Dead Filipinos, Dead Children & Other Cruise Line Madness

This week several people died during cruises on ships owned by Carnival Corporation.  A young seafarer died on the Carnival-owned Cunard Queen Victoria cruise ship.  A crew member from the Carnival Conquest was crushed to death at the port of New Orleans. And most tragically, a 6 year-old boy needlessly drown on the Carnival Victory in a swimming pool which, incredibly, did not have a life-guard.     

What do all of these seemingly unrelated incidents have in common?  

Because of antiquated laws and recent legal developments advanced by the cruise industry, the cruise Qwentyn Hunter - Carnival Cruise Shipline will escape virtually all legal accountability for the deaths.

Let's look first at the sad case of little 6 year old Qwentyn Hunter who died on the Carnival Victory last week. He died underwater in a swimming pool that Carnival decided not to supervise with a lifeguard for, what I believe to be, purely financial reasons.

A child on vacation dead at age 6.

Is it foreseeable that a child may drown in a pool?  Of course. We have written recently about a 4 year old boy who is severely brain injured after slipping under the water on a cruise ship Disney which also didn't bother to assign a lifeguard to the pool.    

Put aside the debate whether the boy's death was a lack of personal responsibility of the parents or a lack of corporate responsibility due to the the malfeasance of the cruise line (or both), what is the maximum exposure presented to Carnival?

The answer, sadly, is just the child's burial and burial expenses. How is that possible?

There is a law in the U.S. called The Death On The High Seas Act ("DOHSA").  

DOHSA is an archaic law enacted in 1920 which provides only "pecuniary" losses to the survivors of someone who dies on the high seas. "Pecuniary" damages means only those financial losses, such as lost wages or medical expenses, suffered by those who are dependent on the dead person. In cases of a dead child or a dead retiree, there are no lost wages and no one dependent on the child or retiree for support. In Qwentyn's situation, there are obviously no lost wages or medical expenses.  So all that the family could possibly receive in compensation after an expensive, long-drawn-out lawsuit is whatever it costs to bury a child these days.      

If the cruise line is negligent for a child's death in an unattended pool, it will pay a maximum of $10,000 or so if liability is proven. Big deal. From a financial perspective, the cruise line is ahead of the game by not paying millions to employ lifeguards on over a hundred Carnival cruise ships to keep the kids safe. Carnival's Micky Arison, worth around 6 billion dollars, gets to keep his bounty.    

Cruise lines love DOHSA. It exculpates the cruise lines when they act irresponsibly.  The cruise industry has lobbied hard against amending the law.  Read about that here and here. Don't miss reading: What Does BP, Al Qaeda and a Cruise Line Have In Common?  

Crew members who die due to the negligence of the cruise lines face the same hardship of DOHSA. 

But that's not all. The cruise lines have also fought tooth & nail to keep the claims of "foreign" crew members outside of the U.S. legal system and deprive injured crew members from having their cases heard by U.S. juries by insisting that they resolve their cases through "arbitration."  

Read about this injustice here. The Filipinos face a "schedule" of compensation depending on the Filipino Crew Member - Cruise - Burn Unitinjury. A lost finger, or hand, or an arm may result in an award of only $7,500 or $25,000 or $35,000. A death? $50,000, plus only $7,000 per child with a limit of 4 children. 

One of the worst cases involved a Filipino crew member who received 35% burns on his body in a clear case of the vessel operator's negligence. At the ship owner's request, the disabled and disfigured crew member's case was dismissed from the U.S. legal system and sent to Manila where a Kangaroo Court awarded the burned Filipino just $1,870.00 (US).

The cruise lines don't want you to understand what happens when the nice, smiling Filipino waiters or bartenders who serve your family are subsequently seriously injured or die on cruise ships. It is fundamentally different and absolutely unfair compared to when people are injured or die on land. 

And this is exactly how the multi-billion dollar cruise industry wants it.  

Have a thought about this article?  Please leave a comment below, or join the discussion on our Facebook page.

Filipino Labor Board Punishes Burned Crew Member

Several years ago, U.S. based cruise lines began insisting that injured crew members seeking compensation for their injuries must pursue their claims through arbitration in foreign countries.

Companies like Carnival, NCL and Royal Caribbean started moving to dismiss lawsuits filed here in Miami, arguing that seriously injured crew members are not entitled to jury trials in the U.S. but must file arbitration claims in either their home countries or where the cruise ships are flagged.

The cruise industry's lawyers understood perfectly well that many of these foreign countries, like the Philippines, Bermuda or Panama, had virtually no laws that provided compensation to their employees NCL Norway Explosion or the existing compensation scheme was a pittance.          

In 2003, the NCL Norway blew up at the port of Miami (photo right).  Eight Filipinos were scalded to death. Many other crew members were seriously burned in the explosion.

NCL responded to lawsuits filed by the dead men's surviving wives and children by moving to dismiss the cases and arguing that the grieving family members could not file suit here in Miami, where the explosion took place and NCL was headquartered. Instead, the only claims permitted were in a non-jury arbitration process in Manila where the damages for wrongful death were limited to around $50,000.

NCL won its motions and paid very small amounts to the families, even though the 45-year-old Norway cruise ship was in deplorable condition. You can read our analysis here

Since then, most of the cruise lines have drafted onerous terms and conditions in the crew member's employment contracts which prohibit lawsuits to be filed in the U.S. and limit recovery to the smallest imaginable amounts for serious injuries even in cases where the cruise line is grossly negligent.    

A recent case illustrated just how unfair the arbitration process is.   

Filipino crew member Lito Asignacion worked as a senior engine fitter on board the vessel M/V Rickmers Dalian (flagged in the Marshall Islands) for Global Management Limited.

Rickmers Dalian AccidentIn October 2010, while the ship was in the port of New Orleans alongside of 7th Street Wharf, crew member Asignacion sustained serious burns of his abdomen and legs when scalding water overflowed a tank. The crew member underwent extensive and painful medical treatment in the burn units of West Jefferson Medical Center and Baton Rouge General Medical Center in Louisiana, U.S.A.

Asignacion was treated and underwent skin grafting burns of 35% of his body.

He thereafter was returned to the Philippines where he continued undergoing medical treatment at a number of hospitals and with a number of doctors who performed plastic surgery. He is now unemployed, disabled and scarred for life.

Asignacion filed suit in state court in Jefferson Parish where the accident occurred, but his case was dismissed and he was ordered to proceed with arbitration in the Philippines.

The shipping company argued that the case was controlled totally by Philippine law and Asignacion had no rights whatsoever under U.S. law.  The company argued that under the Philippines Overseas Employment agreement (POEA), the crew member suffered a grade 14 disability which would entitle him to only 3.74% of USD $50,000 or a total award of $1,870.00 (US).

