Navigating the Rough Seas - A Cruise Ship Passenger Litigation Primer
A Cruise Ship Passenger Litigation Primer
by: Ira H. Leesfield
Cruising has had a steady growth in popularity and continues to rise. More than 7 million passengers embark and disembark in ports of South Florida making it the largest cruise passenger region in the world. The vast majority of the cruise line tickets require passenger injury and death cases be filed in Miami-Dade County, Florida.
Cruising can be fun, affordable and offer a wide array of activities both on and off the vessel. The cruise industry likes to compare its vessels to “floating cities.” However, accidents, injuries and crime can happen. The cruise lines have in place lengthy and detailed ticket contracts to protect their interests. For the unwary passenger and counsel, these contract provisions, in combination with recent changes in the law, make navigating a claim like sailing in rough seas.
If you represent a cruise line passenger who was injured while on a cruise, the action will likely need to be brought in South Florida. There are many factors and steps that you need to be aware of to protect your client’s rights and interests. This article is intended to be an introductory primer as to the intricacies of maritime law and litigation arising from incidents occurring on cruise ships.
As the circumstances of each case may differ, it is important that you consult with an experienced maritime attorney regarding specific cases and incidents.
Cruise line tickets normally contain a number of different provisions which will impact upon personal injury and wrongful death actions arising from incidents occurring during the course of the cruise. The most common provisions include forum selection clauses, time bar limitation provisions, waivers of liability and independent contractor notices. Some of these clauses are typically enforced, while others are not.
Forum Selection Clauses
It is well established that forum selection clauses contained in virtually all passenger cruise tickets are generally enforceable where the selected forum bears some reasonable relationship to the cruise line and is not simply a “remote alien forum designed solely to discourage litigation.”
Most of the major cruise lines, including Carnival, Royal Carribean, and Norwegian Cruise Lines are based in South Florida and require passenger injury and death cases be filed in Miami-Dade County, Florida. As the vast majority of cruise lines cases are brought in South Florida, the Florida’s Federal and State Courts are very influential in setting precedence when it comes to maritime law in the United States. Other influential regions include California as Princess Cruises and Cunard Cruise Line require lawsuits to be brought in Los Angeles, and Washington as Holland America requires actions to be brought in Seattle.
Recently, cruise lines have fashioned forum selection clauses, which not only require that suit be filed in a particular jurisdiction, but in federal, as opposed to state court. These clauses have been upheld in a series of decisions from Florida’s Third District Court of Appeal, which includes Miami, the home of much of the cruise industry. In light of the Florida Supreme Court’s recent decision to avoid review of these decisions, the prevailing law in Florida’s state courts recognizes the validity of clauses requiring matter be brought in Federal court.
In Leslie v. Carnival Corp., 22 So.2d 561 (Fla. 3d DCA 2008), the passenger had unsuccessfully contended that the operation of the clause in her case unconstitutionally operated to deprive her of her right to a jury trial, since her Florida residency destroyed diversity of citizenship jurisdiction. As a result, the passenger was required to file her suit on the admiralty side, thereby losing her right to a jury trial. Following the court’s upholding of the federal forum selection clause in cases where there was a lack of diversity, at least one cruise line has since further modified its ticket to specifically require all passengers to file their claims on the admiralty side of the federal court.
Although these Third District Court of Appeal decisions presently govern cases filed in Florida’s state courts, requiring their dismissal, these decisions do not control the handling of such cases when they are filed in federal court. Although a case in which there is a lack of diversity jurisdiction must be filed on the admiralty side, where diversity exists, a federal court would not be constrained to require the suit to proceed in the admiralty side.
Virtually all cruise line tickets today contain a time bar provision requiring suit to be filed within one year of the date of the accident. Such time bar provisions governing passenger claims have generally been upheld by the courts so long as the provision is reasonably conspicuous and the passenger had an opportunity to review the provisions either before or after the incident giving rise to their claim.
Some cases have applied the doctrine of equitable estoppel to relieve a passenger of the effects of the one year time bar provision contained in the typical cruise ticket where the suit was timely filed within state court and thereafter subsequently dismissed for failure to comply with the tickets corollary federal forum selection clause. Where, however, the cruise line has advised the passenger prior to the filing of suit that all actions were required to be filed in federal court and that it would not waive any ticket provisions, it has been held that the doctrine of equitable estoppel is not applicable since the passenger had no reason to believe under such circumstances that the carrier would waive the federal forum selection clause.
