John Doe v. Star Clippers, Ltd. Corp., et al

October 16, 2012

John Doe v. Star Clippers, Ltd. Corp., et al

Complaint

Our experienced maritime attorneys actively litigate in both state and federal courts to protect the rights of passengers and crewmembers injured at sea and on shore. In this complaint, a star clippers crewmember was injured when he was asked to repair a galley food elevator. The complaint alleges that the Plaintiff’s injuries were caused by Star Clipper’s failure to take proper safety precautions before and during the repair work.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.:
JOHN DOE
Plaintiff,

v.

STAR CLIPPERS, LTD., CORP.,
STAR CLIPPERS GSA, INC., d/b/a
STAR CLIPPERS AMERICAS and,
LUXEMBOURG SHIPPING SERVICES S.A., d/b/a
STAR CLIPPERS
Defendant
_______________________________/

SEAMAN’S COMPLAINT WITHIN THE MEANING OF 28 USC 1916

Plaintiff sues Defendant and alleges:

Preliminary Allegations

The Plaintiff is a citizen and resident of the Sovereign Nation of India. Defendants are corporations with a principal place of business in Miami, FL. The amount in controversy, without interest and costs, exceeds the sum or value specific by 28 USC § 1332. Plaintiff is a seaman within the meaning of 28 U.S.C. 1916 and can file suit without pre-paying the filing fee or costs. Alternatively, in the event that this lawsuit does not fall under this Honorable Court’s diversity jurisdiction, then this case falls under the court’s admiralty and maritime jurisdiction; within the meaning of Rule 9(h).

Defendants, at all times material hereto, personally or through an agent;
a. Operated, conducted, engaged in or carried on a business venture in this state and/or county or had an office or agency in this state and/or county;
b. Were engaged in substantial activity within this state and registered as a corporation doing business in the State of Florida;
c. Committed one or more of the acts stated in Florida Statutes, Sections 48.081, 48.181 or 48.193;
d. As a seaman, Plaintiff is entitled to bring his lawsuit in any jurisdiction and venue where the Defendants can be found. The Defendants can be found in Miami-Dade County, Florida as they operate a fully staffed office at 760 NW 107^th Ave. Suite 100 Miami, FL 33172. Defendants and/or their related companies have litigated in courts in Miami Dade County, Florida.

Defendants are subject to the jurisdiction of the courts of this state.

The causes of action asserted in this Complaint arise under the Jones Act, 46 U.S.C. Section 30104, and the General Maritime Law of the United States.

At all times material hereto, Defendants owned, operated, managed, maintained and/or controlled the vessel Star Flyer. At the present time, it is unclear whether one or all of the Defendants was/were the Plaintiff’s employer at the time of the incidents described in this complaint. The general maritime law allows Plaintiff, as a seafarer, to sue multiple Defendants as “alleged potential Jones Act employers.” Under the “borrowed servant doctrine” the question of the identity of the Jones Act employer is a question of fact for the jury.

6. At all times material hereto, Plaintiff was employed by the Defendants and/or an agent of the shipowner and/or ship operator.

COUNT I

JONES ACT NEGLIGENCE AGAINST ALL DEFENDANTS

Plaintiff realleges, incorporates by reference, and adopts paragraphs one through six as though they were originally alleged herein.

At all times material, Plaintiff was employed by Defendants as a seaman and was a member of the vessel’s crew. The vessel was in navigable waters.

It was the duty of Defendants to provide Plaintiff with a reasonably safe place to work.

Plaintiff was injured while aboard the vessel as follows: Plaintiff was required to complete a maintenance task outside the scope of his duties at the insistence of a superior officer. This task consisted of repairing a damaged food elevator in the galley. While in the course of repairing the galley elevator, Plaintiff was instructed by his superior officer to cut a cable supporting the galley elevator. Plaintiff was told this was safe to do. When Plaintiff cut the cable, the galley elevator crashed down on his forearm, breaking both bones in his forearm and causing severe nerve damage.

