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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 886

## Text

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

20

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2058%3A2. Public record. Not legal advice.