Boating Accidents in Florida (Part 3 of 3)
Florida is blessed with beautiful seas and wonderful weather. That is why we lead the nation in our amount of registered boats. In part one of this series, we discussed boating accidents in Florida, how liability is attached to the responsible party and how property damages are calculated. In part two of the series I explained personal injuries due to boating accidents and the causes of action available to seamen. In this final section of the series I will discuss the causes of action available to longshoremen and harbor workers, wrongful death cases and remedies available to non-maritime persons.
Remedies for Injured Longshoremen and Harbor Workers
Maritime employment may apply to members of the crew of a vessel, seamen, and oftentimes a large number of land-based workers known as longshoremen and harbor workers. For work to qualify as “maritime,” it must somehow relate to the shipping industry, or the work must be done in an area adjacent to navigable water.
The Longshoremen and Harbor Worker’s Compensation Act (LHWCA) was enacted in 1927 and was designed to protect these maritime workers that did not quite fit into seaman status. The Act allows for compensation for these employees if their injury occurs on the navigable waters of the US. In order to recover benefits under the LHWCA , the injured employee must meet both the status and the situs test. The status test requires that the employee be engaged in maritime employment. The situs test requires that the injury take place on the navigable waters of the United States (which by the language of the Act includes adjoining piers, wharfs, dry docks, terminals, building ways, marine railways, or other adjoining areas customarily used by an employer in loading, unloading, repairing or building vessels).
Ship owners and/or stevedores (a man or company who manages the operation of loading or unloading a ship) may be liable to longshoremen and harbor workers if they breach one of the following three duties they owe to these maritime workers.
- The first duty is the “turnover duty,” which relates to the condition of the ship upon the start of stevedoring operations.
- The second duty starts once stevedoring operations have begun and requires the ship owner to exercise reasonable care to prevent injuries to longshoremen in areas that remain under the active control of the vessel.
- The third duty is the “duty to intervene” and concerns the vessel’s obligations with regard to cargo operations in areas under the principal control of the independent stevedore.
Longshoremen and harbor workers may be entitled to an unseaworthiness claim under the Sieracki doctrine (from the 1946 US Supreme Court case Seas Shipping v. Sieracki) if they are denied coverage under the LHWCA. That case allowed for a longshoreman to recover from his injuries under an unseaworthiness claim when he was essentially “doing a seaman’s work and incurring a seaman’s hazards.” Unseaworthiness is a claim that the ship was unseaworthy for the task at hand and/or a warranty of fitness for duty. The warranty of seaworthiness applies to the hull of the ship, the ship’s cargo-handling machinery, hand tools aboard the ship, ropes and tackle, and in general, all sorts of equipment either belonging to the ship or brought aboard by others
Maritime Wrongful Death Cases
For maritime wrongful death cases, Congress has enacted the Death on the High Seas Act (DOHSA). This act applies to deaths that occur beyond the three nautical miles from the shores of the United States. Under this Act, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The Act also applies to commercial aviation accidents beyond 12 nautical miles of the shores of the United States. DOHSA is likewise applicable in the territorial waters of foreign nations.
The main problem with DOHSA is that recovery is limited to ONLY pecuniary losses. A pecuniary loss is monetary, such as loss of income. DOHSA excludes non-pecuniary recovery, such as pain and suffering. This limitation in DOHSA severely restricts the personal representative’s ability to recover for the death of their loved one. For example, the widow of a 70-year-old retired man who dies on a ship due to the negligence of the crew would only be able to recover his loss of income (which, assuming the man is retired, would likely be close to nothing). DOHSA does allow for recovery of loss of services and support (such as loss of husband that paints the house each summer). Punitive damages, those that aim to punish the defendant, are not recoverable under DOHSA.
Wrongful death cases that occur within the state territorial waters are covered by state wrongful death statutes. In Florida, this is set forth in F.S. 768.16-768.26. Florida’s wrongful death statute allows for BOTH pecuniary and non-pecuniary losses.
Remedies for Non-Maritime Persons
Non-maritime persons are oftentimes injured on vessels. These persons can range from passengers on cruise ships to government officials inspecting merchant ships. Generally, the ship owner is liable when either he/she (or an employee) failed to exercise reasonable care under the circumstances toward persons lawfully aboard their ship. This standard may be increased based on the condition of the weather, sea or other occurrence that the ship may be under. Reasonable care is that of a prudent ship owner, captain or crew in similar circumstances. An example of this would be a passenger falling and hurting himself caused from rough waters that made the ship sway. Questions must now be asked of the captain. Would a reasonable captain have steered and managed the ship the same way in those types of rough waters? Would a reasonable captain have even disembarked that day given the weather report? These are questions that must be asked for a successful claim to be brought against a negligent captain or ship owner.
The law of the sea is different than that of the law of the land. While accidents on land and on the water both require liability, causation and damages to be proven in order to prevail in a lawsuit, the method of proving these essential elements to a claim are different, and it takes an experienced maritime attorney to wade through the rough waters of a maritime claim.
Image courtesy of freedigitalphotos.net by Dan and David Castillo Dominici