Chapter § 3.02 CRUISE SHIPS
| Jurisdiction | United States |
| Publication year | 2021 |
§ 3.02 Cruise Ships
There are a variety of problems that cruise passengers may experience.91 If the aggrieved passengers are unable to resolve the more minor of these problems while onboard the cruise ship,92 then litigation may be necessary after the cruise is completed. In filing a claim and preparing a lawsuit, the passenger should carefully read the cruise ticket since it contains numerous clauses limiting liability including very short time periods in which to file claims and commence lawsuits. Most importantly, the aggrieved passengers and his or her attorney should be aware that the passenger's rights and remedies are governed by admiralty and maritime law, which in many important respects is very different from the common law.
[1] The Policy of Maritime Law
Admiralty law developed within the context of both domestic and international needs to establish uniformity in seafaring transactions.93
To an extent, United States maritime law has been premised on the same considerations that generated the Warsaw and Montreal Conventions.94 The Warsaw and Montreal Conventions established a set of uniform rules governing international air transportation.95 The primary motivation behind the Warsaw Convention was the desire to encourage the development of international air transportation without the burdens and responsibilities of unregulated commercial enterprises. The purpose of the Montreal Convention was, clearly, to be more consumer oriented than the Warsaw Convention.96 To the extent that United States maritime law is nationalist in nature, it has been premised on the encouragement of the development of a merchant marine and shipping industry.97
The "liberal construction" of liability disclaimers appearing in steamship tickets has resulted in the enforcement of adhesion contracts that on many occasions meant a denial of legitimate claims.98 As with the tariff system relied upon by domestic air carriers,99 railroads,100 and bus companies101 and as with the Warsaw and Montreal Conventions relied upon by international air carriers,102 the purpose of some aspects of maritime law has been to protect the shipping industry at the expense of the traveling public.
Although consumer rights and remedies in actions against airlines,103 domestic and international hotels,104 tour operators105 and travel agents,106 have expanded in recent years, there has been very little advancement in consumer rights and remedies when it comes to actions against cruise ship lines. In fact, the cruise industry remains to a large extent insulated from the modern liabilities and responsibilities that other purveyors of travel services are required to bear. This reduced level of liability manifests in a pro-cruise line maritime policy,107 the enforcement of forum selection108 (including federal forum selection clauses)109 and choice of law clauses,110 and the enforcement of unusually short time limitation periods111 in which to file a claim and commence a lawsuit. In addition, maritime law still insulates the cruise line for the malpractice of the ship's doctor.112 And, lastly, cruise lines may under the Limitation of Vessel Owner's Liability Act, limit their liability for passenger injuries to the value of vessel.113 However, cruise ship companies no longer need the protection afforded by governmental and judicial favoritism. In the case of air carriers, the Airlines Deregulation Act of 1978 is meant to force airlines to bear the full responsibilities and liabilities of unregulated commercial entities.114 No less should be required of cruise ship companies.
In adjudicating travel cases involving cruise ships the courts should give serious consideration to abandoning archaic legal principals supporting the enforcement of adhesion contracts and apply both equitable and legal principles more in tune with the deregulation era.
[2] Admiralty Jurisdiction
[a] Applying Maritime Law
For an action to be a "maritime" case it must bear a sufficient relationship to traditional maritime activity.115 Generally, causes of action within the context of cruise vacations are maritime in nature. Once it is established that the action is maritime in nature, then admiralty law preempts all competing state common law doctrines.116
Assuming a maritime cause of action and jurisdiction is proper,117 the traveler's counsel may have a choice of forums118 under a concept known as "saving to suitors."119 A maritime case may be brought in personam in state or federal court, or may be removed from state or federal court,120 assuming that jurisdiction is properly asserted.121 Local procedural rules will apply.122 This is no different from any other travel case. However, the traveler's attorney may bring an in rem123 or quasi in rem action against the ship and thereby come within the admiralty jurisdiction of a federal court. An action in federal court can be both in personam and in rem, but an in rem action against the ship cannot be brought in state court.
