Court Rules Crewmember Not Working in Course and Scope of Employment

In Herrera v. 7R Charter Limited, Case No. 16-cv-24031 (Aug. 3, 2018), the Southern District of Florida held in a case that we were defending on behalf of 7R Charter Limited ("7R Charter") that a crewmember was not working in the course and scope of her employment when she was aboard the yacht's alleged tender for a sea trial, when she was severely injured by an alleged phantom wake.

Photograph of boat owned by Captain

In this case, the Plaintiff was the Chief Stewardess aboard a 125-foot yacht when on a Saturday, she joined the yacht's Captain (who was her boyfriend at the time), her daughter and two other friends aboard her boyfriend's boat, a 36-foot Protector. The Protector was utilized previously as a tender to the 125-yacht during a single charter period approximately one month before the plaintiff's accident. The Captain had rented the Protector to the owner of the yacht for that charter period, as the yacht's tender was inoperable at the time. The Plaintiff suffered an injury while the persons aboard the Captain's boat were making their way to lunch. Plaintiff filed a one-count complaint against her employer, alleging Jones Act negligence in the Captain instructing her to place bow lines and fenders of the bow of the tender. At the time Plaintiff was at the bow of the boat, allegedly setting the Protector's lines, an unidentified 50' sportfishing vessel crossed the bow of the 36' boat, creating a 2-4' high wave, hitting the boat and allegedly causing the Plaintiff to fall.

The Plaintiff attempted to hold 7R Charter vicariously liable for the actions of her boyfriend in the operation of the boat that was neither owned or operated by 7R Charter. "[I]n order to hold an employer vicariously liable under the Jones Act for one employee's injury caused by the negligence of a co-employee, a plaintiff must show that the injured employee and the employee who caused the harm were both acting in the course of their employment at the time of the accident." Beech v. Hercules Drilling Co., L.L.C., 691 F.3d 566, 572 (5th Cir. 2012). To prove that the alleged negligent employee's actions were undertaken in the course of employment, the injured seaman "must show that the employee's tort was committed in the furtherance of the employer's business." Sobieski v. Ispat Island, Inc., 413 F.3d 628, 632 (7th Cir. 2005). "In order for an activity to qualify as being within the scope of employment, it must be a necessary incident of the day's work or be essential to the performance of the work. Id. at 634.

In evaluating whether the Plaintiff was working in the course and scope of her employment, the court noted that the boat was purchased for the business of chartering. The court also noted that whenever the yacht had a charter, it would rent a boat from the Captain. However, on the Plaintiff's date of accident, the yacht could not be chartered, as it was undergoing repairs. The court also noted that the Captain had sole responsibility for maintaining the boat and paying for any upkeep to the boat. The court noted that the sole issue was whether the Plaintiff and the Captain were acting "for the convenience of the defendant-employer so as to be deemed in the course of [her] employment." Howard v. Bristol Monarch, 652 F. Supp. 677, 679 (W.D. Wash. 1987).

First, the court found that Plaintiff's contract requirement that she be on call "24/7" did not require the court to find that she was acting within the scope of her employment when she suffered her injuries, as the court in Sobieski specifically rejected that exact argument. Second, the court found that the Plaintiff was not furthering 7R Charter's business interests when she suffered her injuries, as 7R Charter did not order nor was it aware that the boat was undergoing repairs or being taken out for a sea trial. Third, the court noted that there was nothing in the record to suggest that as part of her duties as Chief Stewardess, Plaintiff was responsible for securing a tender for the yacht's charters. Finally, the court noted that the events surrounding the outing demonstrated that Plaintiff's motivation for going out on the boat was not to further 7R Charter's business interests, but for pleasure purposes.

If you are interested in receiving a copy of this decision, please feel free to write to me at blog@miamimaritimelaw.co.

DOHSA Does Not Preempt State Wrongful Death Statute in Fla State Waters

In Kipp v. Amy Slate’s Amoray Dive Ctr., Inc., 2018 Fla. App. LEXIS 7847 (3d DCA June 6, 2018), Florida's Third District Court of Appeals held that DOHSA does not preempt Florida's wrongful death statute and DOHSA does not apply to the territorial waters of the state.

Steven Kipp, was a crew member onboard a scuba dive charter boat which was owned and operated by Amy Slate’s Amoray Dive Center, Inc. On November 12, 2015, the captain took a number of customers out for a night dive with Kipp onboard. The adverse currents pushed some of the divers as far as a half mile away. In response, Kipp snorkeled out to bring the customers back in. However, while doing so,  Kipp suffered a heart attack and died.  Kipp’s widow filed a lawsuit alleging: (1) Jones Act negligence against the dive center; (2) general maritime unseaworthiness against the dive center as owner of the vessel; (3) state tort negligence against the dive center; (4) DOHSA claim against the dive center; (5) state tort negligence against the captain; and (6) DOHSA claim against the captain. The Defendants filed motions to dismiss arguing that the cause of action was controlled solely by DOHSA because the death occurred more than three nautical miles from the shore. Kipp’s widow argued that DOHSA is inapplicable because the death occurred within Florida’s territorial waters. The trial court dismissed the complaint holding that DOHSA applied and therefore the trial court did not have jurisdiction to consider the merits of the remaining issues. Kipp’s widow appealed.

