This week bring us 3 new decisions which touch on the following issues in this order: punitive damages for unseaworthy vessels, time bars in salvage actions and penalty wages.
The first case is McBride v. Estis Well Service LLC, No. 13-30714 (5th Cir. Oct. 2, 2013). This case arose out of an accident aboard ESTIS RIG 23, a barge supporting a truck-mounted drilling rig. The principal issue was whether seamen could recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel. Like the doctrines of maintenance and cure, unseaworthiness was established as a general maritime law right before the passage of the Jones Act. Therefore, the Court reasoned that as punitive damages were available under the general maritime law and the Jones Act did not address unseaworthiness or limit its remedies, the court accordingly reversed and remanded, concluding that punitive damages remained available as a remedy for the general maritime law claim of unseaworthiness.
The second case is Williamson v. Recovery Ltd. P'ship, No. 11-3723/12-3949 (6th Cir. Oct. 2, 2013). The facts in this case are interesting. The Nineteenth-Century steamship S/S CENTRAL AMERICA sank in the Atlantic Ocean in 1857, taking down with her tons of gold. The wreckage was discovered more than 130 years later by explorers led by Thompson. Thompson is a fugitive from the law. Those who assisted Thompson in locating the wreck signed non-disclosure agreements in exchange for a percentage of the net recovery, but none had received payment. In defending the suit brought by these plaintiffs, Thompson's business entities asserted a two-year statute of limitations for actions in salvage and three counterclaims. The District Court rejected the time-bar argument and granted summary judgment against all counterclaims. While an interlocutory appeal was pending, the District Court granted prejudgment attachment and an injunction against one of the entities and Thompson, forbidding them from divesting certain assets. The Sixth Circuit agreed that the time bar does not apply, affirmed summary judgment against the counterclaims for failure to raise an issue of fact material to the disposition of the case and upheld the injunction.
The issue of interest in this case, despite the history, the parties involved and the legal procedural maneuvers, is the issue related to time bar. Thompson's business entities cited the 2-year statute of limitations in salvage (46 U.S.C. section 80701(c)) to suggest that the plaintiffs were time barred in their quest for remuneration. However, the Sixth Circuit found that as there was a contract between Thompson and the plaintiffs, this was not a pure salvage situation but rather, a contract salvage situation, to which the statute does not apply. This case is good reading for anyone wanting a good history read on the S/S CENTRAL AMERICA or a good summary on contract versus pure salvage.
The third case is closer to home--Wallace v. NCL (Bahamas) Ltd., No. 12-15204 (11th Cir. Oct. 1, 2013). Here, plaintiff seafarers who worked aboard cruise ships operated by NCL filed suit under the Seaman's Wage Act, 46 U.S.C. section 10313 et seq, claiming that NCL did not pay them their full wages because their compensation did not take into account the amounts they were required to pay their helpers to complete their work on embarkation days. The Eleventh Circuit concluded that the District Court made findings of fact which were supported by the record that there was no evidence of willful, arbitrary or other misconduct on the part of NCL in failing to pay wages. Accordingly, the Eleventh Circuit affirmed the judgment of the District Court.
If you are interested in receiving copies of any of these decisions or wish to reach me, you may do so by contacting me at mov@chaloslaw.com.
Maritime Law--Boat Captain Sentenced in Fatal Parasailing Accident
The Virgin Islands Daily News reports that a U.S. Virgin Islands boat captain charged with causing the death of a woman killed while parasailing has been sentenced to 6-months of house arrest. The captain was also order to serve 1-year of supervised release, pay $1.4 million in restitution (along with the parasailing company) to the victims and perform 150 community service hours with the U.S. Coast Guard.
Police report that the captain took Bernice Kraftcheck and her daughter on a parasailing tour in 2011 amid heavy winds. The tow line broke, causing the women to fall into the water. The women were still reportedly attached to the parasail, killing Kraftcheck and seriously injuring her daughter. The captain pleaded guilty to operating the boat in a negligent manner and the parasailing company pleaded no contest to misconduct or neglect of a ship owner.
A complete copy of the article can be found here => Virgin Islands Daily News.
The new U.S. Coast Guard Captain of the Port for the Seventh District also stated in comments at a recent Propeller Club event, sponsored by Chalos & Co, P.C. that he was concerned at the safety of parasailing activities. He advised that it was an issue that the U.S. Coast Guard is carefully watching.
If you are interested in reaching me, you may do so by contacting me at mov@chaloslaw.com.
Maritime Law-Crewmember Brawl Leads to $2.5 Million Verdict Against Celebrity
Recently, a jury delivered a $2.5 million verdict against Celebrity Cruise Lines for the injury to a crewmember resulting from a brawl aboard the CELEBRITY CENTURY while she was on a European cruise and the incident occurred while the ship was off the coast of Spain. According to a Daily Business Review report dated September 16, 2013, the jury took 2½ hours to determine the award of $1.75 million in compensatory damages, $350,625 for medical expenses and $395,400 for lost wages.
The plaintiff claimed a fellow crewmember, the linen keeper onboard, got upset and started abusing him verbally and physically when he asked for sheets and towels. News has reported that the plaintiff was a cabin steward and much of his pay came from tips and thus, sheets and towels were necessary for the performance of his job. The injured crewmember claimed that his fellow crewmember threw him onto a trolley, fracturing his right leg. Reportedly, there were never enough towels to go around the vessel, so the attendants fight to get them. The aggressor was reportedly 6-foot-6 and 280 pounds, against the 5-foot-4, 140 pound plaintiff. Plaintiff's counsel reportedly stated "It was like Shaquille O'Neal throwing a jockey down on the ground"
As a result of his injuries, the plaintiff alleged negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat. The causes of action arose under the Jones Act, Seaman's Wage Act and the General Maritime Law of the United States. The plaintiff had surgery the next day after the ship reached port, where plates and screws were reportedly implanted into his right leg. The plaintiff was then reportedly sent home to Goa, India, with no compensation as required by law.
Pretrial sanctions struck defense pleadings for an alleged discovery violation involving the scheduling of depositions. Thus, this trial was held on damages only. As a result, the defense has already announced it will pursue an appeal of this decision, as the pretrial sanction put the defendant at an unfair disadvantage.
If you are interested in reaching me, you may do so by writing to me at mov@chaloslaw.com.
New FMC Requirements for Foreign NVOCCs
The Federal Maritime Commission ("FMC") has issued a new rule advising that foreign-based NVOCCs may utilize Negotiated Rate Arrangements ("NRAs") in lieu of published rates in their tariffs. In order to take advantage of the NRAs, a foreign-based, registered NVOCC must comply with the new registration requirements by October 17, 2013. Most importantly, regardless of whether a foreign-based NVOCC plans to use NRAs, all foreign-based registered NVOCCs must renew their registration by October 17th.
To renew registration, foreign based registered NVOCCs must complete new Form FMC-65. FMC-65 requires the NVOCC to provide basic corporate information, designate an agent for service of process and includes a certification that the registrant will use a licensed ocean transportation intermediary ("OTI") for any OTI activities performed on its behalf in the United States. This is a new requirement under the law.
If you are interested in learning more about this ruling or would like assistance in submitting your registration to the FMC, please do not hesitate to contact me at mov@chaloslaw.com.