The Filipino Labor Board agreed and awarded Asignacion just $1,870.

Crew Member BurnThe labor board made a point of stating that the shipping had offered the burned crew member $25,000 “out of compassion and generosity," implying that he had foolishly rejected the "generous" offer.  The opinion reads and sounds vindictive.

The labor board also cited language from a prior decision that compensation for serious injured Filipino seafarers is low because they ere perceived as crew members "who complain too much.”  

The award is a disgrace.  The process is the result of a kangaroo court.

This is how shipping companies and cruise lines doing business in the U.S. treat their crew members from the Philippines and other countries outside of the U.S.

 

The case name is Lito M. Asignacion, Complainant, vs Rickmers Marine Agency Philippine, Inc.,Global Management Limited, and Navis Maritime Services, Ind., Respondents. AC-305-NCMB-NCR-100-07-11-12.  If you would like a copy of the decision, please contact me: jim@cruiselaw.com. 

Republic of the Philippines, Department of Labor and Employment, National Conciliation and Mediation Board, National Capital Region, Intramuros Manila. The award was by: 

Jesus S. Silo - Chairman.

Leonardo B. Saulog - Member.

Gregorio C. Blares, Jr. - Member.

 

Photo Credit: Rickmers Dalian

Groping on the High Seas? John Travolta - Fabian Zanzi Sexual Harassment Lawsuit Over, Finally

Fabian Zanzi - Royal CaribbeanA year ago. Cruise Law News was the first one in the U.S. to report that a Royal Caribbean crew member, Fabian Zanzi, claimed that movie celebrity John Travolta sexually harassed and assaulted him during a cruise.  We had first heard of the alleged incident several years ago from a crew member client who worked on Royal Caribbean's Enchantment of the Seas cruise ship. 

We were told that a Royal Caribbean crew member claimed that Travolta came-on-to-him during a cruise on the Enchantment in 2009.  

Zanzi's lawsuit claims that after he served Travolta room service, Travolta disrobed, "forcibly embracing" Zanzi while naked, and engaged in "nonconsensual, inappropriate, extreme and outrageous" contact. 

Zanzi reported the incident to his supervisors at the cruise line. Royal Caribbean then punished Zanzi and kept him confined to his cabin. Travolta ended his cruise early and took a jet back to the U.S.    

Travolta denied everything of course. 

Travolta's lawyers responded to Zanzi's lawsuit by moving to dismiss it and to send the case to arbitration. This way Travolta could avoid the publicity of a jury trial. Arbitration usually results in lower damages awarded to the aggrieved party. This is how cruise lines respond to lawsuits by injured crew members.

A federal court judge recently denied Travolta'a motion to arbitrate the case. You can read the well reasoned opinion here. This means that the case would head toward a jury trial.

But yesterday, the Hollywood news reporters said that Zanzi's lawsuit had been "dropped," after the John Travolta - Fabian Zanzi - Cruise Shipparties had stipulated to a dismissal.  Sounds to me like Travolta paid a settlement, after losing his arbitration motion, in order to avoid the prospect of all of his dirty laundry being aired out before a jury in Los Angeles. The parties probably agreed to keep the settlement terms secret.  A good move by Travolta to put this spectacle to bed.

Meanwhile, Zanzi is proceeding with his claim against Royal Caribbean that it falsely imprisoned him in retaliation for reporting the alleged sexual harassment.

The Zanzi - Royal Caribbean false imprisonment claim is in arbitration, so there will be no jury trial for the Hollywood reporters to attend. My prediction is that eventually the cruise line will agree to a settlement, subject to a confidentiality agreement.

Then the case will end like it began, with everyone trying to keep what happens on cruise ships secret. 

 

Photo credit - John Travolta - WENN

No Jury Trial For Seriously Injured Dancer Aboard HAL's Oosterdam

Courthouse News Service reports on a case involving a crew member from Canada who was employed aboard a Holland America Line (HAL) cruise ship.

The Canadian crew member, employed on the Oosterdam cruise ship as a dancer, suffered a serious career-ending injury, but is being denied the right to take his case before a jury.

Courthouse News states that the case involves Anthony Yuzwa who was a talented dancer. He graduated from the Canadian College of Performing Arts, worked for the Burlington School of Dance, Oosterdam Cruise Ship - Holland america Lineand appeared on Canadian television. While performing on the Oosterdam earlier this year, a stage lift collapsed and crushed Yuzwa's right foot, resulting in the amputation of two of his toes and parts of others.

He filed suit against HAL as well as a company which hired him to work aboard the cruise ship. Under the General Maritime Law of the U.S. and the Jones Act which was enacted in 1920, injured crew members - even if they are not U.S. citizens - are permitted to bring their legal disputes before U.S. juries and seek a wide range of remedies against their maritime employers and the owner and operator of the vessel. The cruise lines, however, have increasingly been inserting terms in the employment contracts requiring crew members to submit their claims to "arbitration."

Arbitration is a procedure which strips crew members of their right to trial by jury.  Cruise lines prefer arbitration because they believe that compensation awarded to injured crew members will be substantially less and the chances of defeating the crew member will be substantially greater. Arbitration also limits the ability of crew members to engage in discovery of the cruise line's wrongdoing.

The defendants in Yuzwa"s lawsuit responded by moving to dismiss his law suit, which you can read here, and compel him to arbitrate his case in Canada without a jury.  HAL subsequently stipulated that the arbitration could take place in Los Angeles with U.S. law applying but without a jury.

The U.S. federal judge agreed with HAL's argument and compelled Yuzwa to attend arbitration rather than a jury trial. You can read the judge's decision here.

Injured crew members should anticipate that most cruise lines will respond to lawsuits by arguing that the cases should be decided through arbitration.

Although the arbitration awards may generally be considered to be lower than what could be obtained during jury trials, it may be possible to obtain significant compensation for significant injuries. Our firm obtained the highest award in an arbitration case on behalf of an injured crew member.  Read: Walker & O'Neill Featured in Top Verdicts and Settlements" for $1,250,000 Verdict for Injured Crewmember Against Royal Caribbean

You can read about the issue of arbitration of crew member cases in these articles:

Arbitration of Cruise Line Crewmember Cases

Lindo v. NCL: Crewmembers Lose Rights As Harsh Cruise Arbitration Decisions Continue

 

Photo credit: Sebastian Wessels / Wikipedia

Walker & O'Neill Featured in "Top Verdicts and Settlements" for $1,250,000 Verdict for Injured Crewmember Against Royal Caribbean

The Daily Business Review released "Top Verdicts & Settlements" for last year.  You can click on the digital version here.

We obtained the highest award in an admiralty / maritime case in Florida in 2011.  The case involved an injured crew member from Royal Caribbean's Jewel of the Seas who the cruise line sent back to Serbia and then denied her appropriate medical care and treatment.

