition between ship owner and bare boat charter?

Sue the owner; the allocation of ultimate liability should be the responsibility of the owner and charterer, who can sort out which between them will bear the final cost of recovery.

78


What happens if it is unknown who caused the unseaworthy condition between ship owner and bareboat charterer?

Ship will always be liable in rem but, between owner and charterer, in personam liability will depend on who had control of the ship at the time the unseaworthy condition arose.

79

WARRANTY OF SEAWORTHINESS DAMAGES

The following damages could be recovered:

Loss of wages

Loss of future earning capacity

Pain and suffering; mental anguish

Medical expenses past and future

Loss of society – except seaman under Miles, supra

Punitive damages – except seaman, most prob. under Miles

Pre-judgment interests (not allowed under FELA).

80

WARRANTY OF SEAWORTHINESS CAUSATION

Under general maritime an action for unseaworthiness carries a higher causation requirement than in a Jones Act action: “A plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.”

81

WARRANTY OF SEAWORTHINESS AND THE SIERACKI SEAMAN

In Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946) the SC extended a longshoremen a cause of action for unseaworthiness for injuries on board a ship while in navigable waters because “he [was] doing a seaman’s work and incurring in seaman’s hazards”. Sieracki extended the doctrine of seaworthiness to a longshoreman, even though the longshoreman was not a member of the crew, and in spite of the fact that the longshoreman was entitled to compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act.

82


Post Sieracki decisions have expanded the benefits of the

seaworthiness doctrine to:

carpenters

electricians

ship cleaners

repairmen

riggers

hairdressers

83


Fifth Circuit:

Maritime workers who are not covered by the LHWCA,

are not barred by the 1972 amendments to the LHWCA

from asserting claims as a Sieracki seaman.

84

WARRANTY OF SEAWORTHINESS DEFENSES

Comparative fault

Unseaworthy condition caused exclusively by seaman’s own negligence. If it is not, and the ship owner has violated a safety statute or regulation, the seaman’s recovery is only reduced proportionately under comparative negligence principles. (Compare with Jones Act cases)

Limitation of liability

85

WARRANTY OF SEAWORTHINESS; WHERE TO FILE THE LAWSUIT?

FEDERAL COURT

Law side - pursuant to §1332 (diversity) with right to jury trial.


STATE COURT

In law as provided in §1333 (saving to suitors provision; right to jury trial if provided under state law)

86

IV. GENERAL MARITIME LAW b. Negligence

87

NEGLIGENCE - STANDARD OF CARE

“[T]he owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interest the duty of exercising reasonable care under the circumstances of each case.” The standard of care is not dependent on whether the injured person is a “licensee” or “invitee” on the vessel. Id.

Applicable to nonseafarers, Sieracki seaman and LHWCA workers when suing under theory of negligence.

88

SOURCES THAT DEFINE THE DUTY OF CARE UNDER MARITIME LAW

Duly enacted laws, regulations, and rules;

Case law (“general maritime law”);

Custom;

Dictates of reasonableness and prudence;

Duty is measured by the scope of the risk that negligent conduct foreseeably entails. Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 377 (5th Cir. 2000)

89

SOURCES THAT DEFINE THE DUTY OF CARE UNDER MARITIME LAW

The Inland Rules of Navigation, 33 U.S.C. § 2001, et seq., which supply applicable standards of care for determining negligence in admiralty actions. The Inland Rules of Navigation supply “rules of the road” that courts have applied in determining the duty of care in admiralty actions.

International Regulations for Preventing Collisions at Sea, 1972 (COLREGS).

90

Duty of Care to Passenger 46 USC 30102 (former 46 USC 491)

“(a) Liability.--The owner and master of a vessel, and the vessel, are liable for personal injury to a passenger or damage to a passenger's baggage caused by—

(1) a neglect or failure to comply with part B [Inspection and Regulation of Vessels] or F [Manning of vessels] of subtitle II of this title; or

Slide 1 of 2

91

Duty of Care to Passenger 46 USC 30102 (former 46 USC 491)

(2) a known defect in the steaming apparatus or hull of the vessel.

(b) Not subject to limitation.--A liability imposed under this section is not subject to limitation under chapter 305 of this title.”

92

GML; Duty Regarding Physicians

The Florida S. Ct applying GML has said that

a ship owner is not vicariously liable under respondeat superior theory to passengers for medical negligence of shipboard physician.

