Cruise Law News : Maritime Lawyer & Attorney : James M. Walker : Walker & O'Neill Law Firm : Admiralty Law, Cruise Ship Accidents & Injuries

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.

On 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 Lindo, Henriquez 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 

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Over a decade ago, maritime attorney Jeffrey Maltzman (photo below, middle) opened up the Miami office of the California law firm of Kaye Rose and Partners.  Over the course of the past ten years, Mr. Maltzman created a firm of around twenty-five lawyers which represented Carnival, Royal Caribbean and Princess Cruises in a variety of passenger and crewmember cases.  He teamed up with ace litigator Jeffrey Foreman (photo below, left), broke away from the Kaye Rose firm, and re-named his firm Maltzman Foreman.  

Mr. Maltzman's firm handled cruise line crisis management issues, such as when the Star Princess caught fire off of the coast of Jamaica.  He defended some of the most high profile cases against the cruise industry, including many cases involving young women who disappeared on the high seas or were the victims of violent crimes, including:

The disappearance of Amy Bradley from Royal Caribbean's Rhapsody of the Seas.

The disappearance of Merrian Carver from Celebrity Cruise's Mercury.

The sexual assault of Janet Kelly on a cruise ship (a confidentiality order prohibits us from mentioning the name of the cruise line).  

The sexual assault of Laurie Dishman on Royal Caribbean's Vision of the Seas.

Mr. Maltzman's firm was well known for its methodical and exhaustive investigation into the background of personal injury claimants and cruise ship crime victims.  A good example of the aggressive style of defending cruise line cases is found in articles "Defense Team Found the Needle in the Haystack" and  "When Winning is Everything, Maltzman Foreman is There."  After winning a case filed by a group of elderly passengers against Cunard, the firm was quoted saying "there's a saying that pigs get slaughtered . . . If you make them look like they're greedy . . . that usually has an impact. So we tried to paint them as greedy, exaggerating, malingering."    

We have litigated many cases against Mr. Maltzman's firm.  I have given him kudos in at least one prior blog article involving a disastrous bus excursion crash in the British Virgin Islands where a passenger was killed.  

However, the result of the harsh personal style of attacking sexual assault victims and grieving families members is that the cruise industry, particularly Royal Caribbean, has created life time enemies.  Many passengers who were raped or lost children on cruises and then subjected to the "make them look greedy, exaggerating, malingering" treatment have not forgotten their ill treatment following their personal cruise tragedies.  These victims created the International Cruise Victims (ICV) organization.  The ICV soundly defeated the cruise industry in the arena of public opinion.  Ken Carver and firm clients Laurie Dishman and Janet Kelly all appeared on national television and testified before our U.S. Congress regarding cruise crime issues.  There have been hundreds of articles in national and international publications involving the ICV members over the last several years.  Their compelling stories were integral in Congress passing the 2010 Cruise Vessel Security and Safety Act which now protects Americans on the high seas. 

Whereas the Maltzman firm was skilled at winning the small battles involving individual cases, it was consistently trounced in the larger war being fought by victims demanding cruise line transparency and accountability.

So this year began with word that Mr. Maltzman had suddenly and unexpectedly left the firm he created long ago. The firm, now called Foreman Friedman, dropped Mr. Maltzman's name and added the name of Mr. Maltzman's partner, Darren Friedman (photo above, right).  What happened?  Who knows?  Who cares?   Mr. Maltzman will create another dynamo of a new firm, no doubt.  Now there will be two firms where there was once one, both aggressively defending high profile cruise cases with a "winning is everything" attitude. 

Photo Credit: South Florida Business Leader

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In our first article regarding the excursion tour bus accident in Tortola, we explained that while Princess Cruises sent "customer care" representatives to the island to meet with the survivors of the crash - the cruise line also sent Miami defense trial lawyers to defend the cruise line's interests. 

The Cruise Line Gets Lawyered Up

The attorney heading up Princess Cruises' defense is Jeffrey Maltzman from the Maltzman Foreman law firm in Miami. Mr. Maltzman is an experienced and skilled trial lawyer who routinely defends cruise lines and excursion companies in high profile trials. 

