Admiralty Committee of the Federal Bar Association Of the Western District of Washington

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1 CURRENT ISSUES IN MARITIME LAW Amiralty Committee of e Feeral Bar Association Of e Western District of Washington October 2, 2012 Prepare an Presente by: Charles M. Davis Law Office of Charles M. Davis 4767 Wharf Street Bow WA Charles M. Davis

2 CURRENT ISSUES IN MARITIME LAW Amiralty Committee of e Feeral Bar Association Of e Western District of Washington October 2, PERSONAL INJURIES & DEATH Maintenance & Cure Issues Date of Disability: Asymptomatic Illness Diagnose after Discharge from Ship Maximum Cure: Palliative Treatment Amount of Maintenance Right to restitution of payment of maintenance, cure an unearne wages subject to efense Refusing to Pay Maintenance an Cure Pening an IME Heal Insurance Benefits: Collateral Benefits in Cure Claims Defense to Maintenance & Cure: Treatment Resulte from Illegal Drug Use Punitive Damages for Intentional an Wilful Failure to Pay Unearne Wages Abanonment of Prescribe Treatment Cure: Meical Bills Written Down Due to Auiting of Proviers Charges Preemptive Declaratory Jugment Actions to Foreclose Seamen from Choosing Venue an Jury Trial Seaman Status More or Less Permanent Connection wi e Vessel in Terms of Bo e Duration an Nature Seaman require to work on oer vessels Jones Act Issues Jones Action Proximate Cause Jones Act: Duty to Inspect Thir Party Premises Punitive Damages in Jones Act Actions Comparative fault for following orers Unseaworiness Issues Isolate Acts of Operational Negligence are not Unseawory Conitions Punitive Damages in Unseaworiness Actions Wrongful Dea Damages: Loss of Prospective Inheritance Loss of Consortium Dea & Injury to Seamen An/or on High Seas Loss of Consortium: Dea or Injury to Seamen, A New Split of Auority Recovery for Loss of Consortium: Injury Outsie of Territorial Waters Negligent Infliction of Emotional Distress Zone of Danger, But Not Aware of Exposure Physical Injury Test in Employment Stress Emotional istress: Post-Traumatic Stress Synrome PRODUCTS LIABILITY: REPLACEMENT OF 402A STRICT LIABILITY WITH RESTATEMENT (THIRD) OF TORTS FOREIGN ARBITRATION & FOREIGN CHOICE OF LAW CLAUSES IN SEAMEN S EMPLOYMENT AGREEMENTS PREEMPTION/SUPERSESSION OF STATE STATUTES IN MARITIME MATTERS Supersession of State Workers Compensation Statute Exclusive Remeies by Feeral Maritime Law CURRENT ISSUES IN MARITIME LAW Page i

3 4.1.2 Preemption/Supersession of State Laws to Abatement Maritime Nuisances CRUISE SHIP LAW DEVELOPMENTS Enforceability of Arbitration Clauses in Passenger Contracts Enforcement of Foreign Choice of Forum Clauses Duty of Carriers to Establish an Enforce Meical Stanars an Proceures for Ship s Meical Staff: Effect of Use of ACEP Guielines Liability of Carriers for Assaults by Oer Passengers Liability of Carriers for Putting Passengers in Dangerous Situations Vicarious Liability of Carriers for Negligence of Inepenent Operators of Shoresie Excursions Notice an Knowlege of Travel Agents Impute to Passengers Notice of Limitations of Carrier s Liability Poste on Website Suit File in Wrong Forum: Auority of Court to Conition Dismissal on Waiver of Time Bar Equitable Tolling Where Suit File in Wrong Forum Notice of Injury: Treatment by Shipboar Physician/Hospital Choice of Forum Clauses an Discovery Enforceability of Exculpatory Clauses for Inherently Dangerous Recreational Activity on Boar Passenger Vessels Punitive Damages in Passenger Actions PUNITIVE DAMAGES ISSUES GENERALLY Bases for Awaring Punitive Damages Wanton an Willful Misconuct as a Basis for Punitive Damages Gross Negligence as Basis for Awaring Punitive Damages Ratio of Punitive Damages to Compensatory Damages WAGE & HOUR STATUTES: OVERTIME FOR SEAMEN WORKING MORE THAN 40 HOURS PER WORKWEEK LIMITATION OF LIABILITY MARINE INSURANCE ISSUES Coverage for Punitive Damages Uberrimae Fiei Recent Denial of Coverage Decisions Materiality of Non-isclosure as a Matter of Law Fortuity Voiing Policy uner Frau an Concealment Clause Due to Frau or Misrepresentation by Insure after Claim Arose Feeral Maritime Rule of Preominant Efficient Cause Applies to Marine Insurance Causes, Raer an State Law Apportionment of Subrogation Recoveries to Deuctible an Uninsure Losses Duties of Insurance Agents an Brokers Justifiable Reliance on Negligent Misrepresentation by Agent of Insurer YACHT & BOATOWNERS INSURANCE EXCLUSIONS FROM COVERAGE: WHAT IS COVERED UNDER SOME POLICIES? Case Law Examples Applying Exclusions from Coverage CURRENT ISSUES IN MARITIME LAW Page ii

4 Contractual Abrogation of Preominant Efficient Cause Rule: Arising out Of Exclusions Due Diligence of Insure Construe Against Coverage Damage Cause or Contribute to by Wear an Tear Damage Cause or Contribute to by Inaequate Maintenance of e Vessel, Irrespective of Due Diligence of e Insure Damage Cause or Contribute to by Graual Deterioration Damage Cause or Contribute to by Corrosion Damage Cause or Contribute to by Manufacturer s Defect Damage Cause or Contribute to by Mechanical Breakown Damage Cause or Contribute to by Illegal Activity or Criminal Actions Damage Cause or Contribute to by Marine Life or Vermin Damage Cause or Contribute to by Failure to Use Reasonable Care or Due Diligence in e Operation of Vessel Warranty to Exercise Due Diligence to Maintain Vessel in a Seawory Conition Warranties of Seaworiness At All Times No Coverage for Damage Resulting from Negligence of Repairers Construction of Policy: Consier e Purpose of Marine Insurance CURRENT ISSUES IN MARITIME LAW Page iii

5 1. PERSONAL INJURIES & DEATH 1.1 Maintenance & Cure Issues Date of Disability: Asymptomatic Illness Diagnose after Discharge from Ship. n Messier v. Bouchar Transp., 688 F.3 78 (2 Cir. 2012), aresse what e court etermine as a matter of first impression by a court of appeals e issue of ate of occurrence or manifestation of an asymptomatic illness uring a seaman s employment, but which clearly arose uring e seaman s service. Messier examine e requirement at e isabling conition became manifest while e claimant was in e service of e vessel in e context of e claim for maintenance an cure of a seaman who was iagnose wi lymphoma two mons after his service on e vessel, as a result of routine bloo work at was one two ays after his service. The trial court grante summary jugment ismissing e seaman s claim for maintenance an cure, ruling at a isability was manifest while a seaman was in e service of e vessel only if ere were some symptoms uring at perio. The Secon Circuit rejecte is rule an reverse Messier, holing at if e illness at became isabling occurre uring e seaman s service to e vessel, he is entitle to maintenance an cure regarless of when he began to show symptoms. Messier also repeate e rules at alough e remeies of maintenance, cure an unearne wages are available only if e illness or injury occurs while e claimant seaman was in e service of e vessel, it is not restricte to ose cases where e seaman s employment is e cause of e injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 1938 AMC 341, 343 (1938). The remeies are available even if e seaman is off uty, so long as e seaman is in e service of e vessel, Farrell v. Unite States, 336 U.S. 511, 1949 AMC 613 (1949) e illness or injury may be a preexisting meical conition at recurs or becomes aggravate uring e seaman s service Maximum Cure: Palliative Treatment. The holing of Haney v. Miller's Launch, Inc., 2010 U.S. Dist. Lexis (S.D. N.Y. 2010), at [t]he cost of palliative meical attention to reuce pain, even after physical injuries have been correcte to e extent practicable, shoul be inclue in treatment an cure of injure seamen, has not been followe by oer courts. Oer courts have not aopte e Haney extension of cure: Alario v. Offshore Serv. Vessels, L.L.C., 2012 U.S. App. Lexis 9715 (5 Cir. 2012), confirme e rule at maximum cure is reache where furer treatment woul improve e seaman s physical conition or o anying but relieve pain an suffering: Palliative treatment alone is insufficient to emonstrate an entitlement to continue maintenance an cure. Leet v. Smi Marine Towing Corp., 2011 U.S. Dist. Lexis (E.D. La. 2011), hel at even management of relatively-severe pain is palliative treatment, an hel at maximum meical cure ha been reache alough it was a possibility at e seaman woul unergo surgery for implantation of am internal pain meication pump, as e insertion of a pain pump woul not improve e plaintiff s physical conition Amount of Maintenance. Martin v. Abon Callais Offshore, LLC, 2011 U.S. Dist. Lexis (E.D. La. 2011), iscusse awars of maintenance at per iem rates, allowing for inflation, in etermining at an awar of $41.40 per ay was appropriate, base on testimony by e seaman claimant at he pays $ a mon for rent; $ per mon for electricity; $37.73 for natural gas; $21.58 for water; an $ for foo, which amounts to e total of $1, per mon. Borers v. Abon Callais Offshore, LLC., 2011 U.S. Dist. Lexis (E.D. La. 2011), aware $40 per ay, holing at e claimant s own testimony as to his costs of rent, utilities an foo met e feaer light buren of proof. Borers hel at e employer was arbitrary an capricious in paying only $15 per ay at ate to e 1980s, an aware e claimant reasonable attorneys fees. Washington v. Omega Protein Inc., U.S. Dist. Lexis (W.D. La. 2012), also applie a feaerlight buren to a seaman, in awaring maintenance at a aily rate of $ Naylor v. Atlantic Souning Co., 2011 U.S. Dist. Lexis (E.D. La. 2011), acknowlege at what it consiere to CURRENT ISSUES IN MARITIME LAW Page 1