We flew our client to Miami and arranged for her to see a board certified orthopedic surgeon who recommended surgery.  Royal Caribbean sent her to a local "litigation doctor" who never testifies that injured crewmembers need surgery.

The three arbitrators ruled that the cruise line failed to provide our client with a safe place to work and was 100% negligent for causing her accident.

The arbitrators also found that Royal Caribbean refused to provide prompt and adequate medical treatment to its injured cruise employee, and that its failure to authorize the necessary surgery "lacked any reasonable defense."

The arbitrators awarded our client $1,250,000, the highest amount in a crewmember case last year and the most ever in a cruise arbitration matter.      


Cruise Ship Rape - Arbitration in Bermuda? A Jury Trial in Miami? Or Both?

In the past month, I have written about the progression of federal court cases which have chipped away at the rights of foreign crewmembers, who are the backbone of the U.S. based cruise industry.

The cases of Lindo v. NCL (Bahamas) Ltd. and Henriquez v. NCL showed that the Eleventh Circuit would not hesitate to affirm the dismissal of the claims filed on behalf of NCL crewmembers in the U.S. courts here in Miami, leaving the seriously injured seamen to seek compensation in foreign countries applying foreign law.

Princess Cruises - Star Princess - Cruise Ship - Arbitration Sexual AssaultOn Friday, the Eleventh Circuit decided the case of Jane Doe v. Princess Cruises.  The Court addressed the issue whether a Princess crewmember raped on the M/S Star Princess cruise ship would be sent from the U.S. to face uncertain justice before an arbitrator in a country selected by the cruise line, or whether she could try her case here in Miami before a jury.  

According to the opinion which you can read here, the facts allegedly "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 her attempts to obtain counseling and medical treatment ashore."  

We represent Jane Doe (whose name is being protected to protect her confidentiality). 

Princess Cruises is represented by Miami cruise defense lawyer Jeffrey Maltzman.

The complaint that we filed on her behalf alleged ten (10) causes of action:

As described by the Eleventh Circuit, the ten claims are:

(1) a “Jones Act negligence” claim, alleging that Princess Cruise Lines breached its “duty to provide a safe place to work such that [Doe] could perform the job obligations in a reasonably safe manner and live aboard the vessel free from sexual violence and/or sexual harassment”;

(2) an unseaworthiness claim, alleging that the cruise line breached its “non-delegable duty to provide [Doe] with a seaworthy vessel upon which to work and live free from sexual battery and/or sexual harassment”; (3) a Jones Act claim, alleging that the cruise line breached its duty under that act to provide Doe with prompt, adequate, and complete medical treatment for “injuries sustained while in the service of the vessel”;

(4) a maintenance and cure claim, alleging that the cruise line “purposefully refused to arrange for and pay [for] timely and complete medical cure” despite its obligation to do so under “the General Maritime Law”;

(5) a Seaman’s Wage Act claim that the cruise line breached its “duty to timely pay all of [Doe’s] wages as a seaman;”

(6) a false imprisonment claim, alleging that the cruise line had “purposefully and intentionally restrained [Doe] against her will on the cruise ship and did not permit her to leave the cruise ship to go ashore for medical treatment” in Seattle;

(7) an intentional infliction of emotional distress claim, alleging “separate and independent torts committed by” the cruise line, its agents, and its employees related to Doe’s rape and the way that they handled the situation and treated her after learning of the rape;

(8) a spoliation of evidence claim, alleging that the cruise line breached its duty to preserve evidence after one of its crew members sexually assaulted and battered Doe;

 (9) an invasion of privacy claim, alleging that the cruise line, though its agents, breached its duty to protect Doe’s confidentiality and privacy as a rape victim by repeatedly disclosing her real name in an effort to intimidate and embarrass her; and

(10) a fraudulent misrepresentation claim, alleging that officers of the cruise line who were on the ship repeatedly and falsely told Doe after she had been drugged and raped that she could not disembark the ship to obtain medical treatment and counseling by doctors of her own choosing.  

The Court held that the first five causes of action fall within the language of the arbitration agreement.  The trial court will then consider the cases of LindoHenriquez and Thomas to determine whether these first five causes of action should be sent to Bermuda to be arbitrated and what law should apply.   However, the Court held that the last five causes of action, which involved post-rape conduct alleged against the cruise line, did not arise of of Jane Doe's employment and therefore are not subject to arbitration.  The last five legal theories alleged against the cruise line will be heading toward a jury trial here in Miami. 

This case should be of continuing interest to maritime lawyers representing crewmembers working for cruise lines which insert arbitration agreements in their employment contracts.

The case was featured today in the Daily Business Review.  Maritime lawyer Brett Rivkind also wrote an excellent blog about the rape case and the issue of arbitration entitled: "Appeals Court Addresses Arbitration Clause Involving Claim by Crewmember for Sexual Assault."

 

Photo credit:  Star Princess Cruise Ship, Seattle Washington - Jim Walker 

Henriquez v. NCL: Eleventh Circuit Slams Another Door in the Face of an Injured Crewmember

Last week we reported on the case of Lindo v. NCL (Bahamas) Ltd. where the Eleventh Circuit Court of Appeal affirmed the dismissal of a case filed on behalf of a seriously injured NCL crewmember from a U.S. court, leaving him to seek compensation in Nicaragua.    

Today the same court entered a similar order in the case of Henriquez v. NCL.  Mr. Henriquez was injured when another  crew member smashed a glass bottle on his head and stabbed him while they were aboard the NCL cruise ship.

Jones ActWhen he filed suit for compensation under the Jones Act and the maintenance and cure doctrine, NCL responded with a motion to send his case to arbitration in Nicaragua where the arbitrator would apply Bahamian law. 

The appellate court refused to entertain the crewmember's argument that arbitration is against public policy because an arbitrator in Nicaragua applying Bahamian law might not recognize his claim under the Jones Act.  The court held that Mr. Henriquez "cannot avail himself of the public policy defense at this stage . . . only after arbitration may a court 'refuse to enforce an arbitral award if the award is contrary to the public policy of the country.'"

The court also rejected the argument that arbitration should not proceed because he signed his employment agreement under duress. 

Finally, the Eleventh Circuit dismissed the crewmember's maintenance and cure award and held that it was subject to arbitration.

This xenophobic decision is unconscionable.  The Bahamas has not adopted U.S. statutory law or maintenance and cure.  This type of ruling ensures that cruise lines face limit virtually no accountability when they injure a crewmember on their cruise ships and then refuse to provide prompt and adequate medical care.  In the process, the Eleventh Circuit has departed from 90 years of Jones Act history and close to 200 years of maintenance and cure decisions.    

