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New Maritime Arbitration Case From Eleventh Circuit - Doe v. Princess Cruise Lines, Ltd.

New maritime arbitration case from the Eleventh Circuit Court of Appeals.  It arises from a sexual assault perpetrated by a cruise ship employee upon another employee.  The victim brought suit against the cruise line asserting various maritime employment causes of action (Jones Act, maintenance and cure, etc.)  The employer sought to compel arbitration of her complaint per her employment agreement.  The trial court denied the motion to compel arbitration.  This appeal followed.  The case is Doe v. Princess Cruise Lines, Ltd., 2011 U.S. App. LEXIS 19502 and it can be found here.

Never a good feeling for appellant when the court begins:

On its website, Princess Cruise Lines proclaims to the world, as one of its “core values,” that: “The safety and security of our passengers and employees is our most important responsibility.” The cruise line says that it recognizes crew members as its “greatest asset,” and shows its appreciation to them by making their “life onboard the best it can be.” It boasts of making “every effort possible to offer its crew members an enjoyable environment and a rewarding career.”

All of those statements are but empty words, and cynical ones at that, if the allegations in the complaint that is before us are to be believed. Those allegations tell a story of a woman, working for Princess Cruise Lines on one of its ships, who was drugged by other employees, raped and physically injured while she was unconscious, and when she reported to officials of the cruise line what had happened to her they treated her with indifference and even hostility, failed to provide her with proper medical treatment on board, and interfered with herattempts to obtain medical treatment and counseling ashore.

Ultimately, the court analyzed the complaint, count by count, and did compel arbitration of those counts that arose out of the employment context or those counts that the victim was only allowed to bring by virtue of her status as an employee.

New Jones Act Case From Eleventh Circuit - Lindo v. NCL (BAHAMAS), LTD.

New case from the Eleventh Circuit Court of Appeals regarding arbitration clause in a Jones Act employment contract.  The case is Lindo v. NCL (BAHAMAS), LTD., 2011 U.S. App. LEXIS 18001 and it can be found here (with a 24 page dissent, it is 92 pages, so PRINT CAUTION).

Facts:  a Nicaraguan citizen is employed by a Bermuda corporation with its principal place of business in Miami onboard a Bahamian flagged cruise ship.  [Note:  none of those facts are really determinative but you gotta love admiralty!].  The employee's employment was governed by a collective bargaining agreement and an employment contract.  The contract included an arbitration provision.  He brought suit in Florida state court with counts of Jones Act negligence, maintenance and cure and unseaworthiness.  NCL removed the case to federal court and moved to compel arbitration per the employment contract.  After removal, the plaintiff amended his complaint alleging a single count of Jones Act negligence. 

Analysis:  Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as codified in the Federal Arbitration Act, arbitration provisions requiring foreign arbitration are enforceable. The hiccup, however, is that in a foreign arbitration, the plaintiff may not have his Jones Act statutory claim. The court reviewed all the Jones Act - arbitration cases and spent the bulk of the decision analyzing the plaintiff's argument that "public policy" made the arbitration clause unenforceable.  The court found that argument improper at the where-do-we-litigate stage and proper only at the arbitration enforcement stage (either on a Petition to Vacate or in opposition to a Petition to Confirm).

The dissent found that an arbitration under foreign law would constitute a waiver of his statutory Jones Act rights which violates public policy.

Hat tip to:  Cruise Law News

 

 

New Jones Act Case from Fifth Circuit - Bonin v. Ryan Marine Services, Inc.

New Jones Act case from the Fifth Circuit Court of Appeals.  No major legal issues as the appeal was taken on factual/evidentiary grounds. 

Note to claimant's attorneys:  Fifth Circuit did not require expert testimony to establish the negligence of owner or Captain.  

The case is Bonin v. Ryan Marine Services, Inc., 2011 U.S. App. LEXIS 3227, and can be found here.

Supreme Court Rules on Causation Standard Applicable to Maritime Injuries

The Sky's the limit.  Or so says Chief Justice Roberts who, in dissent, thought that injured rairoad workers should have to show that their injuries were proximately caused by their employers.  The Supreme Court rejected that interpretation of the statute and held that proximate cause was not fairly read into the Federal Employer's Liability Act.  So, in Roberts words, the Court abandoned a causation standard that is bounded in reason, in favor of one that knows no bounds.

The Supreme Court just handed down a decision interpreting the causation standard in the Federal Employer's Liability Act, 45 U.S.C. 51, et seq. or FELA.  The case is CSX v. McBride, and the decision can be downloaded here.  In short, the Supreme Court found that FELA does not have a proximate cause standard for causation but rather the applicable standard is that a defendant is liable if, "a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury."

