Handling Cruise Line Passenger Claims, 0117 ALBJ, 78 The Alabama Lawyer 31 (2017)

Author:Gerald A. McGill
Position:Vol. 78 1 Pg. 31
 
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Handling Cruise Line Passenger Claims

Vol. 78 No. 1 Pg. 31

Alabama Bar Lawyer

January, 2017

Gerald A. McGill

Caveat Counselor

The cruise line industry is the fastest growing segment of the vacation market.

The cruise industry estimates that 12 million Americans will take a cruise this year. This number will only increase in the future. Industry leaders plan on constructing more than 50 new ships in the coming five years.

In addition to the traditional Florida ports of departure and those on the U.S. west coast, Carnival Cruise Lines has regularly scheduled weekly cruises departing from Galveston and New Orleans.

From October 2004 through October 2011, Carnival Cruise Lines operated several of its vessels from Mobile. As an inducement to Carnival, the City of Mobile spent $26 million to build a cruise passenger terminal downtown. When Carnival moved out its last ship, the “Elation,” in October 2011, the terminal sat vacant.

Recently, Carnival returned to Mobile with the “Fantasy,” making four- and five-day cruises to Cozumel and Costa Maya or Progresso, Mexico.

As more and more people take cruises, particularly for the first time, shipboard accidents and injuries inevitably will occur. Common shipboard accidents range from slip-and-fall and trip-and-fall cases to injuries sustained while participating in planned activities either aboard ship or during shore excursions. Less frequent injuries are caused by shipboard emergencies like fire and collisions, and assault by crew members or fellow passengers, including sexual battery or rape. Food-borne illnesses are also quite common.

With all of the southern cruise points of departure within a one-day’s drive from Alabama, it is highly likely that at some point in the future you may be consulted by a client who was injured during a cruise. To those of you who are consulted, I say: Caveat Counselor.

Representing a cruise line passenger against any of the numerous cruise lines is not for the uninitiated. The cruise lines have become very efficient at limiting their liability for shipboard accidents and injuries. In the roughly 10 pages of fine print at the back of the ticket, there are numerous limitations on passengers’ rights and disclaimers of responsibility.

No other industry has the power to amend the laws of the United States by contractual provisions, thereby reducing their liability and responsibility to the passengers that the cruise lines carry.

Each cruise line posts its “ticket contract” on its website. In this article, I have referred to the Carnival Cruise Lines ticket contract because Carnival is the largest of the cruise lines and often for the cruise industry.

The First Thing A Lawyer Must Do

If you are contacted by a potential client about a cruise injury, the first thing you must do is go to the particular cruise line’s website, download the ticket contract and review it in its entirety.

The following are just some of the limitations and obligations that the passenger has agreed to when accepting the cruise ticket contract.

a) one-Year Limit to file Claims

The most important limitation from an attorney’s point of view is that the cruise lines are allowed to limit the time for filing a claim against them to one year.[1] In addition, by another paragraph in the ticket, the cruise lines can require that you notify them in detail of your claim within six months from the occurrence of the injury or accident.[2]

b) forum selection Clauses

Next, the cruise lines are allowed to insert forum selection clauses within their tickets. For example, if you are injured on a Royal Caribbean or Celebrity Cruises vessel, you will be limited by a ticket provision to file suit only in the state or federal courts of Dade County (Miami), Florida. Carnival Cruise Lines, which is the largest cruise line company, goes even further in its forum selection clause. Carnival specifies that suit can be filed only in the Federal District Court for the Southern District of Florida located in Dade County (Miami), Florida. As incredible as this may seem, these forum selection clauses have been upheld by the courts. Other selected forums for some cruise lines are Seattle and Los Angeles.

Further, the actual choice of forum has nothing to do with where the passenger boards the ship. The United States Supreme Court, in upholding a forum selection clause, required a cruise passenger who boarded a Carnival Cruise ship in Los Angeles, and was injured of the Pacific coast of Mexico, to bring her suit against Carnival Cruise Lines in Miami.[3]

Cruise Lines Are Not Liable For Ship’s Doctor’s Malpractice

In addition to the shortened statute of limitations and the forum selection clauses, there are numerous other limitations on passengers’ rights. In a case of first impression, the Florida Supreme Court, in February 2007, ruled that Carnival Cruise Lines was not vicariously liable for the malpractice of the ship’s doctor on a 14-year-old passenger because the ship’s doctor was deemed to be an independent contractor.[4]The facts set out in the Florida Supreme Court’s decision were that, in March 1997, the Carlisle family embarked upon a cruise aboard the Carnival cruise ship, The Ecstasy. During the cruise, 14-year-old Elizabeth Carlisle fell ill with abdominal pain, lower back pain and diarrhea. She was seen several times in the ship’s hospital by the ship’s physician, Dr. Mauro Nari. Over the course of several days, Dr. Nari repeatedly advised the Carlisles that Elizabeth was suffering from the flu and assured the Carlisles in response to their questions that it was not appendicitis.

Ultimately, the Carlisle family decided to discontinue their cruise and return home at their expense to Michigan. Elizabeth was diagnosed as having a ruptured appendix. Her appendix was removed, but as a result of the rupture and subsequent infection, Elizabeth was rendered sterile.

The Florida Supreme Court reviewed what it considered to be controlling precedent in maritime law, including a statute enacted by Congress in 1882 dealing with the duty of late 19th century carriers to employ a competent and qualified physician for the benefit of passengers5 and a 1943 decision of the United States Supreme Court. The Florida Supreme Court concluded that the cruise line was not vicariously liable for the medical malpractice committed on a passenger by the shipboard doctor.6

The court noted that the only way a cruise line could be held liable was if an injured passenger could show that the cruise line was negligent in the hiring of the doctor. This is an extremely difficult burden to meet.

Even worse, most ship’s doctors are not American citizens and it can be extremely difficult to get jurisdiction over them in an American court. In a case in the United States District Court for the Southern District of Florida, the plaintiff, Richard Laux, and his wife, sued Carnival Corporation d/b/a Carnival Cruise Lines, and Dr. Dianne Nichol, for damages arising out of medical care and treatment provided the plaintiff, Richard Laux, while he was a passenger aboard the Carnival Cruise vessel Triumph.

The facts in the case were that on June 19, 2004, plaintiffs boarded the Carnival cruise ship Triumph at the Port of Miami as passengers on a one-week cruise. The defendant, Dr. Nichols, was an Australian citizen licensed to practice medicine in Australia, who was employed by Carnival as the doctor on that vessel.

Late in the evening of June 23, 2004, and the early morning of June 24, 2004, while the Triumph was outside Florida’s territorial boundaries, plaintiff Richard Laux went to the infirmary with complaints of a severe headache, loss of consciousness, involuntary passing of urine, facial tics and expressions, vomiting and subsequent combative behaviors. Dr. Nichol examined Mr. Laux and diagnosed the episode as a side effect from taking Viagra.

In addition to this visit, the plaintiffs claim that on June 26, 2004, when the Triumph returned to the Port of Miami, Mr. and Mrs. Laux again consulted with Dr. Nichol since Mr. Laux felt he was getting worse. Dr. Nichol advised Mr. Laux to wait and see his treating physicians at home in Pennsylvania. She did...

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