Lindo v. NCL: Crewmembers Lose Rights As Harsh Cruise Arbitration Decisions Continue

Yesterday, in the case of Lindo v. NCL, a federal appellate court entered a decision which further stripped the legal rights away from seriously injured cruise employees.   

The Lindo case is the latest decision which reflects that our judiciary has little concern for the rights of cruise employees outside of the U.S. 

Eight years ago the Norwegian cruise ship Norway blew up at the port of Miami.  Originally bearing NCL Norway Boiler Explosion the name SS France, the Norway was an old decrepit cruise ship built in 1960.  It was poorly maintained.  Over the course of 40 years, the ship's old boilers had been neglected to the  point of criminal wrongdoing   The cruise ship suffered from a long history of safety problems.  The NCL executives refused to invest the money necessary to replace the dangerous boilers which were cracking and ready to burst. 

The cruise ship was a time bomb waiting to explode.  

On May 25, 2003, the faulty boilers blew up while the Norway was docked at the port of Miami.  Vapors, smoke and human flesh billowed hundreds of feet into the air.  The explosion scalded eight Filipinos and one Jamaican crewmember to excruciatingly painful deaths, leaving dozen of family members grieving the loss of their husbands, fathers and brothers.  

The families filed lawsuits against NCL and its parent company, Star Cruises, for negligence under the Jones Act, unseaworthiness, failure to pay maintenance and cure under the general maritime law of the United States, and punitive damages

NCL paid what is described as a confidential settlement, rumored to be over $7,000,000, to the family of the dead Jamaican crewmember.

But NCL responded to the lawsuits filed by the families of the eight dead Filipino men by moving to enforce language in the crewmembers' employments agreements which purported to prohibit the filing of lawsuits in the U.S.  NCL argued that the dead men's lives were to be valued by a compensation scheme set up in the Philippines which set the value of a dead seafarer at around $60,000.  

Even though the cruise line is headquartered here in Miami and the accident occurred here, NCL instructed its Miami defense lawyers to argue that the families had to pursue arbitration in Manila where a dead Filipino was considered less valuable than the luxury cars driven by NCL's executives.

Why the discrepancy between the compensation owed to the wife and children of a Jamaican crewmember versus the family of a Filipino? 

The answer lies in the word "arbitration."  Unlike the Filipinos, Jamaican crewmembers were not subject to arbitration agreements, which are designed by large corporations to take away a Norway Cruise Shipcrewmember's right to a jury trial in the U.S.   The Jones Act has provided crewmembers - both U.S. and "foreign" seafarers - the right to seek compensation from juries in the U.S. for dangerous work conditions aboard ships for the past 90 years.

Recognizing that a U.S. jury would fairly consider compensation for the Jamaican seafarer, NCL paid a fair amount of compensation to the surviving family members in Jamaica. 

But for a Filipino who might have to arbitrate the case?  NCL gambled that it could convince a U.S. federal court to kick the Filipino families' cases out of the U.S. because of an "arbitration" clause in the Filipino crewmembers' employment agreements.  Without a jury trial under the Jones Act in the U.S., the Filipinos' cases would be worth peanuts.

NCL's strategy worked.

On October 14, 2003, in the case of Bautista v. Star Cruises, 286 F. Supp. 2d 1352 (S.D. Fla. 2003), a federal district court in Miami granted NCL’s motion to compel arbitration and closed the cases.  On January 18, 2005, in Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005), the Eleventh Circuit affirmed the order compelling arbitration.

The Bautista case stripped the NCL crewmembers of their right to try their cases in state court before a jury in the U.S.  The opinion was a result-oriented decision for big business and against the "little man."  NCL thereafter settled the death cases for a small fraction of what anyone in a civilized country would consider fair and just    

After NCL's stunning success in Bautista, other cruise lines based in Miami began inserting language in their crewmember contracts of employment taking away the right to a jury trial under the Jones Act.   Carnival and Royal Caribbean began requiring the cruise employees to arbitrate their cases outside of the U.S. without a jury.  The cruise lines unilaterally deprived their ship employees of U.S. remedies and inserted language requiring the application of foreign law. 

Crewmembers have historically been entitled to special protection under U.S. law.  Under the Jones Act, cruise employees are entitled to seek compensation for unsafe work conditions and must prove only that their injuries were caused by their employer's slightest degree of negligence.  Under the "unseaworthiness" doctrine, cruise lines are liable to their employees for dangerous shipboard conditions without a showing of negligence.  Crewmembers are also entitled to the payment of their living expenses and medical care under the "maintenance and cure" doctrine which has existed in the U.S. since around 1820.  Another important right afforded to seamen is a Federal statute which provides penalties against maritime employers for not timely paying wages to the crewmembers.

Cruise lines instead chose to insert the law of countries like Panama or the Bahamas.  These countries do not recognize the unseaworthiness or maintenance and cure doctrines.  Although the concept of negligence exists, these countries apply a much higher threshold necessary to establish liability and do not provide nearly the same elements of compensation.    

For the past six years, the cruise lines have sought to enforce arbitration clauses which send their employees outside of the U.S. to foreign countries which have few laws protecting the crewmembers.

Carnival LibertyIn 2009, the crewmembers finally received a break when the Eleventh Circuit held an arbitration clause attempting to apply Panamanian law was null and void when it deprived the seaman of his U.S. statutory right to recover penalties wages when the cruise line refuses to timely pay wages. 

In Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), the court held that public policy prohibited a cruise line from enforcing arbitration where the result was that a crewmember was stripped of his rights under U.S. law.  

Unlike the tortured and result-oriented reasoning in Bautista, the Thomas decision was regarded as a fair and logical decision by the Eleventh Circuit.  Finally, the Eleventh Circuit pushed back against the cruise industry's wholesale assault against the rights of crewmembers.     

Many maritime lawyers thought that the Eleventh Circuit would apply the logic of the Thomas decision to reject arbitration clauses which stripped crewmembers of their statutory rights under the Jones Act.    

But yesterday, crewmembers received a cruel blow when the Eleventh Circuit upheld a decision enforcing a NCL arbitration agreement which required the application of the law of the Bahamas and prohibited a seaman  from pursuing litigation in the U.S. applying the Jones Act.  In Lindo v. NCL, a crewmember from Nicaragua employed on the Norwegian Dawn was seriously injured during his work.  The NCL employment agreement contained language that crewmember claims  would be arbitrated in Nicaragua (Lindo’s country of citizenship) under Bahamian law (the law of the flag state of cruise ship).

