The Practical Effects of International Piracy upon the Practice of Maritime Law, part 2

The Issues:

1) Was the vessel “unseaworthy?” By legal definition, unseaworthiness means the unsafe state of a vessel. The examples of this that normally come to mind are concrete in nature: unsafe vessel design, lack of proper safety equipment, equipment failure, lack of medical equipment and slippery decks and stairs. But there are also two items that may not be immediately obvious but are every bit as important as the previous items: not having an adequately trained crew and not having enough crew members.

Could it not be argued that failure to provide a trained security detail aboard the Alabama in known high risk waters constituted an unseaworthy vessel? According to guidance from the International Maritime Organization, vessels were recommended to keep at least 600 miles off the coast of Somalia.

The Alabama was attacked 380 miles offshore.

The Associated Press reported that the vessel’s navigation officer had plotted previous pirate attack groupings on the course line but the captain decided against changing course. The AP obtained information from the computer of the Alabama showing it had received at least seven maritime warnings of pirate activity in the days before the vessel was hijacked off the Somalia coast. Crew members claim they were unaware of the warnings.

Under the “seaworthiness standard,” it is the employer’s duty to provide a safe vessel. In court, it will be up to the jury to decide if the vessel was unsafe. They will also decide whether Maersk made a conscious decision not to provide meaningful security for its workers.

2) What is the proper venue? We were criticized in some legal quarters for filing this case as a Jones Act personal injury case in State court instead of as a diversity case under Admiralty law in the U.S. District Court in D.C. On this point I have recently been vindicated; on December 22, 2009 a federal court ruled that state jurisdiction is authorized to hold the case. In a lawsuit filed in a sister case, the defendants originally removed the case from state to federal court. However, the U.S. Southern District of Texas court granted the request to remand the case, under the Jones Act, back to state court.

The reason we filed this case in Harris County, Texas was because it is the country’s second largest port and judges in Houston have a sophisticated understanding of maritime law.

3) Which defendants are named? In many maritime cases there is often more than one party named because of the multi-layered nature of the commercial shipping structure. For example, there’s a vessel owner, operating company, crewing company, etc. In the other case, Maersk argued that the Jones Act granted him a cause only against Waterman, which was the crewing company and his only employer. Maersk claimed that it fell under the jurisdiction of federal security laws within the Maritime Transportation Safety Act and therefore a state court was an inappropriate venue.

However, the federal court ruled that even though Maersk was technically not chief cook Richard Hicks’ employer, it was not necessarily exempt from other maritime violations, nor had Hicks ever made any federal charges. So the court remanded the case back to the state because in Jones Act claims courts generally give plaintiffs greater say as to whether the case will be heard by the choice of a federal or state venue.

However the Maersk Alabama cases are decided, our clients and all of the seafarers standing up for self-defense may be pioneers in piracy and vessel armed robbery law.

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