An Introduction to Cruise Ship Litigation
It is estimated that more than nine million passengers travel on pleasure cruises departing North American ports each year. While this number has increased significantly in just the past five years, the safety aboard these ships has not correspondingly increased. Claims of injuries, assaults by crew members, and violent illnesses have become seemingly commonplace. Recently, with the publicity surrounding a string of disappearances aboard cruise ships, the cruise line industry has come under heightened scrutiny. For those who litigate cruise line cases, these shocking stories and tragic results come as no surprise.
Cruise ships are not merely common carriers, they are virtual floating cities. These floating cities, however, lack fundamental safety policies, protocols, and procedures to protect passengers from harm. In addition, antiquated laws and contractual language limiting rights and remedies, puts travelers in a precarious position. As one judge stated, the lesson to be learned from over a hundred years of non-evolving case law and confusion regarding limitations on rights and remedies, is essentially the following: “Don’t have an accident, don’t get sick, and hope for an uneventful cruise vacation, otherwise you will discover that your rights and remedies as an aggrieved consumer are governed by antiquated legal principles which favor cruise lines to the detriment of cruise passengers.”
That being said, the ability to recover from the negligence involving cruise ships is not impenetrable. Several American courts, realizing the impracticality and injustice resulting from the current state of affairs, have handed down landmark decisions regarding the accountability of cruise ship corporations to their passengers. This article will provide a brief overview of the current state of personal injury law relating to cruise ship passengers; an examination of the procedural pitfalls, customary cruise contract limitations on rights and remedies, recent statutory interpretations, and promising verdicts.
Procedural Pitfalls: Statute of Limitations, Forum Selection, Choice of Law and Jurisdictional IssuesStatute of Limitations
As a practitioner, one of the procedural pitfalls that cause the greatest concern is the statute of limitations. Generally, statutes of limitation provide a reasonable amount of time to investigate a matter and file a claim. For instance, in personal injury cases in Florida, there is a 4-year statute of limitations. Medical malpractice and wrongful death are two years. For injuries occurring due to negligence associated with a cruise line, however, the contractual provisions typically call for a much more limited time-frame. For injuries or deaths stemming from negligence associated with a cruise ship, the contract, which is usually contained in the ticket package, typically provides that a passenger must provide notice of a claim to the cruise line within six months and commence a lawsuit within one year. 1
Occasionally, courts will reject such restrictive limitations based on lack of notice, 2 tolling for a minor passenger, 3 equitable estoppel,4 contractual overreaching, 5 accidents on shore,6 and settlement fraud. 7 However, these limitations are generally upheld. For non-physical injury claims, cruise lines impose a shorter limitation period. Most cruise lines require that written claims be filed within days as opposed to months after the accident. 8 Courts may decide not to enforce these limitations if they were unreasonable under the circumstances, 9 or contrary to a state statute of limitations. 10Forum Selection Clauses
Another procedural pitfall concerns forum selection clauses. These provisions, also contained in the ticket package, dictate where a lawsuit may be filed against the cruise line. It does not matter where the passenger is from, or where the cruise departed. Currently, cruise lines have limited the location where claims may be brought to a handful of cities where larger ports are located, such as Miami, Seattle, and Los Angeles.