BUT THE TREATMENT IS DIFFERENT FOR JONES ACT SEAMAN

Under the Jones Act, ship owner is vicariously liable for harm suffered by seaman as result of any negligence on part of ship's physician in treatment of seaman, and ship owner cannot escape liability on ground that it exercised reasonable care to secure a competent physician. 93

DUTY TO SEARCH AND RESCUE

In Reyes v. Vantage SS Company, Inc., 609 F.2d 140 (5th

Cir.1980) the Court held that duty to search and rescue

is independent of the Jones Act and is found in the

General Maritime Law (“GML”).

94

https://web2.westlaw.com/find/default.wl?tf=-1&serialnum=1979146716&rs=WLW8.11&ifm=NotSet&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2006431824&db=350&vr=2.0&rp=/find/default.wl&mt=StateLitigation
































IV. GENERAL MARITIME LAW c. Products Liability

95

GENERAL MARITIME LAW; PRODUCTS LIABILITY

In East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986) the Supreme Court validated the existence under general maritime law of a tort cause of action for maritime products liability. The basis of the action can be:

Negligence, or

Strict liability.

Economic loss rule – applicable in admiralty.

96

V. Other Maritime Rules and Statutory Provisions

97

DUTY OWED BY SHIPOWNERS TO STOWAWAYS

The duty of shipowner is only to provide humane treatment.

The shipowner is only liable for its willful or wanton misconduct towards stowaways.

98

ATTORNEY FEES IN ADMIRALTY

There exists a well-established maritime law prohibiting any award of attorney's fees in an admiralty action absent:

1. A contract provision,

2. A federal statute, or,

3. Bad faith in the litigation process.

99

Damages in Admiralty: The Effect of Culver II

The calculation of lost income damages suffered by the representative of a deceased person involves four steps:

1. Estimate the loss of work life resulting from the

death,

2. Calculate the lost income stream,

3. Compute the total damage, and

4. Discount that amount to its present value.

100


In Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir.1975) (en banc), the court held that "neither proof, nor argument, nor jury instructions concerning inflationary factors may be considered or used" in arriving at an award for future medical expenses and lost future earnings.

101


Culver v. Slater Boat Co., 688 F.2d 280 (Former 5th Cir.1982) (en banc) (Culver I) concerned the application of Penrod in "maritime, Jones Act, and FELA personal injury and wrongful death actions. The court in Culver I not only concluded that “inflationary factors can be considered but it also concluded that to calculate future damages (loss of earnings) three methods to reflect the effect of inflation can be used:

1) case by case method,

2) below market discount, or

3) total off-set method.

102


Culver v. Slater Boat Co., 722 F.2d 114 (11th Cir. 1984) (Culver II) the court overruled Culver I and concluded that the only method that can be used is the below market discount method.

The Eleventh Circuit has not directly addressed whether the Monessen decision overrules its Culver II requirement that fact finders employ the below market discount method but it has noted that Monessen casts doubt upon the validity of Culver II.

103


In Monessen, the Supreme Court held that a state supreme court's application of the "total offset" method as a matter of law "improperly took from the jury the essentially factual question of the appropriate rate at which to discount appellee's ... award to present value."

104

TAXATION OF COSTS

28 U.S.C. § 1925 states that “[e]xcept as otherwise provided by Act of Congress, the allowance and taxation of costs in admiralty and maritime cases shall be prescribed by rules promulgated by the Supreme Court.”

Fed. Rule of C.P. 54(d)(1) states that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party. …. The clerk may tax costs on 1 day's notice. On motion served within the next 5 days, the court may review the clerk's action.”

105

TAXATION OF COSTS

U.S. Fla. Middle District Local Rule 4.18 states that “all claims for costs or attorney's fees preserved by appropriate pleading or pretrial stipulation shall be asserted by separate motion or petition filed not later than fourteen (14) days following the entry of judgment. The pendency of an appeal does not postpone the filing of a timely application.”

28 U.S.C. s 1925 has incorporated s 1821's limitation on witness fees in admiralty cases.

106

TAXATION OF COSTS

28 U.S.C. § 1920 permits recovery of the following costs:

Fees of the clerk and marshal;

Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

Fees and disbursements for printing and witnesses;

107

TAXATION OF COSTS

Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

Docket fees under section 1923 of title 28;

Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

108

TAXATION OF COSTS; WHAT ISN’T COVERED

1. Expert witness fees is limited to the statutory amounts authorized under 28 U.S.C. §§ 1821 and 1920.

Under 28 U.S.C. § 1821(b), a witness is entitled to an attendance fee of $40 per day for each day's attendance, subsistence allowance if he has to stay overnight, reasonable cost of a common carrier, otherwise millage as prescribed by the Administrator of General Services, toll charges, taxicab fares and other normal travel expenses.

