My Team and I Obtain a Defense Verdict in Jones Act Case

I, my husband and the rest of our Miami team successfully defended a yacht owner against a former employee’s Jones Act negligence claim in a 7-day Zoom trial in the U.S. District Court for the Southern District of Florida. The case arose after the yacht’s chief stewardess was allegedly injured after hitting a wake while aboard the yacht’s tender during a purported sea trial of the tender. The plaintiff alleged she was in the course and scope of her employment with the yacht at the time of her accident aboard the tender and sought over $2 million in damages.

I first won the case on summary judgment, as the district court found the crewmember failed to present a genuine issue of fact as to whether she was acting within the course and scope of her employment when she was injured. The crewmember appealed that decision to the Eleventh Circuit Court of Appeals, which remanded the case back to the trial court, stating that in evaluating whether the crewmember was within the course and scope of her job with the yacht, the trial court needed to evaluate the case under the guidance provided in Fowler v. Seaboard Coastline R.R. Co., 638 F.2d 17, 20 (5th Cir. Unit B Feb. 1981). The Eleventh Circuit found that Fowler stands for the proposition that acts that are incidental to an employee’s work can fall within the course of her employment, even is the employee is not performing her customary job duties. Fowler, 638 F.2d at 20 (discussing the meaning of “within the scope of employment” to determine liability under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51). However, a reading of Fowler makes clear that Jones Act protections do not cover personal activity engaged in by the employee for a private purpose and having no causal relationship to her employment. Id. at 18-19.  

The Eleventh Circuit also relied on Beech v. Hercules Drilling Co., L.L.C., 691 F.3d 566, 572 (5th Cir. 2012), which states that “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”. Again, the court focused on the course and scope of employment as it pertained to the captain and his piloting of the alleged tender during the purported sea trial at the time the plaintiff was injured.

After carefully reviewing all the evidence in the case after it was remanded for trial, the trial court found that the plaintiff had not met her burden to show that she was acting within the course and scope of her employment on the day of her accident. The court concluded that she was engaged in a family outing with the captain who was her then boyfriend, her daughter and a married couple that were personal friends of the couple. The court determined that the activity was not advancing a business interest of the yacht owner and it was not foreseeable to the yacht owner that the activity was to be engaged in by either the plaintiff or the captain. The court noted that the Jones Act does not apply to private acts by a crewmember and emphasized that the Jones Act is not a strict liability scheme.

If you are interested in receiving a copy of the Eleventh Circuit decision or wish to contact me to discuss the case further, please feel free to send me an email at blog@miamimaritimelaw.co or you can call 305.377.3700.

Court Rules Crewmember Not Working in Course and Scope of Employment

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.

If you are interested in receiving a copy of this decision, please feel free to write to me at blog@miamimaritimelaw.co.