6 be e prevailing rate of maintenance in is istrict of $39.46 per ay. Lopez v. Calumet River Fleeting, Inc., 2012 U.S. Dist. Lexis 66371(N.D. Il orere payment of maintenance at e rate of $29.20 per ay base on preliminary proof of e seaman s actual expenses of foo an loging ashore, iviing mortgage an utility expenses equally between e seaman an e person whose home he share, wi an obligation to pay half of ose bills Right to restitution of payment of maintenance, cure an unearne wages subject to efense. The obligations of employers to resolve all reasonable oubts in favor of entitlement to maintenance an cure an to make prompt payment may result in employers paying maintenance, cure an unearne wages at subsequently are etermine to be subject to a efense. Courts at have aresse e issue ismiss counterclaims for restitution base on e Unite States Supreme Court's unwillingness to impose e buren of restitution upon employees. See, e.g., Kirk v. Allegheny Towing Inc., 620 F.Supp. 458 (W.D. Pa. 1985) (enying a counterclaim against a non-seaman to recover maintenance an cure benefits); Harison v. Abon Callais Offshore, LLC, 2012 U.S. Dist. Lexis (E.D. La. 2012). Se also D. Robertson & M. Sturley, Is an Employer Who Pays Uneserve Maintenance or Cure Entitle to Restitution?, 35 TUL. MAR. L. J. 493, 558 (2011). Harison iscusses oer cases at cite to unue harship to seamen if restitution is allowe. In Vitcovich v. Ocean Rover, 1997 U.S. App. Lexis 724 (9 Cir. 1997), e Nin Circuit allowe restitution of maintenance an cure benefits to an employer who successfully establishe e McCorpen efense, but i not iscuss e unerlying policy issue Refusing to Pay Maintenance an Cure Pening an IME. Mai v. American Seafoos Co., LLC, 160 Wn. App. 528; 249 P (Wa. App. 2011), affirme e awar of compensatory amages an reasonable attorney fees for willful, persistent, an unreasonable failure to pay maintenance an cure, an, in what appears to be an issue of first impression, hel at an employer cannot refuse to pay cure for treatment recommene by e treating physician pening an inepenent meical examination ( IME ) Heal Insurance Benefits: Collateral Benefits in Cure Claims. Crowley Marine Servs. v. Thinnes, 2011 U.S. Dist. Lexis 45945(D. Or. 2011), iscusse but i not ecie on a motion for summary jugment wheer heal insurance benefits receive by e claimant were collateral benefits where e recor i not establish wheer e premiums for e employer-sponsore heal insurance plan were borne by e employer or e claimant. The Thinnes court quote as e majority rule AM. JUR. 2 Shipping 331: When an injure seaman receives from a ir party payment for meical expenses he or she has incurre, an ese payments are provie pursuant to an insurance policy purchase solely by e seaman, e maintenance an cure is furnishe at e expense of e seaman, an e shipowner shoul not be entitle to any offset for amounts pai uner such a policy Defense to Maintenance & Cure: Treatment Resulte from Illegal Drug Use. Coleman v. Omega Protein, Inc., No (E.D. La. 2011), hel at cocain use 24 to 48 hours prior to e plaintiff falling ue to izziness cause by e use constitute willful misconuct at was a efense to his claim for maintenance an cure Punitive Damages for Intentional an Wilful Failure to Pay Unearne Wages. Lanphre v. Evich, Cause No SEA (King Co. Sup. Ct., Wa. 2011), aware punitive amages sufficient to eter, to punish to compensate an to eucate in e sum of $100,000 for willful failure of an employer to pay $2,180 in unearne wages Abanonment of Prescribe Treatment. Atlantic Souning Co. v. Vickers, 2011 U.S. Dist. Lexis (S.D. Ms. 2011), hel at abanoning prescribe treatment by failing to CURRENT ISSUES IN MARITIME LAW Page 2

7 complete prescribe physical erapy amounte to willful misconuct, barring entitlement to aitional maintenance an cure Cure: Meical Bills Written Down Due to Auiting of Proviers Charges. Manerson v. Chet Morrison Contractors, Inc., 666 F.3 373, 2012 AMC 573 (5 Cir. 2012), hel at because an injure seaman may recover maintenance an cure only for ose expenses actually incurre, e.g., e amount actually neee to satisfy e seaman's meical charges, if e actual charges are satisfie by payment at a written-own rate e actual amount pai e efines e employer s obligation to pay cure Preemptive Declaratory Jugment Actions to Foreclose Seamen from Choosing Venue an Jury Trial. A number of recent cases have ismisse or staye eclaratory jugment actions file in amiralty to etermine ship operators obligations to pay maintenance an cure, where seamen ha file or were about to file Jones Act/unseaworiness/maintenance an cure actions in state court or in feeral court at law. Hornbeck Offshore Transp., LLC v. Perez, 2010 U.S. Dist. Lexis (N.D. Oh. 2010), which consiere five factors: 1. wheer e eclaratory jugment action woul settle e entire controversy; 2. wheer e eclaratory jugment action woul serve a useful purpose; 3. wheer allowing e eclaratory remey is being use merely for e purpose of proceural fencing or to provie an arena for a race for res juicata; 4. wheer allowing e action woul cause friction between state an feeral courts; an 5. wheer ere is an alternative remey at is better or more effective. Ingram Barge Co. v. Camp, 2012 U.S. Dist. Lexis (S.D. Oh. 2012), quotes wi approval Belle Pass Towing Corp. v. Cheramie, 763 F. Supp. 1348, 1355 (E.D. La. 1991) ( absent ba fai on e part of e efenant-employee in e feeral court, a properly file Jones Act suit requires ismissal of a eclaratory jugment action which arises out of e same set of facts. ) Globalsantafe Drilling Company v. Quinn, 2012 U.S. Dist. Lexis (E.D. La. 2012), ismisse what e court foun to be a preemptive eclaratory jugment action in a maritime personal injury case. Westar Marine Services, Inc. v. Bayly, 2010 U.S. Dist. Lexis (N.D. Ca. 2010), eferre to a state court action commence by e seaman a ay after e employer file its eclaratory jugment action, etermining at e two actions were essentially simultaneous. Mike Hooks, Inc. v. Eskrige, 2011 U.S. Dist. Lexis (W.D. La. 2009), staye an employer s eclaratory jugment action in preference to trying a seaman s claims in a case file a mon later, in a ifferent ivision of e istrict court, holing at a seaman s choice of forum is highly esteeme. Weeks Marine, Inc. v. Stokes, Cause No (S.D. Ms. 2012), examine e first-to-file rule in e context of a motion to transfer a eclaratory jugment action to anoer feeral istrict, uner e circumstances of a seaman having file suit emaning a jury trial after commencement of a eclaratory jugment action in e istrict where e injury occurre, where most e of e witnesses coul be foun an woul be subject to subpoena. Stokes hel at e first-tofile-rule shoul yiel to e convenience of parties an witnesses, an e interests of justice. The factors Stokes enumerate for consieration of transfer were state as: The private interest factors are: (1) e relative ease of access to e sources of proof; (2) e availability of compulsory process to secure e attenance of witnesses; (3) e cost of attenance for willing witnesses; an (4) all oer practical problems at make trial of a case easy, expeitious an inexpensive. The public interest factors are (1) e aministrative ifficulties flowing from court congestion; (2) e local interest in having localize interests ecie at home; (3) e familiarity of e forum wi e law at will govern e case; an (4) e avoiance of unnecessary problems of conflict of laws or in e application of foreign law. While ese factors are appropriate for most transfer cases, ey are not necessarily exhaustive or exclusive, an none of em possesses ispositive weight. CURRENT ISSUES IN MARITIME LAW Page 3