It is becoming more common for cruise lines to insist upon passengers executing releases before performing certain activities during the course of a cruise. The validity of such releases will generally depend upon a number of factors, including the itinerary of the vessel and whether the activity is being performed, onboard or shoreside. One recent case even looked to the nature of the activity.
The strongest basis to challenge the enforcement of such releases is the application of 46 U.S.C. §30509, which was formerly designated as 46 U.S.C. §183(c). This statute prohibits a cruise line from requiring a passenger to release it from liability for personal injury or wrongful death caused by the negligence of the vessel or its crew or to give up the right to a jury trial. This statute is expressly limited, however, to cruises which include at least one U.S. port and only applies to the vessel owner, operator, master or ship’s agent.
This statute has been given a broad application to “invalidate any contract provision purporting to limit a ship’s liability for its own negligence to its passengers.” Accordingly, where applicable it prohibits the cruise line from utilizing such waivers, whether contained in the ticket of passage, a separate document or in a tariff. The statute has been applied to prohibit releases for activities occurring aboard the cruise ship, regardless of their nature. The statute has even been relied upon to bar the application of other limitations on carrier liability created by international treaties, such as the Athens Convention, when incorporated into a ticket of passage on a voyage including a U.S. port.
There has been some conflict, however, over whether the statute applies to injuries occurring off of the vessel during the course of a cruise. The majority of cases have concluded that the statute is applicable to bar such releases so long as the claim arises out of the passenger-carrier relationship and is based upon the cruise lines direct negligence. Several cases, however, have refused to apply the statute to bar such releases where the claim has arisen out of the separate rental of a jet ski or wave runner on an out island owned and operated by the cruise line.
A long line of nearly unanimous decisions from the Supreme Court, numerous Circuit Courts of Appeal and countless District Courts have consistently held that passenger accidents occurring aboard cruise ships are subject to admiralty jurisdiction. Admiralty jurisdiction has generally been found to exist for such injuries, so long as they have occurred on the vessel itself, regardless of their nature or whether they have involved traditional maritime hazards.
In order for a maritime tort to fall within admiralty jurisdiction, it must meet a two part test which looks to: (1) its location and (2) whether there is a significant connection with maritime activity. The location test is satisfied if the tort occurred on navigable water or if on land, whether the injury was caused by a vessel on navigable water. The maritime connection test looks to whether the incident involved is “of a sort with a potential to disrupt maritime commerce.”
For injuries occurring on cruise ships themselves, the second prong of this test has been met based upon the recognition that the function of a cruise ship is not limited transportation, but also includes the recreational activities of its passengers. Courts have even applied admiralty law to art auctions occurring on ships, concluding that such activities are “part and parcel of the cruise ship experience.” The application of admiralty jurisdiction for injuries occurring on cruise ships is so well established that it has even been routinely applied to injuries and deaths occurring on shore during the course of the cruise.
In recognition that the function of a cruise ship is entertainment, rather than mere transportation from one point to the next, courts have likewise provided seaman’s status to hair dressers, musicians, waiters, busboys, bartenders and entertainers, to name just a few.
The Standard of Care Owed
Claims by passengers are based in negligence. In order to state a cause of action in negligence, a passenger must show that (1) the ship owner defendant owed him a duty, (2) there was a breach of that duty, (3) the breach was the proximate cause of the injury, and (4) the passenger suffered damages.
Under general maritime law a shipowner owes passengers a duty of reasonable care under the circumstances. A shipowner, however, is not an insurer of passenger safety and there must be some failure to exercise due care before liability can be imposed. The warranty of seaworthiness does not apply to fare paying passengers and as such a passenger may not bring a claim for breach of contract for safe passage. Likewise, warranty and strict liability remedies are generally not recognized in passenger injury cases.
There is no bright line standard for defining “reasonable care under the circumstances”. What constitutes reasonable care will differ on a case by case analysis and the court will look to “the extent to which the circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to a passenger [to] determine how high a degree of care is reasonable under the circumstances.”
The standard of reasonable care generally requires that a carrier have actual or constructive knowledge of the risk-creating condition. Where it is alleged, however, that the shipowner created an unsafe or foreseeably hazardous condition, a passenger need not prove notice in order to show negligence.
