Opposition Brief — Royal Caribbean Cruises, Ltd. v. Duarte

No. 01-23

Supreme Court of the United States

ROYAL CARIBBEAN CRUISES, LTD,

In The

Petitioner.

Vos

. CLAUDIA DUARTE,

Respondent.

On Petition For A Writ of Certiorari

To The Third District Court of Appeal, State of Florida

BRIEF IN OPPOSITION

CHARLES R. LIPCON, ESQ. MARC COOPER, ESQ.

LAW OFFICES OF

CHARLES R. LIPCON

One Biscayne Tower

Two So. Biscayne Blvd.

Suite 2480

Miami, FL 33131

(305) 373-3016

MAUREEN E. LEFEBVRE, ESQ.

Counsel of Record

COLSON HICKS EIDSON

255 Aragon Avenue

Second Floor

Coral Gables, FL 33134

(305) 476-7400

Counsel for Respondent

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. il

STATEMENT OF THE CASE AND FACTS .....__._. l

REASONS FOR DENYING THE WRIT ......._._.. 5

A. This case does not involve an important

federal question which should be settled

WON 6 ot eee 7

B. This decision does not conflict with decisions

Oe Se. 2 ee eee 10

nN

The opinion of Florida’s Third District Court

of Appeal relies on principles which have

been repeatedly acknowledged by this Court... . 11

The alleged expiration of Duarte’s employment

contract does not create conflict with this

Court’s decisions or general admiralty law... . . 16

ARON 6 od hae eek Pe eee 22

ll

TABLE OF AUTHORITIES

Cases

Aguilar v. Standard Oil Co.,

BO Eh FREEDOS) ci cceccescscee: «s

Braxton v. United States,

SE MRED cick cs Sa6 Fhe eek S

Brown v. Texas.

ee Be EP CE DOED «acc cc lene eet ee eas

Calmar S.S. Corp. v. Taylor,

GI RR } le ane

Cawley v. United States,

rqee wet <a e.. oe Ab) | re

Cortes v. Baltimore Insular Line, Inc.,

y 4h Gee |. 2S 4 A a an

Farrell v. United States,

es PE OTE) 6 ccd ce vus cmeuans

Gumberg v. Gumberg,

745 So.2d 554 (Fla. 4th DCA 1999) ......

Harden v. Gordon,

11 F.Cas. 480 (Story, Circuit Justice 1823)

Holl v. Talcott,

EPt Bean SO ie, 19GG) ..... oc sivkwccsas

iost ap Se Oe

ill

Hopson v. Texaco,

Pt Si ee REE wa ne oe we eee 17, 18,19

Hunt v. The Trawler Brighton, Inc.,

102 F.Supp. 300 (D.Mass. 1952) .................. 20

Layne & Bowler Corp. v. Western Well Works, Inc..

MOE Ni OO COMES owen hice cee e elec eee 9-10

LeBlanc v. B.G.T. Corp.,

oon te Se CAMO, P99S) on ok oc os va esc ne 20

Macedo v. F/V Paul & Michelle.

ue Fa a Cree Cw. ISBN) . ss eee oe ek cs 14

McCray v. New York,

ee. Sta ee COUT << oo Oe Sea ee ose eee, 8

Mitchell v. Trawler Racer, Inc..

ee ts ERD oo ooo Seno lke ck chee. 11

Reed v. Canfield,

20 F.Cas. 426 (Story, Circuit Justice 1832) ..... 7, 13, 20

Rice v. Sioux City Mem. Park Cemetary,

ee a Fe fe cy cpu cau cen cs 9

Sears Roebuck & Co. v. Polchinski,

636 So.2d 1369 (Fla. 4th DCA 1994) ......0.0.0.... 20

United States v. Seaboard Surety Co.,

ya Bw a ee | 17

Vaughan v. Atkinson,

Pe Wh OE ENTE hk an ee ced ds ees dae 11, 14, 15

iV

Vella v. Ford Motor Co..,

ee SOE ee sc a at ee ee Sr 11

Warren v. United States,

Wee Oe OPE oe ese ua eercce ve cn eee eek 11

Authorities

16B Charles Alan Wnght, Arthur R. Miller, ™

& Edward H. Cooper, Federal Practice &

Procedure § 4004.1 (2d ed. 1996) ................... 6

a ee ae ee E ce ek ke eee 17,19

an RE eo oe eo ae et Le are 17,19

28 U.S.C. Rules of the United States Supreme

ee rere se Ce Sh ee er ee 5

l

STATEMENT OF THE CASE AND FACTS'

In 1995, Duarte, a Colombian seaman employed by RCCL

as a bar waitress, slipped and fell down a poorly lit stairway in

one of the lounges aboard RCCL’s vessel, injuring her knee,

ankle and arm. (T. 4; R. 135, 210, 223). Later that same year

she slipped and fell on some soup in the crew’s dining room on

board the vessel, causing her to re-injure her knee. (R. 223).