109

TAXATION OF COSTS; WHAT ISN’T COVERED

2. Travel expenses – except in extraordinary and compelling circumstances.

3. Deposition expenses – unless it was “necessarily obtained for use in the case” deposition costs are not allowed it the depositions were merely incurred for convenience, to aid in a more thorough preparation of the case, or for purpose of investigation only.

4. Videographer fees (as part of videotaped depositions).

5. Independent medical examinations.

6. Mediation costs.

110

General Maritime Law; Non Pecuniary and Punitive Damages

The current trend in the case law supports a punitive damages claim under the general maritime law when there is no overlap with federal statutes, Miles is being restricted to seaman/employer relationship, i.e., seaman or his decedent could not recover loss of society, and presumably non pecuniary damages. The courts are recognizing the long line of cases which have held non pecuniary and punitive damages are awardable under general maritime law.

111

STATUTE OF LIMITATIONS

THREE YEARS – 46 USC 30106

“Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within three years after the cause of action arose.”

112

GENERAL MARITIME LAW; CHOICE OF LAW RULE IN TORT ACTIONS

Lauritzen v. Larsen, 345 U.S. 571 (1953) -seminal case on choice of law in admiralty tort and application of the Jones Act to foreign interests. That case involved:

A Danish sailor (Larsen) who, while temporarily in New York

Joined the crew of a Danish flag ship (“the Rhanda”)

Owned by a Dane

Slide 1 of 11

113


Under a contract with a Danish choice of forum clause

Was negligently injured on board the ship in Havana harbor, Cuba

Brought action for maritime tort under the Jones Act in a N.Y. federal district court

Slide 2 of 11

114


The issue was under which nation's law was Larsen to be compensated for his injury; American v. Danish law.

The SC held that the law of the flag governed the liability of the Danish ship owner to the Danish seaman because of injuries sustained on shipboard in foreign waters.

Slide 3 of 11

115


The Court selected a contacts-based choice of law analysis and thereupon set out a number of factors relevant to the task:

1. The place of the wrongful act -“of limited application to ship-board torts, because of the varieties of legal authority over waters she may navigate,” Id. 583.

Slide 4 of 11

116


2. The law of the flag –“Nationality is evidenced to the world by the ship's papers and its flag. … the law of the flag supersedes the territorial principle, … of personnel of a merchant ship, because it ‘is deemed to be a part of the territory of that sovereignty (whose flag it flies), ….’ On this principle, we concede a territorial government involved only concurrent jurisdiction of offenses aboard our ships.” Id. at 584-585.

Slide 5 of 11

117


3. The allegiance or domicile of the injured - “transitory [presence in an American forum does not create] such national interest in, or duty toward, [a plaintiff] as to justify intervention of the law of one state on the shipboard of another,” Id. at p. 587.

Slide 6 of 11

118


4. The allegiance of the defendant ship owner – because the practice of “flags of convenience” has grown, “our courts on occasion have pressed beyond the formalities of more or less nominal foreign registration to enforce against American ship owners the obligations which our law places on them.” Id.

Slide 7 of 11

119


5. The place of contract - this is entitled to little weight, specially in tort actions. But absent an overriding policy consideration, “the tendency of the law is to apply in contract matters the law which the parties intended to apply.” Id. at p. 588-89.

Slide 8 of 11

120


6. Inaccessibility of the foreign forum in terms of the inconvenience to the seaman in returning to a foreign court-while this “might be a persuasive argument for exercising a discretionary jurisdiction to adjudge a controversy ... it is not persuasive as to the law by which it shall be judged.” Id. at p. 589-90.

Slide 9 of 11

121


7. The law of the forum –this is generally of little weight because “[t]he purpose of a conflict-of- laws doctrine is to assure that a case will be treated n the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum.” Id. at p. 591.

8. The above list of factors was explained in Hellenic Lines Limited v. Rhoditis, 398 US 206 (1970), which introduced the “base of operations of the ship owner” as another important criteria in the determination of the application

of the Jones Act to foreign seaman.

Slide 10 of 11

122


Rhoditis involved a Greek seaman who signed employment contract in Greece and who was injured in United States port while on Greek flag vessel owned by Greek corporation which maintained its largest office in New York and which had more than 95% of its stock owned by Greek citizen who was a United States domiciliary. SC held ship owner was an employer of seaman under Jones Act thereby entitling seaman to maintain action against shipowner in federal court.

