Maritime Law Blog

Our firm represents Mrs. Tonya Manning who was a guest aboard the Carnival Valor. The cruise was arranged by the Make-A-Wish Foundation as it was her son's Tyler wish to go on a cruise and swim with the dolphins. The Mannings originally selected a dolphin encounter to take place when the ship arrived in Honduras. Carnival, however, called the Mannings down to Guest Services and arranged the dolphin encounter to take palace in Chankanaab Park when the ship arrived in Cozumel, Mexico. At no time did Carnival warn Mrs. Manning that the park's staircases were ill maintained and dangerous.

On June 17, 2011, the Mannings disembarked the cruise ship and proceeded to Chankanaab Park. During the excursion, the Mannings were invited to use the park's amenities. After swimming with the dolphins, there was time left on the excursion so the Mannings decided to go snorkeling. The Mannings visited a place within park known as "The Dive Shop". While walking down ill maintained stone and cement steps from "The Dive Shop" to the beach, Ms. Manning's foot got stuck causing her to fall. The fall resulted in a severely broken ankle requiring an open reduction internal fixation surgery. Mrs. Manning now walks with a permanent limp.

Though Carnival Cruise never warned Ms. Manning of the dangerous stone steps within Chankanaab Park, there are travel websites which have posted visitor complaints about the park's stone steps.

IF YOU VISITED CHANKANNAB PARK IN THE MONTHS BEFORE JUNE 2011 AND HAVE KNOWLEDGE OF THE CONDITION OF THE STEPS OUTSIDE "THE DIVE SHOP" OR WITNESSED SOMEONE WHO HAD DIFFICULTY WALKING DOWN THOSE STEPS, WE ASK THAT YOU CALL OUR TOLL FREE NUMBER 800-499-0551. ANY INFORMATION YOU HAVE IS IMPORTANT TO HELPING MS. MANNING.

Miami lawyers Keith Brais & Richard Rusak obtained a ruling from a Federal Court finding a cruise line can be held responsible for a rape caused by the over service of alcohol. The complaint failed in the Southern District of Florida alleges a passenger participated in a Norwegian Cruise Line organized pub crawl which occurred on the cruise ship NORWEGIAN SUN. After the pub crawl, the passenger remained at the last bar to have additional drinks with some of the other pub crawl participants. The plaintiff alleges she became intoxicated from the drinks served on the cruise ship. Court papers reveal the passenger walked to a public ladies room located near a café. While in a stall, a man opened the door, spun her around and raped her. Affidavits filed in the case assert due to her intoxicated state she was unable to fend off her attacker.

Norwegian Cruise Line filed a motion for summary judgment arguing the Florida "dram shop" statute applied to the service of alcohol aboard its cruise ships. The Florida dram shop statute shields companies from liability for injuries and damages caused by their service of alcohol except when the person served is under the age of 21 or the person served is known to be "habitually addicted" to alcohol.

The Federal Court rejected the application of the Florida dram shop statute. Instead, it followed the Florida state appellate court's legal holding in Hall v. Royal Caribbean Cruises which found the statute is contrary to the uniformity of maritime law. This case solidifies the maritime law that a cruise line has a duty to exercise reasonable care for its passengers including reasonable care in the service of alcohol. A copy of the Court's order can be found at this link.

A part of the allure of cruising is the excursions offered at the various ports of call. However, most passengers do not know the safety standards at these ports of call are a far cry from what they are used to in the United States. Decreased safety standards, unfortunately, result in several accidents to vacationers each year. Maritime law recognizes this problem. It requires cruise lines to warn of known dangers in places where their passengers are invited or expected to visit. It also requires cruise lines to properly vet the tour operators and excursions offered aboard their cruise ships. This law is designed to arm passengers with knowledge in order for them to make informed decisions on their safety while in foreign ports. Often times when a passenger sues for an injury occurring at a port of call, the cruise lines ask the court to dismiss the claim. These attempts to dismiss are met with varying success. The cruise injury attorneys of Brais law recently was required to address such a challenge by a cruise line.

Brais Law represents a Carnival Cruise passenger who broke her ankle when she fell down an unsafe stairway located in Chankanaab National Park during an excursion selected by the cruise line. The dangerous nature or the park's stairways are well known to tour operators and companies doing business in the area. However, the unsafe nature of the stairway was not communicated to the cruise passengers.

The attorneys of Brais Law filed a complaint against Carnival in federal court alleging the cruise line was negligent as it had superior knowledge of the dangerous stairway but failed to warn its passengers of the dangers. The complaint also alleged the cruise line was negligent for selecting an excursion that takes place in an area known to be dangerous. Carnival asked the Court to dismiss the lawsuit alleging the complaint failed to state a legal cause of action. The Court rejected Carnival's argument and allowed the claim to proceed. A copy of the Court's order can be found here.