8 Internal quotations an citations omitte. Smi v. Weeks Marine, Inc., Cause No. 2012cv00380 (E.D. La. 2012), involve a race-to-e-courouse eclaratory jugment action file by e shipowner less an one mon after e injury, an a motion to transfer a subsequently-file action file in Louisiana feeral to e feeral eclaratory jugment action it file in Mississippi. The Louisiana court state: Weeks is correct in its assertion at e case has little to o wi Louisiana. But likewise it has noing to o wi Mississippi. But e Court is loa to upset e forum choice of a Jones Act seaman simply because e efenant believes at its chosen forum woul be more convenient for e plaintiff. Brown Water Marine Serv. v. Alvarao, 2012 U.S. Dist. Lexis (S.D. Tx. 2012), allowe maintenance an cure claims file in state court to procee, espite e filing of bo a eclaratory jugment action an a limitation of liability action (subsequently consoliate). Offshore Liftboats, L.L.C. v. Boen, 2012 U.S. Dist. Lexis (E.D. La. 2012), hel at penency of a Jones Act/unseaworiness action is not etermining, where e claimant has certifie at he intens to file a Jones Act action an eman a jury: e heart of e matter being wheer e plaintiff s chosen forum be one where all of e matters in controversy may be fully consiere Seaman Status More or Less Permanent Connection wi e Vessel in Terms of Bo e Duration an Nature. The court in Kahue v. Pacific Environmental Corp., 2012 U.S. Dist. Lexis (D. Hi. 2012), confirme its earlier fining at a crewmember of an oil spill response vessel was in e service of his ship entitling e crewmember to Jones Act uties while he was on shore preparing equipment for response work, equating service of e ship to course of employment in maintenance an cure claims: To be in e service of e ship, a seaman nee be generally answerable to e call of uty, or in oer wors, in e course of employment.... Braen v. Pfeifer Oil Transp. Co.,... (holing at e meaning of e term course of employment uner e Jones Act is e equivalent of e service of e ship formula use in maintenance an cure cases). In general, a seaman is acting in e course of his employment when he is oing e work of his employer pursuant to his employer's orers. Park v. Alakanuk Native Corp., [1995 AMC 377 (D. Ak. 1994)] (citing Braen, 361 U.S. at 133); Baker v. Ocean Sys., Inc., 454 F.2 379, 384 [1972 AMC 287] (5 Cir. 1972) ( it is clear as a matter of law at e seaman's answerability to e call to uty imports at e very least some bining obligations on e part of e seaman to serve. ) Dize v. Association of Marylan Pilots, (M. Sp. App. 05/31/2012), affirme a ismissal for want of jurisiction of a Jones Act claim on e grouns at e claimant was not a seaman uner circumstances of e Assistant Station Manager of a pilot station. Dize i operate e pilot boats, but ha a number of shoresie uties, plus i maintenance on e pilot boats. His work aboar e vessels while ey were in navigation at most was about 12.8% of his total work time, less an 20% if e time he spent working on e boats uring re-fitting. employe for more an 14 years as a pilot. In a case at involve e opposite of usual situation of a seaman performing uties while vessel in port. Rivera v. Arctic Ocean Shipping, 2012 U.S. Dist. Lexis 40287(E.D. N.Y. 2012), involve a injury at seat to a mechanic who normally repaire vessels in port. The court hel at e claimant s job escription i not change when, because e repairs were not complete in port, he went to sea on e vessel, wi his only uties to complete e repairs while en route, an en to return to his shorebase uties. In Bayham v. Gross Tete Well Service, Inc.,2012 U.S. Dist. Lexis (E.D. La. 2012), e claimant was injure his secon ay on e job. The court hel at e leng of time after assignment prior to injury is irrelevant. Naquin v. Elevating Boats, L.L.C., 2012 U.S. Dist. Lexis 211 (E.D. La. 2012); an Smi v. Kanawha River Terminals LLC, 2011 U.S. Dist. Lexis (D. W. Va. 2011), hel at e rule of CURRENT ISSUES IN MARITIME LAW Page 4

9 Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 1997 AMC 1817 (1997), oes not literally require at workers go to sea on e vessels to which ey are assigne: in e case of workers who performe seamen s uties on vessels at were in navigation alough moore, ey coul be seamen. Smi eeme it is sufficient if by being expose to e elements, ajusting e lines on customer barges, operating a Bobcat on customer barges, an generally tening to e operations of e transloaer barge, he was regularly expose to e perils of e sea. Leblanc v. AEP Elmwoo, LLC, 2012 U.S. Dist. Lexis (E.D. La. 2012), interprete Papai as imposing a much higher stanar of exposure to perils of e sea an at e employee s uties take him to sea. LeBlanc recognize at ere are many perils face by longshore workers in e performance of eir uties but unique perils an isavantages are face by seamen who actually go to sea, an at an employee who was not a member of e crew of any vessel, woul never sail wi e barge once his washing uties were complete, an i not sleep or take his meals upon any barge, as members of a vessel's crew typically woul was not a seaman. Clark v. American Marine & Salvage LLC, 2012 U.S. Dist. Lexis (S.D. Al. 2012), also iscusse at a iver who spent a substantial portion of his employment time on work at i not take him to sea i not qualify as a seaman Seaman require to work on oer vessels. Keller Founation v. Tracy, No (9 Cir. 2012), hel at a barge foreman who assiste in loaing oer barges operate by his employer in a perio of several weeks prior to e vessel to which he was assigne saile from its home port was a seaman of his barge, irrespective of his work on oer vessels. 1.3 Jones Act Issues Jones Action Proximate Cause. CSX Transp., Inc. v. McBrie, 131 S. Ct. 2630, 2642, 2011 AMC 1521 (2011), affirme e rule of Rogers v. Missouri Pacific R. Co., 352 U.S. 500,1957 AMC 652 (1957), at a fining at employer negligence playe any part, even e slightest, in proucing e injury or ea for which amages are sought is sufficient for employer liability uner e Feeral Employers Liability Act an e Jones Act. The same buren of proving causation (e fault playe any part, even e slightest, in proucing e injury) has been applie to comparative fault of seamen. See Barclay v. Cameron Charter Boats, Inc., 2011 U.S. Dist. Lexis (W.D. La. 2011), which cites to Norfolk Souern Railway Co. v. Sorrell, 549 U.S. 158, 2007 AMC 192 (2007), an Johnson v. Cenac Towing Inc., 544 F.3 296, 2009 AMC 2749 (5 Cir. 2008) Jones Act: Duty to Inspect Thir Party Premises. Parker v. Soexco Remote Sites Partnership, 2010 U.S. Dist. Lexis (E.D. La. 2010), applie a rule at a Jones Act employer has a uty to inspect ir-party premises to which its seamen will be assigne: The Jones Act employer's uty to provie its employee wi a safe place to work inclues a uty to inspect ir-party property for hazars as well as a uty to protect e employee from possible efects in e ir-party property.... To put it anoer way an employer has e uty to inspect ir-party ships to which it sens its employees to work upon.... [i]f by a reasonable inspection e employer coul have iscovere e unsafe conition, en e employer will be charge wi notice of at conition. The employer may protect itself by simply refusing to permit its employees from going on e property. Internal citations omitte. Alexaner v. Global Fabrication, LLC., 2011 U.S. Dist. Lexis (E.D. La. 2011), enie an employer s motion for summary jugment on e grouns as to issues of fact wheer its inspection of a ir party-provie vessel was aequate to verify at it was a reasonably safe place to work. CURRENT ISSUES IN MARITIME LAW Page 5