Slide 11 of 11

123

WHAT LAW CONTROLS INSIDE A VESSEL?

The rule of international maritime law is that “the internal economy and management of a vessel should normally be controlled by the law of the flag.”

124

Limitation of Liability

The Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501-30512 (amended 2006) was Congress' effort to provide American shipowners with benefits equal to those of foreign competitors.

Under the Act, a vessel owner can restrict its liability arising from any occurrence for which the vessel is liable to the value of the vessel and its freight. See 46 U.S.C. §30511. To invoke the protection of chapter 305 the owner must not have been personally negligent, i.e., the negligence of his ship's master or crew must not have been within his “privity or knowledge.”

125

A vessel owner may file a petition for limitation of liability in federal court pursuant to 46 U.S.C. §30511. That Section states:

“The owner of a vessel may bring a civil action in a district court of the United States for limitation of liability under this chapter. The action must be brought within 6 months after a claimant gives the owner written notice of a claim. … When the action is brought, the owner … shall … deposit with the court, for the benefit of claimants … an amount equal to the value of the owner's interest in the vessel and pending freight, or approved security; …”

Limitation of Liability

126

The Pennsylvania Rule

The S.S. Pennsylvania v. Troop, 86 U.S. (19 Wall.) 125, 135 (1873):

Establishes a burden shifting regime for maritime

cases where a statutory or regulatory violation has some causal connection to the injury that occurred.

In order to shift the burden of proof to the

defendant, the plaintiff must establish that

Slide 1 of 2

127

The Pennsylvania Rule

1. The defendant breached a statutory duty, and 2. That the breach is relevant to the casualty in question.

The defendant assumes the burden of proving

that its breach could not have caused plaintiff ’s damages.”

Slide 2 of 2

128

VI. Wrongful Death Actions; Jones Act, DOHSA, and General Maritime Law

129

WRONGFUL DEATH ACTIONS

Jones Act (enacted in 1920)

Applies anywhere as long as seaman is killed during the course of his employment.

DOHSA 46 USC 30301 et seq. (enacted in 1920)

Applies beyond 3 nautical miles from the shore, 46 USC 30302.

130


GML – Prior to the creation of the Moragne Action

The Harrisburg, 119 US 199 (1886) (no COA for wrongful death in Admiralty)

The Hamilton, 207 US 398 (1907) (suits grounded in state wrongful death causes of action could be brought in Federal Courts when death occurs in territorial waters)

131


GML – Moragne Action

Moragne v. States Marine Lines, 398 US 375 (1970) created a wrongful death action under GML and overruled the Harrisburg. It also applies to Seaman despite the Jones Act. Miles, 498 U.S. at p. 30.

applies in territorial waters-within three nautical miles from the shore.

132


Person with the right to bring the action:

Personal representative.

Jones Act (1920) See 45 USC §51

DOHSA (1920) See 46 USC §30302

GML See Tidewater Marine Towing, Inc. v. Dow Chem. Co., 689 F.2d 1251 (5th Cir. 1982)

133


For whose benefit:

Jones Act(1920)

Parent may not recover unless there is neither a

surviving spouse nor child, and

A dependant relative may not recover unless there is

neither spouse, child, nor parent. See 45 USC §51.

134


For whose benefit:

DOHSA

Spouse, parent, child, or dependent relative of the deceased against the vessel, person, or corporation liable for his death

See 46 USC §30302

GML

Spouse, dependent children, parents and dependent relatives.

135


Is there a survival action?

Jones Act(1920)

Yes, 45 USC §59.

Note: A wrongful death action and a survival action are two distinct types of claims.

Wrongful death action - is to recover damages to beneficiaries resulting from the decedent's death

Survival action – is to recover damages the decedent could have recovered but for his death

136



GML

Yes. See Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890 (5th Cir. 1984)

137



DOHSA

No, and a survival action under GML cannot be used to supplement recovery with non pecuniary damages.

138

WRONGFUL DEATH ACTIONS Theories of Recovery

Action is based on:

Jones Act (1920)

Negligence

DOHSA

Negligence

Unseaworthiness

Strict products liability

139

WRONGFUL DEATH ACTIONS Theories of Recovery

Action is based on:

GML

Negligence (LHWCA, nonseafarers)

Unseaworthiness (seaman and Sieracki seaman in 5th Circuit and possibly in the 11th Circuit)

Strict products liability

140


Damages recoverable:

Jones Act (1920)

Same as for personal injury (non pecuniary damages are not allowed). See slide 69.

