Articles by Dan Hoerner

Liability for Medical Malpractice

The Court of Appeals for the 11th Circuit (Alabama, Florida and Georgia) has opened the door to a potential flood of liability exposure for vessel operators for negligence of shipboard doctors and other medical personnel.

The 2014 case of Franza v. Royal Caribbean Cruises Ltd. arose out of the injury and death of Pasquale Vaglio, an 82-year-old cruise ship passenger who fell and struck his head while disembarking for a shore side excursion in Bermuda. Immediately after the accident, Vaglio was taken to the medical facilities aboard Royal Caribbean’s Explorer of the Seas for treatment. The ship’s nurse failed to properly assess Vaglio’s condition. When Vaglio was examined further by the ship’s doctor hours later, he was in need of critical emergency treatment for a brain injury.  He was airlifted to a New York hospital and died a week later. Vaglio’s family brought suit against Royal Caribbean, claiming that it was liable for the negligence of its medical personnel.

The suit was initially dismissed by the trial court, based on longstanding precedent that historically protected vessel operators from the negligence of shipboard medical staff. That general exception to a vessel operator’s liability was based on the rationale that the nature of a physician’s specialized skill and training made it unreasonably impractical to fall within the scope of management and/or oversight by the vessel owner/employer.  Other courts had held that vessel operators were incapable of controlling onboard medical personnel because the patient typically determined the nature and extent of the treatment. In breaking from the longstanding law on this issue, the 11th Circuit re-instated the case. Essential to its ruling was what the appellate court noted as a progression of modern technology over the past decades and the expansion of the employment of medical personnel in corporate settings, including the shipping industry. Such developments, in the 11th Circuit’s view, have made it easier for vessel management to oversee and control the medical personnel they employ.   Consequently, the Franza case holds that vessel owners and operators can now be held liable for the medical malpractice of physicians that serve aboard their vessels. Royal Caribbean said it may appeal the ruling.

This article first appeared in Work Boat magazine. It was also posted on March 1, 2015, at Work Boat’s website.

Fifth Circuit Roles Back Seaman’s Entitlement to Punitive Damages

3367543296_1470ef5247_zThis article originally appeared in WorkBoat Magazine.

The December 2013 Legal Talk column addressed the very significant ruling a three judge panel of the Fifth Circuit Court of Appeals in McBride v. Estis Well Service. That case signaled a major expansion in the law regarding semen’s entitlement to recover punitive damages under the general maritime law.  The availability of punitive damages had been extremely limited since the 1990 Supreme Court case of Miles v. Apex, which held that non-pecuniary damages, which would include punitive damages and similar non-economic type losses, were not recoverable by seamen, whose legal remedies are largely governed by the Jones Act.

Courts have chipped away at the scope of the Miles ruling since then, most notably by the Supreme Court itself in 2009 when the Townsend case recognized that a seaman could get punitive damages for his employer’s willful failure to pay maintenance and cure.  The McBride case took that holding a huge step further by allowing seamen to recover punitive damages for unseaworthiness claims arising under the general maritime law.

The McBride case, however, was recently reconsidered by the entire Fifth Circuit en banc, which reversed the previous ruling by the three judge panel.  Now, the rule in the Fifth Circuit is that Jones Act seamen have no cause of action for punitive damages for either negligence or unseaworthiness. The latest McBride ruling is in keeping with the general pronouncement of the Supreme Court’s Miles v. Apex case regarding the unavailability of non-pecuniary damages in Jones Act cases.

While this significant ruling reflects a trend followed by other federal appeals courts, this issue remains unsettled in some jurisdictions. The Supreme Court may once again have to take up the punitive damages issue to establish uniformity among all courts on this important aspect of maritime law.

Excellent image courtesy of Flickr user Andrew Magill.