Several carriers have worded their forum selection clauses to provide that cases must be brought in the United States District Court. For instance, in Florida, Carnival Cruise Lines recently altered its forum selection clause to provide: “It is agreed by and between the Guest and Carnival that all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.” 11 Several recent cases have upheld these type of forum selection clauses. In Wiggins v. Carnival Corporation d/b/a Carnival Cruise Lines, 12 the court found no reason why the forum selection clause should not be enforced even though the plaintiffs argued they did not have adequate notice of the forum selection clause and it is fundamentally unfair. Similarly, in Valenti v. Norwegian Cruise Line, 13 the court held: “The source of substantive law for the action was federal maritime law. Under federal maritime law a forum selection clause in a maritime contract was prima facie valid unless there was some independent justification for refusing to enforce it. The cruise line’s requirement that litigation be initiated in a court in Florida was fair and reasonable.” Unless a passenger can meet the high burden of proving fraud or a patently unfair situation, a forum selection clause in a cruise ticket contract must be enforced. 14
In this regard, Courts have held that to be enforceable, forum selection clauses in cruise tickets or brochures must be fundamentally fair. 15 Fundamental fairness means (1) that the forum was not selected to discourage pursuit of legitimate claims, (2) there was no fraud or overreaching, (3) the notice of the forum selected was adequate, and (4) the consumer had a reasonable opportunity to reject the cruise contract without penalty. 16 Plaintiffs have been successful in challenging forum selection clauses where they can prove that they did not receive the cruise contract early enough to be able to cancel without being subject to a cancellation fee. 17 For instance, where a cruise line ticket was delivered 13 days before the cruise, the court determined that adequate notice of the forum selection clause was not provided and would not be enforced. 18Choice of Law Provisions
In addition to forum selection clauses, passenger tickets may also designate the law to be applied in resolving any issue which may arise. The law applied to a claim can have a dramatic influence on the likelihood of recovering adequate damages. Generally choice of law clauses have been held enforceable, unless a passenger can demonstrate that enforcement would be unreasonable, to prevent fraud or overreaching, 19 or if “enforcement would contravene a strong public policy of the forum in which the suit is brought.” 20 Courts may consider several factors in determining whether choice of law clauses should be enforced such as (1) the place of the wrongful act, (2) the law of the flag, (3) the allegiance or domicile of the injured passenger, (4) the allegiance of the ship owner, (5) the place of the contract, (6) the inaccessibility of the foreign forum, and (7) the law of the forum. 21 One caveat: a practitioner should not automatically assume that United States law always favors the plaintiff. With the demise of nonpecuniary damages in maritime death cases there may be cases where foreign law provides more favorable remedies than United States law.Jurisdictional Issues
As a cruise ship litigator, you should be aware of the jurisdictional issues involved when initiating a lawsuit against a carrier. In order to sue a cruise line locally, the consumer’s court must have jurisdiction. Most jurisdictional issues arise when an accident occurs in territorial waters and involve in rem claims against the ship. 22 There may be other basis for the assertion of personal jurisdiction over a cruise carrier. If a cruise line conducts business through an agent for example, or maintains an office with a staff, a bank account, and a local telephone number, then the assertion of personal jurisdiction would generally be appropriate. 23 If such indicia are not present, then certain courts have applied what is known as the “solicitation-plus doctrine.” The “solicitation-plus doctrine” applies if there was active solicitation of business plus some financial or commercial dealings in the state, if the foreign company holds itself out as operating in the state, and/or if contract formation is in the state. 24 However, the “solicitation-plus” doctrine does not apply to all circumstances of active solicitation of business plus financial dealings—particularly when a cruise company takes reservations and distributes brochures through travel agents. 25Validity of Cruise Contract Disclaimers and Exclusions