The appellate court first noted that this case involves an issue of statutory interpretation. Reading DOHSA, the court found on the one hand, "DOHSA expressly applies to death on the high seas more than three nautical miles from the shore of the United States", but on the other hand, noted that “by its plain terms, [DOHSA] ‘does not affect the law of a State regulating the right to recover for death’ and ‘it does not apply to waters within the territorial limits of a state’”. The Court noted that unlike Florida, for most states, the two provisions do not conflict because their territorial waters do not extend beyond three nautical miles. However Florida's Constitution specifically extends Florida's Atlantic boundary to three miles from the coast or to the shoreward edge of the Gulf Stream, whichever is greater.

The Court distinguished the Submerged Lands Act from DOHSA, because unlike DOHSA, the SLA includes limiting language which states that “in no event shall the term boundaries . . . be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean.” Id. at 7. The Court found that it is up to Congress to curtail the reach of Florida law or limit rights granted by Federal law and found that Congress did not do this with DOHSA.

Thus, the case has been reversed and remanded for further proceedings. If you are interested in receiving a copy of this opinion or wish to reach me to discuss the case further, please feel free to write to me at blog@miamimaritimelaw.co. 

U.S. Crewmember Required to Arbitrate Claims Applying Norwegian Law

August 30, 2016

In Alberts v. Royal Caribbean Cruises, Ltd., No. 15-14775 (11th Cir. Aug. 23, 2016), the U.S. Court of Appeals for the Eleventh Circuit held that a U.S. citizen, working aboard a Royal Caribbean cruise ship is required to arbitrate his claims against Royal Caribbean.

Plaintiff, a United States citizen, worked as the lead trumpeter on a passenger Royal Caribbean cruise ship. The ship is a Bahamian flagged vessel with a home port in Fort Lauderdale, Florida. Royal Caribbean, the operator of the vessel, is a Liberian corporation with its principal place of business in Florida. After plaintiff became ill while working for Royal Caribbean, he filed suit alleging unseaworthiness, negligence, negligence under the Jones Act, maintenance and cure, and seaman’s wages and penalties.

Royal Caribbean moved to compel arbitration, and the district court granted the motion. This appeal presented an issue of first impression: Whether a seaman’s work in international waters on a cruise ship that calls on foreign ports constitutes “performance . . . abroad” under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. section 202. The Convention makes enforceable an arbitration agreement between United States citizens if their contractual relationship “envisages performance . . . abroad.”

The appellate court affirmed the order compelling arbitration of the dispute because it found that a seaman works abroad when traveling in international waters to or from a foreign state. What the appellate court's opinion failed to note was that the arbitration would be required to apply Norwegian law.

If you are interested in receiving a copy of the Eleventh Circuit's opinion or a copy of the employment contract at issue or just wish to contact me, you may do so by writing to me at blog@miamimaritimelaw.co.

South Florida Lawsuit Filed in El Faro Sinking

November 10, 2015

The first South Florida lawsuit against the owner of EL FARO, the cargo ship that sunk in Hurricane Joaquin last month, was filed on October 28, 2015 in Broward County Circuit Court. This latest lawsuit claims EL FARO's engine failure and loss of power on October 1st followed many years of lax maintenance. The lawsuit also claims EL FARO was not seaworthy in that the ship was undergoing "significant maintenance" just before it left port September 29th and had a history of losing power. 

The lawsuit was brought by the widow of Anthony Thomas who seeks damages for herself and for the couple's five children, ages 8 to 29. The lawsuit states the Fort Lauderdale court has jurisdiction because Tote Maritime's registered agent is in Plantation.

This lawsuit is the fourth complaint brought against ship owner Tote Maritime since the deaths of EL FARO's 33 crew members. This latest lawsuit comes just as the Jacksonville-based company seeks to prevent future lawsuits and limit the damages victims' families can collect by virtue of their filing of a limitation of liability lawsuit. 

In the limitation of liability lawsuit filed by the shipowner, Tote Maritime claimed it should not be required to pay more than about $15.2 million in total damages for losses related to the shipwreck found near Crooked Island in the Bahamas. The company claims its liability is limited under the limitation of liability act to a death claims fund of $420 per gross registered ton, or $13.2 million, with another $2 million for the freight aboard the ship. The company also asked U.S. District Judge Brian J. Davis to issue an injunction against the prosecution of future lawsuits.

The Broward County lawsuit was removed to federal court and has been assigned to U.S. District Judge William J. Zloch. However, because there are two similar lawsuits filed in Jacksonville, one in federal court and one in Duval Circuit Court and because wrongful death claims cannot proceed until the limitation court has resolved the limitation action, it is likely that Tote Maritime will move to consolidate all the actions in Jacksonville.

According to this latest complaint, the U.S. Coast Guard documented 23 deficiencies with EL FARO Faro since 2003. The 40-year-old ship also allegedly lost power and propulsion during a 2011 voyage due to faulty equipment.

If you are interested in receiving a copy of the latest lawsuit or in contacting me, you may do so by writing to me at blog@miamimaritimelaw.co.