10 1.3.3 Punitive Damages in Jones Act Actions. Two ecisions involving e same employer have reache opposite conclusions wheer e FELA prohibition of recovery of non-pecuniary amages applies to Jones Act actions. Wagner v. Kona Blue Water Farms, 2010 AMC 2455 (D. Hi. 2010), aresse criticism of e pecuniary versus nonpecuniary istinction in e context of awaring punitive amages, holing at Miles v. Apex Marine, 498 U.S. 19, 1991 AMC 1 (1990), recognize e istinction, an at, alough e majority opinion in Atlantic Souning Co. v. Townsen expressly ecline to state an opinion on wheer e Jones Act, by incorporating e provisions of [FELA], prohibits e recovery of punitive amages in actions uner at statute, e court eeme Kopczynski v. The Jacqueline, 742 F.2 555, 1985 AMC 769 (9 Cir. 1984), to be manatory preceent an followe its rule at punitive amages are not recoverable in Jones Act negligence claims because Congress incorporate FELA s amages limitation into e Jones Act. The ecision in a relate case in state court reache e opposite conclusion: Larson v. Kona Blue Water Farms, LLC, 2010 AMC 1230 (Ca. Superior Ct. 2010), interprete Miles as being solely a wrongful ea claim for loss of society an loss of future earnings by a seaman s estate, an Atlantic Souning Co. v. Townsen as a maintenance an cure case only, us punitive amages are not proscribe in Jones Act claims. McBrie v. Estis Well Services, 2012 U.S. Dist. Lexis (W.D. La. 2012); an In Re: Oil Spill By e Oil Rig Deepwater Horizon, 2011 U.S. Dist. Lexis (E.D. La. 2011), applie e general rule at nonpecuniary amages are not available for eas or personal injuries of seamen, wheer e claims are against eir employers or ir parties. Scott v. Cenac Towing Co., 2012 U.S. Dist. Lexis (E.D. La. 2012), hel at punitive amages are not available uner e Jones Act: Townsen limits itself to e recovery of punitive amages in a general maritime action, not a Jones Act action. Notably, e Supreme Court specifically state in Townsen at [t]he reasoning of Miles remains soun. 557 U.S. at Comparative fault for following orers. Leet v. Smi Marine Towing Corp., 2011 U.S. App. Lexis (5 Cir. 2011), followe oer preceents at hol a seaman cannot be blame wi comparative fault for following orers, even if he knew em to be unsafe. Hall v. American S.S. Co., 688 F , 1983 AMC 134 (6 Cir. 1982), followe a line of cases rejecting a efense at a seaman who recognizes at carrying out an orer which places him in a position of anger has a uty to register his protest or obligation, applying e rule at a seaman may not be contributarily negligent for carrying out orers which result in his own injury, even if he recognizes probable anger. Gravatt n v. City of New York, 53 F.Supp (S.D. N.Y. 1999), rev on oer grouns 2000 AMC 2705 (2 Cir. 2000), hel at an injure worker following e orers of his supervisor is not contributorily negligent alough base on his experience he shoul have known at e instructe practice was unsafe. King Fisher Marine Serv., L.P. v. Tamez, 2012 Tex. App. Lexis 4380 (Tx. App. 2012), aresse e issue wheer e orer must inclue specific instructions as to e meo to be use, affirming a jury verict at ere was no comparative fault in e claimant s response to a specific orer in an emergency situation: When a seaman is orere to o a task but is not instructe on e meo to use, an he acts negligently, e negligence an e availability of a safer alternative may be consiere in etermining contributory negligence. Alholm v. Am. S.S. Co., 144 F , 1179 [1998 AMC 2352] (8 Cir. 1998). In Alholm, e court state at e trial court ha properly instructe e jury at if e plaintiff ha been orere to hanle e cable in a particular fashion an acte as orere, it coul not consier e plaintiff to be contributorily negligent. I. If however, he ha been irecte to move e line but was not orere to use a particular meo, e jury coul consier contributory negligence. I.; see also DuBose v. Matson Navigation Co., 403 F.2 875, 877 (9 Cir. 1968) (stating at contributory negligence octrine applies when alternative courses of action are available an e injure party chooses e unreasonable course). CURRENT ISSUES IN MARITIME LAW Page 6

11 Several preceents impose a low stanar of care on seamen in etermining at an emergency situation exists an in eir response to at situation, if e situation is not create by eir own negligence. Furka v. Great Lakes Drege & Dock Co., 824 F (4 Cir. 1987), applie a wanton an reckless stanar to a seaman in his perceiving e nee for rescue an in unertaking it. Gautreaux v. Scurlock Marine, Inc., 107 F.3 331, 1997 AMC 1521 (5 Cir. 1997). Sanfor Bros. Boats, Inc. v. Virine, 412 F (5 Cir. 1969), foun no fault on e part of a seaman in what it eeme a normal response to stimulus of angerous situation create by e employer. 1.4 Unseaworiness Issues Isolate Acts of Operational Negligence are not Unseawory Conitions. Barclay v. Cameron Charter Boats, Inc., 2011 U.S. Dist. Lexis (W.D. La. 2011), grante summary jugment ismissing an unseaworiness cause of action where an extension cor was route by vessel personnel across a galley eck where a cook allegely trippe on it, on e grouns at e use an placement of e extension cor was an act operational negligence raer an a conition, where e placement of e extension cor was not a pervasive (e.g., a congeries of acts ) practice. Barclay raises e issue of where is e borerline between an isolate act of operational negligence an a conition at results from at negligence: courts routinely have hel at unseawory conitions can result from isolate acts of operational negligence Punitive Damages in Unseaworiness Actions. Wolf v. McCulley Marine Servs., 2012 U.S. Dist. Lexis (S./D. Fl. 2012); In re Osage Marine Services, 2012 AMC 953 (E.D. Mo. 2012); an Wagner v. Kona Blue Water Farms, 2010 AMC 2469 (D. Hi. 2010), hol at punitive amages are recoverable in unseaworiness causes of action. Evich v. Morris, 819 F.2 256, 1988 AMC 74 (9 Cir. 1987), cites to In re Merry Shipping, 650 F.2 622, 1981 AMC 2339 (5 Cir. 1981); an In n re Marine Sulphur Queen, 460 F.2 89, 1972 AMC 1122 (2 Cir. 1972), for e rule at punitive amages are available in unseaworiness causes of action. Alough it rule on entitlement to a claim for loss of consortium an not punitive amages, Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. Lexis (W.D. Wa. 2011), interprets Atlantic Souning Co. v. Townsen, 557 U.S., 2009 AMC 1521 (2009), as recognizing general maritime law amages in all unseaworiness personal injury claims. McBrie v. Estis Well Serv., 2012 U.S. Dist. Lexis (W.D. La. 2012), hel at punitive amages are not recoverable in general maritime law unseaworiness actions. In Re: Oil Spill By e Oil Rig Deepwater Horizon, 2011 U.S. Dist. Lexis (E.D. La. 2011), hel at punitive amages are not available for eas or personal injuries to seamen, wheer e claims are against eir employers or ir parties Wrongful Dea Damages: Loss of Prospective Inheritance Surprisingly, ere have been few cases at have examine wheer loss of prospective inheritance can be recovere by e spouse or chilren of eceents uner e Jones Act or Dea on e High Seas Act. Luahl v. Seaview Boat Yar, 869 F.Supp. 825, 1995 AMC 440 (W.D. Wa. 1994), hel at a loss of inheritance claim is in essence a claim for loss of accumulation of estate barre by Miles v. Apex Marine, 498 U.S. 19, 1991 AMC 1 (1990). Hopper v. Waterman S.S. Corp., 1992 AMC 1087 (E.D. La. 1991), inferre at a claim for loss of inheritance can be recovere if it is state as an item of loss of future support, raer an as a claim for loss of accumulation of estate. Rohan v. Exxon Corp., 896 F.Supp. 666, 1996 AMC 657 (S.D. Tx. 1995), hel at a claim for loss of inheritance can be istinct from a loss of future earnings claim prohibite by Miles. Rux v. Republic of e Suan, 495 F.Supp (E.D. Va. 2007), hel at DOHSA allows amages for loss of prospective inheritance: Pecuniary losses may inclue loss of support, loss of e services of e ecease, loss of nurture, guiance, care an instruction, loss of inheritance, an funeral expenses if pai by e epenents.. Zicherman v. CURRENT ISSUES IN MARITIME LAW Page 7