Though cruise lines are sometime successful in convincing courts to dismiss lawsuits concerning injuries occurring on an excursions, when facts exist that could prove the cruise line know or should have known of a danger and fails to warn its passengers, courts are likely to allow such claims to proceed.

Child victims of sexual assault / exploitation aboard cruise ships have been handed a victory in Federal Court. Former U.S. Public Defender for the Southern District of Florida now U.S. District Court Judge, Kathleen Williams, ruled cruise lines can be held civilly liable for their crewmembers' violation of the certain federal laws designed to protect children. Originally enacted as part of The Child Abuse Victims' Right Act, Federal Statute 18 U.S.C. § 2255 provides minors who are victims of certain crimes involving sexual abuse, molestation, exploitation and other violent acts with a civil cause of action against those responsible. The federal statute, however, is silent as to whether only the perpetrator can be civilly penalized for such violent acts against children. Given the wording of the statute, an open legal question existed as to whether others responsible for the perpetrator's conduct may also be held liable under the statute.

The scope of this federal statute was tested in a case involving an alleged sexual assault of a 17 year old passenger aboard a cruise ship operated by Royal Caribbean Cruises. The lawsuit alleges a cruise ship bartender served the minor dangerous amounts of alcohol then a cruise ship entertainer sexually assaulted and took sexually explicit photographs of her. The complaint filed in Miami, Florida set forth two counts against the cruise line under the statute. The lawsuit alleges the cruise line was vicariously liable for the actions of the crewmembers and such liability includes penalties under 18 U.S.C. § 2255.

The minor's lawyers argued since the language of the statute does not restrict its scope to only the perpetrator, it must encompass not only the perpetrator, but also the cruise line. Royal Caribbean argued the Court should not extend the scope of the Act to include anyone other than the perpetrator. Maritime law holds a cruise line strictly responsible for the intentional actions including sexual assaults, rapes and other violent acts of their crewmembers against passengers. The Court determined when enacting the statute Congress understood maritime law holds cruise ship operators strictly liable for their crewmembers' intentional acts against passengers. Armed with this knowledge or maritime law, Congress, in the Court's view, could have expressly limited the Act's scope to only the perpetrator, but, it did not. Therefore, the Court reasoned Congress intended to incorporate this maritime legal principle into the statute. Applying this statutory construction, the Court ruled 18 U.S.C. § 2255 provides children who were abused, exploited and/or victimized by a crewmember a direct claim against the cruise line in addition to existing maritime common (non-statutory) law.

This ruling has a significant impact upon maritime law. The statute states that any minor who is a victim of sexually assault, molestation, exploitation and other offenses can sue for compensatory damages and shall be deemed to have sustained damages of no less than $150,000 in value for each violation. Moreover, the statute provides the minor can receive attorneys' fees if he/she wins the lawsuit. This ruling changes the landscape of cruise law. Before this decision, there was no minimum recovery for child assault, rapes and exploitations perpetrated by crewmembers and attorneys' fees were not awardable.

U.S. Coast Guard helicopter crews medevaced a 35-year-old female Polish passenger from THE WORLD cruise ship who was suffering from pneumonia on May 25th. Petty Officer Anthony Soto stated the rescue involved two helicopters missions. The first delivered oxygen to the cruise ship and the second transported the passenger to Kona Community Hospital. THE WORLD, a concept cruise ship whereby passengers reside on board, was originally en route to Honolulu but was diverted to the Big Island. The ship's last port of call was Fanning Island in the Republic of Kiribati.

This was the second reported event in a week where the Coast Guard was called to medevac a passenger off a cruise ship. The first involved a Royal Caribbean a passenger who was experiencing stroke-like symptoms off the coast of Massachusetts.

Coast Guard medically evacuated a 67-year-old man from the Royal Caribbean cruise ship ENCHANTMENT OF THE SEAS off the coast of Cape Cod, Massachusetts on May 21st. The Coast Guard received a call at 10:55 a.m. that a male passenger was suffering from stroke-like symptoms. A MH-60T Jayhawk helicopter hoisted the man from the Royal Caribbean cruise ship in poor weather conditions and safely transported him to Massachusetts General Hospital. There is no word on the passenger's status at the time of this article.

This was the first of two reported cruise ship medevac rescues in a week. The other rescue concerned a sick Polish passenger aboard THE WORLD concept cruise ship off the coast of Hawaii.