This case is important to maritime injury practitioners because the Jones Act incorporates the provisions of FELA.  Once again, "maritime" cases make for strange bedfellows with Justice Thomas providing the fifth vote, joining the Court's traditionally "liberal" justices.  Chief Justice Roberts, writing in dissent, thought that the decision was boundless in its impact.

Facts:  The injured employee was an engineer working for CSX.  He suffered a hand injury while working and permanently lost function of the hand.  He brought a FELA suit in federal court alleging that CSX was negligent in providing him unsafe working equipment and by failing to train him in operating the equipment.  CSX sought a jury instruction that required a proximate cause, which would require direct showing of negligence to injury.  The trial court refused and this appeal followed.

The Supreme Court, in a decision authored by Justice Ginsburg, noted that the railroad business is a hazardous one and FELA was enacted to shift the burden of the danger from the individual employees to the employers. In tort law, an injured party can only recover damages if the tortfeasor was the legal cause or proximate cause of the injury. This reflects the policy determination that only those injuries legally caused by another ought to be compensable.  CSX argued that by not using a proximate cause standard, employers faced heightened exposure.  In fact, in his dissent, Chief Justice Roberts called the causation standard upheld by the court to be a "boundless theory of liability."  Despite the fact that the courts of appeal had upheld jury instructions like the one in the instant case, Chief Justice Roberts chided such a notion of Supreme Court review:

The Court is correct that the federal courts of appeals have read Rogers to support the adoption of instructions like the one given here. But we do not resolve questions such as the one before us by a show of hands.

Chief Justice Roberts found that there is a strong policy consideration requiring inclusion of proximate cause in the FELA regime.  The chain of causation from negligent act to injury is to tenuous without an overlay of proximate or legal cause.  For:

It is useful to ask whether the injury that resulted was within the scope of the risk created by thedefendant’s negligent act; whether the injury was a natural or probable consequence of the negligence; whether there was a superseding or intervening cause; whether the negligence was anything more than an antecedent event without which the harm would not have occurred.

Then, the CJ gets a little punchy: 

Law has its limits. But no longer when it comes to the causal connection between negligence and a resulting injury covered by FELA. A new maxim has replaced the old: Caelum terminus est —the sky’s the limit.

New Maintenance & Cure Case from Fifth Circuit - Orlando Ramirez v. Amer Pollution Control Corp.

New maintenance and cure case from the Fifth Circuit Court of Appeals.  It is unpublished, and therefore of limited precedential value, but does show the effect of a non-disclosure of pre-existing physical condition on a claimant's later maintenance and cure claim.  In this case, the employer obtained summary judgment and the Plaintiff's claims dismissed because of the nondisclosure.

The case is Orlando Ramirez v. Amer Pollution Control Corp., 2011 U.S. App. LEXIS 5079 and can be found here.

New Jones Act Case from Fifth Circuit - Clark v. Kellogg Brown & Root

New maritime personal injury case from Fifth Circuit Court of Appeals.  It is unpublished and not precedential, but is a good primer on injury claims.  The case is Clark v. Kellogg Brown & Root, 2011 U.S. App. LEXIS 2354 and can be found here.

Facts:  A maritime worker was exposed to benzene while working on barges in the 1970's.  In 2006, he was diagnosed with acute myelegenous leukemia and filed suit against his employer for personal injury under the Jones Act as well as admiralty claims for maintenance and cure and unseaworthiness.  At trial, he prevailed only on the Jones Act claim.

Issues on appeal:  1) did the trial court use the correct causation standard; 2) did the trial court err in finding that benzene cause the worker's medical condition; and 3) did the trial court err in allowing certain expert witness testimony.

Analysis: 

As to the first point, the Fifth Circuit held: 

We have explained that the standard is one of “producing cause” rather than “proximate cause” and that the burden of proof is “featherweight.” Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60, 62 (5th Cir. 1982). Thus, two concepts come into play here – the type of causation that must be shown (producing) and the plaintiff’s burden to show that cause (featherweight).

The court noted that the burden of proof for Jones Act (which uses the burden of proof contained in the Federal Employers Liability Act) will be decided in a case bound for the U.S. Supreme Court, McBride v. CSX Transportation, Inc.  Nevertheless, it followed existing precedent which allowed for claimants to only prove that the exposure to benzene was a producing cause of the injury and not the proximate cause.  The trial court explicitly found that the plaintiff had only established that the benzene exposure was a producing cause and also explicitly found that benzene exposure was not a proximate cause of his injury.

As to the second and third points, the Fifth Circuit noted that the trial court believed the witnesses who testified that the claimant was exposed to benzene on the barges.  The court further noted that the competing experts' determination of benzene exposure levels, using extrapolation from the claimant's testimony, was allowable.

This decision could have turned out differently depending on what the Supreme Court does in the McBride case.  Stay tuned.