12 n Korean Air Lines Co., Lt., 43 F.3 18, 1995 AMC 1805 (2 Cir. 1994), aff 516 U.S. 217, 1996 AMC 319 (1996), wiout iscussion of loss of inheritance, iscusses loss of inheritance as an item of loss of support: []amages for loss of support an loss of inheritance are well-recognize wrongful ea remeies uner maritime law. A claim for loss of prospective inheritance is an issue in In e matter of e Complaint of Seaway Company of Catalina, Cause No. CV PA(Ex), Central District California, which was trie in May, 2012, wi e court enying a motion in limine to exclue proof of a loss of inheritance amages. A ecision at may aress is issue is pening. 1.6 Loss of Consortium Dea & Injury to Seamen An/or on High Seas Loss of Consortium: Dea or Injury to Seamen, A New Split of Auority. Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. Lexis (W.D. Wa. 2011), interprete Atlantic Souning Co. v. Townsen to allow spouses of seamen to recover loss of consortium in unseaworiness claims. In Barrette, Juge Pechman etermine at, alough e Jones Act bars recovery of loss of consortium an oer non-pecuniary losses, e general maritime law oes not bar such recovery in actions for breach of e warranty of seaworiness. The Barrette ecision oes not iscuss e issue of recovery of loss of consortium in actions subject to e Dea on e High Seas Act: e limite remeies of DOHSA woul appear to bar such recovery). See, e.g., Kamens v. Hollan American Line, 2010 U.S. Dist. Lexis (W.D. Wa. 2010). Barrette, in recognizing at Townsen rejects case law as placing a broa interpretation on Miles v. Apex Marine, 498 U.S. 19, 1991 AMC 1 (1990), wi Townsen restricting proscriptions on nonpecuniary loss to claims governe by e Jones Act an DOHSA an not general maritime law claims, woul be contrary to a line of cases at hol at maritime law oes not allow recovery for loss of consortium for injury or ea which occurs beyon e territorial limits of e Unite States. See, e.g., Doyle v. Graske, 579 F.3 898, 2009 AMC 2493 (8 Cir. 2009); Chan v. Soc'y Expeitions, Inc., 39 F , 1408 (9 Cir. 1994); Nichols v. Petroleum Helicopters, Inc., 17 F.3 119, (5 Cir. 1994); Oltman v. Hollan Am. Line, 136 Wn. App. 110, 2006 AMC 2550, 2557 (W.D. Wa. 2006). Importantly, it also appears at e Barrette ecision woul apply to claims for punitive amages in unseaworiness actions. McBrie v. Estis Well Services, 2012 U.S. Dist. Lexis (W.D. La. 2012); In Re: Oil Spill By e Oil Rig Deepwater Horizon, 2011 U.S. Dist. Lexis (E.D. La. 2011), an Wilson v. Noble Drilling Corp., 2009 AMC 2745 (E.D. La. 2009), applie a general rule at nonpecuniary amages are not available for eas or personal injuries or eas of seamen, wheer e claims are against eir employers or ir parties, an wheer ey arise uner e Jones Act or e general maritime law cause of action for unseaworiness. This rule woul apply to loss or consortium as well as punitive amages. Thus, a split of auority is eveloping on recovery for non-pecuniary amages for causes of action arising from ea or injury to seamen, between istrict courts in Washington/California versus istrict courts in Louisiana Recovery for Loss of Consortium: Injury Outsie of Territorial Waters. Kamens v. Hollan American Line, 2010 U.S. Dist. Lexis (W.D. Wa. 2010), ismisse a claim for loss of consortium for injury to e claimant s spouse which occurre on e high seas, stating: General maritime law oes not recognize a claim for loss of consortium when e injury giving rise to e claim occurre outsie of state territorial waters, at is, beyon ree nautical miles from e Unite States shore. Riley v. NCL (Bahamas) Lt., 2010 U.S. Dist. Lexis (S.D. Fl. 2010), states: There is no oubt at, uner Eleven Circuit preceent, loss of consortium is not permitte uner general CURRENT ISSUES IN MARITIME LAW Page 8

13 maritime law. Felarise v. Cheramie Marine, L.L.C., 2010 U.S. Dist. Lexis 6021(E.D. La. 2010), applie Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 1996 AMC 305 (1996), to allow recovery uner state law of non-pecuniary amages, incluing loss of consortium, for personal injury to a non-seafarer in territorial waters. Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. Lexis (W.D. Wa. 2011), interprets Exxon Shipping Co. v. Baker, 554 U.S., 2008 AMC 1521 (2008), as recognizing general maritime law amages even for seamen on general maritime law claims, allowing e claim of a seaman s spouse for loss of consortium on a claim for personal injury ue to unseaworiness. Oer post-atlantic Souning v. Townsen cases have hel at e general maritime law oes not recognize a remey for loss of consortium beyon territorial waters of e Unite States. Doyle v. Graske, 579 F.3 898, 2009 AMC 2493 (8 Cir. 2009), states:... we agree wi e Fif an Nin Circuits at general maritime law oes not allow recovery of loss-of-consortium amages by e spouses of nonseafarers negligently injure beyon e territorial waters of e Unite States. See Chan v. Soc'y Expeitions, Inc., 39 F , 1408 (9 Cir. 1994); Nichols v. Petroleum Helicopters, Inc., 17 F.3 119, (5 Cir. 1994). Oltman v. Hollan Am. Line, 136 Wn. App. 110, 2006 AMC 2550, 2557 (W.D. Wa. 2006), broaly state: Maritime law recognizes a cause of action for loss of consortium only if e spouse's injury occurre in state territorial waters. Am. Export Lines, Inc. v. Alvez, 446 U.S. 274, 276 (1980); see also Sutton v. Earles, 26 F.3 903, (9 Cir. 1994); see also Chan v. Soc'y Expeitions, 39 F , (9 Cir. 1994) (holing at ere is no loss of consortium claim where e injury occurre outsie state territorial waters). Wiin state territorial waters, state law governs a loss of consortium claim. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 202 (1996) (holing at where no feeral maritime statute exists, state law remeies apply for injuries to non-seamen in territorial waters); Flores v. Am. Seafoo Co., 335 F.3 904, (9 Cir. 2003) (outlining feeral maritime choice-of-law principles.) Oltman was ecie prior to Atlantic Souning Co. v. Townsen. This line of cases probably is inconsistent wi Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. Lexis (W.D. Wa. 2011), which interprete Atlantic Souning Co. v. Townsen to allow spouses of seamen to recover loss of consortium in seamen s general maritime law unseaworiness claims. 1.7 Negligent Infliction of Emotional Distress Zone of Danger, But Not Aware of Exposure. Stacy v. Reeriet Otto Danielsen, A.S., 609 F , 2010 AMC 1782 (9 Cir. 2010), in e context of claims for emotional istress of a fishing boat master who felt e passing of a ship passing very near in e fog an later learne e ship subsequently struck anoer nearby fishing boat, hel at if e plaintiff was in e zone of anger, ere was no requirement at e plaintiff actually witness ea or injury to anoer to be entitle to an awar for negligent infliction of emotional istress. This may be e sole preceent on is issue at oes not require for a claim for negligent infliction of emotional istress at e claimant (1) suffer some physical impact, (2) is a relative bystaner who witnesse injury or ea to a relative, or (3) was in e zone of anger an witnesse injury or ea to anoer. In a FELA case, Goorich v. Long n Islan Rail Roa Co., 2011 U.S. App. Lexis (2 Cir. 2011), hel at e zone of anger test applie to a claim for intentional infliction of emotional istress, precluing claims for emotional istress where e plaintiff was not in e zone of anger of immeiate risk of physical harm, even where e conuct allege is extreme an outrageous Physical Injury Test in Employment Stress. Skye v. Maersk Line Limite Corp., Cause (S.D. Fl. 2012), istinguishe claims for injuries to e heart from emotional stress such as an injury ue to non-physical stress such as overwork an anxiety is not (which are not actionable uner e Duet analysis) from ose cause by physical stress (which are actionable). Duet CURRENT ISSUES IN MARITIME LAW Page 9