While working for RCCL, Duarte also developed a thyroid

tumor and papillary carcinoma. (R. 224).

RCCL chose to meet its duty to provide Duarte with

maintenance and cure by having her receive medical treatment

in Miami rather than treating her on board its vessel or

repatriating her to Colombia and arranging for her medical

treatment there. (T. 12; R. 135). Pursuant to Section 253 of the

Immigration and Nationality Act (“INA”), RCCL was required

to sign Immigration and Naturalization Service (“INS”) Form

I-510, guaranteeing payment for “any and all” of Duarte’s

medical care and treatment incurred or to be incurred during the

period she is paroled into the United States. (R. 151, 202). By

signing INS Form I-510, RCCL guaranteed that:

Pursuant to the provisions of section 253 of the

Immigration and Nationality Act I, Rafael R.

Lopez, Agent of the Sovereign of the Seas

7 The Plaintiff/Respondent Claudia Duarte is referred to as Duarte.

Defendant/Petitioner Royal Caribbean Cruises, LTD. will be referred to as

RCCL.

“A.” refers to the appendix included with the petition for a writ of

certiorari. “R.” refers to the record on appeal in the Florida Third District

Court of Appeal. “T” refers to the separately numbered transcript.

Emphasis is supplied by counsel unless otherwise noted.

2

employing the alien crewman Duarte/Claudia

who upon arrival at the port of Miami on

9/14/96 was found to be afflicted with, or

suspected of being afflicted with radiculitis

lumbar do hereby guarantee to pay any and all

expenses incurred or to be incurred for the

hospitalization, care, and treatment and for

burial in the event of death, of the said alien

crewman.

(R. 151). This form was necessary to justify to the United

States that Duarte, an alien crewman who does not have a green

card, was in this country for medical reasons. (R. 197).

RCCL’s agent signed the form guaranteeing payment of

Duarte’s medical expenses on RCCL’s behalf. (R. 173-74, 176,

178). The form meant that RCCL was responsible for paying

for all of Duarte’s medical expenses. (R. 185). RCCL admits

that its guarantee of payment was not limited to those injuries

or illnesses listed on the form. Only one illness or injury has to

be listed on the form, and only one doctor’s letter has to be

submitted with the form. (R. 174, 179, 193, 197).

Based on RCCL’s guarantee, the INS permitted RCCL

to take Duarte off its vessel in Miami so that she could receive

medical treatment. (R. 135, 195-96). RCCL’s guarantee of

payment and Duarte’s medical parole were effective for 29

days.

Prior to the expiration of her initial medical parole,

RCCL filed for re-parole for an additional 29 days by executing

a new Form I-510. (R.152, 181, 197, 203). RCCL continued

to renew Duarte’s medical parole into the United States up to

and including May 1998. See (R. 153-163, 202-214).

i i oneal esi ne

3

On December 14, 1997, during a medical parole valid

until January 7, 1998, Duarte was severely injured as a

passenger in an automobile accident. (R. 135, 159, 181-82,

198). Duarte was transported to Jackson Memorial Hospital,

where doctors surgically reattached her foot. (R. 135). Her

medical bills for this accident exceed $99,816. (R. 117, 135).

RCCL refuses to pay these bills.” (R. 135). As an alien

crewman, Duarte does not have health insurance. (R. 135).

The driver who caused the accident does not have insurance.

(R. 137). The only insurance available to help pay Duarte’s

hospital bills for this accident is $10,000 in no-fault insurance

for the car she was riding in. (R. 135). Because Duarte was

unable to pay Jackson Memorial Hospital’s bills, Jackson filed

a lien and refused to continue treating her without payment. (R.

136). Duarte made small payments to the hospital from the

money she received from RCCL for food and shelter, because

she ran the risk of losing her foot unless it was checked

regularly. (R. 136).