Practitioners must keep in mind that although many situations concerning cruise ship liability are riddled with complexity, cruise ships are common carriers and are held to a reasonable standard of care under the circumstances. 26 Cruise vessels that touch U.S. shores may not disclaim liability for loss, death, damage or delay caused or contributed to by the vessel’s negligence. 27 A passenger ticket may contain clauses which seek to disclaim liability for a variety of problems but instances of gross negligence and intentional misconduct may not be disclaimed by common carriers. 28 In addition, many cases, including several that our firm has successfully handled, have held that disclaimers of simple negligence, particularly regarding the health and safety of the passengers, such as ingress and egress from the cruise ship, will not be enforced. Provisions that try and disclaim liability for either gross or simple negligence are usually held to be void under common law and against public policy. 29
Specifically, in Kornberg v. Carnival Cruise Lines, 30 a case involving malfunctioning toilets, the cruise line sought to enforce a clause in the passenger contract disclaiming liability for the discomfort of passengers. The Kornberg court stated: Of the three disclaimers, the disclaimer of liability for negligence appears to be the most applicable to this suit. Yet, for good reason Carnival does not rely on this disclaimer. 46 U.S.C.A. §183c expressly invalidates any contract provision purporting to limit a ship’s liability for negligence to its passengers. It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability. 31
Unfortunately, the courts have been willing to enforce disclaimers of liability regarding accidents that occur during shore excursions. 32 This is especially troubling since cruise ships generate a substantial amount of money from these excursions, which are typically delivered by independent contractors not subject to U.S. jurisdiction and who are usually uninsured and unlicensed. 33 Some courts have held that a disclaimer for an on-shore excursion may not be enforceable if the passenger relied upon representations or warranties regarding the safety, competence, and reliability of on-shore suppliers of travel services. 34 Lastly, while disclaimers such as these might be enforceable against the cruise carrier, many courts have held that the ground service providers are not immune from liability. 35
1 See Hughes v. Carnival Cruise Lines, Inc., 2003 WL 1740460, at *1 (S.D.N.Y. Mar. 31, 2003) (one-year time limitation period enforced); Angel v. Royal Caribbean Cruises, Ltd., 2002 WL 31553524, at *1, *5 (S.D. Fla. Oct. 22, 2002) (passenger fell overboard; one-year time limitation enforced); Konikoff v. Princess Cruises, Inc., 2001 U.S. Dist. LEXIS 14034, at *6 (D.V.I. Aug. 13, 2001) (passenger sustained injury exiting taxi during shore excursion; claim dismissed as untimely); Stone v. Norwegian Cruise Line, 2001 WL 877580, at *1-*2 (E.D. Pa. May 15, 2001) (slip and fall in bathroom; time limitations period enforced); Wall v. Mikeralph Travel, Inc., 2003 WL 178770, at *1 (Conn. Super. Ct. Jan. 6, 2003) (time limitations period enforced; “The fact that the ticket-contract, while never reaching the [passenger], resided with the travel agency...employed to purchase the ticket, inclines one to conclude that the opportunity to discover these restrictions existed for a significant period of time”); Tateosian v. Celebrity Cruise Servs., Ltd., 768 A.2d 1248, 1252 (R.I. 2001) (food poisoning; one year time limitation period enforced); Reeser v. NCL Bahamas Ltd., Civil Action No. 05-2344, 2005 U.S. Dist. LEXIS 17159 (E.D. Pa. August 17, 2005) (injured cruise lines passengers’ claims dismissed as time barred for failing to file suit within one year despite cruise line’s failure to inform plaintiff’s lawyer of such provision while communicating with the lawyer during limitations period); Levick v. Steiner Transocean Limited, 2005 U.S. Dist. LEXIS 14770 (S.D. Fla. July 13, 2005) (one year passenger ticket limitation to file suit applied to claims against independent contractor who ran the spa on the ship, and filing suit in state court did not toll the time period to file suit in federal court).
2 Ward v. Cross Sound Ferry, 273 F.3d 520, 526 (2d Cir. 2001) (slip and fall on gangway; one-year time limitations clause not enforced; passenger receiving ticket two minutes before boarding did not have proper notice of time limitations clause).
3 Gibbs v. Carnival Cruise Lines, 314 F.3d 125 (3d Cir. 2002) (minor burned feet on hot deck surface; one-year time limitations period tolled for minor until after parent began to serve as guardian ad litem after filing of lawsuit).
4 Dillon v. Admiral Cruises, Inc., 960 F.2d 743, 746 (8th Cir. 1992) (trip and fall in ship’s lounge; cruise line may be estopped from relying on one-year time limitation).
5 See Long v. Holland Am. Line Westours, 26 P.3d 430, 436 (Alaska 2001).
6 Rams v. Royal Caribbean Cruises, Inc., 17 F.3d 11, 13 (1st Cir. 1994) (one-year time limitation does not apply to accidents during shore excursions).
7 Berg v. Royal Caribbean Cruises, 810-12 (D.N.J. 1994) (passenger misled into not filing lawsuit within one year).
8 Insogna v. Princess Cruises, Inc., N.Y.L.J., June 10, 2002, at 37; Cronin v. Cunard Line, 672 N.Y.S. 2d 864, 864-65 (N.Y. App. Div. 1998) (deceptive port charges; six-month time limitation in which to commence lawsuit enforced).