14 state at ere is a line between what constitutes physical versus non-physical stress. Skye hel at e line may be between emotional stress such as was allege in Duet from working ree ays straight wi very little sleep as oppose to what Capt. Skye s treating physician iagnose as a physical injury cause by overwhelming physical stress at resulte from what e court characterize as allegations of chronic sleep eprivation enure over several years Emotional istress: Post-Traumatic Stress Synrome. Obviously heae for appeal: Webb v. Teco Barge Line, 2012 U.S. Dist. Lexis (S.D. Il. 2012), analyze e elements of emotional istress amages in e case of a claim for post-traumatic stress synrome in awaring $4.3 million to a tug officer who was unable to return to his prior employment as a result of e trauma of surviving a hurricane. 2. PRODUCTS LIABILITY: REPLACEMENT OF 402A STRICT LIABILITY WITH RESTATEMENT (THIRD) OF TORTS 2 An important evelopment e Nin Circuit ecision in Oswalt v. Resolute Inustries, 642 F.3 856, 2011 AMC 1748 (9 Cir. 2011),which hel at e Restatement (Thir) of Torts 2 replaces e Restatement (Secon) of Torts 402A in maritime law. The Restatement (Thir) of Torts 2, provies: A prouct is efective when, at e time of sale or istribution, it contains a manufacturing efect, is efective in esign, or is efective because of inaequate instructions or warnings. A prouct:... (b) is efective in esign when e foreseeable risks of harm pose by e prouct coul have been reuce or avoie by e aoption of a reasonable alternative esign by e seller or oer istributor... an e omission of e alternative esign reners e prouct not reasonably safe; (c) is efective because of inaequate instructions or warnings when e foreseeable risks of harm pose by e prouct coul have been reuce or avoie by e provision of reasonable instructions or warnings by e seller or oer istributor... an e omission of e instructions or warnings reners e prouct not reasonably safe. 3. FOREIGN ARBITRATION & FOREIGN CHOICE OF LAW CLAUSES IN SEAMEN S EMPLOYMENT AGREEMENTS In a matter at primarily has been of concern to e cruise ship inustry but can have application to any seamen employe by U.S.-base but foreign flag ship operators, ere has been a recent flurry of ecisions on wheer e ship operators effectively can avoi Jones Act exposures by use of arbitration wi choice of law clauses in e seamen s employment agreements. Alough e Feeral Arbitration Act, 9 U.S.C. 1, exclues from e Act s coverage any contracts of employment of seamen, railroa employees, or any oer class of workers engage in foreign or interstate commerce, recent ecisions hol at e UNCITRAL Convention on Recognition an Enforcement of Foreign Arbitral Awars (e New York Convention ), encoe at 9 U.S.C. 205, supersees e FAA wi respect to commercial contracts an e commercial relationship [has] some reasonable relation wi one or more foreign states. Bautista v. Star Cruises, 396 F , 2005 AMC 372 (11 Cir. 2005), is one of a number of ecisions at hol at provisions in e employment agreements of foreign-national seamen on foreignflag vessels which provie for foreign arbitration are enforceable uner e New York Convention, as commercial contracts. Alough ere have been cases at questione wheer Jones Act claims coul be subject to foreign arbitration/venue an application of foreign law provisions in employment contracts, Lino v. NCL (Bahamas), Lt., 652 F , 2012 AMC 409 (11 Cir. 2011), not only hel at foreign arbitration/venue clauses apply to Jones Act claims an oer claims arising uner e CURRENT ISSUES IN MARITIME LAW Page 10

15 employment contract, but, importantly, U.S. courts have no jurisiction to etermine weer e contract terms violate Unite States public policy in effectively epriving claimants of Jones Act remeies by a prospective waiver. The Lino employment agreement provie for bining arbitration in Nicaragua, uner Bahamian law. Lino hols at uner e New York Convention e public policy grouns for not enforcing an arbitration clause/choice of law clause possibly can be raise at e awar-enforcement stage of litigation, after arbitration:... e arbitrator at at time will have rule an e recor will show what legal principles were applie an what Lino recovere, or i not recover, an why. Lino s public policy efense is premature at is initial arbitration-enforcement state. Aggarao v. MOL Ship Mgmt. Co., 2012 AMC 781 (4 Cir. 2012), reache e same conclusion as Lino, but reverse e trial court s ismissal of e claimant s suit pening arbitration: e civil action shoul be staye pening arbitration, wi e trial court retaining jurisiction to consier e public policy efense when e efenant moves to enforce e awar in feeral court, an to set asie e arbitration awar if appropriate. 4. PREEMPTION/SUPERSESSION OF STATE STATUTES IN MARITIME MATTERS 4.1 Supersession of State Workers Compensation Statute Exclusive Remeies by Feeral Maritime Law. The issue of feeral supersession of exclusivity provisions of state workers compensation statutes wi respect to shoresie employees injure while temporarily aboar vessels operate by eir employers as invitees or passengers has been subject to conflicting ecisions. Brockington hel e transportation of a workman being transporte by a small boat to an islan construction site was a local incient, hence e exclusive remey provision of e applicable state workers compensation statute barre recovery uner e general maritime law where a lan-base employee was injure while temporarily a guest or passenger on boar a vessel operate by e employer. Moore v. Capitol Finishes, Inc., 699 F.Supp , 2010 AMC 2259 (E.D. Va. 2010), examine e balancing of interest tests of e Eleven Circuit as state in Brockington v. Certifie Electric, 903 F , 1991 AMC 586 (11 Cir. 1990), wi e Fif Circuit s rejection of at test in Green v. Vermilion Corp., 144 F.3 332, 1998 AMC 2328 (5 Cir. 1998), on wheer e exclusive remey provision in a state workers compensation statute can eprive a party of a cause of action provie by feeral maritime law: e court believes at Green, an not Brockington, correctly states e nature of e test for e resolution of conflicts between state law an amiralty.... [T]he proper focus of e test is,... primarily on e feeral maritime nature of plaintiff s claim. The applicable law, properly construe, oes not provie for a balancing test in e traitional sense, uner which e relative streng of eier sie s interests can potentially tip e balance in favor of [or against] application of general maritime law.... Instea, a court must first etermine wheer e litigant has properly asserte a substantive right at is recognize by feeral general maritime law. If e court fins at e litigant has, in fact, asserte such a right, e court may give effect to oerwise-applicable state law, if, an only if, e state law in question oes not operate to eprive e litigant of at right. [Citing Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 1954 AMC 1 (1953)]. Morrow v. Marinemax, Inc., 731 F.Supp , 2011 AMC 521 (D. N.J. 2010), reache e same result, rejecting e Brockington balancing test: as a state may not eprive a person of any substantive amiralty rights as efine in controlling acts of Congress or by interpretive ecisions of [e Supreme] Court, quoting Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410, 1954 AMC 1, 7 (1953), electing to follow Green v. Vermilion Corp. an Chan v. Society Expeitions, Inc., 39 F , 1994 AMC 2642 (9 Cir. 1994), for e rule at where a lan-base employee who is neier a Jones Act seaman nor covere uner e feeral Longshore & Harbor Workers Compensation Act is injure on navigable CURRENT ISSUES IN MARITIME LAW Page 11

16 waters ue to negligence of his employer, e exclusive remey provisions of a state workers compensation act cannot eprive him of his general maritime law remeies. Klip v. Marine Spill Response Corp., 2012 U.S. Dist. Lexis (N.D. Ca. 2012), cite CNA v. Workers Compensation for e rule at as California oes not exempt maritime workers (incluing crewmembers of vessels of vessels engage in navigation on navigable waters), ere is concurrent jurisiction between feeral maritime law applicable to seamen an California state workers compensation statutes Preemption/Supersession of State Laws to Abatement Maritime Nuisances. Maeson v. City of Hoquiam, 2012 Wash. App. Lexis 2296 (Wa. App. 2012), states: [W]hen Congress has acte in e amiralty area, state regulation is permissible, absent a clear conflict wi e feeral law. See Askew v. Am. Waterways Operators,. In etermining wheer state regulation may coexist wi feeral maritime regulation, e Washington Supreme Court has hel at [g]reater eference is given to state legislation where public heal an safety are involve an at Washington's state police powers shoul not be supersee, absent a clear an manifest purpose of Congress to supersee state power. Inlanboatmen's Union of e Pac. v. Dep't of Transp., 119 Wn.2 697, 705, 836 P (1992) (internal citations omitte) (quoting Ray v. Atlantic Richfiel Co., 435 U.S. [at] 157 ). As etermination of title to vessels is not wiin feeral amiralty jurisiction, ere is no feeral preemption of etermining title to abanone vessels uner e police powers of states to abate nuisances. Maeson v. City of Hoquiam hel at seizure of erelict vessels an court orere sale was not an in rem process: a state statute, RCW , at grante state an local governments auority to seize an ispose of erelict vessels an exercise in personam jurisiction over vessel owners for removal an isposal costs was not preempte by feeral amiralty law. 5. CRUISE SHIP LAW DEVELOPMENTS 5.1 Enforceability of Arbitration Clauses in Passenger Contracts. Halock v. Norwegian Cruise Line, Lt., 2010 AMC 1167 (C.D. Ca. 2010), enforce an arbitration clause in a passenger ticket, ismissing e suit in e feeral court. 5.2 Enforcement of Foreign Choice of Forum Clauses. Estate of Myhra v. Royal Caribbean Cruises, Lt., 2012 U.S. App. Lexis (11 Cir. 2012), enforce a choice of forum/choice of law clause at require at any claim against e carrier be litigate in e courts of Englan an Wales, subject to English law. The case involve e facts of e passenger being a British citizen an e cruise being booke in Great Britain, but involve a cruise at eparte from Miami. The 11 Circuit etermine at e choice of forum/choice of law clause i not violate 46 U.S.C (a), which prohibits carriers transporting passengers between ports of e Unite States or between Unite States ports an foreign ports from contractually limiting personal injury claims: it hel at e choice of forum clause oes not place a limitation of liability in e contract of carriage. As for application of English law, e Myhra court hel at it was up to e courts of Englan an Wales to etermine what law to apply: Inee, it is clear at Congress unerstoo at e usual rules of jurisiction an choice of law woul prouce, in some instances, a limitation on liability.... Thus, it appears at Myhra woul enforce a choice of foreign forum/foreign law clause even if e contractual forum woul apply its own choice of laws analysis an not apply Unite States law which prohibits contractual limitations of amages. It shoul be note at statutory rights uner e Carriage of Goos by Sea Act an e Jones Act (bo of which prohibit enforcement of contractual limitations on carriers /employers liability) have been separate from remeies in Unite States courts by contractual foreign arbitration clauses. Lino CURRENT ISSUES IN MARITIME LAW Page 12