In a split decision, the Eleventh Circuit upheld the arbitration agreement even though the crewmember lost his right to a jury trial under the Jones Act.  In a plodding and painfully reasoned 66 page opinion, the majority essentially upheld Bautista and effectively overruled the Thomas decision.   The court prohibited the seaman from making a public policy argument that the effect of a forum clause sending his case to Nicaragua and a choice of law clause applying Bahamian law waived his rights.   The court held that at the conclusion of the case, he might be able to raise this argument, although this appears to be at best an inefficient result and more probably an illusory remedy. 

In a well written and compelling dissent, Judge Barkett cited the tradition of recognizing the “great public policy of preserving [seamen as an] important class of citizens for the commercial service and maritime defence of the nation.”  Judge Barkett cited one of my favorite maritime cases, the case of Harden v. Gordon, 11 F. Cas. 480, 483 (No. 6,047) (C.C.D. Me. 1823) where U.S. Supreme Court Justice Story adopted "maintenance and cure" as part of American jurisprudence.  

Seamen have historically been regarded as "wards of the admiralty," and their rights have been a special subject of U.S. maritime jurisdiction.  The majority opinion in Lindo completely ignores this well established tradition and line of cases.  The Lindo decision has no mention of equitable principles, public policy, or basic human rights.

The notion that a crewmember stripped of his Jones Act, unseaworthy and maintenance and cure remedies under U.S. law will find justice under the laws of the Bahamas in an arbitration proceeding in Nicaragua is preposterous.

Unless there is a reconsideration by the Eleventh Circuit en banc, the cruise industry will view the Lindo case as a green light to screw ship employees at every turn. 

$800,000 Arbitration Award for Injured Carnival Crewmember

An arbitrator in California recently awarded substantial compensation on behalf of a seriously injured Carnival crewmember.

California attorney Stephen Estey issued a press release which stated that he obtained an arbitration award for a crewmember working aboard the Carnival cruise ship Imagination in the amount of $800,000 for injuries sustained in June 2008.  The press release states that Polish citizen Marcin Sokolowski was employed by Carnival as an assistant Maître D.’  His duties Imagination Cruise Ship - Crew Injury - Arbitrationincluded lifting heavy bins of food and equipment.   Although some of the bins weighed in excess of 100 pounds, Carnival refused to provide him with a dolly to assist him in loading and unloading the bins. 

In June, 2008, crewmember Sokolowski felt a "pop" in his low back while lifting the bins.  He felt immediate pain and reported this to the ship's doctor, who only prescribed pain medication. When the crewmember's pain persisted over the next few days, the ship doctor injected him with pain killers and tried to "adjust" his lower back. 

Sokolowski's condition declined and a doctor in Cabo San Lucas, Mexico recommended surgery after a MRI of his lumbar spine confirmed that he had a herniated disc at L5-S1 on the right side.

In mid August, 2008, surgeons at the University of California at San Diego Medical Center performed  a lumbar discectomy; unfortunately, Sokolowski suffered permanent damage to the nerves radiating to his leg.  The press release states that the U.S. neurosurgeon and, subsequently, a disability commission in Poland found Sokolowski to be permanently disabled.  The arbitrator awarded total compensation in the amount of $800,000. 

As we reported earlier today, arbitration awards for back injuries have ranged for as little as $75,000 to a high of $1,250,000 in a case we handled earlier this year.

I do not know Mr. Sokolowski or his counsel but his story is the same story injured cruise employees tell us.  Crewmembers sustain serious injured on cruise ships and then undergo medical "treatment" on the cruise ship consisting of masking the pain and delaying the cure.  By the time that board certified U.S. doctors finally treat them, the crewmembers often have sustained additional and permanent neurological damage.   

Given the range of cruise ship arbitration awards so far, Mr. Sokolowski's lawyer did a good job obtaining compensation for his client.   

If you are a crewmemmber, from the Caribbean, Europe, India or South or Central America, injured on a cruise ship, please consider reading Arbitration of Cruise Line Crewmember Cases.

Arbitration of Cruise Line Crewmember Cases

In the last few years, the major cruise lines have been trying to enforce arbitration provisions which they inserted into the crew member's employment agreements.

Many of our crew clients around the world ask us "what is arbitration?" and was is the difference between an "arbitration" and a "trial."

Arbitration is a process where disputes between parties are decided by an "arbitrator" or a panel of "arbitrators."  In the crew cases we have arbitrated, the process is started by filing a claim with the Cruise Ship Arbitration - CrewMember American Arbitration Association / International Centre for Dispute Resolution.  This is the administrative body, typically called AAA or the ICDR, which oversees the process. 

The biggest difference between arbitration and a trial, is that a trial takes place before a judge and a jury.  There is no judge or jury in arbitration. 

Arbitrators are typically other attorneys or retired judges who are selected by counsel for the parties.  When there are three panel arbitrators, counsel for the crewmember will select one arbitrator and counsel for the cruise line will select one arbitrator.  Those two selected arbitrators will select a third arbitrator.  The arbitrators are sworn to be fair and impartial.

Once the arbitrator or arbitrators are selected, a date for the arbitration hearing will be selected.  Unlike a jury trial which could easily last more than a week, an arbitration hearing may last just two days.  There are relaxed rules of evidence.  The arbitrators will typically receive into evidence hearsay medical reports and affidavits of witnesses without the other side being permitted an opportunity to conduct cross examination.   

Pre-hearing discovery is limited.  There is no requirement to conduct discovery, although in most cases the crewmember will give a deposition and appear for a medical evaluation by a doctor selected by the cruise line defense lawyer.  We will always have our crew clients examined by a doctor who will appear live at the arbitration hearing, and we will take a deposition of a representative of the cruise line.

The cruise lines are responsible for the filing fee and the fees of the arbitrators.  These costs and fees can be expensive.  A cruise line paid around $60,000 in the ICDR filing fee and the fees of three arbitrators in a recent case.  Obviously, no crewmember could afford to arbitrate if they were responsible for these fees.  

There is the issue of where the arbitration hearing will take place.  Many arbitration agreement stipulate that the hearings will take place in the country where the cruise ship is flagged or the country of the crewmember's citizenship of the crewmember.  In many cases, the cruise line will nonetheless agree to arbitrate in Miami, because it is too expensive to pay the fees and costs associated with flying Miami based arbitrators and defense lawyers to far away places like India.  Quite frankly, I would love to arbitrate cases in India, Romania, Serbia, and throughout the Caribbean islands.    

Another big difference between arbitration and a trial is that the entire arbitration procedure, from start to finish, should take less than one year.  Given the congestion of our court docket in the state court system here in Miami, a date for jury trial could take two years or more.  This is good news for injured crewmembers who have no income and are in need of resolving their cases in an efficient manner.

Once the arbitration award is decided, it is not appealable except under very rare circumstances.  This is good news because the cruise lines can't drag out an appeal for another year. 

