by: Damian Sullivent, Esq.
I. Litigation for Cruise Line Cases
The cruise ship industry brings in an estimated $37.85 billion annually with an estimated 12.201 million passengers traveling on pleasure cruises departing from North American ports yearly.[1] While these numbers continue to grow at an annual rate of 7.4 percent,[2] the safety aboard these ships have not increased with the growth of the industry. As such, claims of injuries, physical and sexual assaults by crew members, and violent illnesses from contaminated foods and poor stateroom conditions have become commonplace; resulting in an ever-increasing need for advocacy and protection among cruise ship passengers.
It is important to keep in mind that cruise liners cannot simply be classified as common carriers in the common sense because they are giant floating cities. Unlike most cities though, cruise liners lack the fundamental infrastructure, like safety procedures and protocols, necessary to protect passengers from harm. Additionally, travelers are put in a precarious situation with obsolete laws and contractual language limiting the rights and remedies afforded to them.
All that being said, the ability to recover from any type of negligence involving cruise ships is not impervious. Over the past several decades several American courts, have handed down several landmark decisions regarding cruise liners and holding said cruise liners accountable for the negligence that occurs to their passengers.
This article outlines some basic procedural issues practitioners might face when attempting to litigate a claim against a cruise liner.
II. Procedural Pitfalls Associated with Cruise Line Litigation
Statute of Limitations
One of the procedural pitfalls that causes the biggest concerns from a practitioner standpoint is the statute of limitations. A statute of limitations gives a party a reasonable amount of time to investigate a potential claim and file suit on said particular claim. These statues are generally determined by Florida Law can be different from one claim to another. For example, in Florida, there is a four-year statute of limitations on personal injury cases; while a wrongful death action is only two years. Unfortunately, injuries resulting from the negligence associated with a cruise liner, the statute of limitations is generally governed by the cruise liners contract provisions and are generally on a more limited time-frame. For injuries or deaths stemming from negligence associated with a cruise ship, the contract (implied by the purpose of the ticket) typically provides that a passenger provides some sort of notice of a claim to the cruise line themselves within six months and commence a lawsuit within one year.[3]
However, it is important to note that courts will occasionally reject such restrictive limitation measures as they relate to lack of notice,[4] tolling for a minor passenger,[5] equitable estoppel,[6] contractual overreaching,[7] accident on shore,[8] and fraud with regard to settlement.[9] For non-physical injury claims (e.g. fraud, deception, theft), cruise liners usually impose an even shorter limitation period.[10] Court may decide not to enforce these types of limitations if the injured party can show they are unreasonable under the circumstances, contrary to public policy, or against the state statute of limitations.
Forum Selection Clauses
Contained within the ticket package is a forum selection clause which dictates where a passenger must file his/her claim against the cruise line. It is important to keep in mind that the passenger’s physical location is irrelevant with regard to the contractual obligation relating to the forum selection clause. Currently, the available forums to bring forth a claim against a cruise line are isolated to the three major port cities within the United States: Miami, Seattle, and Los Angeles. Aside from the physical location, many cruise liners have also worded their forum selection clauses to provide that cases must be brought in the United States District Court (i.e. federal court). For actions brought in the state of Florida, a large majority of those cases must be filed in the Southern District of Florida.
Courts have held that to be enforceable, forum selection clauses in cruise tickets or brochures must be fundamentally fair.[11] Courts have determined that fundamental fairness means (1) that the forum was not selected to discourage pursuit of litigation of legitimate claims; (2) no fraud or overreaching occurred; (3) adequate notice was available; (4) the consumer have a reasonable opportunity to reject the cruise contract without penalty.[12] In an effort to combat forum selection clauses, Plaintiffs have been successful upon a showing that they were not given adequate time to review the cruise contract and cancel their cruise without being subject to penalty.[13]
Choice of Law Provisions
Aside from a forum selection clause, a passenger ticket might contain a choice of law provision outlining what must be applied in resolving any issue which may arise. Choice of law clauses are generally upheld has enforceable unless the passenger can demonstrate that enforcement would be unreasonable, that fraud or overreaching exists, and if there is a strong public policy reason as to which such provision should not be enforced. Courts may consider several factors in determining whether a choice of law clause 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 contract, (6) the inaccessibility of the foreign forum, and (7) the law of the forum.[14]
Jurisdictional Issues
In order to sue a cruise line locally, the consumer’s court must have jurisdiction. Most jurisdictional issues arise when an accident occurs in international waters and involve in rem claims against the ship.[15] Thankfully, there may be a possibility to assert personal jurisdiction over a cruise carrier if that carrier conducts business through an agent or maintains an office with a staff, a bank account, and telephone number with the jurisdiction. If such indicia are not present, courts generally will apply the “solicitation-plus doctrine.” This doctrine applies if the cruise liner engaged in active solicitation of business, plus some type of commercial or financial dealing within the state, if the foreign corporation holds itself out as operating in the state, and/or if the contract formation is in the state. However, this doctrine does not apply when a cruise company takes reservations and distributes brochures through a travel agent.