17 v. NCL (Bahamas), Lt., 652 F , 2012 AMC 409 (11 Cir. 2011), iscusse above, hel at foreign arbitration/venue clauses apply to Jones Act claims an oer claims arising uner employment contracts, an, importantly, at U.S. courts have no jurisiction to etermine weer e contract terms violate Unite States public policy until any post-arbitration enforcement action, when public policy efenses might be raise. Lower courts construing Vimar Seguos Reasaguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 1995 AMC 1817 (1995), have enforce foreign arbitration/forum clauses in ocean contract of carriage irrespective at bo plaintiffs an efenants may be Unite States resients an e loss occurre in e Unite States. See, e.g., Inemnity Ins. Co. of Nor America v. Schneier Freight USA, Inc., 2001 AMC 2153 (C.D. Ca. 2001). As foreign arbitration clauses are eeme a subset of choice of foreign forum clause, Sky Reefer, foreign arbitration clauses eoretically coul be enforce to foreclose Unite States citizens carrie on foreign-flag ships operating of U.S. ports from litigating eir claims in e Unite States, wi application of Unite States law, at least until e post-arbitration enforcement stage of proceeings. 9 U.S.C. 202 limits enforcement of foreign arbitration uner e UNCITRAL Convention on Recognition an Enforcement of Foreign Arbitral Awars (e New York Convention ) where ere is no reasonable relation wi a foreign state: An agreement or awar arising out of such a relationship which is entirely between citizens of e Unite States shall be eeme not to fall uner e Convention unless at relationship involves property locate abroa, envisages performance or enforcement abroa, or has some oer reasonable relation wi one or more foreign states. The fact at most cruise ships operating out of U.S. ports are foreign flag an call in foreign ports might result in application of e New York Convention. 5.3 Duty of Carriers to Establish an Enforce Meical Stanars an Proceures for Ship s Meical Staff: Effect of Use of ACEP Guielines. In e context of e uty to treat a ship s crewmember, Flueras v. Royal Caribbean Cruises, Lt., 69 So , 2011 AMC 2866 (Fl. App. 2011), iscusse at preceents o not require at ship operators establish an enforce meical stanars an proceures for e meical staffs of eir ships. But Flueras hel at where e ship operator has chosen to promulgate relevant policies an proceures governing functions of e ship s crew, incluing meical staff, failure of e crew to follow ose proceures may result in liability base on e uty of seaworiness owe crewmembers. Flueras recognize e rule at a passenger carrier is not liable to passengers for negligence of ship s physicians, but Flueras left open e issue wheer a carrier may be liable for e negligent acts of its non-meical staff in not monitoring an enforcing shipboar proceures an policies e carrier may have establishe.. The promulgation of e American College of Emergency Physicians Heal Care Guielines for Cruise Ship Meical Facilities (e ACEP Guielines ), publishe at <http://www.acep,.org/content.aspx?i+29500>, may result in review of e rule of Barbetta v. S.S. Bermua Star, 848 F , 1988 AMC 2650 (5 Cir. 1988) (as carriers have no control over e practice of meicine by ship s physicians, ey are not liable for negligence of ship s octors): e ACEP guielines efine equipment require in passenger ship meical facilities an, importantly, set for stanars at require training of meical personnel who can properly an competently use e require equipment an meications, an, very importantly, establish a meical operations manual at must be internally an externally auite for compliance. See Robert D. Peltz, Has Time Passe Barbetta By, 24 U.S.F. MAR. L. J. 1 (2012). 5.4 Liability of Carriers for Assaults by Oer Passengers. Doe v. Royal Caribbean Cruises, 2012 AMC 761 (S.D. Fl. 2011), enie a motion to ismiss a claim at inclue allegations at e ship s personnel actually saw her staggering rough e vessel in a state of obvious intoxication an repeately rebuffing attempts by her assailant (a fellow passenger) to get her to enter e men's baroom. The court followe e rule at: Where an attack on a passenger is carrie out by a non-crewmember, such as a criminal intruer or a fellow passenger, courts apply e stanar of orinary care uner e circumstances to etermine wheer e cruise line CURRENT ISSUES IN MARITIME LAW Page 13

18 shoul be hel liable. 10 Naaniel G. W. Pieper, CRUISE SHIP LAW 5.05 (2010). Uner is stanar, a party may be liable in negligence for intervening criminal acts if e acts are foreseeable. Carlisle v. Ulysses Line Lt., S.A., 475 So (Fla. 3 DCA 1985) (citing Bullock v. Tamiami Trail Tours, Inc., 266 F (5 Cir. 1959)); see also RESTATEMENT (SECOND) OF TORTS 442B cmt. c. ( tortious or criminal acts may in emselves be foreseeable, an so wiin e scope of e create risk [by e actor's negligence], in which case e actor may still be liable for e harm.... But if ey are not, e actor is relieve of responsibility by e intervention of e ir person ). 5.5 Liability of Carriers for Putting Passengers in Dangerous Situations. Vollmar v. O.C. Seacrets, 2011 U.S. Dist. Lexis (D. De. 2011), hel at alough a passenger carrier has a uty to exercise orinary care to avoi putting a passenger in a angerous situation, ere was no breach uner e circumstances of elivering a plaintiff passenger to a pleasure boat to which e carrier ha also elivere an inebriate passenger where e carrier ha no knowlege at e inebriate iniviual woul operate e boat causing injuries to e plaintiff. 5.6 Vicarious Liability of Carriers for Negligence of Inepenent Operators of Shoresie Excursions. Gentry v. Carnival Corp., 2011 U.S. Dist. Lexis (S.D. Fl. 2011), applie e rule of Traewin Transp. Co. v. Taylor, 267 F (9 Cir. 1959), relative to e uty of a carrier to warn its passengers of angers known to e carrier relative to shoresie excursions: e uty... owe e passengers in regar to [an excursion to a shoresie site] (owne an controlle by ir parties) was simply at of orinary care: to warn em of any unreasonable risk of harm in or about e [shoresie site]; i.e., a angerous conition known to [e common carrier] an unknown to e passenger ). Young v. Carnival Corp., 2011 U.S. Dist. Lexis (S.D. Fl. 2011), grante summary jugment to a cruise operator on grouns at ere was no evience at ere was an agency relationship between e cruise operator an a shoresie excursion provier an ere was no uty on e part of e cruise operator to warn of hazars at were apparent an obvious. Smolnikar v. Royal Caribbean Cruises Lt., 2011 AMC 2941 (S.D. Fl. 2011), hel ere was no establishe rule of feeral maritime law on e issue so looke to Floria law for e rule at a principal has e uty to iligently inquire into e fitness of an inepenent contractor, but hel at ere were no prior incients or reports of safety issues, a cruise operator ha no uty to conuct its own inspection of a shoresie excursion contractor s operations. Smolnikar hel at e prohibition against isclaimers of liability for negligence in 46 U.S.C applies to ocean carriers relative to potential liability for failure to warn passengers of angerous conitions on shoresie excursions. McLaren v. Celebrity Cruises, 2012 U.S. Dist. Lexis (S.D. Fl. 2012), recognize a cause of action against a cruise carrier for negligent selection an retention of an inepenent contractor on proof of facts showing: (1) e contractor was incompetent or unfit to perform e work; (2) e employer knew or reasonably shoul have known of e particular incompetence or unfitness; an (3) e incompetence or unfitness was a proximate cause of e plaintiff's injury. Gayou v. Celebrity Cruises, 2012 U.S. Dist. Lexis (S.D. Fl. 2012), ismisse claims for negligent selection an retention or actual agency of a shoresie excursion operator. See also Gibson v. NCL (Bahamas) Lt., 2012 U.S. Dist. Lexis 74653(S.D. Fl. 2012). 5.7 Notice an Knowlege of Travel Agents Impute to Passengers. Travel agents are consiere agents of e passengers who book passage rough em: passengers are charge wi constructive knowlege of ticket terms while e tickets are in e possession of eir agents. Hoer v. Norwegian Cruise Line Lt., 2010 AMC 2157 (N.Y. Sup. Ct. 2010). 5.8 Notice of Limitations of Carrier s Liability Poste on Website. Halock v. Norwegian Cruise Line, Lt., 2010 AMC 1167 (C.D. Ca. 2010), hel at e evience at e terms of e carrier s limitations appeare at all times on its website is relevant to e plaintiff receiving reasonable notice of e limitations. 5.9 Suit File in Wrong Forum: Auority of Court to Conition Dismissal on Waiver of Time Bar. Where suit is improperly file in state court, alough e state court has subject matter CURRENT ISSUES IN MARITIME LAW Page 14

