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

AuthorS. Scott Bluestein, J.
PositionVol. 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...

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