On January 30, 1998, Duarte filed suit against RCCL to

obtain maintenance and cure for the injuries she sustained in the

automobile accident. (R. 1-17). On May 14, 1998, RCCL

moved for summary judgment claiming that it was not

responsible for Duarte’s maintenance and cure for these

injuries. RCCL claimed that because her contract had expired

in March 1997, Duarte was not “in the service of the ship” at

the time of the accident. (R. 70-79). RCCL did not offer any

affidavits in support of this argument and failed to introduce

Duarte’s contract or any evidence that she had been discharged

~~ RCCL continued to pay the medical expenses incurred in treating the

injuries Duarte sustained and illnesses which arose while she was on board

its vessel. See (R. 254-51). The maintenance and cure and medical

expenses for those inflictions are not at issue in this case.

4

from the ship’s service.” Nonetheless, the trial court granted

RCCL’s motion for summary judgment. (R. 252). It

subsequently entered final summary judgment in favor of

RCCL. (R. 305).

On appeal, Florida’s Third District Court of Appeal

reversed. It applied two established principles of admiralty law:

(1) maintenance and cure is an ancient duty imposed on the

shipowner to provide medical care and basic living

requirements to a seaman who becomes ill, injured, or

incapacitated until the seaman has reached maximum medical

improvement; (2) the nght to maintenance and cure is liberally

construed in favor of the seaman and should not be narrowly

confined or restricted in order to defeat its broad and beneficial

purposes. (A.1 ).

Applying these principles, the Third District concluded:

In the instant case, the Appellant was receiving

maintenance and cure at the time of the accident

because she had yet to obtain maximum medical

recovery. Under such a situation, a seaman is

still in the service of the ship and thus entitled to

maintenance and cure for the additional injuries

incurred. To hold otherwise would fly in the

* _ RCCL’s own actions belied this claim. The affidavits of another RCCL

seaman, Ramon Howard, and Richard Alsina, attorney for both Howard and

Duarte, demonstrate that RCCL has paid for any and all medical expenses

incurred by other alien seamen who are on medical parole in the United

States. Howard was a seaman on board RCCL’s vessel when he was injured

in early 1996. RCCL arranged for his medical parole in Miami. In January

1998, while he was still on medical parole in Miami, Howard began

experiencing dental problems. RCCL arranged and paid for his dental

treatment. (R. 165-168).

5

face of the long standing principles enunciated

above.

(A. 1).

RCCL filed for discretionary review in the Flonda

Supreme Court, which was denied. RCCL has now filed a

petition for writ of certiorari seeking review in this Court.

REASONS FOR DENYING THE WRIT

This Court has established general guidelines respecting

its decisions to grant or deny petitions for a wnt of certiorari.

In Rule 10, this Court explains:

Review on a wnt of certiorari is not 4 matter of

right, but of judicial discretion. A petition for

writ of certiorari will be granted only for

compelling reasons.... A petition for a wnt of

certiorari is rarely granted when the asserted

error consists of erroneous factual findings or

the misapplication of a properly stated rule of

law.

28 U.S.C. Rules of the Supreme Court of the United States.

Rule 10 also sets out three general categories in which

a case must usually fall before certiorari will even be

considered. They generally involve some sort of conflict

between different courts. See, e.g, Braxton v. United States,

500 U.S. 344, 347 (1991). The first category is conflict

Between a decision of a United States court of appeals and

either another United States court of appeal on the same

important federal matter or a decision by a state court of last

resort on the same important federal matter. The second

6

category is conflict between a decision of a state court of last

resort on an important federal question and either a decision of

a United States court of appeals or a decision by another state

court of last resort. Neither category is applicable here.

Instead, Petitioner seeks shelter under the third category, which

states that this Court may consider granting certiorari when:

(c) a state court or a United States court of

appeals has decided an important question of

federal law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that conflict

with relevant decisions of this Court.

Rule 10.

Although these categories are not exclusive, they are

nonetheless significant. They generally suggest that some sort

of conflict must exist before this Court’s scant judicial time

should be expended in review. As one treatise notes:

Certiorari decisions are so central to the Court’s

role that it has not been possible to identify

useful formulas to guide petitioners in the quest

for review. General public importance of the

issues, and the need to secure uniformity of

federal law, must be the basic touchstones.

16B Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, Federal Practice & Procedure § 4004.1 (2d ed. 1996).

The decision here does not meet these standards. This

case does not involve an important federal question which

should be settled by this Court. Nor does this case = conflict with

decisions of this Court.

le

7

A. THIS CASE DOES NOT INVOLVE

AN IMPORTANT FEDERAL

QUESTION WHICH SHOULD BE

SETTLED BY THIS COURT.