9 Barton v. Princess Cruises, Inc., No. B123107, 2002 WL 31677178, at *7 (Cal. App. Nov. 27, 2002) (deceptive port charges; clause in passenger ticket requiring the filing of written notice of claims within fifteen days and the filing of a lawsuit within ninety days may be unenforceable).
10 Johnson v. Commodore Cruise Line Ltd., 897 F. Supp. 740, 744-45 (S.D.N.Y. 1995) (passenger raped by crew member; claim for negligent infliction of emotional distress governed by Mississippi’s three-year statute of limitations; passenger ticket time limitations of fifteen days to file claim and six months to sue for nonphysical claims void).
11 See Important Notices to Guests; Important Terms and Conditions of Contract, available at http://www.carnival.com/CMS/Static_Templates/ticket_contract.aspx (last visited January 23, 2006).
12 United States District Court for the Western District of Texas, El Paso Division. 2005 U.S. Dist. LEXIS 18235.
13 United States District Court for the Southern District of New York, 2005 U.S. Dist. LEXIS 6811.
14 Fisk v. Royal Caribbean Cruises, Ltd., 141 Idaho 290 (2005); Hellman v. Royal Caribbean International, 2005 U.S. Dist. LEXIS 14177.
15 See Carnival Cruise, Inc. v. Shute, 499 U.S. 585 (1991)
16 See id.; Cismaru v. Radisson Seven Seas Cruises, Inc., No. Civ. A. 07-00-00100-CV, 2001 WL 6546, at *1 ( Tex. App. Jan. 2, 2001); Stobaugh v. Norwegian Cruise Lines, Ltd., 5 S.W. 3d 232, 235 ( Tex. App. 1999).
17 See Ward v. Cross Sound Ferry, 273 F.3d 520, 525 (2d Cir. 2001).
18 Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785 (2005).
19 See Long v. Holland Am. Line Westours, Inc., 26 P.3d 430 (Alaska 2001) (passenger fell during land tour of museum; maritime law does not govern land tour; choice of law clause in tour contract stating that “except when maritime law applied, the contract would be construed according to Washington state law” was rejected and the law of Alaska applied.
20 Milanovich v. Costa Crociere, SPA, 954 F.2d 763, 768 (D.C. Cir. 1992).
21 See Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112, 115-16 (S.D.N.Y. 1992).
22 See Benson v. Norwegian Cruise Line Ltd., 859 So.2d 1213 (Fla. Ct. App. 2003) (physician was subject to personal jurisdiction in Florida under Florida’s long-arm statute for wrongful death action because cruise ship was within Florida territorial boundaries); Pota v. Holtz, 852 So.2d 379, 381 (Fla. Ct. App. 2003)(pregnant passenger complaining of stomach cramps misdiagnosed as having bladder infection goes into contractions and bleeding and cruise line denies request for airlift to hospital in Grand Cayman Island; passenger taken to hospital only after ship docks, gives birth and baby dies a few hours later; jurisdiction over ship’s doctor onboard a ship docked in Florida port); Rana v. Flynn, 823 So.2d 302, 303 (Fla. Ct. App. 2002)(passenger suffered heart attack and was treated by ship’s doctor as cruise ship sailed into Florida waters and docked in the port of Miami; jurisdiction over ship’s doctor found).
23 Dickerson, Thomas A., The Cruise Passenger’s Dilemma: 21st Century Ships, Nineteenth Century Rights. 28 Tul. Mar. L.J. 447 at 482.
24 See Falcone v. Mediterranean Shipping Co., Civil Action No. 01-3918, 2002 U.S. Dist. LEXIS 11392, at *5 (E.D. Pa. Apr. 3, 2002) (passenger suffered physical injury aboard cruise ship; no jurisdiction based upon sales by local travel agent “with no authority to confirm reservations”); Kauffman v. Ocean Spirit Shipping, Ltd., 1993 AMC 177, 180 (Mich. 1990)(dissemination of cruise brochures through travel agents and advertising in scuba magazine insufficient to support long arm jurisdiction); Duffy v. Grand Circle Travel, Inc., 756 N.Y.S. 2d 176, 177 (N.Y. App. Div. 2003)(passenger sustained injury in France; no jurisdiction over Massachusetts cruise company); Sanderman v. Costa Cruises, Inc., 55 Pa. D & C. 4th 328, 333 (Pa. C.P. 2001)(consumer paid Florida travel agent $21,775 for cruise on Costa Romantica that failed to remit any money to cruise line; no jurisdiction over cruise line not doing business in Pennsylvania).
