In Herrera v. 7R Charter Limited, Case No. 16-cv-24031 (Aug. 3, 2018), the Southern District of Florida held in a case that we were defending on behalf of 7R Charter Limited ("7R Charter") that a crewmember was not working in the course and scope of her employment when she was aboard the yacht's alleged tender for a sea trial, when she was severely injured by an alleged phantom wake.
Photograph of boat owned by Captain
In this case, the Plaintiff was the Chief Stewardess aboard a 125-foot yacht when on a Saturday, she joined the yacht's Captain (who was her boyfriend at the time), her daughter and two other friends aboard her boyfriend's boat, a 36-foot Protector. The Protector was utilized previously as a tender to the 125-yacht during a single charter period approximately one month before the plaintiff's accident. The Captain had rented the Protector to the owner of the yacht for that charter period, as the yacht's tender was inoperable at the time. The Plaintiff suffered an injury while the persons aboard the Captain's boat were making their way to lunch. Plaintiff filed a one-count complaint against her employer, alleging Jones Act negligence in the Captain instructing her to place bow lines and fenders of the bow of the tender. At the time Plaintiff was at the bow of the boat, allegedly setting the Protector's lines, an unidentified 50' sportfishing vessel crossed the bow of the 36' boat, creating a 2-4' high wave, hitting the boat and allegedly causing the Plaintiff to fall.
The Plaintiff attempted to hold 7R Charter vicariously liable for the actions of her boyfriend in the operation of the boat that was neither owned or operated by 7R Charter. "[I]n order to hold an employer vicariously liable under the Jones Act for one employee's injury caused by the negligence of a co-employee, a plaintiff must show that the injured employee and the employee who caused the harm were both acting in the course of their employment at the time of the accident." Beech v. Hercules Drilling Co., L.L.C., 691 F.3d 566, 572 (5th Cir. 2012). To prove that the alleged negligent employee's actions were undertaken in the course of employment, the injured seaman "must show that the employee's tort was committed in the furtherance of the employer's business." Sobieski v. Ispat Island, Inc., 413 F.3d 628, 632 (7th Cir. 2005). "In order for an activity to qualify as being within the scope of employment, it must be a necessary incident of the day's work or be essential to the performance of the work. Id. at 634.
In evaluating whether the Plaintiff was working in the course and scope of her employment, the court noted that the boat was purchased for the business of chartering. The court also noted that whenever the yacht had a charter, it would rent a boat from the Captain. However, on the Plaintiff's date of accident, the yacht could not be chartered, as it was undergoing repairs. The court also noted that the Captain had sole responsibility for maintaining the boat and paying for any upkeep to the boat. The court noted that the sole issue was whether the Plaintiff and the Captain were acting "for the convenience of the defendant-employer so as to be deemed in the course of [her] employment." Howard v. Bristol Monarch, 652 F. Supp. 677, 679 (W.D. Wash. 1987).
First, the court found that Plaintiff's contract requirement that she be on call "24/7" did not require the court to find that she was acting within the scope of her employment when she suffered her injuries, as the court in Sobieski specifically rejected that exact argument. Second, the court found that the Plaintiff was not furthering 7R Charter's business interests when she suffered her injuries, as 7R Charter did not order nor was it aware that the boat was undergoing repairs or being taken out for a sea trial. Third, the court noted that there was nothing in the record to suggest that as part of her duties as Chief Stewardess, Plaintiff was responsible for securing a tender for the yacht's charters. Finally, the court noted that the events surrounding the outing demonstrated that Plaintiff's motivation for going out on the boat was not to further 7R Charter's business interests, but for pleasure purposes.
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