As reported by Maritimelawblog last month, fire broke out in the engine room of the Costa cruise ship ALLEGRA on February 27th while sailing in the Indian Ocean. The ALLEGRA, a former cargo carrier built in 1969, was towed to Seychelles where she currently remains. Micky Arison, CEO of Carnival Corp. (owner of Costa Cruises), reported to Wall Street analysts during a conference call that ALLEGRA will be sold or scrapped. Costa Cruises announced it was replacing the ALLEGRA with the 927-passenger VOYAGER for the upcoming on European cruising season.

The ALLEGRA fire was the second calamity to strike Costa Cruises this year following the CONCORDIA sinking of January 13th. Two major disasters combined with a significant drop in ticket sales fueled speculation that the Carnival Corp. may possibly re-brand the Costa name.

A 47-year-old passenger was medevaced off the Norwegian cruise ship JEWEL approximately 115 miles northeast of Cape Henry, Virgina March 9, 2012. The captain of the NCL cruise ship contacted the Coast Guard at approximately 5 p.m. reporting a woman with abdominal pains was in need of medical attention. In a combined effort between a HM-60 Jayhawk crew and a HC-130 Hercules airplane crew, the sick passenger and her husband was evacuated off the JEWEL and transferred to Sentera Norfolk Hospital. This is only one of several medevacs from a cruise ship Maritime Law Blog reported this year.

The Costa cruise ship ALLEGRA suffered a fire causing the vessel to lose propulsion off the coast of Seychelles in the Indian Sea Monday, February 27, 2012. The fire was reported to have started in the ship's engine room and is now extinguished. No causalities among the 636 passenger and 413 are reported.

The ALLEGRA departed Madagascar on Saturday, February 25, 2012 and was cruising toward the port of Victoria, Seychelles' capital, when the fire broke out. Tugs from Seychelles were dispatched to the ALLEGRA and are expected to reach the ailing cruise ship Tuesday afternoon.

Unlike the modern ocean liners of the major lines which are designed and built to be used as cruise ships, the ALLEGRA, launched in 1969, was originally cargo container vessel. The ship, originally named ANNIE JOHNSON, served as a cargo vessel until 1986 when it was sold to Regency Cruises with the intention to be refitted as a cruise ship. This did not occur and was again placed into service as a cargo ship until 1990 when sold to Costa. The ship was then finally retrofitted, renamed ALLEGRA and put to use as a cruise ship in 1992.

The Royal Caribbean VOYAGER OF THE SEAS sailed into New Orleans while the Princess cruise ships CROWN PRINCESS and RUBY PRINCESS sailed into Ft. Lauderdale this weekend with Norovirus outbreaks. The P&O cruise ship AURORA also reported a Norovirus outbreak earlier this year. Norovirus is a significant problem aboard cruise ships. It is rapidly passed from one person to another through direct contact and indirect contact by touching elevator buttons, door handles, pens, toilets and other common items. The disease can also spread by infected cabin attendants and galley stewards who touch your possessions while making up the cabin and eating utensils when stocking them on the tables.

Royal Caribbean and Princess stated they will perform "enhanced cleanings" of the ships, but, will keep the ships sailing. Such cleaning techniques often times do not eradicate the virus. It is interesting to know how Royal Caribbean and Princess will notify the oncoming passengers of the outbreak in the coming weeks or if the cruise lines will allow passengers who do not want to cruise at this time to re-book their reservations without penalty. If you sailed on the VOYAGER OF THE SEAS, CROWN PRINCESS, or RUBY PRINCESS within the month of February and would like to share your experience, please leave a comment below.

The Court Guard reports an aircrew from Sector San Diego airlifted a cruise passenger experiencing chest pain from the Carnival cruise ship INSPIRATION. The medevac took place approximately 30 miles southwest of San Diego on the evening of Thursday, February 2, 2012. The crew of the INSPIRATION requested a medevac for the 61-year-old passenger at approximately 5:30 p.m. A Coast Guard flight surgeon was consulted and recommended immediate airlift. A MH-60 Jayhawk crew met the cruise ship at 7:40 p.m. and hoisted the passenger from the INSPIRATION. While on the ground at San Diego, the passenger was transferred to an emergency medical facility for further care. The man's condition is unknown at the time of this article. This is just one of several cruise ship medevacs preformed by the Coast Guard this year alone.

Photo Credit: U.S. Coast Guard

It has been widely reported a passenger aboard the Royal Caribbean Liberty of the Seas died early morning on Monday, January 30, 2012 after falling down a flight of stairs. The Broward Sheriff's Office states the passenger, Barbara Wood, a 47-year-old Massachusetts woman, fell on a flight of stairs and struck her head. Royal Caribbean confirmed the woman died aboard its cruise ship. The accident occurred approximately at 1:48 a.m near the Catacombs nightclub. At the time of the death, the Liberty of the Seas was traveling from the Bahamas to Ft. Lauderdale, Florida.

