Maritime Law: Maritime Panel at St. Thomas University School of Law

April 09, 2014

Today, I had the pleasure of being part of a Maritime Panel at my alma mater, St. Thomas University School of Law. Joining me on the Panel were other St. Thomas alumni, Christine M. Dimitriou of Mase Lara Eversole and Kerry A. Nierenberg of Lipcon, Marguiles, Alsina and Winkleman.

Photo of Carnival Triumph

The topics discussed were Class Actions against cruise lines, the operational realities of a Costa Concordia tragedy occurring in the U.S., exclusions in marine insurance policies, unseaworthiness and the current status of punitive damages for unseaworthiness and other maritime claims. However the topic which garnered the most lively discussion was the current state of the law regarding ship owner liability for negligence of ships' doctors and medical staff. Under Mascolo v. Costa Crociere, S.p.A., 726 F. Supp. 1285 (S.D. Fla. 1989), a ship operator has no vicarious liability for negligence of a ship's doctor on the ground that it has no control over the physician/patient relationship where the passenger contract of carriage provides that a ship's doctor is not an agent of the carrier and services were to be rendered at the passenger's expense, a passenger carrier is not vicariously liable for the negligence of its ship's doctor or his staff in treating a passenger. Barbetta v. S.S. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988)  dictum states that a carrier may have no vicarious liability for the negligence of a ship's doctor irrespective whether the doctor is an employee of the carrier or an independent carrier. Fairley v. Royal Cruise Line, Ltd., 1993 AMC 1633 (S.D. Fla. 1993), expressed criticism of the Barbetta rule and denied summary judgment sought by a carrier. 

There has been a tortured progeny post-Barbetta, some courts following Fairley and others following Barbetta, ultimately creating a majority rule in the Southern District of Florida of no vicarious liability for the negligence of an independent ship's doctor. Plaintiff attorneys then attacked this line of cases by alleging passenger reliance on statements that the doctor was held out as an officer and member of the crew of the ship on the grounds of apparent agency. Thus far, this has been rejected on the grounds that it is unreasonable as a matter of law for a passenger to conclude that a ship's medical staff were apparent agents of the carrier. 

This is an anomaly where the law relative to negligent treatment of an employee is established by other precedent: in the context of negligent treatment of a seaman, the employer of the doctor and seaman are vicariously liable for the doctor's negligence. See De Zon v. American President Lines, Ltd., 180 U.S. 660 (1943). The panel discussed that the entry into force of the Maritime Labor Convention may ultimately resurrect this anomaly. As the ship owner is required under the MLC to provide treatment to a seaman on board ship similar to what that seaman can receive on land, we queried why paying passengers are not entitled to that same medical treatment? Something to think about...

If you are interested in contacting me, please feel free to write me at mov@chaloslaw.com.

Maritime Law--2 Big Decisions from the Florida Supreme Court

March 14, 2014

This week is an active one for the Florida Supreme Court.

The first case up for discussion is State Farm Mut. Auto. Ins. Co. v. Curran, SC12-157 (Fla. Mar. 13, 2014).

After the Plaintiff was rear-ended by an underinsured motorist (UM), Plaintiff requested her $100,000 UM policy limits from State Farm. Plaintiff indicated that her damages were estimated to be $3.5 million because she suffered from reflex sympathetic dystrophy syndrome. State Farm responded that Plaintiff must schedule a compulsory medical examination (CME) pursuant to the terms of the policy. Plaintiff refused to attend a CME and instead filed suit against State Farm. The trial court entered judgment against State Farm for the UM policy limits. The court of appeal affirmed, holding (1) Plaintiff breached the contract when she failed to attend the CME; but (2) State Farm must plead and prove prejudice to avoid liability based on noncompliance with the CME clause, and State Farm failed to meet its burden in this case. The Supreme Court approved of the court of appeal’s decision, holding (1) the forfeiture of benefits under a UM policy will not automatically result upon an insured’s breach of a CME provision unless the insurer pleads and proves actual prejudice as an element of its affirmative defense; and (2) the undisputed facts demonstrate that State Farm was not prejudiced in this case. 