The issue decided by the Florida Third District Court of

Appeal was a very narrow one: the legal status of a seaman

who is properly receiving maintenance and cure. The Florida

court decided that narrow issue and held that a seaman who is

receiving maintenance and cure is “in the service of the ship”

and is therefore entitled to maintenance and cure for any

additional injuries received before the seaman reaches

maximum medical improvement. This was an issue of first

impression. Neither Duarte nor RCCL was able to find or cite

a single case from any jurisdiction which had specifically

addressed this issue. Nor does RCCL cite such a case in its

petition. That lack of precedent is telling.

The first time the courts in the United States addressed

the issue of a seaman’s right to maintenance and cure in a

published opinion was in 1823. See Harden v. Gordon, 11

F.Cas. 480 (Story, Circuit Justice 1823). This is now the year

2001. In 178 years, the issue addressed by the Florida appellate

court in this case has apparently never before been raised. An

issue which arises only once in 178 years or longer does not

present such an important issue of federal law as to require this

Court’s attention. It certainly does not provide a “compelling

“’ There, Justice Story held that the expenses of curing a sick seaman

during the course of a voyage, including medicines, medical advice, nursing,

diet, and lodging if the seaman is carried ashore were a charge on the ship.

Nine years later, Justice Story addressed maintenance and cure again. In

Reed v. Canfield, 20 F.Cas. 426 (Story, Circuit Justice 1832), he ruled that

a seaman was entitled to maintenance and cure for injuries sustained after

the voyage had ended but before he was officially discharged.

oor

8

reason” for review by this Court.

Moreover, certiorari is unwarranted even if this issue is

one which may recur. An issue which has only been addressed

by one intermediate state appellate court does not provide

fertile ground for this Court’s review. As Justice Stevens wrote

in McCray v. New York, 461 U.S. 961 (1983)(Stevens, J.,

respecting denial of certiorari):

I believe that further consideration of the

substantive and procedural ramification of the

problem by other courts will enable us to deal

with the issue more wisely at a later date. There

is presently no conflict of decision within the

federal system. During the past five years, two

state supreme courts have held that a criminal

defendant’s rights under state constitutional

provisions are violated in some circumstances

by the prosecutor’s use of peremptory challenges

to exclude members of particular racial ethnic,

religious, or other groups from the jury.

[citations omitted] That premise,

understandably, has given rise to litigation

addressing both procedural and substantive

problems associated with judicial review of

peremptory challenges, which had traditionally

been final and unreviewable. [citations omitted]

In my judgment it is a sound exercise of

discretion for the Court to allow the various

States to serve as laboratories in which the issue

receives further study before it is addressed by

this Court.

461 U.S. at 962-63. See also Brown v. Texas, 522 U.S. 940

(1997)(Stevens, J., respecting denial of certiorari)(“[T]he

9

likelihood that the issue will be resolved correctly may increase

if this Court allows other tribunals ‘to serve as laboratories in

which the issue receives further study before it is addressed by

this Court.’”)(citation omitted). Here, too, there is no conflict

in the federal system. There is no decision by even two state

supreme courts on the issue of whether a seaman who has not

been legally discharged from the ship and who is injured while

still receiving maintenance and cure is “in the service of the

ship.” This issue has not given rise to myriad litigation. There

is only this lone decision, a decision which applied settled

principles to the fact pattern before it.

This case simply does not involve an important federal

question which should be “settled” by this Court. Rice v. Sioux

City Mem. Park Cemetary, 349 U.S. 70 (1955), explains:

A federal question raised by a petitioner may be

“of substance” in the sense that, abstractly

considered, it may present an intellectually

interesting and solid problem. But this Court

does not sit to satisfy a scholarly interest in such

cases. Nor does it sit for the benefit of the

particular litigants. [citations omitted] “Special

and important reasons” imply a reach to a

problem beyond the academic or the episodic.

349 U.S. at 74. Similarly, Chief Justice Taft, writing for a

unanimous court in Layne & Bowler Corp. v. Western Well

Works, Inc., 261 U.S. 387 (1923), wrote:

[I]t is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is

of importance to the public, as distinguished

from that of the parties, and in cases where there

10

is a real and embarrassing conflict of opinion

and authority between the Circuit Courts of

Appeals.

261 U.S. at 393.

This case is important to the Petitioner RCCL and to the

Respondent Duarte. It does not involve a significant issue

which is “of importance to the public.” The factors which guide

this Court’s discretionary jurisdiction are not invoked in a case

of such limited and “episodic” nature as this one. This Court

decides cases with universal implications, not cases which are

legally or factually unique. In 178 years, this issue has been

addressed by only one court; that fact is potent evidence that

this decision does not provide “compelling reasons” for this

Court to grant certiorari.”