This is the second reported falling death of a passenger on a Bahamian cruise within a week. As reported in our article Carnival Cruise Passenger Falls to his Death Aboard the Fantasy, the first death involved a 26-year-old South Carolina man who died aboard the Carnival cruise ship Fantasy on January 28, 2012 while at dock in Nassau.

In the wake of the COSTA CONCORDIA disaster, there is much discussion on what rights injured passengers and the families of those unfortunate passengers who perished may have against the cruise line. The gamut of "advice" has run from excellent to downright wrong. Commentary by established Miami cruise accident attorneys has been both precise and well informed. The same cannot be said about some land based attorneys who haven't a clue about the many nuances of cruise line personal injury and wrongful death law. This article intends to separate fact from fiction, concerning those unfortunate passengers, seamen and crew personnel who were seriously injured or lost their lives aboard the ill fated COSTA CONCORDIA.

Many commentators have tried to link the fact that Costa has a registered agent in Hollywood, Florida and that Costa's parent corporation, Carnival Corporation, is headquartered in the Miami, Florida as justification for lawsuits arising from this tragedy to be filed in Miami, Florida. In our opinion, this analysis is flawed. Costa, like every major cruise line, issues a ticket which explains the rights and obligations of the passengers. Costa's ticket has a forum selection clause that states personal injury and wrongful deaths occurring on a cruise which does not depart from or return to a United States port must be filed in Genoa, Italy. Specifically, the Costa ticket states:

Voyages That Do Not Depart from, Return to, or Visit a U.S. Port -
All claims, controversies, disputes, suits and matters of any kind whatsoever arising out of, concerned with or incident to any voyage that does not depart from, return to, or visit a U.S. port, or to this Contract if issued in connection with such a voyage, shall be instituted only in the courts of Genoa, Italy, to the exclusion of the courts of any other county, state or nation. Italian law shall apply to any such proceedings.

THIS "FORUM SELECTION CLAUSE" APPLIES TO AMERICAN CITIZENS. The United States Supreme Court in Shute v. Carnival required a passenger who lived in Oregon, and was injured during a cruise from California to Mexico, to file suit in Miami. This case is the foundation for the enforcement of forum selection clauses. In September of 2010, the Maritime Law Blog in an article entitled Injured Cruise Passenger Required to Sue Cruise Line in Paris reported on the Federal Eleventh Circuit holding of Seung v. Regent Seven Seas Cruises, Inc. In this case the Eleventh Circuit (the same court which will be reviewing any COSTA CONCORDIA case filed in the Southern District of Florida), held the trial court was proper in dismissing a personal injury claim by and an American citizen who was injured on a European cruise where the cruise ticket contained a Paris, France forum selection clause. The Eleventh Circuit paid no mind to the argument that the case could be filed in Florida because Regent Seven Seas Cruises, the owner of the cruise ship, maintains its corporate headquarters in Ft. Lauderdale, Florida. The court also rejected the argument that the injured woman did not have the financial resources and was too ill to maintain a lawsuit in France.

Attorneys filing CONCORDIA lawsuits in Florida will have an uphill battle convincing the court not to dismiss the claims based upon the Genoa, Italy forum selection clause given the prior decisions by the Supreme Court and Eleventh Circuit.

Assuming the court invalidates the Genoa, Italy forum selection clause and keeps the claim in the United States, the next issue is what law is to apply. Again, many non-maritime attorneys have taken the view that since Carnival owns Costa, American maritime law will apply. Despite what has been said by some commentators, as shown above Costa's ticket incorporates the law of Italy as the law, which will govern the dispute.

Courts have found choice of law provisions enforceable in maritime contracts especially where one of the contracting parties is from the country of the selected law, the voyage departed from and was to return to a port governed by the selected law, the injury or death occurred within the waters governed by the foreign law and the subject vessel was registered and flagged under the selected law. In the situation of the COSTA CONCORDIA disaster, Costa is an Italian company, the voyage was between two Italian Ports, the shipwreck occurred in Italian waters and the vessel is Italian flagged. A court deciding the issue will most likely enforce the Italian choice of law clause despite the fact that Costa is owned by a company headquartered in Miami, Florida.