It is generally thought that a down side of the arbitration proceeding is that the amount of the arbitration awards are generally considered to be less than what a jury might otherwise award.  But the range of arbitration awards in my experience and to my knowledge have not been unreasonably low.

Of the six or so arbitration awards I am familiar with regarding crewmembers with injured backs for example, there was a low award of around $75,000, several in the $300,000 to $400,000 range, one for $800,000, and the high award of $1,250,000 which our firm handled this year.

If you are a crewmember injured on a cruise ship, don't hesitate to contact our office for a free consultation to discuss your rights.

Royal Caribbean Ordered to Pay $1,250,000 to Injured Crewmember

An Arbitration panel in Miami, Florida has ordered Royal Caribbean Cruises to pay $1,250,000.00 to a crewmember following an injury aboard the Jewel of the Seas cruise ship.

The crewmember, who is from Serbia, sustained a serious back injury in June 2008 when a crew member violently slammed a door into her back while she was walking down a narrow hallway.  She sustained a large herniated disc.  She reported to the ship infirmary and the ship doctor found her unfit for duty.  However, her supervisor instructed her to continue working.

Jewel of the Seas - Cruise Ship Medical Care - Crew Member - ArbitrationThe ship doctor thereafter refused to take her medical condition seriously, and did not take an x-ray or order a MRI at a port of call.  After seven weeks of continuous work, her medical condition deteriorated badly.  She collapsed and had to be taken from the cruise ship on a stretcher with a IV morphine drip to manage her pain.

Royal Caribbean sent her back to Serbia and refused to arrange for medical treatment.  It paid her only $12 a day for lodging and food, which is impossible to live on.  It paid her consistently late.  It took the cruise line over five months to finally authorize back surgery in January 2009.  The doctor then performed surgery at the wrong level.  Royal Caribbean thereafter refused to arrange or pay for her rehabilitation or arrange for follow-up x-rays or a MRI.

After she retained Walker & O’Neill to represent her, the cruise line continued to refuse to meet its legal obligation to provide her with the necessary medical treatment.  When our firm complained, the cruise line terminated her living expenses. One of the in-house lawyers overseeing the cruise line’s medical department, Tony Faso, decided to abandon her.  Mr. Faso sent an email to Walker & O’Neill stating:

"I am sure any arbitrator will agree with me. I am sure that I will get some ridiculous response from you. I really don't care . . ."

Walker & O’Neill then flew the crew member here to Miami, and arranged for her to see a U.S. board certified orthopedist who determined that the first surgery was a failure.  Royal Caribbean nonetheless refused to reinstate the crew member’s benefits or provide her with the necessary medical care.

The three member Arbitration panel found Royal Caribbean’s refusal to pay maintenance and cure benefits to be:

" . . . not reasonable.  The denial of those benefits lacked any reasonable defense . . . "

The Arbitrators awarded the crew member $1,250,000.00.

Royal Caribbean was also found responsible for $11,650.00 for the administrative costs of the International Center for Dispute Resolution ("ICDR") as well as $48,970.00 for compensation of the Arbitrators.  

This award is the highest arbitration amount awarded to an injured crewmember since cruise lines began arbitrating cases. The award demonstrates the consequences of a cruise line unlawfully abandoning an ill crewmember and spitefully terminating her medical benefits. 

The crew member was represented by James (“Jim”) Walker and Lisa O’Neill of Walker & O’Neill P.A. and Jonathan Aronson of the Aronson Law Firm.

Royal Caribbean was represented by Curtis Mase of the Mase, Lara & Ebersole law firm.

Maritime Rights of Princess Cruises Crewmembers for Injuries and Illness

Most crewmembers like their jobs.  They work hard but take time to enjoy the camaraderie that exists between the crew.  But when they bcome injured, and particularly if they are sent back home, they find it difficult to obtain medical treatment for their ship related injuries.

Princess Cruises - Crew - Maritime Rights - InjuriesMany crewmembers employed by Princess Cruises have contacted us to inquire about their rights after being injured or becoming ill on Princess cruise ships. 

Most crewmembers contact us via email after they have been sent home on "medical leave," but the cruise line refuses to timely provide them with medical treatment and payment of their living expenses.

Unfortunately, Princess keeps its crewmembers in the dark.  Most crewmembers do not understand these basic maritime rights:  

The Jones Act & the Right to a Safe Place to Work Aboard the Cruise Ship

The Jones Act is a U.S. law which requires maritime employers to provide their crew with a safe place to work.  Under this law, cruise lines must operate their cruise ships in a safe and prudent manner.  The types of cases which fall under the Jones Act include waiters slipping and falling in the galley, neck, back and wrist injuries due to carrying heavy trays, and back injuries due to heavy lifting. 

If a crewmember's injury is caused by the cruise line's negligence (even the "slightest degree of negligence"), the crewmember is entitled to make a claim for lost wages and tips, pain and suffering, mental anguish, and medical expenses (in the past and the future).    

The "Unseaworthiness" Doctrine - Strict Liability for Cruise Ship Injuries

Cruise lines are required to maintain and operate their cruise ships in a manner which does not cause injury to the crew employees.  If any part of the vessel is dangerous and causes an injury to a crewmember, the cruise line faces liability for paying compensation to the crewmember.  This liability exists without the necessity of proving that the cruise line was negligent.  A cruise ship can be found to be "unseaworthy" if there is insufficient training of the crew, an insufficient number of employees to perform the work, or the crew is required to perform the work in a dangerous manner.

Princess Cruises - Crewmember Rights - Illness and InjuryUnder certain circumstances, the cruise ship can become "unseaworthy" when a crewmember attacks or sexually assaults a crewmate, particularly if a weapon or date rape drug is used.

As is the case with Jones Act negligence, a finding that the cruise ship is "unseaworthy" entitles the crewmember to the full range of damages - ranging from wages and medical expenses to pain and suffering and mental anguish (inconvenience, depression, anxiety).

Prompt and Adequate Shipboard Medical Treatment

Crewmembers who become ill or injured are entitled to prompt and adequate medical treatment from the ship doctor and nurse.  If the condition cannot be treated satisfactorily on the cruise ship, crewmembers are entitled to seek medical treatment in the next port of call, including U.S. ports of call.  Crew employees often work 12 to 14 hours a day, seven days a week.  When they become injured or sick, unfortunately there is a mentality of the supervisors and officers that they "must keep working."  Often the crew's supervisors frown on complaints of being ill, injured, tired or mentally exhausted.

Sometimes waiters, bar staff and cleaners develop serious injuries carrying trays, lifting boxes, and working long hours.  Their injuries can become serious and permanent due if there is a delay in treating the injury.  Under the Jones Act, crew members have the right to seek compensation if their illness or injury is not treated in a timely and responsible manner. 