B. THIS DECISION DOES NOT

CONFLICT WITH DECISIONS OF

THIS COURT.

Petitioner asserts conflict between decisions of this

Court and the decision here. In fact, there is no “real and

embarrassing” conflict. See Layne & Bowler Corp. v. Western

Well Works, Inc., 261 U.S. at 393. Petitioner’s contrary

assertion should be rejected for two reasons. First, the Florida

appellate court applied two hoary principles of admiralty ©

jurisprudence to the issue before it. Those principles are well

settled and provide no room for RCCL’s claim of conflict.

Second, RCCL’s argument is based wholly on the asserted fact

* — This simple fact is in sharp contrast with RCCL’s parade of horribles

that it speculates would occur if a seaman receiving maintenance and cure

is considered to be “in the service of the ship.” See Petition for Writ of

Certiorari at 18-19.

11

that Duarte’s employment contract had expired. But that

argument is not supported by the record or the law.

5. The opinion of Florida’s Third

District Court of Appeal relies on

principles which have been repeatedly

acknowledged by this Court.

RCCL complains that the opinion of Florida’s Third

District Court of Appeal conflicts with decisions of this Court.

A cursory review of the opinion demonstrates the opposite.

The court carefully followed this Court’s precedents. Indeed,

the Florida appellate court based its decisions on two principles

of admiralty law so settled as to be beyond dispute.

First, the court observed that maintenance and cure is an

ancient duty imposed on shipowners for the health and safety

of seamen. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539

(1960). That duty requires the shipowner to provide medical

care and basic living requirements to a seaman who becomes

ill, injured, or incapacitated until the seaman has reached

maximum medical improvement. This Court has repeatedly

said the same. See, e.g., Vella v. Ford Motor Co., 421 US. 1

(1975); Vaughan v. Atkinson, 369 U.S. 527 (1962), Farrell v.

United States, 336 U.S. 511 (1949); Aguilar v. Standard Oil

Co., 318 U.S. 724 (1943); Calmar S.S. Corp. v. Taylor, 303

U.S. 525 (1938).

Second, the court observed that the right to maintenance

and cure is liberally construed in favor of the seaman and

should not be narrowly confined or restricted in order to defeat

its broad and beneficial purposes. This Court has repeatedly

said the same. See, e.g., Vella, 421 U.S. 1; Vaughan, 369 U.S.

527: Warren v. United States, 340 U.S. 523 (1951); Farrell,

12

336 U.S. 511; Aguilar, 318 U.S. 724; Calmar, 303 U.S. 525.

Thus, Warren explains:

If leeway is to be given in either direction, all

the considerations which brought the liability

into being dictate it should be in the sailor’s

behalf.

340 U.S. at 530 (quoting Aguilar, 318 U.S. at 735).

Petitioner does not dispute the accuracy of these

principles or their application here. Rather, RCCL asserts that

under this Court’s precedents, maintenance and cure is only

owed to seamen injured “in the service of the ship” and that the

Florida decision did not apply this rule. RCCL fails to

recognize that Florida’s Third District Court of Appeal did

apply that principle. The court’s opinion states: “Under such

a Situation [while receiving maintenance and cure], a seaman

is still in the service of the ship and thus entitled to maintenance

and cure for the additional injuries incurred.” (A. 1). RCCL’s

real argument is not that the principle applied by the Florida

appellate court conflicts with decisions of this Court, but that

the Florida appellate court misapplied a properly stated rule of

law. But, “misapplication of a properly stated rule of law” is

seldom grounds for granting a petition for certiorari. See Rule

10. The decision here, firmly grounded as it is in the decisions

of this Court, does not require a departure from that general

rule.

In any event, the Florida appellate court did nor

misapply this Court’s precedents. RCCL’s contrary argument

relies on a restrictive definition of “in the service of the ship.”

It asserts that Duarte could not be “in the service of the ship”

while she was receiving maintenance and cure because she was

not “subject to the call of duty.” Farrell, 336 U.S. at 516.

13

Petitioner relies on a patchwork of isolated statements taken out

of context. In fact, under long-standing admiralty law, a

seaman receiving cure, whether on the ship or off, is in the

service of the vessel.

