When Vacations Go Bad The Stormy Seas of Vessel Passenger Litigation, 0718 SCBJ, SC Lawyer, July 2018, #50

• Author: S. Scott Bluestein, J.
• Position: Vol. 30 Issue 1 Pg. 50

When Vacations Go Bad The Stormy Seas of Vessel Passenger Litigation

Vol. 30 Issue 1 Pg. 50

South Carolina BAR Journal

July, 2018

S. Scott Bluestein, J.

See how the main sail sets Call for the Captain ashore Let me go home, let me go home I want to go home, yeah yeah Well I feel so broke up I want to go home —Brian Wilson

Cruise ships calling on the Port of Charleston have become a routine occurrence. These ships claim to offer the passengers the best vacations they have ever experienced. From Hilton Head to Little River, South Carolina also has commercial vessels that take people fishing, sight seeing, gambling and on sunset cruises. Unfortunately, passengers are often injured on these vessels and, to paraphrase the Beach Boys, think they have been on the worst trip they have ever been on and just want to go home. Passenger personal injury cases for vessels calling on U.S. Ports are governed by the general maritime law of the United States, which is very different than South Carolina law on land-based personal injury claims.

Navigating unique maritime procedural issues A passenger personal injury case may be filed in either federal court or state court, unless a passenger ticket contains a valid forum selection clause that requires suit to be filed in a particular court or city. Pursuant to 28 U.S.C. § 1333: federal courts have jurisdiction over an injured passenger's claims. This permits a maritime tort claim to be filed in federal court under the court's admiralty jurisdiction.

The $75,000 amount in controversy requirement for diversity jurisdiction under 28 U.S.C. § 1332 does not exist for passenger injury claims. This allows the filing of a claim in federal court with an amount in controversy of less than $75,000. If a passenger invokes the federal court's admiralty jurisdiction, the claim will be decided by a federal judge. In situations where complete diversity of jurisdiction exists between the parties, and the alleged damages are in excess of $75,000, a claim may be commenced in federal court under the court's diversity jurisdiction and tried before a jury.

Passenger injury claims may also be filed in state court pursuant to the "saving to suitors" clause of the U.S. Constitution and decided by a state court jury. Often, lawyers have a preference as to whether they prefer to litigate cases in state or federal court. For example, federal court has stricter deadlines for the production of expert reports, completing discovery, providing the court and opposing counsel with information about the case and relevant case law, disclosure of documents related to the issues, discovery limitations and responding to motions. Litigation in federal court does have some advantages over state court, such as electronic filing of pleadings with the clerk of court, nationwide subpoena power, one judge deciding the issues in the case and date certain trial dates.

When representing a client injured on a vessel, the attorney needs to obtain a copy of the entire ticket provided by the vessel operator. The ticket contains important information about providing the vessel operator with notice of the injury, changes to the federal maritime statute of limitations,¹ and a possible forum selection clause.

Cruise line passenger tickets, which are often several pages long, frequently have notice provisions requiring an injured passenger to provide the vessel operator with notice of the injury within a certain period of time. These provisions might provide, for example, that no suit, whether brought in rem² or in personam, shall be maintained against the operator for emotional injury, physical injury, illness or death of the passenger, unless written notice of the claim, including a complete factual account of the basis of the claim, is delivered to the operator within 185 calendar days from the date of the incident.

Courts have refused to dismiss a passenger's claim for failure to provide the cruise line with timely written notice of the claim when the cruise line and/or its agent was aware of the injury and cannot show any prejudice for the failure to provide written notice. When faced with a situation where a cruise line ticket has a written notice provision, it is prudent to provide written notice in accordance with the provision, regardless of whether the passenger informed the cruise line of the injuries, either verbally or through a written accident report, or received medical treatment from the ship's doctor for the injuries.

In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), the U.S. Supreme Court held that a cruise line vessel operator may insert a forum selection clause in the cruise line's passage contract ticket, requiring litigation of all disputes to take place in Florida, and that the forum selection clause is enforceable.³ Litigation of the dispute in Florida was enforced by the Court, even though the passenger was injured off the coast of Mexico, boarded the vessel in the Port of Los Angeles, and did not sail on the vessel anywhere near Florida.⁴ Similarly, a federal court in South Carolina held that a cruise line's passage contract ticket, requiring litigation of all disputes in Florida, was enforceable for a passenger who boarded the cruise ship in Charleston and transferred the case to the proper forum.⁵ However, forum selection clauses for day voyages on casino vessels, deep sea fishing trips, smaller charter vessels, etc. may not be enforceable in South Carolina.⁶

Federal law permits cruise lines to shorten the federal three-year maritime personal injury statute and place a one-year contractual time limit on their passengers' right to file personal injury suits.⁷ These limitations are generally enforceable if the cruise ticket provided the passenger with reasonably adequate notice that the limit existed and formed part of the passenger contract.⁸ However, equity may toll a statute of limitation when an inequitable event prevents a passenger from timely filing an action in the correct court.⁹