Notice, however, that a cause of action for pain and suffering survives the death of the victim under the Jones Act but not under the Death on the High Seas Act. Also, Jones Act does not allow recovery of “lost future earnings” via survival action.

141



DOHSA

Pecuniary damages, 46 USC 30303

1. Loss of financial support

2. Loss of services

3. Loss of nurture, guidance, care and instruction

4. Loss of inheritance

5. Funeral expenses

142

WRONGFUL DEATH ACTIONS Damages not recoverable:

DOHSA

Decedent’s pain and suffering:

DOHSA does not allow recovery for a decedent's pain and suffering. DOHSA precludes any general maritime survival action to permit plaintiff personal representative to recover damages for pre-death pain and suffering. Dooley v. Korean Airlines Co., Ltd., 524 U.S. 116 (1998).

143


Damages not recoverable:

DOHSA

Non pecuniary damages such as loss of society, loss of consortium and punitive damages are not recoverable under DOHSA.

144



GML

Pecuniary and non pecuniary damages

But see: Tucker v. Fearn, 333 F. 3d 1216 (11th Cir. 2003), cert denied, 540 U.S. 1149 (2004) (Loss of society is not recoverable by nondependent survivor of a nonseafarer in case arising in territorial waters. Sends strong message that because the need of “uniformity” such damages would not be recoverable even if survivor is a dependent survivor. But states that under Yamaha, such damages can be recovered under a state law COA, if such action provides them).

145



GML

But see Sea-Land Services, Inc. v. Gaudet, 414 US 573 (1974) (dependent widow of a longshoreman was allowed to recover loss of society under GML). See also In re Patton-Tully Transp. Co., 797 F.2d 206 (5th Cir. 1986) (in a wrongful death action under GML all dependents can recover loss of society).

146



GML

Yamaha Motor Corp. v. Calhoun, 516 US 199 (1996) (in wrongful death action – asserting theories of negligence, strict liability and breach of implied warranties - by nonseafarers for accident in P.R. territorial waters Court held state law would determine remedies available, not necessarily the standard of liability question which was left open).

147



GML

American Dredging Co. v. Lambert, 81 F.3d 127, (11th Cir. 1996) (personal representatives could recover non pecuniary damages in wrongful death actions brought under Florida law, because case involved nonseamen killed in territorial waters and no federal statute or common law precedent precludes the personal representatives from recovering non pecuniary damages under state law).

148


Causation:

Jones Act (1920)

Same as under personal injury claims

DOHSA

Proximate cause

GML

Proximate cause

149


Causation:

GML

Causation standard - more demanding in an GML (unseaworthiness) claim than in a Jones Act negligence claim. To establish proximate cause in a GML claim, a plaintiff must prove that the negligence or unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of such negligence or unseaworthiness. Some condition or defect may be a legally sufficient cause of an injury under a Jones Act theory of liability but not under an unseaworthiness theory.

150


Statute of Limitations:

Jones Act (1920) and GML

Three years

DOHSA

Two years

But be careful. Always check state law statute of limitations for wrongful death action if you plan to seek remedies under state law. Florida statute of Limitations of wrongful death action is two years.

151


Where can action be filed:

Jones Act (1920)

Federal Court

Admiralty side (no jury)

Law side, federal question and diversity (jury trial)

State Court with right to jury trial. Action cannot be removed to Federal Court.

152



DOHSA (1920)

Federal Court


Diversity (jury trial)

State Court with right to jury trial, under 46 USC §30308 (a kind of “saving to suitors clause”). DOHSA claims are not removable under the federal question jurisdiction of the court.

153



GML

Federal Court


Law side under diversity (jury trial)

State Court with right to jury trial.

154

DOHSA; ACCORDING TO 11TH CIR. FILING OF STATE LAWSUIT DOES NOT TOLL THE SOL PERIOD

State action does not toll the statute of limitations of a DOHSA claim because these claims are only heard by Federal Courts.

155

DOHSA; COMMERCIAL AVIATION ACCIDENTS

§ 30307. Commercial aviation accidents

(a) Definition.--In this section, the term “non pecuniary damages” means damages for loss of care, comfort, and companionship.