"Maintenance and Cure"

Cruise lines like Princess are required to pay the crewmember's living expenses (called "maintenance") and provide all necessary medical treatment (called "cure") when a crewmember is unable to work due to an injury or illness and needs to leave the cruise ship. Crewmembers are entitled to select their own doctor or switch to their own doctor if they are dissatisfied with the company doctor. 

"Maintenance and cure" is a well-established legal doctrine which has existed in the U. S. since 1820.  It can be dated back to the Medieval Sea Codes.  Under this doctrine, cruise lines are legally obligated to treat their crew as if they were their children needing medical help. 

We have found that Princess often does not pay living expenses or provide its crewmembers with medical treatment.  Sometimes the cruise line requires the injured crewmember pay for his Princess Cruises - Maritime Rights - Jones Actor her own medical treatment and then offer to possibly pay the bills later.  This violates the law.  As a practical matter, most crewmembers cannot afford to pay for surgeries or ongoing therapy.  The result is that the medical condition worsens and the crewmember experiences additional pain and disability.    

Under the "maintenance and cure" doctrine, crewmembers can seek compensation when the cruise line abandons or neglects in their home countries.  In addition to the damages under the Jones Act and "unseaworthiness" doctrine, crewmembers can seek compensation for additional pain and suffering and mental anguish, unpaid medical and living expenses, and attorney fees.  If the cruise line acted unreasonably, callously, arbitrarily, or capriciously, then the crewmember can seek "punitive damages" - designed to punish the cruise line for acting badly.        

Princess Cruises' Illegal "Employment Contract"

If you are a Princess crewmember reading this article, you probably have never heard of the Jones Act or the "unseaworthiness" and "maintenance and cure" doctrines.  That's because Princess does not explain these basic rights to you.  You can read your "employment contract" a million times, but you will never find any reference to these rights.

Instead, Princess Cruises claims that a crewmember must submit to "arbitration" (without a jury) in Bermuda, and only the law of Bermuda applies. Of course, the cruise line selected Bermuda law because Bermuda does not have a Jones Act nor does it recognize the legal doctrines explained above. 

Princess Cruises - Unseaworthiness - Crew rightsHowever, U.S. courts have found that Princess' "employment contract" and its "terms and conditions" which attempt to apply the law of Bermuda are illegal and unenforceable.  Princess does not explain this either to its crewmembers.          

About Princess Cruises - Doing Business in Florida

Princess Cruises is a cruise line headquartered in Santa Clarita, California.  It is well known  for the Pacific Princess which served as the cruise ship for the "Love Boat"  television program. 

Princess operates fourteen large cruise ships: Caribbean Princess, Coral Princess, Crown Princess, Dawn Princess, Diamond Princess, Emerald Princess, Golden Princess, Grand Princess, Island Princess, Ruby Princess, Sapphire Princess, Sea Princess, Star Princess, and Sun Princess - as well as three smaller cruise ships, Ocean Princess, Pacific Princess, and Royal Princess. 

Princess Cruises registered its corporation and flagged its cruise ships in Bermuda in order to avoid U.S. taxes and U.S. safety & labor laws.  But Princess has its headquarters in Southern California with a huge base of operations in Broward County, Florida.  It is a wholly owned subsidiary of Miami based Carnival cruise lines.  There are numerous lawsuits pending in Miami against Princess for injuries to Princess cruise employees around the world.  

We have handled claims against Princess Cruises involving passengers and crewmembers. One of the most publicized case involved the death of a passenger due to a fire aboard the Star Princess.  We represented the passenger's children in that tragedy and one of our clients testified before our U.S. Congress regarding fire safety issues.

 

Credits:

Photographs of Star Princess cruise ship   Jim Walker's Flickr page

Photographs of Princess crewmembers Princess Cruises Crew Members FaceBook Page  ("This is for all the people who work onboard Princess' ships and  . . .  lived for months on end in a prison cell they call a cabin, gotten drunk off of $1 beer and wine in the dungeon they call a crew bar.")

Senator Al Franken Cross Examines Corporate Lawyer Regarding "Arbitration" of Rape Victims' Rights

In a previous article entitled "Arbitration" - Stripping Rape Victims of their Rights," I discussed the sleazy tactics of some corporations who try to take away rape victims' rights by forcing them into "binding mandatory arbitration."

Haliburton/KBR tried to force its employee, Jamie Leigh Jones, into arbitration after she was drugged and gang raped in Iraq while working for a military subcontractor.  

Senator Franken introduced legislation in the U.S. Senate which prohibits companies who do business with the U.S. government from including "arbitration" agreements in employment contracts.  Rape victims should be entitled to a jury trial and their "Day in Court," rather than have an arbitrator selected by their employer decide their case.

This clip shows the corporate lawyer, for the Haliburton/KBR company who hired the rapists, wilting under Senator Franken's questions.  It quickly becomes evident that the lawyer had a morally indefensible position.

It is worth watching to the end: 

 

 

Some cruise line are just as dirty as Haliburton/KBR. 

I will be discussing the issue of cruise lines trying to strip rape victims of their rights over the course of the next several months. 

Stay tuned.  

P.S. Senator Franken would be a great lawyer . . .

Lawyers USA Article Regarding Cruise Ship Litigation Features Firm, Clients & Friends

Lawyers USA (@LawyersUSA) just published an interesting article entitled  "Federal Cruise Ship Bill Pending in Congress but Plaintiff's Lawyers Say Measure doesn't Hold Water."  Written by Sylvia Hsieh, the article discusses what's new in the specialized field of cruise ship litigation. 

The article features our firm and our clients and friends.  

Cruise Crime

The article first mentions the Cruise Vessel Security and Safety Act of 2009 which will require peep holes on passenger doors, technology for overboard passengers, mandatory reporting of shipboard crimes, and training for crime scene preservation in light of the large number of shipboard rapes on cruise ships. 

Firm client Laurie Dishman, friend Ken Carver, and the International Cruise Victims ("ICV") organization are credited for spearheading the legislation.  Ms. Dishman and Mr. Carver were victimized by cruise line giant Royal Caribbean in separate cruise incidents. Ms. Dishman was a victim of sexual assault on Royal Caribbean's Vision of the Seas cruise ship in 2006.  Mr. Carver's daughter Merrian disappeared in 2004 during a cruise aboard the Mercury, operated by Royal Caribbean's subsidiary Celebrity Cruises.

In both cases, the cruise line tried to cover the incidents up and treated Ms. Dishman and Mr. Carver dreadfully.  In response, Mr. Carver created the ICV which advocates safety for passengers on cruise ships.  Ms. Dishman is on the ICV's Board of Directors. 

The cruise safety bill should be voted on by the House of Representatives as early as next week. 