“[N]Jo one would maintain, we believe, that a

sick seaman while on board is not ‘serving,’

though he cannot literally do so. Does it make

any difference if the voyage ends before the cure

is completed?” The privilege is of very ancient

origin .. . and so far as we have found, such part

of the ‘cure’ that may extend beyond the end of

the voyage has never been considered different

from that which proceeds it. . . . [CJonsider the

language, for example, of Justice Story in Reed

v. Canfield =. . ‘The voyage of the ship must, so

far as the seamen are concerned, be deemed to

commence, when they are to perform service on

board. and to terminate, when they are

discharged from further service. “The title’ ‘to

be cured at the expense of the ship is co-

extensive with the service in the ship. The

seaman is to be cured for injuries and sickness,

while he is in the ship’s service. It is the benefit

from the service, which constitutes the

groundwork of the claim.’ It is true that in this

Story, J. does not specifically declare that the

‘cure’ is actually a part of the ship’s service; but

surely that is an appropriate inference.

Cawley v. United States, 272 F.2d 443, 445 (2d Cir. 1959).

Here. Duarte was in the United States receiving cure when she

was injured in an automobile accident. As such, she was

injured while “in the service of the ship.”

14

As the Florida Third District Court of Appeal

recognized, this Court’s prior case law has eschewed the

narrow definition which RCCL would assign to the term “in the

service of the ship.” The obligation for maintenance and cure

arose because of “the irresponsible behavior of shipowners who

set disabled seamen ashore at foreign ports to shift for

themselves.” Macedo v. F/V Paul & Michelle, 868 F.2d 519,

521 (1st Cir. 1989). The duty to provide maintenance and cure

is one of the most pervasive incidents of responsibility

anciently imposed on a shipowner. Aguilar, 318 U.S. at 730.

This “liability will not be defeated by restrictive distinctions nor

‘narrowly confined.’” Vaughan, 369 U.S. at 532.

To recover maintenance and cure, the seaman’s illness

or injury does not have to relate to his duties. Calmar S.S.

Corp. v. Taylor, 303 U.S. 525, 527 (1938). It applies to injuries

a seaman receives when on shore leave or while conducting

personal business off the ship. Aguilar., 318 U.S. at 731;

Warren, 340 U.S. at 529-30. It applies to natural illnesses, as

well as accidental injuries, regardless of cause. See Vaughan,

369 U.S. 527 (seaman who developed tuberculosis which was

diagnosed after he was discharged from employment was

entitled to maintenance and cure). A seaman’s right to

maintenance and cure extends beyond the duration of the

voyage. Calmar, 303 U.S. at 529. Negligence of the seaman,

the how or why of what he was doing, is irrelevant. Farrell,

336 U.S. at 515. In fact, so broad is the shipowner’s duty to

provide maintenance and cure to an ill or injured seaman that

only injuries or illnesses incurred as a result of the seaman’s

willful misconduct will deprive him of that night. Aguilar, 318

U.S. at 730. “[T]he breadth and inclusiveness of the

shipowner’s duty assure its easy and ready administration for

‘[i]t has few exceptions or conditions to stir contentions, cause

delays, and invite litigations.’” Vella, 421 U.S. at 4 (quoting

Farrell, 336 U.S. at 516). Whenever “[tjhere are ambiguities

15

or doubts, they are to be resolved in favor of the seaman.”

Vaughan, 369 U.S. at 532. Simply put, there are no obvious

restrictions or distinct bounds on the scope of a shipowner’s

duty to provide maintenance and cure.

In Aguilar, this Court explained some of the reasons for

the all-embracing nature of maintenance and cure. It wrote:

To relieve the shipowner of his obligation in the

case of injuries incurred on shore leave would

cast upon the seaman hazards encountered only

be reason of the voyage. The assumption is

hardly sound that the normal uses and purposes

of shore leave are “exclusively personal” and

have no relation to the vessel’s business. .. .

The voyage creates not only the need for

relaxation shore, but the necessity that it be

satisfied in distant and unfamiliar ports. If in

those surrounding the seaman, without

disqualifying misconduct, contracts disease or

incurs injury, it is because of the voyage, the

shipowner’s business. That business separated

him from his usual places of association. By

adding this separation to the restrictions of

living as well as working aboard, it forges dual

and unique compulsions for seeking relief

wherever it may be found. In sum, it is the

ship’s business which subjects the seaman to the

risks attending hours of relaxation in strange

surroundings. Accordingly it is but reasonable

that the business extend the same protection

against injury from them that it gives for other

risks of employment.