4. Plaintiff’s injuries are due to the fault and negligence of Defendants, and/or their agents, servants, and/or employees as follows:
a. Failure to use reasonable care to provide and maintain proper and adequate machinery, crew and equipment; and/or
b. Failure to use reasonable care to provide Plaintiff a safe place to work; and/or
c. Failure to promulgate and enforce reasonable rules and regulations to ensure the safety and health of the employees and more particularly the Plaintiff, while engaged in the course of his employment on said vessel; and/or
d. Failure to use reasonable care to provide Plaintiff a safe place to work due to: i. instructing Plaintiff to complete a task outside the scope of his job duties and abilities; ii. failing to provide Plaintiff with an adequate crew that included personnel to complete necessary maintenance tasks; iii. instructing Plaintiff to complete a task without first ensuring that reasonable safety precautions had been taken; iv. failing to properly train the Plaintiff; v. failing to have reasonable rules and regulations in place to ensure maintenance tasks are completed safely while taking all necessary safety precautions; vi. failing to have adequate personnel, time, and equipment to be able to carry out the duties in a reasonably safe manner, and/or vii. failing to adhere to various safety regulations including the International Safety Management Code and other applicable international treaties; and viii. Failure to maintain the galley food elevator in a reasonably safe condition; all of which caused the plaintiff to be injured; and/or
e. Failure to provide adequate instruction, and supervision to crew members and Plaintiff; and/or
f. Failure to provide Plaintiff and other crew members who were associated with Plaintiff or Plaintiff’s incident giving rise to this action, reasonable hours of employment so as to not overwork them to the point of not being physically fit to carry out their duties. Defendants employees are overworked to the point of fatigue; and/or
g. Defendants failed to learn and apply the common and well known principles of industrial ergonomics on board the vessel; and/or
h. Defendants used outmoded work methods and procedures and neglected modern material handling techniques; and/or
i. Defendants failed to train workers properly;
j. Defendants failed to implement safe work methods during repair of the defective galley food elevator;
k. Defendants failed to have adequate tools and equipment on board the vessel which were necessary to complete the required repair; and/or
l. Defendants failed to provide Plaintiff with mechanized aids commonly available in other heavy industries; and/or
m. Failure to ascertain the cause of prior similar incidents so as to take measures to prevent their re-occurrence, and more particularly Plaintiff’s incident; and/or
n. Failure to maintain the vessel and its equipment in a reasonably safe manner so as to prevent it from causing harm to Plaintiff; and/or
o. Failure to follow sound management practices with the goal of providing Plaintiff a safe place to work.

Prior to Plaintiff’s incident Defendants failed to investigate the hazards to Plaintiff and then take the necessary steps to eliminate the hazards, minimize the hazard or warn Plaintiff of the danger from the hazard.

At all times material hereto, Defendants negligently failed to determine the hazards on the vessel to Plaintiff, failed to eliminate the hazard, failed to modify the hazard and failed to properly warn Plaintiff of the hazard. In addition, Defendants violated the International Safety Management Code and failed to have a proper, adequate and safe Safety Management System Manual. All of the above caused the Plaintiff to be injured.

Defendants knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Defendants in the exercise of reasonable care should have learned of them and corrected them.

8. As a result of the negligence of Defendants, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past and futuer, and his working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. In addition Plaintiff in the past and in the future has lost the fringe benefits that come with Plaintiff’s job, including but not limited to pension, health insurance, free food, free shelter, free medical care, free uniforms, vacation, and free air line tickets home and back.

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

COUNT II

UNSEAWORTHINESS AGAINST ALL DEFENDANTS

Plaintiff realleges, incorporates by reference and adopts paragraphs one through six as though they were originally alleged herein.

On or about the previously stated date, Plaintiff was a seaman and a member of the crew of Defendant’s vessel, which was in navigable waters.

At all times material hereto, the vessel was owned, managed, operated and/or controlled by Defendant.

Defendants had the absolute nondelegable duty to provide Plaintiff with a seaworthy vessel.

4. On or about the previously stated date the unseaworthiness of Defendant’s vessel was a legal cause of injury and damage to Plaintiff by reason of the following:
a. Failure to use reasonable care to provide and maintain proper and adequate machinery, crew and equipment; and/or
b. Failure to use reasonable care to provide Plaintiff a safe place to work; and/or
c. Failure to promulgate and enforce reasonable rules and regulations to ensure the safety and health of the employees and more particularly the Plaintiff, while engaged in the course of his employment on said vessel; and/or
d. Failure to use reasonable care to provide Plaintiff a safe place to work due to: i. instructing Plaintiff to complete a task outside the scope of his job duties and abilities; ii. failing to provide Plaintiff with an adequate crew that included personnel to complete necessary maintenance tasks; iii. instructing Plaintiff to complete a task without first ensuring that reasonable safety precautions had been taken; iv. failing to properly train the Plaintiff; v. failing to have reasonable rules and regulations in place to ensure maintenance tasks are completed safely while taking all necessary safety precautions; vi. failing to have adequate personnel, time, and equipment to be able to carry out the duties in a reasonably safe manner, and/or vii. failing to adhere to various safety regulations including the International Safety Management Code and other applicable international treaties; and viii. Failure to maintain the galley food elevator in a reasonably safe condition; all of which caused the plaintiff to be injured; and/or
e. Failure to provide adequate instruction, and supervision to crew members and Plaintiff; and/or
f. Failure to provide Plaintiff and other crew members who were associated with Plaintiff or Plaintiff’s incident giving rise to this action, reasonable hours of employment so as to not overwork them to the point of not being physically fit to carry out their duties. Defendants employees are overworked to the point of fatigue; and/or
g. Defendants failed to learn and apply the common and well known principles of industrial ergonomics on board the vessel; and/or
h. Defendants used outmoded work methods and procedures and neglected modern material handling techniques; and/or
i. Defendants failed to train workers properly;
j. Defendants failed to implement safe work methods during repair of the defective galley food elevator;
k. Defendants failed to have adequate tools and equipment on board the vessel which were necessary to complete the required repair; and/or
l. Defendants failed to provide Plaintiff with mechanized aids commonly available in other heavy industries; and/or
m. Failure to ascertain the cause of prior similar incidents so as to take measures to prevent their re-occurrence, and more particularly Plaintiff’s incident; and/or
n. Failure to maintain the vessel and its equipment in a reasonably safe manner so as to prevent it from causing harm to Plaintiff; and/or
o. Failure to follow sound management practices with the goal of providing Plaintiff a safe place to work.