This case, because it involves a car accident case, would not appear to affect those of us that handle marine insurance matters. However, absent controlling federal  maritime law or a determination that the interests of national uniformity require that a rule of federal maritime law be fashioned, the interpretation of a contract of marine insurance will abide state law. Therefore, the argument to be made is that the insurer will be required to prove actual prejudice in the event the insured breaches the insurance contract when it fails to undertake an action post-loss.

The second case up for discussion is Estate of McCall v. United States, SC11-1148  (Fla. Mar. 13, 2014). Here, Michelle McCall received prenatal medical care at a United States Air Force clinic as an Air Force dependent. McCall died after delivering her son as a result of severe blood loss. Petitioners filed an action against the United States under the Federal Tort Claims Act (FTCA). The federal district court found the United States liable under the FTCA. The court concluded that Petitioners’ economic damages amounted to $980,462 and Petitioners’ noneconomic damages totaled $2 million. However, the district court limited Petitioners’ recovery of wrongful death noneconomic damages to $1 million after applying Fla. Stat. section 766.118, Florida’s statutory cap on wrongful deathnoneconomic damages based on medical malpractice claims. The district court subsequently denied Petitioners’ motion challenging the constitutionality of the wrongful death statutory cap. The Eleventh Circuit Court of Appeals affirmed the application of the statutory cap on noneconomic damages and held that the statute was not unconstitutional. The Florida Supreme Court accepted certification to answer questions of Florida law and answered by holding the statutory cap on wrongful death noneconomic damages provided in Fla. Stat. section 766.118 violates the Equal Protection Clause of the Florida Constitution.

Again, this appears to be one of those cases that would not apply in a maritime context. However, in cases where a federal maritime law statute would not be applicable, arguably state law applies to any liability. The law of Florida now is that statutory caps on wrongful death noneconomic damages violates the Equal Protection Clause of the Florida Constitution.

If you are interested in receiving copies of the decisions cited above or otherwise wish to reach me, you may do so by writing to me at mov@chaloslaw.com.

Maritime Law--Punitive Damages for Unseaworthiness Being Reviewed Again

February 27, 2014

On October 9, I blogged on the case of McBride v. Estis Well Service, No. 12-30714 (5th Cir. Oct. 2, 2013),  where a panel of the U.S. Court of Appeals for the Fifth Circuit ruled that seamen may recover punitive damages for their employer's willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.  The court found that previous decisions, to the extent that they denied recovery of punitive damages for maritime liability sounding in unseaworthiness, read too much into prior Supreme Court and appellate court rulings on related, but different, issues. You can find my discussion on that case here=> McBride Discussion.

At that time I noted that this was a potentially a major decision, likely to be appealed and certainly to generate discussion. Now, a majority of the circuit judges have voted in favor of granting the defendant's petition for rehearing en banc. You can find the en banc order here=> McBride v. Estis Well Service, No. 12-30714 (5th Cir., February 24, 2014). 

Watch this space, as the question on whether punitive damages for unseaworthiness are recoverable is not yet clearly answered. 

If you are interested in contacting me, you may reach me atmov@chaloslaw.com.

Maritime Law-Lone Claimant in Limitation Action Can Proceed to State Court

February 04, 2014

In Offshore of Palm Beaches, Inc. v. Lynch, No. 13-11092 (11th Cir. Feb. 3, 2014), Offshore appealed the district court's order permitting a lone claimant to pursue personal injury claims in state court after Offshore had invoked the Limitation of Liability Act (Limitation Act), 46 U.S.C. sec. 30501. The court concluded that the district court did not abuse its considerable discretion in determining that the claimant could proceed first in state court with her tort claim before the district court adjudicated the boat owner's efforts to limit its liability to the value of the vessel. Accordingly, the court affirmed the judgment of the district court.

While the holding of the case is not of itself earth-shattering, the case provides an excellent summary of appellate jurisdiction over admiralty matters involving injunctions. If you or your client are considering whether an admiralty matter is appealable, this decision may be of importance to you.

If you are interested in receiving a copy of this decision, please feel free to contact me at mov@chaloslaw.com.