The article points out that the proposed legislation falls short in a number of areas.  The bill originally included an amendment to the Death on the High Seas Act (DOHSA), which currently deprives damages to family members of passengers or crew members who die in international waters.  I have written about DOHSA in a previous blog entitled "The Death on the High Seas Act - Screwing American Passengers for 89 Years." 

The cruise industry's trade organization Cruise Line International Association (@CruiseFacts) killed the amendment after spending millions of its tax-free-money to lobby Congress. The article refers to CLIA lawyer Michael Crye, who admits the cruise industry opposes amending DOHSA "but he could not provide a reason for the opposition."

This is typical of CLIA's lack of candor.  The cruise industry opposes amending DOHSA because families will finally be fairly compensated when a loved one is killed on a cruise.  Cruise lines simply wish to avoid paying the compensation.

The article quotes Los Angeles attorney Michael Ehline, a good friend of the firm, that foreign flagged cruise ships consider themselves to be countries unto themselves.

"Arbitration" of Crew Member Cases

A hot topic in the world of cruise law is arbitration of claims involving injured crew members, who comprise over 98% of the cruise industry shipboard work force. All cruise lines are now forcing crew members to pursue their claims in arbitration, where the crew members lose the right to a jury trial. Some cruise lines are requiring the arbitration to take place in either the country of the flag of the cruise ship or the crew member's home country.   

This is pretty much a joke, and some cruise line defense lawyers agree privately.  This is why the article states that "attorneys for Royal Caribbean, Princess Cruise Lines and Norwegian Cruise Lines did not return calls seeking comment for this article."  

The Court of Appeal for the 11th Circuit recently held that, in certain circumstances, cruise lines may compel the crew member to arbitration outside of the U.S.  However, they cannot take away all of the crew member's rights by trying to apply foreign law.

Injuries and Death of Cruise Passengers During Cruise Sponsored Excursions 

The article also addresses injuries to passengers during excursions.  The law requires cruise lines to exercise reasonable care in selecting shore excursions for its passengers.  Cruise lines are required to properly investigate whether the excursion companies have a good safety record and operate the excursions responsibly.

We have handed a wide variety of "excursion cases," including cases where passengers have been sexually assaulted ashore and even during snorkeling and diving excursions.

CLIA's lawyer Mr. Crye is quoted as gleefully saying that it is  a “difficult stretch to attempt to hold a cruise line liable for activity that occurs on an excursion operated by a different company in a foreign country.” However, cruise ships collect hundreds of millions of dollars promoting cruise excursions.  Cruise lines face accountability when dangerous excursions kill or seriously injure passengers.

The article also refers to cruise line lawyer Darren Friedman, a partner with Miami's Maltzman Foreman law firm, which represents numerous cruise lines. His firm defended Royal Caribbean in the high profile cases involving Ms. Dishman and Mr. Carver.

Whenever we see Mr. Friedman or his firm involved in a case, the cruise line is usually guilty as hell. 

"Arbitration" - Stripping Rape Victims of their Rights

In April 2008, I attended the Congressional Victim's Rights Awards Caucus Ceremony in Washington, D.C.  One of my clients and good friends, Laurie Dishman, was being honored by the Caucus.  Ms. Dishman had been raped on a Royal Caribbean cruise ship.  The cruise line mistreated her following the shipboard crime. 

Ms. Dishman became a zealous advocate for rape victims after experiencing first-hand how the cruise line treated her and tried to cover the crime up. She received an award from her Congresswoman, the Honorable Doris Matsui of Sacramento California.  The photo to the the left is of Congresswoman Matsui, Ms. Dishman, and her dad Bill Dishman. 

But this article is not about Ms. Dishman, who is one of the most amazing women in the world.  I will write about Ms. Dishman's trials & tribulations and her resounding victories in later blogs.  This is about another brave young woman, Jamie Leigh Jones.   

At the awards ceremony, Ms. Dishman and I met Ms. Jones.  Ms. Jones was also being honored by her Congressman, the Honorable Ted Poe of the 2nd Congressional District in Texas (Houston, Beaumont).  Congressman Poe has attended some of the hearings in Washington over the years regarding the problem with crimes on cruise ships.  He has been a consistent supporter of crime victims, including rape victims on cruise ships.

Ms. Jones attended the awards ceremony with her fiance, a member of the U.S. Navy, and her family. 

While receiving her award, Ms. Jones briefly explained what happened to her.  While working in Iraq for Halliburton/KBR, a military contractor, her co-employees drugged and then gang raped her. She was also locked in a container and told not to report the crime.

When she filed suit to hold the rapists and Halliburton responsible for the horrific crime, her employer moved to dismiss her lawsuit and send her to what is called "arbitration."  Halliburton had inserted language into her employment agreement which tried to take away her right to a trial by jury.  Halliburton wanted her case to be decided by a single "arbitrator", picked of course by Halliburton (and undoubtedly a man), in a confidential setting.  She also had no right to appeal the arbitrator's decision.

I was dumbstruck to think that a rape victim could lose all of her legal rights and be subject to a "kangaroo court" where the same company who hired her rapists would also hire the arbitrator who would decide her case.  It seemed like being raped again.  

Halliburton's lawyers insisted on enforcing the "arbitration" scheme they prepared to rig the legal proceedings in favor of the corporation. The matter went on appeal to the Court of Appeal for the Fifth Circuit. 

The Court of Appeal recently ruled in favor of Ms. Jones.  The Court held that her claims for assault and battery, intentional infliction of emotional distress, negligent hiring, retention, and supervision, and false imprisonment are not subject to arbitration.  The Court's opinion is available online to review.          

The magazine Mother Jones covered Ms. Jones' story in an article entitled "Court Okays Halliburton Rape Trial."  It is worth a read.

There are corporations in the U.S., including cruise lines, who have modeled themselves on the Halliburton approach of let's-screw-our-employees-with-an-arbitration-agreement. Like Halliburton's lawyers, the cruise lines' lawyers have been plotting to deprive their employees of their rights. Some cruise lines are worse than others.  In subsequent blogs, I will discuss how some particularly bad cruise lines are scheming to strip their injured crew members - including rape victims - of their right to jury trials and U.S. maritime rights which have existed for 200 years.  

The Fifth Circuit's decision tells employers that you can't take away rights via arbitration when your employees drug, brutalize, and falsely imprison a young woman.  

The Court saw through Halliburton's arbitration scheme, and its secret kangaroo court. 

Now Ms. Jones can now seek justice in a court of law in front of a jury of her peers, rather than one of Halliburton's business partners. 

      

Photo Credits

Photos of Laurie Dishman - International Cruise Victims organization

Photo of Ms. Jamie Leigh Jones - ABC News 

Photos of Ms. Jones and Congressman Ted Poe -  Website of Honorable Ted Poe, 2nd Congressional District of Texas