The circumstances under which an in rem action in federal court would be appropriate are as follows: If the defendant cruise ship company is a foreign entity not locatable within the jurisdiction, then invoking admiralty jurisdiction may alleviate jurisdictional and venue problems. If the defendant cruise ship company is locatable but insolvent, then an in rem action against the ship secures sufficient assets to render a future judgment meaningful. However, if the defendant is available and solvent, then an action in personam in either state or federal court may be just as appropriate.124 If the admiralty jurisdiction of a federal court is invoked, the traveler's attorney must contend with certain principals and rules applicable to admiralty. First, there are no jury trials in an in rem action against the ship.125 Second, local legal doctrines such as contributory negligence,126 statues of frauds and statutes of limitations barring a right to recovery are not applied in in rem actions. Third, should it be necessary, depositions may be taken de bene esse.127 Fourth, the liability of a charterer for negligent operation of the ship may be limited under The Limitation of Vessel Owner's Liability Act.128 Fifth, joint tortfeasor liability is joint and several.129
[i] Damages
General maritime law may govern the nature of the damages, including punitive damages that can be awarded to passengers.130 Some courts have allowed damages for loss of society,131 and extreme emotional distress,132 while others have not.133
[ii] Preemption
General maritime law may be preempted by U.S. maritime regulations,134 and the Death on the High Seas Act135 as to both liability136 and damages137 and the Warsaw and Montreal Conventions.138
[b] Forum Selection Clauses in Cruise Contracts
One of the more onerous clauses that may appear in a cruise contract provides that all passenger litigation against a cruise line must be brought in a foreign jurisdiction (often the country of the ship's registry) in a case to be decided under foreign law.139 In most cases, if the passenger is deemed to have had adequate notice of the provision and the court finds the notice reasonable, the foreign forum named in the contract will be deemed to have exclusive jurisdiction over the case,140 notwithstanding a traditional forum non conveniens analysis.141 In addition, a contractual forum selection clause does not deprive a court of subjet matter jurisdiction,142 and a motion seeking to enforce such a clause must be timely filed.143 There are, however, considerations of public policy that should be adhered to in deciding the enforceability of these clauses.
[i] Adequacy of Notice
In determining whether a passenger had notice of a forum selection clause in a cruise contract, the courts will often apply the same criteria that they do to determine the validity of a clause limiting the time period when suit may be brought, which is also a normal part of cruise ship passenger contacts. For the most part, the test involves examining the type size and the positioning of the lettering of the clause.144 Adequate notice presupposes that the passenger or his agent has received the ticket some time before the cruise so it may be read.145 In addition, experienced travelers including travel agents may be bound by constructive notice.146 However, one court has suggested that this approach may not be sufficient in view of the tremendous impact of forum selection clauses as compared to time limitation clauses.147 The court noted that a time limitation clause can be examined after the fact of an accident, giving the passenger an opportunity to read his rights under the contract. However, a jurisdiction selection provision has the immediate effect of divesting the passenger of the right to sue anywhere except in the designated forum. According to the court if such language is not made prominent initially, the passenger cannot be deemed to have notice that an important right is being waived.148 An attack on a forum selection clause on the grounds of inadequate notice should therefore be focused on the greater degree of notice required for clauses that seek to extinguish the claim by making the cost of litigation prohibitive.
[ii] Fairness and Cancellation Policies
To be enforceable, forum selection clauses in cruise tickets or brochures must be fundamentally fair.149 A hearing may be required to determine the issue of fairness.150 Fundamental fairness means (1) that the forum was not selected to discourage pursuit of legitimate claims, (2) there was no fraud or overreaching, (3) notice of the forum selected was adequate and (4) the consumer had a reasonable opportunity to reject the cruise contract without penalty.151 This latter requirement has been interpreted to mean that passengers should receive the cruise contract early enough to be able to cancel without being subjected to a cancellation fee. In Cismaru v. Radisson Seven Seas Cruises, Inc.,152 a Florida forum selection clause...
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