5. As a result of the unseaworthiness of the vessel, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred medical expenses in the care and treatment of Plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past and future, and Plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future. In addition Plaintiff in the past and in the future has lost the fringe benefits that come with Plaintiff’s job, including but not limited to pension, health insurance, free food, free shelter, free medical care, free uniforms, vacation, and free air line ticket home and back.

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

COUNT III

FAILURE TO PROVIDE MAINTENANCE AND CURE AGAINST ALL DEFENDANTS

Plaintiff realleges, incorporates by reference and adopts paragraphs one through six as though they were originally alleged herein.

On or about the previously stated date, Plaintiff while in the service of the vessel as a crew member was injured.

Under the General Maritime Law, Plaintiff, as a seaman, is entitled to recover maintenance and cure from Defendants , until Plaintiff is declared to have reached maximum possible cure. This includes unearned wages (regular wages, overtime, vacation pay and tips), which were reasonably anticipated to the end of the contract or voyage which ever is longer.

Defendants willfully and callously delayed, failed andor refused to pay Plaintiff’s entire maintenance and delayed providing the plaintiff the level of cure that the Plaintiff needed so that Plaintiff has become obligated to pay the undersigned a reasonable attorney’s fee. In addition Defendant is late in paying the maintenance and cure.

4. Defendants’ failure to pay Plaintiff’s entire maintenance and cure is willful, arbitrary, capricious, and in callous disregard for Plaintiff’s rights as a seaman. As such, Plaintiff would be entitled to attorney’s fee under the General Maritime Law of the United States. Further Defendants unreasonably failed to pay or provide Plaintiff with maintenance and cure which aggravated his condition and caused Plaintiff to suffer additional compensatory damages including but not limited to the aggravation of Plaintiff’s physical condition, disability, pain and suffering, reasonable fear of developing future physical and medical problems, mental anguish, loss of enjoyment of life, feelings of economic insecurity as well as lost earnings or earning capacity, and medical and hospital expenses in the past and into the future..

WHEREFORE, Plaintiff demands all damages entitled by law, attorneys fees and demands jury trial of all issues so triable.

COUNT IV

FAILURE TO TREAT AGAINST ALL DEFENDANTS

Plaintiff re-alleges, incorporates by reference and adopts paragraphs one through six as though originally alleged herein.

On or about the previously stated date, Plaintiff was employed by Defendants as a seaman and was a member of the vessel’s crew. The vessel was in navigable waters.

It was the duty of Defendants to provide Plaintiff with prompt, proper and adequate medical care.

3. Defendants through the ship’s physicians and nurses negligently failed to provide Plaintiff with prompt, proper, adequate, and complete medical care. This conduct includes, but is not limited to:

a. Defendants not giving Plaintiff medical care in a timely manner after his initial injury; andor
b. Defendants sending Plaintiff back to work on pain killers after he became injured which aggravated his injuries and made them worse.

As a direct and proximate result of Defendants’ failure, Plaintiff suffered additional pain, disability andor Plaintiff’s recovery was prolonged. In addition, the Plaintiff was injured about Plaintiff’s body and extremities, suffered physical pain and suffering, mental anguish, reasonable fear of developing future physical and medical problems, loss of enjoyment of life, physical disability, impairment, inconvenience on the normal pursuits and pleasures of life, feelings of economic insecurity caused by disability, disfigurement, aggravation of any previously existing conditions therefrom, incurred additional medical expenses in the care and treatment of plaintiff’s injuries, suffered physical handicap, lost wages, income lost in the past, and plaintiff’s working ability and earning capacity has been impaired. The injuries and damages are permanent or continuing in nature, and Plaintiff will suffer the losses and impairments in the future.

5. This Count is alleged separately from Jones Act Negligence pursuant to Joyce v. Atlantic Richfield Company, 651 F.2d 676 (10th Cir. 1981) which states, in part, “Negligent failure to provide prompt medical attention to a seriously injured seaman gives rise to a separate claim for relief [for which separate damages are awardable].”

WHEREFORE, Plaintiff demands all damages entitled by law and demands jury trial of all issues so triable.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Eric Charles Morales ­­­­­­­­­­­­­
ERIC C. MORALES
FLORIDA BAR # 91875

Date: October 16, 2012