19 jurisiction over e case, uner New York law, it has no auority to conition ismissal on e carrier s agreement to waive e contractual time bar to sue in e proper court in anoer jurisiction. Lischinskaya v. Carnival Corp., 2010 AMC 427 (N.Y. App. Div. 2008) Equitable Tolling Where Suit File in Wrong Forum. Boo v. Carnival Corp. applie equitable tolling where a plaintiff file suit in state court before e contractual time bar applie, an subsequently file in e contractually-manate feeral court. Crist v. Carnival Corp., 2011 AMC 905 (S.D. Fl. 2010), refuse to recognize equitable tolling of a contractual time bar in a passenger contract of carriage where e passenger ha file suit in state court, which was contractually barre by e choice of venue. In Crist, e carrier, prior to expiration of e time bar an prior to e state court filing, avise e passenger at suit must be file in feeral court an at its contractual rights, incluing e feeral forum selection clause, woul not be waive. Christ state: Equitable tolling may be justifie if a plaintiff timely files a technically efective pleaing, but in all oer respects acts wi e proper iligence at e limitation perio is intene to insure. Justice v. Unite States, 6 F , 1479 (11 Cir. 1993). However, [t]he Supreme Court has mae clear at tolling is an extraorinary remey which shoul be extene only sparingly. I. (citing Irwin v. Veterans Amin., 498 U.S. 89, 96, 111 S. Ct. 453, , 112 L. E (1990)) Notice of Injury: Treatment by Shipboar Physician/Hospital. Rutlege v. NCL (Bahamas) Lt., 2010 U.S. Dist. Lexis (S.D. Fl. 2010), hel at statements by an injure passenger inclue in a meical treatment file maintaine by e ship s hospital i not constitute notice of a claim where ere was no eman for a legal remey, but hel at as e carrier ha actual notice of e injury an investigate it, ere was no prejuice to e carrier Choice of Forum Clauses an Discovery. Shames v. Celebrity Cruises, Inc., 2010 AMC 1399 (S.D. Fl. 2010), hel at a choice of forum clause in a passenger contract of carriage can result in plaintiff s being require to be epose in e chosen forum. In Shames, e plaintiff was a resient of e State of Washington, purchase her cruise ticket in e State of Washington, an boare e vessel for a cruise to Alaska in e State of Washington, but was compelle to file her action for an injury at occurre on at voyage in Floria, an to be epose in Floria Enforceability of Exculpatory Clauses for Inherently Dangerous Recreational Activity on Boar Passenger Vessels. Johnson v. Royal Caribbean Cruises, Lt., 2011 AMC 1171 (S.D. Fl. 2011), hel at a waiver of liability signe by a passenger prior to unertaking simulate surfing on boar e vessel was enforceable, etermining at 46 U.S.C oes not apply to inherently angerous recreational activities unrelate to e operation or navigation of e vessel in carrying out her transportation function: applies only to negligence of carriers in proviing transportation an oer essential functions of common carriers. As a large variety of recreational activities are offere by cruise ship operators to entertain passengers, e enforcing a prospective waiver of liability for on-boar activities offere to passengers appears to offen e intent of Punitive Damages in Passenger Actions. Recent ecisions have been split wheer e general maritime law oes allow awars of punitive amages, loss of consortium an oer nonpecuniary amages in claims for ea (in territorial waters of a state or territory of e Unite States) or injury of passengers. Decisions allowing non-pecuniary claims inclue Lobegeiger v. Celebrity Cruises, Inc., 2011 U.S. Dist. Lexis (S.D. Fl. 2011) (which etermine at a passenger may recover punitive amages uner general maritime law were e plaintiff s injury was ue to e efenant s wanton, willful, or outrageous conuct. ) 6. PUNITIVE DAMAGES ISSUES GENERALLY CURRENT ISSUES IN MARITIME LAW Page 15

20 6.1 Bases for Awaring Punitive Damages Wanton an Willful Misconuct as a Basis for Punitive Damages. Evolving case law has require more an erroneous enial of maintenance an cure or simple negligence to support an awar of punitive amages. Uner circumstances of a reasonable belief at maintenance an cure is not ue e claimant, an employer has no liability, even if e employer s enial was unreasonable uner e circumstances: to prove an employer's conuct was arbitrary an capricious, a seaman must o more an prove e employer's conuct was unreasonable. Manerson v. Chet Morrison Contractors., Inc., 666 F.3 373, 2012 AMC 573 (5 Cir. 2012). For an awar of reasonable attorney fees an punitive amages, proof of callousness an inifference to e seaman's plight is require. I. The Fif Circuit has escribe is higher egree of fault as egregiously at fault, recalcitrant, willful, an persistent. I. Gonzalez v. Maersk Line, Lt., 2012 U.S. Dist. Lexis (D. P.R. 2012), hel at punitive amages shoul not be aware where e shipowner is merely unreasonable in not promptly paying maintenance an cure. In e context of punitive amages for negligence, preceents require proof of conuct which manifests reckless or callous isregar for e rights of oers,... or gross negligence or actual malice or criminal inifference. Protectus Alpha Nav. Co. Lt. v. Nor Pac. Grain Growers, Inc., 767 F , 1385, 1986 AMC 56, 64 (9 Cir. 1985). Exxon Shipping Co. v. Baker, 554 U.S., 2008 AMC 1521 (2008), efine reckless for purposes of punitive amages uner maritime law: reckless conuct is not intentional or malicious, nor is it necessarily callous towar e risk of harming oers, as oppose to unheeful of it. Recklessness may consist of eier of two ifferent types of conuct. In one e actor knows, or has reason to know of facts which create a high egree of risk of harm to anoer, an eliberately procees to act, or to fail to act, in conscious isregar of, or inifference to, at risk. In e oer e actor has such knowlege, or reason to know, of e facts, but oes not realize or appreciate e high egree of risk involve, alough a reasonable man in his position woul o so. Internal quotes an citations omitte Gross Negligence as Basis for Awaring Punitive Damages. Protectus Alpha Nav. Co. Lt. v. Nor Pac. Grain Growers, Inc., 767 F , 1385, 1986 AMC 56, 64 (9 Cir. 1985), states at punitive amages are available uner e general maritime law upon a showing of conuct which manifests reckless or callous isregar for e rights of oers,... or gross negligence or actual malice or criminal inifference. Lobegeiger v. Celebrity Cruises, Inc., 2012 AMC 202 (S.D. Fl. 2011), iscusse e maritime law efinition of gross negligence sufficient to support a claim for punitive amages, as involving some extreme eparture from reasonable care couple wi a conscious awareness of e risk of harm, citing to Justice Story s early illustration in Tracy v. Woo, 24 F.Cas. 117 (C.C.D. R.I. 1822): If a bag of apples were left in a street for a short time wiout a person to guar it, it woul most certainly not be more an orinary negligence. But if e bag were of jewels or of gol, such conuct woul be gross negligence. In short care an iligence are to be proportione to e value of e goos, an e temptation an facility of stealing em an e anger of losing em. Lobegeiger aopte e efinition of RESTATEMENT (THIRD) TORTS 2: at gross negligence is present where a efenant knows e risk of harm create by e conuct or knows facts at make e risk obvious to anoer in e situation an isregars at risk. Lobegeiger hel at a plaintiff must plea an prove at a efenant ha actual or constructive knowlege of e increase risk necessary for gross negligence to be foun. 6.2 Ratio of Punitive Damages to Compensatory Damages. Clausen v. Icicle Seafoos, Inc., 2012 AMC 660 (Wa. 2012), hel at e 1:1 ratio oes not apply when extraorinary circumstances justifies a eparture from at rule of umb, an at e vulnerability of a seaman an e egregious CURRENT ISSUES IN MARITIME LAW Page 16

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