"[B]oth federal and state jurisdictions have recognized the unfairness of barring a plaintiff's action solely because a prior timely action is dismissed for improper venue after the applicable statute of limitations has run."¹⁰

When a passenger timely commences a civil action in a court of competent jurisdiction, usually state court, as most cruise lines require suit to be filed in federal court, with the strategy that the cruise lines will waive its objection to improper venue, the action may be equitably tolled.¹¹ For example, if a passenger files an action in a state court with concurrent jurisdiction, the state court suit is dismissed "solely on grounds of improper venue," and the passenger "diligently pursued the claim" in state court, a federal district court may properly equitably toll the statute of limitations in a parallel federal action during the pendency of the state action, resulting in the federal action being timely filed, even though it was filed after the limitations period.¹²

Vessel operator liability

When a passenger is injured on a vessel, the general maritime law governs the passenger's negligence claim against the vessel operator.¹³ Under the maritime law, the owner of a ship in navigable waters owes passengers a "duty of reasonable care" under the circumstances, which are different than what they face on land.¹⁴ Vessel passengers are faced with situations where there are no seat belts to secure them to their seats, no vessel headlights, no street lamps to help with the location of the navigational channel, shallow water, waves, tides and wakes from other vessels. To prevail on a negligence claim, a passenger has to prove (1) the vessel operator had a duty to protect the passenger from a particular injury; (2) the vessel operator breached that duty; (3) the breach actually and proximately caused the passenger's injury; and (4) the passenger suffered actual harm.¹⁵ Therefore, the shipowner is only liable to its passengers for negligence if its conduct breaches the carrier's more general duty to exercise "reasonable care under the circumstances." To determine what is reasonable care under the circumstances requires a firm understanding of case law involving passenger injuries and what constitutes good vessel operating and seamanship practices.

Often, passenger injuries involve a slip and fall on a wet deck in the pool area. To recover damages, a passenger is required to show that the vessel operator created a dangerous condition by failing to properly maintain the pool deck where the passenger slipped, and by failing to warn passengers of the danger. The maritime standard of reasonable care usually requires that the vessel operator have actual or constructive knowledge of the risk-creating condition.

"[T]he benchmark against which a shipowner's behavior must be measured is ordinary reasonable care under the circumstances, a standard which requires, as a prerequisite to imposing liability, that the carrier have had actual or constructive notice of the risk-creating condition, at least where ... the menace is one commonly encountered on land and not clearly linked to nautical adventure."¹⁶

This is a different standard than for land based slip and fall cases under South Carolina law, which requires the property owner or store to have actual notice of the dangerous condition. In situations where the vessel owner itself created the dangerous condition, a passenger need not show that the owner had notice of the alleged condition.¹⁷

Cruise lines have initiated drink programs where passengers can pay in advance for the right to be served a large number of alcoholic beverages in a 24-hour period. This often leads to passengers becoming excessively drunk and being injured, or even killed, while intoxicated. Passengers may maintain negligence claims for over-serving of alcohol, failing to assist while intoxicated, and failing to initiate a prompt search-and-rescue when a passenger falls over the side of the cruise ship.¹⁸

Part of the enticement of "cruising" is to visit exotic ports of call in the Caribbean and participating in fun activities that people cannot participate in at home. These activities can be enjoyed individually or through shore excursions that passengers have purchased from the cruise line. The shore excursions include fishing, snorkeling, dive trips, sailing, zip lining, horseback riding, tours, helicopter rides and visits to private islands. The cruise lines have a duty to warn passengers of dangers onshore where the passenger is invited to visit or reasonably may be expected to visit and that the cruise line knows about the dangers or reasonably should have known about them.¹⁹

For example, passengers were recommended by Carnival Cruise Line employees to visit a beach in St. Thomas. The passengers purchased tickets onshore for the bus ride to the beach. On the return ride from the beach to the cruise ship, the passengers' bus stopped due to the funeral of a gang member. Gunfire erupted during the funeral, and one of the passengers was struck and killed by a bullet while sitting on the bus. The 11th Circuit Court of Appeals permitted a cause of action against Carnival Cruise Line for negligent failure to warn the passengers about the crime problem in the area, including gang-related violence near the beach.^[20] The cruise line had a duty to warn of a known danger in an area where Carnival encourages its passengers to visit.

Often, passengers who are injured on cruises seek treatment from the ship's doctor and believe afterwards that the ship's doctor committed medical malpractice. Prior to 2014, pursuant to the Barbetta Rule, cruise lines were not liable as a matter of law for the negligent activity of the ship's doctor, because cruise lines do not engage in the practice of medicine, a cruise ship is not a floating hospital, the doctor on board the ship was there for the passengers' convenience, and the cruise line allegedly had no ability to control the doctor.²¹ In Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014), a case involving the death of a passenger who received improper medical care from the ship's doctor, the court ruled that a cruise line could be vicariously liable for the medical malpractice of a ship's doctor, where an actual or apparent agency existed between the cruise line and the doctor. The Franza court rejected the cruise line's defense that onboard physicians and medical staff are not employees of the cruise line, but are independent contractors.