Mr. Maltzman is best known for his successful defense of Cunard Line and Fun Water Tours following the crash of an excursion truck in Tortola British Virgin Islands (BVI) in November 2005.  The case  is highlighted in an article appearing in the National Law Journal entitled "Defense Team Found the Needle in the Haystack." 

The article explains that 8 cruise passengers from Cunard's Queen Mary 2 visiting Tortola were injured when the brakes of the excursion truck failed, causing the vehicle to crash in the side of a mountain.  The issue of the brake failure and whether the excursion company and cruise line knew of the brake problem were the central focus of the trial.  As the article explains, millions of dollars in compensation were at issue.    

Although the article explains that "odds were overwhelmingly against" the cruise line at the beginning, Mr. Maltzman and his partner, Jeffrey Forman, successfully defended the case.  Mr. Foreman is quoted as saying "there's a saying that pigs get slaughtered . . . If you make them look like they're greedy . . .  that usually has an impact.  So we tried to paint them as greedy, exaggerating, malingering."  The tactic worked, as the jury decided against all of the cruise passengers and Mr. Maltzman won a defense jury verdict for the cruise line and excursion company.  

Princess Cruises Denies Brake Malfunction?

Mr. Maltzman has been on the Caribbean Princess cruise ship this week interviewing the passengers injured in the latest excursion crash in Tortola.  His firm has what is called an "Emergency Response Team" where defense lawyers are scrambled to respond to cruise disasters.

Some passengers suggest that a "customer care" representative from Princess and Carnival introduced Mr. Maltzman as an "independent investigator" (although Mr. Maltzman identified himself as a lawyer for the cruise line).    

Mr. Maltzman is reportedly telling some of the passengers that the tour bus' air brakes were checked out by investigators and no problems were discovered.  It is less than clear whether the investigators were retained by the police or the defense lawyers on behalf of the cruise line. 

The defense strategy is already taking shape - the cruise line will deny that the accident was due to brake failure or any defect in the excursion bus or, if there was a problem with the brakes, neither the driver nor the excursion company or cruise line knew about it beforehand.  Princess Cruises will argue that it should not be responsible because this was just an isolated incident due to the momentary carelessness of the bus driver. 

Or in other words, the bus driver may turn out to be the "fall guy."

The Bus Driver Gets Lawyered Up

BVI Platinum News, which is providing excellent coverage of this tragic accident, reports that the bus driver, Roland Allen, retained a defense lawyer, Stephan Daniels.  BVI News reports that Mr. Allen is also known as "Crash Dummy."   

Mr. Daniels appeared in Court yesterday in an effort to try and get his client out of jail, following his arrest two days ago.  In an article entitled "Mechanical Problems May Have Caused Tuesday's Accident,"  BVI News describes what the bus driver's lawyer argued to the Court:

"Daniels told the court that his client was not aware that there was a brake malfunction when he was going down the hill, however as he applied the brake, he realized that it had failed.

Further, Daniels told the court that once Allen realized what was occurring, he tried his best to avoid the accident by gearing down, while attempting to brace the vehicle to the side of the hill to slow down the bus.

Daniels explained that the vehicle collided with the foundation of a church ruin and toppled. The Lawyer said that if this was not done, the accident could have been worse.

He said that it was clearly a mechanical malfunction that resulted in the accident and his client was not reckless."

The Court nonetheless declined to release Mr. Allen, but will consider the matter further at a hearing on March 2nd.

The Cruise Continues

Although none of the passengers have even ended their ill fated cruise, the defense lawyers for the cruise line and bus driver are posturing to defend their clients.  Princess Cruises has an excellent lawyer in Mr. Maltzman who has won this type of case before.  The bus driver should hope that his defense lawyer is equally talented.

Credits:

Jeffrey Maltzman       Superlawyers

Excursion Bus           BVI Platinum News

Roland Allen             BVI Platinum News  

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