Difference Between United States and Italian Personal Injury Damages
United States Maritime law allows for an injured cruise passenger to receive compensation for lost earnings, medical bills as well as pain and suffering. The Unites States Supreme Court in Atlantic Sounding v. Townsend has recently held injured persons are allowed to bring claims for punitive damages under maritime common law. The Maritime Law Blog recently reported that a Florida Federal court applied Townsend to allow the possibility of punitive damages by a passenger against a cruise line in the article Punitive Damages Available for Cruise Passenger Personal Injury Claims.

Like United States maritime law, Italian law allows for the recovery of pecuniary losses (danno patrimoniale), which is loss of income and medical expenses arising from the injury and for two forms of non-pecuniary damages: injury to the victim's personal integrity (danno biologic) and pain and suffering experienced as a result of the harmful event (danno morale). The one major difference between United States and Italian maritime law is that Italian law does not allow for punitive damages. The Italian Supreme Court in 2007 stated in the Corte di Cassazione decision, "tort law aims at re-establishing the economic integrity of persons who sustained a loss suffered... the objective of punishment and of sanction is alien to the system and for the purpose, the examination of a wrongdoer's conduct is irrelevant." As such, Italian jurisprudence does not allow for punitive damages in personal injury or wrongful death claims no matter how egregious the conduct. Consequently, should the court apply Italian law to the COSTA CONCORDIA cases, punitive damages will not be recoverable.

Costa's ticket also seeks to limit its liability for its non-United States voyages in accordance with the Athens Convention. Specifically, Costa's ticket provides:

Notwithstanding any provision of this Contract or law to the contrary, as to any voyage occurring wholly outside the United States, the Carrier claims the benefit of all restrictions, exemptions and limitations of liability set forth in the "Convention Relating to the Carriage of Passengers and Their Luggage by Sea of 1974" as well as the "Protocol to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea of 1976" ("Athens Convention"), and the "Convention on Limitation of Liability for Maritime Claims" of 1976 ("LLMC Convention") which limit the liability of the Carrier for death of or personal injury to the Passenger to no more than 46,666 Special Drawing Rights ("SDRs") as defined therein, and all other limits for damage or loss to personal property. The value of 46,666 SDRs is equal to approximately U.S. $70,900 at the time of printing of this Contract...

The Athens Convection, though never formally ratified by Italy, is a part of the law of the European Union which Italy is a member. The dollar limitation of the Athens Convention is, however, not absolute. In situations where the conduct leading to injury was intentional or reckless, the limitation clause may be deemed unenforceable. It can most certainly be argued that the actions of the COSTA CONCORDIA's captain were reckless which may break the limitation provision.

In conclusion, the COSTA CONCORDIA problem is very complex. The survivors and the families of those who perished in the disaster should be very careful and very selective in following the advice being put forth in various media. For those passengers, crew and seamen affected by this terrible event we strongly recommend you contact a qualified maritime attorney to discuss your rights.

Photo Credit: The Sun

Multiple media sources are reporting a passenger aboard the Carnival cruise ship Fantasy fell to his death from one of the upper decks of the ship's atrium to the lobby level on January 27, 2012. The Carnival Fantasy was on a five day trip from Charleston to the Bahamas and was docket at Nassau when the tragic event occurred. The Bahamian authorities boarded the Carnival Fantasy to investigate the incident. Although the ship was cleared to sail by Bahamian authorities the next morning, the delay caused by the investigation caused Carnival to cancel the cruise liner's visit to Freeport. The victim's identity was not released but it was obtain that he was a 26-year-old passenger from South Carolina. Carnival Corporation is the parent company of Costa Cruises, whose Costa Concordia liner ran aground off the Italian coast this month, killing at least 17 and injuring several others.

The Coast Guard reports it medically evacuated a 37-year-old man from the Royal Caribbean cruise ship Jewel of the Seas approximately 25 miles west of Sanibel Island, Florida Sunday, January 22, 2012.

At 2:57 a.m. Coast Guard Sector St. Petersburg command center received a request from the Royal Caribbean cruise ship concerning a man that was exhibiting heart attack symptoms and was in need of immediate medical evacuation. No accident was reported. A Coast Guard flight surgeon was consulted and a medevac was recommended. However, the surgeon concluded it would be too risky to fly the patient in a helicopter. At 3:30 a.m., a 41' Coast Guard utility boat crew from Station Fort Myers Beach, Florida, along with a local emergency medical technician (EMT), were dispatched to meet the cruise ship. The rescue team met the Jewel of the Seas at 6:10 a.m. and the EMT was able to safely transfer the man from the cruise ship onto the Coast Guard utility vessel. The man was medevaced to Coast Guard Station Fort Myers Beach where local EMS personnel took over and transported him to Lee Memorial Hospital. The man's condition is unknown at this time.

Photo Credit: U.S. Coast Guard