How not to treat your crew
A simple claim for $4000 expenses for treatment for an injury incurred on board a yacht escalated into $1.2 million award for damages. The case is a textbook example of how not to deal with a crew injury sustained while in service.
The Plaintiff was a chef aboard the M/Y PICNIC, a 100-foot custom motor yacht from Monte Fino. No names here as we are not making this a personal issue. This PICNIC is not to be confused with the 50 metre Feadship yacht of the same name.
The chef joined the PICNIC’s crew in March 2017, after receiving a call from the PICNIC’s captain. The PICNIC embarked on a month-long charter during March and April 2017. The voyage was to begin in Puerto Rico and included two trips to Cuba, with an intermediate stop in south Florida.
The record is not clear where in south Florida the intermediate stop was to occur. The captain stated that the stop was to be in Key West while the chef stated that it was to be in Fort Lauderdale.
The chef was not required to undergo a pre-hiring medical examination or medical interview. Upon coming aboard the PICNIC in Puerto Rico, however, he was asked to present an MCA Seafarer’s Medical Certificate. The Plaintiff informed the captain and a witness that the certificate was at his home in Fort Lauderdale, Florida. He was nonetheless permitted to remain on board. The captain said that he told the chef to retrieve the medical certificate when the PICNIC stopped in south Florida between trips to Cuba.
In mid-April 2017, not long after going off charter, the PICNIC was joined by the owner in Cuba.
It’s no picnic
While in Cuba with the owner on board, The Plaintiff and the crew of the PICNIC had a heavy work schedule in order to meet the owner’s demands for high-quality service. After ten days of intense work, The Plaintiff fell ill and sought out medical attention. He was informed that he had a serious hernia condition that required immediate surgery. The Plaintiff then travelled by taxi from Varadero, Cuba to a hospital in Havana that could perform a hernia operation.
At the hospital, The Plaintiff attempted to have the PICNIC’s agent or insurance authorize payment for the surgery, but was unable to do so. The Plaintiff’s financial difficulties were further complicated by the fact that credit cards and U.S. dollars cannot be used in Cuba. In order to avoid ejection from the Havana hospital, The Plaintiff borrowed money from a friend.The Plaintiff underwent surgery on April 28 Afterwards, he spent a necessary period of recovery in Cuba, and then returned to Florida, where he spent additional time convalescing.
Except for a single $1,000 payment through the captain the PICNIC, did not pay for the costs of The Plaintiff’s medical procedure or his repatriation to the U.S. from Havana
At some point, The Plaintiff asked the captain if he could return home to Fort Lauderdale, Florida, on the PICNIC, but was told no way, Jose. The captain argued that The Plaintiff lied about a pre-existing condition and his medical certificate, insisted that The Plaintiff return the $1,000 he was given in Cuba, and accused The Plaintiff of defrauding the PICNIC’s insurer. The captain even claimed the chef had only taken the job so he could get free medical treatment in Cuba.
I have a complaint
The Plaintiff filed a one-count complaint in admiralty alleging that Defendant Balerno
International Ltd., the record owner of the PICNIC, failed to carry out its duty under general maritime law to provide prompt and adequate maintenance and cure and lost wages. The Plaintiff sought to recover the amounts due for maintenance and cure, as well as consequential damages, attorney’s fees and costs, and punitive damages. The notification was sent to Balerno’s registered address in Tortola, BVI.
After the Defendant failed to respond to the complaint within 21 days, The Plaintiff moved for a Motion for Default Judgment.
The Court awarded The Plaintiff a total recovery of $232,386.17, consisting of $100,772 in compensatory damages, punitive damages in an amount equal to The Plaintiff’s compensatory damages recovery, $28,651 in attorney’s fees, and $2,190 in pre-judgment interest.
On June 8, 2018, the United States Marshals Service served a Writ of Execution on the PICNIC.
The Defendant’s counsel appealed to have the case reopened three days later.
The first argument the lawyers presented was that Hurricane Irma had impacted the registered office and prevented the office from communicating correctly with the yachts’ agents and informing them of the claim for damages.
The second arguments centred on a point of law.
If the shipowner is unable to persuade the Court or jury that a crew member could reasonably be expected to have considered their medical history a matter of importance, he or she will be liable for maintenance. The owner will be responsible if it is found that there existed reasonable grounds for the seaman’s good-faith belief that he was fit for duty. On the other hand, where the shipowner requires a seaman to submit to a pre-hiring medical examination or interview, and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure.
There was no dispute that Defendant did not require The Plaintiff to undergo a pre-employment medical examination or interview. It was, therefore, a simple case of nondisclosure of a pre-existing condition which made the chef’s claim for compensation invalid.
Expired Medical Certificate
Defendant asserts that, by coming aboard the PICNIC without a valid MCA Seafarer’s Medical Certificate, The Plaintiff knew that he would not be hired due to the fact that he did not possess and could not obtain such a valid certificate.
In response, The Plaintiff asserts that he had no reason to believe that his hernia would impact his work aboard the PICNIC. On January 23, 2017, just two months before coming aboard the PICNIC, The Plaintiff underwent an annual physical and received a clean bill of health And even though he had already been diagnosed with a hernia in 2010, he nonetheless received a medical certificate that year. Moreover, the restrictions on the type of work due to his hernia contained in that certificate did not apply to his 2017 service on the PICNIC.
The Plaintiff further notes that, in the seven years since he was diagnosed with a hernia, he worked continuously as a chef without any complications, and that he had never been denied a medical certificate because of his hernia condition, or for any other reason. The Plaintiff also pointed to the fact that he previously worked aboard the PICNIC in August 2015, even though his 2010 medical certificate expired in 2012.
Call the witnesses
The Chief Stewardess said that the chef had told her that he had been sacked from his previous yacht MY Carson because of his hernia condition. The chef denied this and produced a glowing reference from the captain of the Carson, after the date he had been allegedly dismissed for ill health,
The Court concluded that the evidence put forth by the lawyers for the PICNIC – especially the statements of the captain and the stewardess—called into question whether the chef indeed knew that his existing condition and lack of a valid Seafarer’s Medical Certificate would have been taken into consideration by the captain had he known this, and that the nondisclosure of his medical condition was material to its decision to hire him. The Plaintiff was required to have a current MCA Seafarer’s Medical Certificate as a condition of employment, a certificate that The Plaintiff said he had left at home, whereas he did not have one. The Plaintiff’s nondisclosure of that condition was material to its decision to hire him.
The Court considered if there was a clear connection between The Plaintiff’s hernia condition and the injury at issue in this case. The judge ordered the case to be reopened.
The settlement – a cool 1.2 million
You might have thought that it was not looking too good for the chef at this point. Wrong
When the case was heard again, the result was a massive settlement awarded in favour of the chef. $1.20 million. The Court concluded that the owners and captain had ignored a crew member’s rights of protection and had simply abandoned him to his fate. The lurid details of the case- the malice, the accusations of lying, the character assassinations, were not relevant. It came down to a simple point of law: a yacht has a legal responsibility to the wellbeing of its crew.
This would suggest that the owner of the PICNIC might have been able to claim against the chef for expenses incurred in treating him if the case was proven that he had been deceitful in concealing a previous condition. This would be after the event, however, and would not remove all legal responsibility for a crew member’s well being at the time of need.
An expensive lesson to learn. No picnic.