26 Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir. 1984).
27 See Royal Ins. Co. Of Am. v. Southwest Marine, 194 F.3d 1009, 1016 (9th Cir. 1999).
28 See Washington Metropolitan Area Transit Authority v. Reading, 674 A.2d 44 (Md.App. 1996); Bellocchio v. Italia Flotte Riunite Cosulich Line, 84 F.2d 975 (2d Cir. 1936). Tullis v. Fidelity and Casualty Co. of New York, 397 F.2d 22 (5th Cir. 1968); Marshall v. Westfal-Larsen & Co., 259 F.2d 575 (9th Cir. 1958); Goode v. Oceanic Steam Nav. Co., 251 F. 556 (2d Cir. 1918); see also, White v. United States of America 53 F.3d 43 (4th Cir. 1995), Florida Fuels, Inc. v. Citgo Petroleum Corp. 6 F.3d 330 (5th Cir. 1993) and Romero Reyes v. Marine Enterprises, Inc. 494 F.2d 866 (1974); Russell v. City Ice & Fuel Co., 539 F.2d 1318 (4th Cir. 1976); Kermarec v. Compagnie Generale Trans-Atlantic, 358 U.S. 625, 79 s.Ct 406 (1959); Marshall v. Westfal-Larsen Co., 259 F.2d 575 (9th Cir. 1958); Meyers v. M/V Eugenio C, 842 F. 2d 815 (5th Cir. 1988); Urian v. Milstead, 473 F.2d 948 (8th Cir. 1973).
29 See Liverpool & Great W. Steam Co. v. Phoenix Ins., 129 U.S. 397, 441 (1889).
30 741 F.2d 1332, 1985 AMC 826 (11th Cir. 1984).
31 Id. at 1335, 1985 AMC at 828.
32 See Henderson v. Carnival Corp., 125 F. Supp. 2d 1375, 1377 (S.D. Fla. 2000) (passenger injured on catamaran trip while on excursion from cruise; notwithstanding Carnival logo on catamaran and crew member shirts, cruise ship disclaimer of ownership or control of catamaran company enforced); Mashburn v. Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367, 1370 (S.D. Fla. 1999) (day trip to Coco Cay Island owned by cruise line; passengers rented Sea-Doo, signed waiver and were injured in accident; no negligence found); Dubret v. Holland Am. Line Westours, Inc., 25 F. Supp. 2d 1151, 1153 (W.D. Wash. 1998) (bus accident during shore excursion; disclaimer of liability enforced).
33 Hernandez v. Holiday Inn, N.Y.L.J., Mar. 23, 1993, at 21.
34 Winter v. I.C. Holidays, Inc., N.Y.L.J., Jan. 9, 1992, at 23 (holding that tour operator has duty to select responsible independent contractors).
35 See Berzonzine v. Maui Classic Charters, 1995 AMC 2628 (D. Haw. 1995) (350-pound handicapped passenger broke ankle because of inattention and lack of assistance by crew; misrepresentations in brochure that cruses were “suitable for handicapped individuals”; $42,500 in special damages awarded); Sharpe v. W. Indian Co., 118 F. Supp. 2d 646, 652 (D.V.I. 2000) (passenger left cruise ship to board waiting tour bus and was struck by failing railing; time limitations in cruise contract enforced as against cruise ship and clause that stated, “the exclusions or limitations of liability of carrier set forth in the provisions of this contract shall also apply to and be for the benefit of agents, independent contractors, concessionaires and suppliers of carrier as well as owners and operators of all shoreside properties at which the vessel may call” was unenforceable against dock operators and local truck company responsible for accident).
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