The Franza decision has implications with regard to injuries that occur on shore excursions. Cruise lines often claim that the shore excursions are operated by independent contractors. Based upon Franza, however, a cruise line's vicarious liability for a passenger injury during a shore excursion must be analyzed to determine if an actual or apparent agency existed between the cruise line and shore excursion operator.²²

Conclusion

When a passenger is injured on vacation, they agree with Brian Wilson.

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Notes:

[1] 46 U.S.C. § 30106 (2018) ("Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.").

[2] An in rem claim is a claim filed against a vessel or other property to enforce a maritime lien. In a matter involving a passenger personal injury claim, the passenger will have a maritime tort lien against the vessel for his damages and, upon the order of a federal judge, can have the vessel arrested by a U.S. Marshal and eventually sold at a U.S. Marshal Sale, with the sale proceeds being held by the clerk of court as security for the passenger's damages. A vessel arrest is an important weapon in an injured passenger's arsenal, especially when insurance coverage is suspect or there is not enough insurance coverage for the amount of damages suffered by the passenger.

[3] Id. at 594-95 ("Florida is not a 'remote alien forum,' nor — given the fact that [passenger's] accident occurred off the coast of Mexico — is this dispute [that involved passengers from Washington] an essentially local one inherently more suited to resolution in the State of Washington than in Florida.... [T]here is no indication that [cruise line] set Florida as the forum ... as a means of discouraging cruise passengers from pursuing legitimate claims... . [T] here is no evidence that [cruise line] obtained [passengers'] accession to the forum [selection] clause by fraud or overreaching. Finally, [Passengers] have conceded that they were given notice of the forum provision ...").

[4] Id. at 588.

[5] Gibson-Dalton v. Carnival Corp. & PLC, 2017 WL 3923363 (D.S.C. September 7, 2017).

[6] Lauoie v. Suncruz Casino Cruises, LLC, 2009 WL 425815 (D.S.C. Feb. 18, 2009).

[7] Nash v. Kloster Cruise, 901 F.2d 1565, 1566-67 (11th Cir. 1990).

[8] Id. The reasonable adequacy of the notice provided to a passenger is a question of law. Shanfeles v. Costa Armatori, S.P.A., 722 F.2d 861, 867 (1st Cir. 1983); Barbachym v. Costa Line, 713 F.2d 216, 218 (6th Cir. 1983).

[9] Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993).

[10] Booth v. Carniual Corp., 522 F.3d 1148, 1151 (11th Cir. 2008) (quoting Burnett u N.Y Cent. R.R. Co., 380 U.S. 424, 430 (1965)).

[11] Id. at 1151-52. If a passenger files an action in a court that lacks competent jurisdiction, the equitable tolling will not apply and the claim will be time barred. Id. at 1152.

[12] Id. at 1153.

[13] Bubla v. Bradshaiu, 795 F.2d 349, 353 (4th Cir. 1986); Euerett v Carniual Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990).

[14] Kermarec v. Compagnie Generale Transatlan-tique, 358 U.S. 625, 632 (1959); Gibboney v Wright, 517 F.2d 1054, 1059 (5th Cir. 1975).

[15] Franza v Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014); Schumacher v Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994).

[16] Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989).

[17] Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015).

[18] See, e.g., Doe v. Royal Caribbean Cruises, Ltd., 2011 WL 6727959, at*4 (SD. Fla. Dec. 21, 2011)(finding that where plaintiff was served alcohol at ship lounge, was observed by crewmembers staggering around drunk and rebuffing advances of another passenger, and was later raped by other passenger, plaintiff stated actionable claim for negligence against cruise ship); Tello v Royal Caribbean Cruises, Ltd., 939 F. Supp. 2d 1269, 1275-76 (S.D Fla. 2013).

[19] Carlisle v. Ulysses Line Ltd., 475 So. 2d 248, 251 (Fla. Dist. Ct. App. 1985).

[20] Chaparro v. Carniual Corp., 693 F.3d 1333 (11th Cir. 2012).

[21] Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988).

[22] Id. at 1236; Kadylafe v. Royal Caribbean Cruises, Ltd., 679 F. App'x 788 (11th Cir. 2017) (Cruise line was not vicariously liable for its captain's allegedly negligent acts when, during an island excursion, the captain was involved in motorcycle accident with a ship passenger; although owner of excursion provider introduced captain to the excursion group as the ship's captain, captain was not acting as agent of the cruise line when he injured passenger, as captain joined the excursion as a purely private activity, while off duty and using personal leave time. As such, the excursion was not overseen by cruise line or its captain, and the captain was not wearing any clothing or credentials identifying him in his official role.).

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