Legal Principles Behind Lawsuit Against Maersk

To help us answer some questions that we have been hearing around the internet regarding the Maersk [I]Alabama[/I] crew member that is suing the ship owner, gCaptain contacted Jones Act attorney, gCaptain sponsor and, most notably, gCaptain member Steve Gordon to help us understand the legal principles behind this claim. He responded with the following email:

[I]Dear gCaptain,

Today, in the 270th Judicial District Court in Houston, Harris County, Texas a lawsuit (case 2009-26129) was filed on behalf of Mr. Richard Hicks, a steward on board the Maersk [/I] [I]Alabama. The suit alleges that Maesrk was negligent and that the Maersk [/I][I]Alabama was “unseaworthy” as that term is defined by federal maritime law. If you practice maritime law, you knew this was inevitable. We all know the facts as Captain Phillips’ plight was plastered over our televisions over Easter weekend and we all prayed for his safe return. However, it is not Captain Phillips who is suing Maersk. It is, instead, another crewmember who was on board the Maersk. Without personally commenting on the viability of Mr. Hicks’ claim, I would like to generally address the liability of a Jones Act employer, such as Maersk is, in situations such as this.

The Jones Act is found in the Merchant Marine act of 1920. It was introduced by and aptly named after Washington Republican Senator Wesley L. Jones and represented this country’s commitment to the merchant mariner and to the American shipping industry. Basically, there are two sides to the Jones Act. The cabotage side [utilizing American made, U.S. flagged and U.S. manned vessels to travel between U.S. ports] and the injured seaman side. Under the Jones Act, the maritime employer owes its employees the duty of a safe work place and the duty not to have a vessel that is “unseaworthy”. “Unseaworthy” does not mean that the vessel does not float; however, “unseaworthiness” is defined as something on board the vessel that is “not fit for its intended purpose”. The question for the courts in this situation is : Was the Maersk [/I] [I]Alabama an unsafe work place because she was ordered to pass through waters that were infested with armed criminals, i.e., modern day pirates? If the answer is yes, then there may be liability from Maersk to Mr. Hicks. If the answer is no, then, unless the vessel is unseaworthy, then there will be no liability.

Even if the answer is yes, the defense will argue: What is Maesrk suppose to do? It obviously needs to transport goods from point A to point B and that is what it is hired to do. What reasonable precautions were available to such an employer? There has been much discussion about arming seaman. We all recall the back and forth discussion about arming pilots after 911. Obviously discharging a weapon at 37,000 feet in a pressurized cabin is a heck of a lot different than firing an RPG at a 30 foot boat in open water filled with criminals. Nevertheless, it is my understanding that some ports of call will not allow heavy weaponry to be on board a vessel entering its port. This also is for obvious reasons.

So, I believe there are many factors to consider in assessing Mr. Hicks’ claim and other such claims that may be filed down the road. From my perspective, I have not seen an initiative taken by Maersk, or any other shipping companies, be they domestic and/or international, to foster meaningful and result oriented discussion. Perhaps, the next U.S. crew that is subjected to piracy will have even a stronger claim against their employer because they also did nothing to try to defend these attacks when clearly the employer is on notice that the pirates will U.S. vessels. I have seen on gCaptain the concept of drone fly-bys along the coast of Somalia that could monitor pirate activity. In World War II, it was the merchant mariner that was easy prey for the German U-Boat and guarded flotillas were a rarity.

Surely, the answer should not rest solely on the shoulders of US shipping. However, other countries do not have laws as lucrative to lawyers as the Jones Act. Being from a Jones Act law firm, our law firm thinks long and hard whether to take on a case as we are keenly aware that the U.S. “Blue Water” maritime industry is rebounding from years of stagnancy. These are certainly questions that must be addressed. I will close by saying the following: anyone can sue anybody for anything; however, prevailing is another story.

Hope this helps!

Steve Gordon
Gordon & Elias

One of the reasons often heard why foreign flag companies do not hire US mariners, even when they are willing to work for comparable wages, is that Americans are too litigious. With the high worldwide profile of the Maersk Alabama incident, this lawsuit is sure to receive high publicity as well. Say goodbye to even more jobs for US mariners.

What’s next ?
Suing your shipping company when a vessel encounters heavy weather, because it traumatises you ?

I consider it “milking” the Jones Act, which had other purposes than this…