16

318 U.S. at 733-34.

The same can be said about Duarte’s receipt of

maintenance and cure in Miami. Duarte was originally injured

and became ill while serving on board RCCL’s vessel. The

furnishing of maintenance and cure was part of RCCL’s duty,

a necessary part of its business. RCCL decided to furnish

Duarte with the necessary medical care she needed in Miami,

rather than in Columbia, thus “separat[ing] [her] from [her]

usual places of association.” As in Aguilar, it was the ship’s

business which subjected Duarte to the risks of being in Miami.

Accordingly it is but reasonable that the business extend the

same protection against injury while receiving maintenance and

cure in strange surroundings that it gives for other risks of

employment.

In sum, the holding of the Florida Third District Court

of Appeal that a seaman receiving maintenance and cure is “in

the service of the ship” finds firm support in the opinions of

this Court. Petitioner has not shown that the decision by the

Florida appellate court on Duarte’s right to maintenance and

cure is in “real and embarrassing” conflict with the decisions

from this Court.

2. The alleged expiration of Duarte’s

employment contract does not create

conflict with this Court’s decisions or

general admiralty law.

Significantly, RCCL does not dispute that Duarte was a

seaman when she was originally injured nor that Duarte was

receiving maintenance and cure, a legal obligation imposed on

the ship, at the time she was injured. Instead, RCCL basically

argues that Duarte was not “in the service of the ship” because

her employment contract had expired. See Petition for Writ of

17

Certiorari at 9-10. There are multiple problems with RCCL’s

assertion.

First, even assuming that the employment contract had

expired, Duarte, as a matter of law, had not been discharged

from her employment with RCCL. Duarte was an alien seaman

on medical parole in the United States. As a matter of law, a

shipowner cannot unilaterally terminate the employment of

such an alien crewman. The shipowner is required to file INS

Form 1-408 and obtain the INS’s authorization before it can

discharge an alien seaman in a United States port. See 8

U.S.C.A. § 1286 (shipowner must obtain consent of INS before

discharging an alien crewman); 8 C F.R. § 252.1(h)(shipowner

must file an application on INS Form 1-408 with immigration

officer having jurisdiction over the area where vessel is located

and receive authorization before it may pay off or discharge an

alien crewman); United States v. Seaboard Surety Co., 239 F.2d

667, 671 (4th Cir. 1957)(discussing what is now 8 C.F.R. §

252.1(h); only Attorney General can terminate employment of

alien crewmen). RCCL offered no evidence to show that it had

complied with the immigration laws and obtained the INS’s

permission to discharge Duarte. As result, Duarte was still

employed by RCCL and was still “in the service” of RCCL’s

vessel when she was injured.

This Court has previously determined that a shipowner’s

performance of its statutory duties is an operational activity.

When the law requires a seaman’s discharge from employment

to be accomplished in a certain manner, the seaman is not

discharged until those conditions are met. Thus, a seaman

remains “in the service of the ship” so long as a statutory

obligation is due an employee.

In Hopson v. Texaco, 383 U.S. 262 (1966), two seamen

became ill in a foreign port and could not continue on the

18

vessel's journey. The shipowner decided to discharge the

seamen. However, under federal law, only the consul is

authorized to discharge American seamen in a foreign port.

Thus, the shipowner arranged for the seamen to be driven from

the vessel to the consul. On the way, the vehicle was in an

accident. This Court held that the shipowner’s duty to get the

seamen to the consul made it an operational activity based on

federal law. As such, the seamen were “in the service of the

ship” when they were injured.

These seaman were in the service of the ship and

the ill-fated journey to Port of Spain was a vital

part of the ship’s total operations. The ship

could not sail with these two men, nor could it

lawfully discharge them without taking them to

the United States Consul. Indeed, to have

abandoned them would have breached the

Statutory duty to arrange for their return to the

United States. Getting these two seamen to the

United States Consul’s office was, therefore, the

duty of respondent.

383 U.S. at 264. See also Hopson v. Texaco, Inc., 351 F.2d

415, 423, 425 (Sobeloff, J., dissenting)(The term “operational

activity” “is not limited to the manipulation of the ship’s gear.

It includes the recruitment of the crew and furnishing of

maintenance and cure to seamen when ill.”), rev'd, 383 U.S.

262 (1966).

Although the issue in Hopson was the shipowner’s

liability under the Jones Act and not maintenance and cure, the

principle remains the same. Just as the law did not allow the

shipowner in Hopson to discharge an American seaman in a

foreign port without the consent of the U.S. consul, it does not

allow a shipowner to discharge an alien seaman in an American

19

port without the consent of the INS. RCCL had to apply for

and receive authorization from the appropriate immigration

officer in order to pay off or discharge an alien seaman like

Duarte. See 8 U.S.C.A. § 1286; 8 C.F.R. § 252.1(h). It failed

to do so. Thus, she was not “discharged” from her

employment. And, like the seamen in Hopson, she was “in the

service of the ship” when she was injured in the automobile

accident.