Seaman Denied Recovery for Stress-Related Health Claim

Anyone who has ever worked in the marine industry knows that the physical requirements are demanding and the pressure to perform can be intense.  Regrettably, the nature of the business means that accidents, injuries and property damage are inevitable, no matter how well workers do their jobs.  Usually, the remedies available under the maritime law when such casualties occur are fairly well defined.  However, a recent case out of the U. S. 11th Circuit Court of Appeals confirmed that such remedies are not without limits.

The case of Skye v. Maersk Line involved a claim for money damages by the chief mate of the SEALAND PRIDE for heart disease and deteriorated health which he attributed to the excessive duties and prolonged work hours required of him by his employer.  Skye served on the SEALAND PRIDE for approximately eight years, during which he sometimes worked between 90 and 105 hours a week for 70 to 84 days at a time.  These demands of his job purportedly caused him fatigue, stress and lack of sleep, which resulted in hypertension and eventually disabling heart disease.

Skye sued Maersk Line for negligently imposing unreasonable working conditions that caused his failing health.  While a jury concluded that Skye could recover damages from Maersk Line under these circumstances, the Court of Appeals reversed the judgment and found that Skye was not entitled to any award at all.

In reaching this conclusion, the appeals court noted that not all work related injuries are compensable under the Jones Act, the federal statute that provides a seaman legal recourse against a negligent employer.  It explained that in order to prevail on such a claim, seamen’s injuries must be caused by the “negligent conduct of their employers that threatens them imminently with physical impact.”  The appeals court further determined that a seaman cannot recover for injuries caused only by work related stress because such stress is not a “physical peril.”  It acknowledged that Skye did, in fact, suffer physical harm; but the cause of that harm was not a recognized physical peril for which the employer could be held liable.  Consequently, the court found that Skye had no right of recovery against Maersk.

This important decision was rendered by a divided panel of judges on the 11th Circuit, which may signal further appeals of this claim or lead to more legal challenges in other cases where a maritime worker is injured on the job notwithstanding the absence of some perilous physical cause.

This article first appeared in Work Boat magazine.  It was also posted on September 1, 2014, at Work Boat’s website.

False Distress Call Results in Serious Criminal Penalties

In March 2012, an aircraft pilot falsely reported observing a fishing boat with four passengers in distress in Lake Erie.  In response to the distress call, the U. S. Coast Guard and the Canadian Armed Forces launched a massive search and rescue mission that lasted over 21 hours.  Substantial costs were incurred by both agencies totaling over a half a million dollars.  During a subsequent investigation, the pilot admitted to the Coast Guard that his report of a boat in distress was fabricated.

The pilot was indicted and later pled guilty to making a false distress call, a felony under 14 USC §88.  In addition to a three month prison term and three years supervised release, the pilot was ordered to pay restitution to the U. S. Coast Guard and the Canadian Armed Forces to the full extent of the expenses they incurred in the search and rescue mission.

Following the formal sentencing, the pilot appealed the assessment of “indirect costs,” such as general overhead that would have been incurred by the Coast Guard irrespective of its response to the false distress report.  He argued that such ordinary expenses were not “losses” contemplated by 14 USC §88(c).  He did not contest his liability for the cost directly attributed to his criminal actions, which included the actual expenses attributable solely to search and rescue efforts.

With little guidance from prior case law on this issue, the U. S. Court of Appeals for the 6th Circuit (based in Cincinnati, Ohio) in United States v. Kumar gave a strict interpretation of the statute and found that it was not limited only to “losses” sustained by the Coast Guard, but rather provided for the recovery of all costs incurred because of the criminal defendant’s actions.  For this reason, the Court of Appeals found that the judgment against the pilot which included the full extent of the costs spent by the Coast Guard, including its indirect overhead expenses, was appropriate.  The appellate court further upheld the judgment requiring the defendant to similarly repay the Canadian Armed Forces.  This aspect of the criminal penalty was not specifically provided for by statute, but was permissible within the trial court’s discretionary sentencing authority.

Note: This article first appeared in WorkBoat magazine, and on WorkBoat’s website.