Slide 1 of 2

156


(b) Beyond 12 nautical miles.--In an action under this chapter, if the death resulted from a commercial aviation accident occurring on the high seas beyond 12 nautical miles from the shore of the United States, additional compensation is recoverable for non pecuniary damages, but punitive damages are not recoverable.

(c) Within 12 nautical miles.--This chapter does not apply if the death resulted from a commercial aviation accident occurring on the high seas 12 nautical miles or less from the shore of the United States.

157


DOHSA applies to aviation incidents in foreign territorial waters. In re crash disaster near Peggy’s Cove, Nova Scotia, 210 F. Supp. 2d 570 (E.D. Penn. 2002)

The Warsaw convention applies to international air transportation and is the exclusive mechanism of recovery for personal injuries or death suffered on board an aircraft or in the course of embarking or disembarking from an airplane. Marotte v. American Airlines, Inc., 296 F.3d 1255 (11th Cir. 2002)

158

FLORIDA WRONGFUL DEATH ACT

Codified at Fla. Stat. 768.16-768.26 (1972);

Person with right of action – Personal representative for the benefit of survivors and estate. Section 768.20.

Is there a survival action? Yes, Fla. Stat. 46.021 and 768.20. But it does not allow survival to recover for the deceased’s personal injuries, i.e., pain and suffering. Pain and suffering can be recovered by the survivors.

160


What damages are recoverable?

For each specified survivor in section 768.21:

1. Loss of past and future support and services;

2. Loss of companionship and protection (loss of society). Contrary to the Jones Act, DOHSA and GML (according to the 11th Circuit) where loss of society is not recoverable, under the FWDA loss of society is recoverable;

161


What damages are recoverable?

For each specified survivor in section 768.21:

3. His or her own mental pain and suffering from the date of injury;

4. For the estate – medical expenses, funeral expenses and loss of earnings.

162

VI. RECREATIONAL BOATERS

APPLICABLE LAW

IF ACCIDENT OCCURS: APPLICABLE LAW IS:

OUTSIDE NAVIGABLE WATERS OF THE U.S.

STATE LAW

WITHIN NAVIGABLE WATERS OF THE U.S.

ADMIRALTY, FEDERAL AND STATE LAW (depending on the issue)

163

RECREATIONAL BOATERS

Federal Boat Safety Act of 1971, 46 U.S.C. §§4301-4311

§ 4301. Application

“(a) This chapter applies to a recreational vessel and associated equipment carried in the vessel on waters subject to the jurisdiction of the United States (including the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988) and, for a vessel owned in the United States, on the high seas.

(b) Except when expressly otherwise provided, this chapter does not apply to a foreign vessel temporarily operating on waters subject to the jurisdiction of the United States. …”

164


Florida Court – 1st District

Federal Boat Safety Act – compliance with this act and standards promulgated pursuant to it does not “relieve any person from liability at common law or under State law.” 46 U.S.C., §4311.

Boat manufacturer has a legal duty to exercise due care in the design and production of its product to prevent defects that constitute a substantial risk of foreseeable injury to persons using the boat.

Crashworthiness doctrine is applicable under general maritime law. 165


In 2002 the U.S. Supreme Court held that:

(1) Federal Boat Safety Act does not preempt common law tort claims, arising out of failure to install propeller guards on boat engine;

(2) Coast Guard's decision not to adopt regulation requiring propeller guards on motorboats does not preempt survivor's claims; and

(3) FBSA does not implicitly preempt survivor's claims, abrogating Lewis v. Brunswick Corp., 107 F.3d 1494 (11th Cir. 1997).

166


Florida Vessel Safety Law, Fla. Stat. 327.01 et seq., requires the operator of a vessel:

Involved in a collision, accident, or other casualty to render the assistance as is practicable and necessary to safe lives and minimize any danger caused by the collision, accident, or other casualty;

167


Florida Vessel Safety Law, Fla. Stat. 327.01 et seq., requires the operator of a vessel:

Involved in a collision, accident, or other casualty in or upon or entering into or exiting from the water, which involves death or injury, or damage to any vessel or other property in the aggregate amount of at least $2,000, to give notice to the appropriate agency.

168


Are releases of liability valid?

State Law:

Florida law – Yes. Valid as long as the release specifically references the releasee’s negligence.

Federal Admiralty law:

Passengers of vessels between ports in the United States, or between a port in the United States and a port in a foreign country - No. See 46 U.S.C. §30509.

Other passengers – Under GML. Yes and there is no need to make reference to the releasee’s negligence.

169

THE END

170

personal injury and wrongful death in maritime law seminar

Documents