The duty of reasonable care also includes a duty to warn passengers of dangers not apparent and obvious. This duty to warn extends beyond the port to places where passengers are invited to or reasonably may by expected to visit. This includes liability for intervening criminal acts if the acts were foreseeable. This duty applies not only to times when the ship is underway but also requires that a carrier must render such services as are reasonably necessary to get a passenger safely ashore. As in land based law, there is however no duty to warn for an open and obvious condition.
Strict Vicarious Liability for Sexual Assaults
The Exception to the Duty of Reasonable Care Standard
A “maritime carrier has an ‘unconditional responsibility for the misconduct of its people toward passengers’ ...[T]he doctrine of respondeat superior applies to hold a carrier responsible for the defaults of its crew.”
Courts have repeatedly held that a cruise ship operator is strictly vicariously liable for its employees’s sexual assault of a passenger notwithstanding the fact that such an act is outside the scope of employment. The Courts have reasoned that there is a special carrier-passenger relationship that arises and the shipowner has a non-delegable duty to protect and safely transport passengers during their cruise.
In order to establish liability, a plaintiff only needs to establish that the sexual assault by a crewmember occurred during the “contractual period.” It is not necessary that the passenger show the crewmember was acting within the course and scope of his employment when the sexual assault occurred.
Limits to the Extent of the Cruise Operator’s Duty
Duty to Monitor Surveillance Cameras
In light of the recent publicity and legislation, cruise lines have installed surveillance cameras throughout the vessels to capture images both internally and externally. While cruise lines tout this security measure is for the protection and safety of passengers, a federal court in Miami found that cruise lines are under no obligation to actually monitor the surveillance cameras. The court concluded that to create such a duty would significantly expand the doctrine of voluntary assumption of duty, since the ship owner is under no duty to insure passenger safety.
Duty to Investigate and Assist
Similarly, although cruise lines are quick to investigate, take statements and interview the injured party and witnesses, “in anticipation of litigation,” courts have held repeatedly that a cruise line is under no duty to investigate. As a result a cruise line cannot be held liable for failing to investigate or for conducting a negligent investigation, where such a failure deprives the plaintiff of an opportunity to sue a third party for his or her injuries or results in the spoliation of evidence.
Cruise Vessel Security and Safety Act
In July, 2010, Congress enacted the Cruise Vessel Security and Safety Act (CVSSA) 46 U.S.C.A. §§ 3507, 3508. This Act applies to all passenger vessels that are authorized to carry at least 250 passengers, have onboard sleeping facilities for each passenger, is on a voyage that embarks or disembarks passengers in the United states and is not engaged in coastwise voyage. The Act was designed to improve vessel security and safety based upon findings by Congress that “passengers on cruise vessels have an inadequate appreciation of their potential vulnerability to crime while on ocean voyages, and those who may be victimized lack the information they need to understand their legal rights or to know whom to contact for help in the immediate aftermath of the crime.
In implementing the Act, Congress set forth various vessel design, equipment, construction and retrofitting requirements. The Act implements guidelines for video recording, safety information being made available to passengers, requirements for dealing with sexual assaults including the availability of medical care and access to properly trained professionals, and guidelines for crewmember access to passenger staterooms. As part of keeping reliable crime related data and making the information available to the public, the Act also includes reporting guidelines and records maintenance. The Act also provides for crime scene preservation training for passenger vessel cruise members.
The Act requires that the Secretary shall issue “guidelines, training curricula, and inspection and certification procedures necessary to carry out the requirements.” Additionally, the Act requires that the “Secretary in consultation with the Director of the FBI and the Maritime Administration, develop training standards and curricula to allow for the certification of passenger vessel security personnel, crewmembers and law enforcement officials on the appropriate methods for prevention, detection, evidence preservation, and reporting of crimes in the international maritime environment.”
The United States Coast Guard has since issued, CG-543 Policy Letter 11-09 who purpose is to “provide guidance to the U.S. Coast Guard inspectors for compliance verification of CVSSA requirements by cruise vessels during the course of scheduled safety and security inspections.” While this Policy Letter is not a rule or a substitute for applicable legal requirements, it represents the Coast Guard’s current thinking on this topic and can assist the industry and the general public in applying statutory and regulatory requirements.
