Panama Takes A Step In A ´Tranquil´ Direction Damages Seamen Can Claim For Personal Injury Claims

The Court System

The Maritime System of Law offered by the Republic of Panama is comprised of a tri fold of institutions: a global Merchant Marine, an efficient Public Registry of Vessel and World Class Justice Administration by Two Specialized Maritime Courts and a Maritime Court of Appeals which controls the correct application of rule of law, both domestic and foreign whilst offering users a steady, predictable and impartial experience. Panamanian Judges are obliged by law to respect choice of law parties to any case may agreed to and thus apply foreign when the conflict rules allow for such a scenario.

One notorious example of this is the case filed by the Panama Canal Pilot ALVARO TESTA against M/V TRANQUIL ACE. In the latter, plaintiff alleged Panamania substantive law to apply, whilst the defendant vessel attempted to have the laws of the United Kingdom to control the rights and obligations of the parties. The Judge looked to its conflicts rules to determine the Laws of the Republic of Panama should apply to the parties’ rights and obligations. Applying Panamanian substantive law, the justice system awarded injured plaintiff a judgment worth examining.

The Facts

In 2010, Captain ALVARO TESTA, suffered a TRAUMATIC LUXATION of his right shoulder with a rupture of the articular capsule leaving him crippled in an alleged 80% of his work capacity. In his claim filed in the MARITIME COURTS OF PANAMA, this Panama Canal Pilot for 29 years, argued his accident occurred mainly due to an un painted fore step which made it impossible to distinguish a difference in stepping point as he made his way on the vessel whilst performing a early morning Canal transit service from Miraflores Locks to Pedro Miguel locks.

A pilot shelter is a catwalk where the pilot boards the vessel.

Damage award comparison

Plaintiff filed an in rem claim alleging a maritime lien against the M/V TRANQUIL ACE which was arrested in the Panama Canal. Vessel interest defended the claim on the basis that the accident occurred due to plaintiff’s own negligence by not looking properly whilst walking which led him to fall and injured himself – contributory negligence theory.

The Trial Court Level

At trial on the merits, Trial Court found plaintiff’s contributory negligence based on pilot testimony he knew how the ´pilot shelter´was built since he had been there many times. Court also found using sneakers instead of boots led to his foot being trampled in the steps of the passway. Court further held the inspection brigade must have identified the situation and place signaling to avoid pilots feet from slipping between the slots. Judge reasoned prevision duty is not only on the owner of the vessel but also on the people who by way of their work must face situation with a certain level of danger, like boarding a vessel. Finding  a lack of diligence and care on plaintiff, Court ultimately ruled plaintiff was 30% at fault, the vessel was found to be 70% at fault.

Restitutio in integrum: The Principle behind Tort Liability based in Fault or Negligence

Medical experts determined there was no permanent incapacity, and thus may continue to operate as a pilot. He then established his level of incapacity at 80% during the 6 months pilot was incapacitated. Judge ruled using the following formula: he took the ºSeries 9¨ [55 yrs up] Pilot´s Salary Schedule for a year, multiplied it by an local banking interest average^[1] of 3.49%. Later that sum was hedged against the percentage of incapacity for the time the captain was incapacitated [6 months]. Medical expenses were denied because plaintiff did not offer evidence expenses where necessary, i.e. surgery was found to be dispositive rather than mandatory. Moral damages, which under Panamanian law, is a notion of affectation on sentiment, Judge was not convinced pilot suffered such damages for a slip and fall case.

Court of Appeals

Plaintiff argues on appeal pilot did not undergo surgery out of fear. They also argue Court wrongfully established incapacity was not permanent, in their view there is error for overseeing the degenerative condition of pilot’s’ right shoulder. Plaintiff also contests the formula for determining loss of earning capacity. In plaintiffs view, Court should have used entire yearly income, subtract the incapacity percentage 20%, multiply time 12 years,^[2] then subtract the 20% equivalent from his income, contemplate for 6 months. Plaintiff argued Court should have looked at plaintiff’s’ income in fiscal declarations coupled with statement from two other pilots in the same salarial tier.

In regards to the contributory negligence argument, plaintiff argue on appeal the pilot shelter should have been properly signaled to avoid accidents since it represented an unnecessary danger to all persons on board. Plaintiff cites to the Regulation regarding the responsibility of pilot to propose the gangway is not within the pilot’s scope of responsibility. Plaintiff sustains 30% negligence finding is not correct, in any event that degree of negligence should have been placed on the Panama Canal Authority was the ultimate liable party.

Civil Code

Article 974. Obligations are born from the law, from contracts and quasi contracts, and form the unlawful acts and omissions or in which any genre of fault or negligence intervenes.

Article 986. They are subject to indemnify damages and prejudices caused those who in the fulfilling of their obligations incur in malice, negligence or default, and those who in any way contravene the tenor of the latter.

Negligence is carelessness in one’s assignments or occupations. Negligence is the lack of precaution or indifference for the realized action. [CARLOS FONTANA BELTRAN]. Loss of earnings [GILBERTO MARTINEZ RAVE] is the frustration, privation or lack of a patrimonial increment as a consequence of damage. The lack of output, of the productivity of things or the abandonment of economic benefits, as a consequence of the damaging actions. The earnings taken away from the victim. To prove loss of earning one only has to offer enough precedent which may cause a conviction of the possible earnings which have been lost. Loss of earnings is simply put the ‘effective loss of a certain earning.’ [ENRIQUE BARROS BOURI].

Miguel Ardines v M/V KEN LEADER – Fishing vessel was awarded 30% of the earning it would have made as a result of fishing activities from the moment of the sinking of the vessel until the judgment. Javier Tamayo Jaramillo, RESPONSABILIDAD CIVIL, – victim is entitled to incapacity payment from the momento of the accident until the day of the judgment. Tamayo – victims not only have a right to medical bills, they are also entitled to emerging damages in the future, as in when victims have to incur future costs to recover state of health.

Moral damages – consists of the pain, the mental anguish, the physical and spiritual affectation inflicted on the victim as a consequence of the damaging event. Maria Munoz de Chavarria v Industrias Lacteas, S.A – moral damages are not to be considered a plus to the indemnity, it is not a way to earn more that the indemnification to victim. Moral damages require no proof, Judge should verify circumstances surrounding the wrong and the moral qualities of victim to establish objectively and presumptively the moral wrong to the intimacy of the passive subject.

Law 2 of january 2009 – SOLAS CONVENTION of 2001 Rule 17 of Chapter V Safety in Navigation and Rule 4.3 of the Protection of Safety, Health and Prevention of Accidents and The Navigation Rules of the Panama Canal Rules 3, 4a, 7, 40, 72, 62, 64.

The Court held defendant vessel liable for the omission in acknowledging the danger localized in the unleveled steps in the pilot shelter, which gives rise to an obligation by law based in fault or negligence. Plaintiff entitled to loss of earnings, medical bills and moral damages. Onus probandi on defendant to prove the diligence of a good pater familiea to avoid accident in order to escape liability. [Article 1644]

Plaintiff wins.

By Remy Francisco Carreira-Franceschi, CARREIRA PITTI P.C. Attorneys

References

^[1] Banking average interest for time deposits for one (1) year.

^[2] Time left before retirement, pilot was 55 at the time of accident, retirement age is 67 for men.