COVID-19: Vessel Owner Obligations, Part II
Part I of this series outlined remedies available under the Jones Act and vessel owner liabilities. During part II of this series, we will summarize some remedies available under the general maritime law to third-party visitors and passengers. This could include individuals riding on a crew boat, contract hands on offshore drilling vessels, or passengers on crew boats.
What Remedies Are Available When an Employee or a Third Party Becomes Ill While on a Vessel?
As a recap, the crew of a vessel have several remedies when they become ill while performing their work. These remedies include a tort claim under the Jones Act and a general maritime law claim to provide a vessel that is reasonably fit and a safe place to work. The burden of proof under the Jones Act is slight, and the duty to provide a seaworthy vessel is absolute. Claims available to third parties are based on negligence and must be proved by the preponderance of the evidence. As previously stated, maritime workers, such as stevedores, ship repairmen, and harbor workers aboard vessels, are entitled to workers’ compensation benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §901, et seq., against their employers and under 33 U.S.C. §905(b) against vessel owners under certain circumstances. Passengers and invitees who become exposed to COVID-19 have remedies under the general maritime law not only for avoiding exposure, but also for proper medical care. It is important that vessel owners have proper protocols and resources in place to avoid liabilities.
General Maritime Law
Cruise ship passengers or visitors on other types of vessels may have claims under the general maritime law subject to contractual waivers for illness or injury. The potential claim is in tort for an action or inaction which causes injury. The standard of proof is by the preponderance of the evidence or substantial factor. Kermarec v. Compagnie Generale Transatlantique, 79 S.Ct. 406 (1959); Leathers v. Blessing, 105 U.S. 626 (1882). Exposure to COVID-19 will be considered under a duty risk analysis. Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012). This duty may include a duty to warn of what is known. Wolf v. Celebrity Cruises, Inc., 683 Fed. Appx. 786 (11th Cir. 2017). Other duties under the general maritime law may include providing a safe living environment based upon information reasonably available and known.
Most cruise ships and many offshore vessels engaged in the production of oil and gas have contract physicians onboard who are independent contractors. In DeZon v. Am. President Lines, 318 U.S. 660 (1943), the court, citing a litany of earlier cases, held that a ship owner was not liable for the negligence of a ship’s doctor unless the hiring itself was negligent. See also Barbetta v. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988). This rationale has been questioned and distinguished by the Eleventh Circuit in Franza v. Royal Caribbean Cruise, Ltd., 772 F.3d 1225 (11th Cir. 2014), by noting that a passenger on a cruise ship who falls ill “has precious little choice but to submit to onboard care.” The Franza court allowed a passenger to recover when the passenger received negligent medical care from doctors who were considered the ship’s agents even though they were independent contractors. Under the general maritime law, when a ship undertakes to provide medical care to its passengers, it must also do so with reasonableness.
Each claim and the resulting obligations are dependent on the facts and a duty risk analysis. The law is certain, however, that a vessel is not an insurer of a visitor’s or a passenger’s safety. The vessel’s obligation is reasonable care under the circumstances based on knowledge and circumstances.
Although COVID-19 has highlighted the questions concerning liabilities of vessel owners for illnesses, the Jones Act, and the general maritime law, the answers are not novel to maritime law concepts in place.