The Policy Letter states in detail states how a Port State Control Officer (PSCO) shall examine a vessel to ensure compliance with the Act. This includes spot check measurements to ensure proper railing heights and placement of peepholes. For example, it notes that peepholes in compliance should be constructed of metal housing, be made of glass and limited to a frame outside diameter of not more than 1 inch (25 mm). Another spot check that the PSCO should do is to ensure that the vessel’s security guide is available to passengers in their staterooms and posted in areas readily accessible to the crew.
In addition to spot checks, the PSCO should also question shipboard medical personnel to ensure compliance with the credentialing of personnel, documentation of incidents, and maintenance of adequate and in-date supply of medications. For example, the PSCO should ask questions such as “Does the ship maintain an adequate and in-date supply of anti-retrovilal medications and other medications designed to prevent sexual transmitted diseases?” or “ Does the patient have free and immediate access to contact information for specified law enforcement authorities and national assault sexual hotlines?” (A complete copy of this Policy Letter can be obtained on the USCG website or at Leesfield.com.)
As required by the Act, in July, 2011, the USCG, U.S. Merchant Marine Academy and the FBI, have issued a Model Course CVSSA 11-01 entitled Crime Prevention, Detection, Evidence Preservation and Reporting. This provides a detailed course outline and teaching syllabus to be used in training personnel to obtain the certification as required under the Act. Within two years of the issuance of this standard, ship owners/operators are required to have at least 1 crewmember onboard who is certified as having successfully completed this training. (A complete copy of the Model Course can be obtained on the USCG website or at Leesfield.com )
The Act also requires the reporting of crime statistics. As of January 1, 2010, crime statistics for the major cruise lines have been posted on the USCG website. (A complete copy of the crime statistics can be obtained on the USCG website or at Leesfield.com)
Future Litigation Arising from the Enactment of the
Cruise Vessel Security and Safety Act
As a result of the new requirements under the Act, there will likely be a wave of litigation to arise. Does the new requirements change the duty of care owed by the cruise operator to its passengers?
For example, a long standing principle under maritime law is that the ship owner cannot be held vicariously liable for the negligence of the ship’s medical doctor under the theory of respondeat superior. This holding is based upon the fact that cruise ship owners are not required to have doctors aboard the vessel. Rather, as the cruise lines advertise, such services are for the “convenience” of passengers and the courts have repeatedly held that the ship owner/operator only has a duty to exercise reasonable care in the hiring and retention of a competent medical provider. Since the Act now mandates the providing of a medical medical provider on the vessel, it begs the question as to whether it changes the duty owed to a passenger and whether there can be negligence per se for violation of regulation.
Medicine on the Seas – Liability for Ship’s Doctors
The Barbetta Rule
Under long standing maritime law, a cruise ship owner or operator cannot be held vicariously liable for the negligence of a shipboard doctor. However, courts have left open the existence of other alternative theories to establish liability. As such, there still exists a great deal of controversy in maritime law over the question of whether a cruise ship owner can be held liable for the acts of negligence of shipboard doctors, nurses and other personnel.
In Barbetta, the Fifth Circuit focused its analysis on the doctrine of respondeat superior, which is a subset of vicarious liability in general. Accordingly, while most subsequent reported decisions have construed the Barbetta line of cases as prohibiting vicarious liability when based upon the doctrine of respondeat superior, others have given it a broader application to pre-empt other theories as well.
Cases which have considered the continued viability of the alternative theories are all District Court decisions, there is presently conflict in the law over this issue. Those cases which have concluded that the shipowner can still be held vicariously liable for the negligence of shipboard medical personnel under alternative theories have recognized claims based on:
- Apparent Agency
- Joint Venture
- Negligent Hiring and Retention
Several additional theories to mount potential challenges on the Barbetta Rule exist under the recently adopted Cruise Vessel Security and Safety Act of 2010 (46 U.S.C. §§ 3507, 3508) and the industry’s adoption of the College Of Emergency Physician’s (ACEP) Cruise Line guidelines. Both require passenger vessels to care ship’s medical personnel. Similar requirements can also be raised under Florida State requirements.
Death on the High Seas Act
In 1920, Congress enacted the Death on the High Seas Act (DOHSA), providing the exclusive remedy “whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state.”