Cruise Contract Exclusions and Disclaimers and Their Validity
It is important to keep in mind that although litigation regarding cruise ships is fiddled with complexity, cruise ships are still classified as common carriers and are held to a reasonable standard of care under the circumstances.[16] As such, cruise ships that touch U.S. shores are not able to disclaim lability for loss, death, damage, or delay caused or contributed by the ship’s negligence. [17] Passenger tickets may contain clauses which attempt to disclaim liability for a variety of problems, but disclaimers for gross negligence and intentional misconduct are not able to be enforced with regard to common carriers.[18] Additionally, disclaimers that include simple negligence regarding health and safety of passengers are usually not enforced.
In Kornberg v. Carnival Cruise Lines,[19] 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.[20]
Unfortunately, courts have been reluctant to not enforce disclaimers of liability regarding accidents that occur while on excursions.[21] 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.[22] 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.[23] Finally, although these disclaimers might be enforceable against the cruise carrier, many courts continue to hold that the ground providers are not immune from liability.
[1] Statistic Brain Research Institute, Cruise Ship Industry Statistics (2017), https://www.statisticbrain.com/cruise-ship-industry-statistics/ (last visited Jan. 25, 2018).
[2] Id.
[3] Angel v. Royal Caribbean Cruises, Ltd., 2002 WL 31553524, at *1, *5 (S.D. Fla. Oct. 22, 2002) (passenger fell overboard; court enforced one-year contractual statute of limitation; 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); Levick v. Steiner Transocean Limited, 2005 U.S. Dist. LEXIS 14770 (S.D. Fla. July 13, 200) (one year passenger limitation to file 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).
[4] Ward v. Cross Sound Ferry, 273 F.3d 520, 526 (2d. Cir. 2001) (plaintiff slipped and fell on gangway; one-year time limitations clause not enforced; passenger receiving ticket two minutes before boarding did not have notice of time limitations clause)
[5] Gibbs v. Carnival Cruise Lines, 314 F.3d 125 (3d Cir. 2002) (minor burned feet hot sundeck surface; one-year statute of limitations period tolled for minor until after parent began serving as guardian ad litem after the commencement of lawsuit).
[6] Dillon v. Admiral Cruises, Inc., 960 F.2d 743, 746 (8th Cir. 1992) (plaintiff tripped and injured himself in the ship’s lounge; cruise liner potentially estopped form relying on one-year time limitation).
[7] See Long v. Hollan Am. Line Westours, 26 P.3d 430, 436 (Alaska 2001).
[8] Rams v. Royal Caribbean Cruises, Inc., 17 F.3d 11, 13 (1st Cir. 1994) (one-year statute of limitations does not apply to accidents during a shore excursion).
[9] Berg v. Royal Caribbean Cruises, 810-12 (D.N.J. 1994) (plaintiff was intentionally misled into not filing a lawsuit against cruise liner within one year).
[10] Insogna v. Princess Cruises, Inc., N.Y.L.J., June 10, 2002 at 37 (a six-month statute of limitation as they related to deceptive port charges was enforced).
[11] See Carnival Cruise, Inc. V. Shute, 499 U.S. 585 (1991).
[12] Cismaru v. Radisson Seven Seas Cruise, Inc., No. Civ. A. 07-00-00100-CV, 2001 WL 6546, at *1 (Tex. App. Jan. 2, 2001).
[13] See Ward v. Cross Sound Ferry, 273 F.3d 520, 525 (2d Cir. 2001).
[14] See Klinghoffer v. S.N.C. Achille Lauro, 795 F. Supp. 112, 115015 (S.D.N.Y. 1992).
[15] 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).
[16] Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332,1334 (11th Cir. 1984).
[17] See. Royal Ins. Co. of Am. V. Southwest Marine, 194 F. 3d 1009, 1016 (9th Cir. 1999).
[18] 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).
[19] 741 F.2d 1332, 1985 AMC 826 (11th Cir. 1984).
[20] Id. at 1335, 1985 AMC at 828.
[21] See Henderson v. Carnival corp., 125 F. Supp. 2d 1375, 1377 (S.D. Fla. 2000) (a passenger injured themselves on a catamaran while on an excursion trip with the cruise liner; disclaimer was enforced regardless of the fact that the Carnival logo on catamaran and crew member shirts.
[22] Winter v. I.C. Holidays, Inc., N.Y.L.J Jan. 9, 1992 at 23 (holding that tour operators have a duty to select a responsible independent contractor).
[23] Hernandez v. Holiday Inn, N.Y.L.J. Mar. 23, 1993, at 21.