RCCL asserts that this Court should ignore this fact and

this law because it was not the grounds on which the Florida

appellate court reversed the trial court. Nonetheless it provides

an alternative basis for the decision by the Florida Third

District Court of Appeal. Thus, even a decision by this Court

that a seaman receiving maintenance and cure is not always “in

the service of the ship,” would not be determinative of RCCL’s

liability here.

Second, RCCL did not file the employment agreement

as part of its summary judgment motion. Under Florida law, it

was RCCL’s burden to introduce that contract if it desired to

rely on it. RCCL claims that Duarte’s “non-employment”

status was not disputed in the trial court. Petition for Writ of

Certiorari at 20. However, under Florida law, Duarte had no

obligation to dispute anything until RCCL met its burden and

conclusively demonstrated that there was no genuine issue of

material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.

1966)(“[T]he burden of proving the absence of a genuine issue

of material fact is upon the moving party. Until it is determined

that the movant has successfully met this burden, the opposing

party is under no obligation to show that issues do remain to be

tried.”). Assertions by RCCL and its attorney that the

employment contract had expired cannot be accepted as

evidence of that fact under Florida law. Gumberg v. Gumberg,

745 So.2d 554 (Fla. 4th DCA 1999)(““We have explained in the

ee

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past that, absent a stipulation, unsworn attorney statements

cannot take the place of evidence.”); Sears Roebuck & Co. v.

Polchinski, 636 So.2d 1369 (Fla. 4th DCA 1994)(“We remind

attorneys of our previous admonition that unsworn statements

or representations of counsel, absent a stipulation, cannot be

considered evidence.”).

Third, under established admiralty law, a shipowner’s

duty to provide maintenance and cure is not based on the

seaman’s contract or articles. See Cortes v. Baltimore Insular

Line, Inc., 287 U.S. 367 (1932). In fact, the signing of articles

or a contract is not a prerequisite to a seaman’s right to

maintenance and cure. Hunt v. The Trawler Brighton, Inc., 102

F.Supp. 300 (D.Mass. 1952)(seaman was in service of the ship

when he was injured although he was home for 48 hours

between trips and although there were no articles or

employment contract; at the time of the accident seaman had

not been discharged and had done nothing to terminate his

employment). The fact that a seaman’s articles or contract has

expired is not determinative of a seaman’s right to maintenance

and cure. “The right to maintenance and cure stems from the

employer-employee relationship but is not in all circumstances

completely coextensive with it.” LeBlanc v. B.G.T. Corp., 992

F.2d 394, 396, 399 (ist Cir. 1993)(seaman who was fired and

later injured before leaving the vessel was entitled to

maintenance and cure; the right to maintenance and cure does

not necessarily end when the employment relationship expires,

taking that type of mechanical approach “would as a matter of

policy be incompatible with the [Supreme] Court’s repeated

eschewal of the sharp-edged rules limiting seamen’s rights”);

Reed v. Canfield, 20 F. Cas. at 428 (although seaman’s articles

expired at the end of the voyage, seaman injured before he was

discharged was entitled to maintenance and cure). Simply put,

even assuming Duarte’s contract had expired, that does not

mean that RCCL owed no duty to provide her with maintenance

and cure.

In sum, there no conflict between the decision of the

Florida Third District Court of Appeal here and the decisions

on maintenance and cure by this Court. Instead, the Florida

appellate court’s opinion is well supported by that precedent.

The decision provides no occasion for this Court’s exercise of

discretionary jurisdiction.

22

CONCLUSION

For the foregoing reasons, Respondent, Claudia Duarte,

respectfully requests that this Court deny certiorari in this

action.

Respectfully submitted,

CHARLES R. LIPCON, ESQ. MARC COOPER, ESQ.

LAW OFFICES OF MAUREEN E. LEFEBVRE, ESQ.

CHARLES R. LIPCON Counsel of Record

One Biscayne Tower COLSON HICKS EIDSON

Two So. Biscayne Blvd. 255 Aragon Avenue

Suite 2480 Second Floor

Miami, FL 33131 ~ Coral Gables, FL 33134

(305) 373-3016 (305) 476-7400

Counsel for Respondent