The is no specific definition of the high seas in the Act and it has been generally held that the territorial waters of foreign countries are considered the high seas. DOHSA applies whenever the initial wrongful act or neglect is alleged to have occurred more than a marine league from a U.S. shore, even where the eventual death occurs ashore and not aboard a vessel. Courts have uniformly applied DOHSA, concluding that the significant factor is that the alleged wrongful act “consummated” in an actual injury occurring on the high seas.
Since DOHSA is the exclusive remedy for deaths occurring on the high seas, only those damages allowed under the Act may be recovered by the statutorily defined beneficiaries. Each statutory beneficiary is only entitled to recover compensation for the pecuniary loss, which that individual sustained.
The elements of non-pecuniary damages which are recoverable under DOHSA are limited to each individual’s: (1) loss of support, (2) loss of services and (3) loss of inheritance as a result of the decedent’s death. Claims for or based upon loss of society, mental anguish, grief or pain and suffering are not recoverable, regardless of form or description. Similarly, punitive damages are not permitted.
However, where the wrongful death of a passenger occurs in state territorial waters, state law remedies and general maritime law survival remedies may supplement and give rise to additional recoverable damages.
In addition to the statutory damage limitations, DOHSA claims are tried without a jury.
The Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea 1974, as amended by the Protocol to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea 1976 is an international maritime treaty that, when applicable, limits a carrier’s maximum potential liability to 46,666 special drawing rights (SDRs) per person. (Approximately the $67,000).
As the United States is not signatory the Convention, it carriers no force of law on its own. However, a contract provision that incorporates the Athens Convention to limit carrier liability for person injury may be enforceable as a term of a valid contract. A court may enforce such a limitation of liability provision only when a cruise ship embarks from and disembarks in a foreign port with a totally foreign itinerary.
To be enforceable and binding the limitation of liability provision must “reasonably communicate to the passenger the existence therein of important terms and conditions which affects legal rights.” Whether a carrier reasonably communicated such a limitation to the passenger is a question of law for the court to decide.
Courts employ a two prong test to determine whether the limitation provision is reasonably communicated. The court must first consider the physical characteristics of the contract. Physical characteristics include the size of type, conspicuousness and clarity of the notice on the face of the contract and ease with which a passenger can read the provisions in question.
The Court must also consider any extrinsic factors indicating the passenger’s ability to become meaningfully informed of the contractual terms at issue. The extrinsic factors that the court looks to include the circumstances surrounding the passenger’s purchase and subsequent retention of the ticket/contract permitting the passenger to become meaningfully informed of the contractual terms at stake. This includes a passenger’s familiarity with the ticket, time and incentive under the circumstances to study the provisions of the ticket, and any other notice that the passenger received. Courts distinguish between a passenger’s ability to read a cruise line passage contact from the passenger’s ability to understand the terms at issue in those contracts.
Under general maritime law an injured passenger is entitled to recover compensatory damages for past and future lost wages, impairment of earning capacity, past and future medical expenses, past and future pain and suffering, disability, disfigurement, loss of enjoyment of life and emotional distress. A passenger may not recover for purely emotional injuries unaccompanied by a physical injury. Maritime law, however, does recognize negligent infliction of emotional distress applying the “zone of danger” test.
Comparative fault is applicable and a passenger’s negligence will reduce the amount of any recovery. Maritime law also recognizes the doctrine of joint and several liability in instances of multiple tortfeasors causing a common injury.
Punitive Damages & Loss of Consortium Claims
Under general maritime law, personal injury plaintiff’s may not recover nonpecuniary damages for loss of society, loss of consortium and punitive damages. Punitive damages are also not permitted where a plaintiff seeks to hold a maritime employer vicariously liable for the actions of its employees.
Supplementing General Maritime Law With State Law
When an accident occurs in state territorial waters, state law may supplement the permissible recoverable damages under general maritime law. Similarly, when the accident occurs in state territorial waters, a party may recover for loss of consortium under state law.
It is well settled under maritime law that absent a court finding of bad faith or a statute or contractual provision to the contrary, each party to litigation must bear his own attorney’s fees.
The law governing cruise ship litigation can at times be complicated and challenging, since it involves a mixture of federal, state, foreign and international case, statutes, and administrative regulations and treaties. Although certain aspects of maritime law are well settled, others are constantly evolving. Nevertheless, the factors which make it challenging are the same ones which make it interesting.