08232017Headline:

Fort Lauderdale, Florida

HomeFloridaFort Lauderdale

Email Brett Rivkind
Brett Rivkind
Brett Rivkind
Attorney • (305) 374-0565

Federal Appeals Court Says No to Cruise Line's Attempt to Contract Away Liability

1 comment

In a very critical decision for all passengers who board cruise ships for an enjoyable vacation, the Eleventh Circuit Court of Appeals out of Atlanta, Georgia, decided a very important case regarding the liability of a cruise ship company to a passenger for negligence arising out of shipboard activities.

As the cruise ship industry has grown, and the cruise ships have expanded to unfathomable lengths and heights, carrying almost 5,000 passengers, we have seen an increase in activities the cruise ships offer to the passengers in order to keep all of the passengers busy. These activities have included zip line activities, ice skating, rock climbing, and the very popular FlowRider activity. I’ve been handling maritime cases for approximately 30 years, and never imagined that I would see cruise ships with rock climbing walls, zip line activities, FlowRider activities, and ice skating rinks. Of course, along with all of these activities that have been placed onboard a cruise ship, where accommodations have to be made for the fact that they are onboard a moving ship on the high seas, has come many different types of accidents. We have received calls regarding all types of accidents arising out of these shipboard activities, including accidents on the ice skating rinks, during the FlowRider activity, zip line activities, as well as accidents arising out of the rock climbing activity. I am sure the cruise line anticipated many accidents would occur by operating these different types of shipboard activities onboard a cruise ship plying the high seas. Not only do many of the shipboard activities have to be modified to accommodate a cruise ship, but questions arise regarding the training and expertise of those in charge of supervising these activities and providing the adequate instructions to the passengers regarding these activities.

What does the cruise ship company do? Faced with either not operating these fun activities onboard their cruise ships, or accepting the fact that there will be a number of injuries that occur out of these activities because of the potential dangers of operating these activities on a cruise ship, the cruise ship companies of course decided these were money makers and have placed them aboard the modern day cruise ships. Next, comes the brainstorm of the cruise ship industry, and their lawyers, and they figured out a way to have their cake and eat it too. They decided to operate these fun activities, albeit it dangerous, but they would at the same time require a passenger to sign a waiver of liability for any negligence when participating in these shipboard activities.

In the case just decided by the Eleventh Circuit Court of Appeals on December 20, 2011, Johnson v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit Court of Appeals dealt with an appeal by a passenger who had been injured on a Royal Caribbean cruise ship, the Oasis of the Seas. Johnson was a passenger on the cruise ship and participated in one of the activities of the ship, called the FlowRider. The FlowRider is a simulated surfing and body board boarding activity that has become extremely popular on land, and is now a popular activity onboard cruise ships. However, in accommodating this activity to go onboard a cruise ship, certain modifications have been made to the activity that might very well be in violation of the manufacturer’s specifications and recommendations. We have received several calls regarding accidents arising out of this very popular activity.

In the Johnson decision, the passenger signed a waiver which agreed to release the cruise line, Royal Caribbean Cruise Line, as well as its employees, from any type of lawsuit arising from any injury or accident that might occur during participating in this shipboard activity.

Johnson had claimed that the instructor onboard the cruise ship, employed by the cruise line, had not complied with the appropriate standards of care when instructing Johnson regarding the use of one of the body boards. Johnson had been instructed to stand on this particular body board. When the instructor let go, Johnson fell and suffered a fractured ankle.

It was alleged that the instructor’s actions in having the passenger stand on a body board violated specific safety procedures for the FlowRider attraction. The body board should have been utilized only in a laying down position.

Johnson filed suit against Royal Caribbean Cruise Line alleging negligence. The cruise line relied on the waiver that was signed by the passenger and filed a motion for summary judgment with the lower court, a federal district court, asking that the case be dismissed because of the waiver that was signed. The federal district court agreed with the cruise line and held that the passenger had waived any claims for any lawsuits arising out of participation in the FlowRider activity.

The federal district court ignored a federal statute, 46 U.S.C. § 30509, finding it was inapplicable to the case. This federal statute prohibits “the owner….or agent of a vessel transporting passengers between….a port in the United States and a port in a foreign country” from placing in a “contract a provision limiting the liability of the owner….or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents.” 46 U.S.C. § 30509 (a)(1)(A). This statute makes any provision in a contract with a passenger attempting to disclaim liability for negligence void and unenforceable. However, the federal district judge determined this statute did not apply to Johnson’s claim for injuries suffered during the onboard shipboard activity the FlowRider and accordingly dismissed the complaint.

The federal appeals court disagreed with the federal judge and found the statute was applicable. The federal appellate court determined that the waiver signed by the passenger was clearly a contract attempting to limit the liability of the cruise ship for personal injury that was alleged to have been caused by the negligence or fault of the cruise ship company. This violated 46 U.S.C. § 30509 (a)(1)(A).

The Eleventh Circuit Court of Appeals said Congress was very clear with this statute. It was unequivocal. The language was crystal clear. The statute provided no exceptions regarding the type of activities the passenger was engaged in. The federal appellate court said the district court over analyzed the issue because the language in the federal statute was so crystal clear that the district court was required to follow the plain language of the statute, which stated clearly that such a provision attempting to disclaim any liability on the part of the cruise line was invalid.

Accordingly, the federal appellate court reversed the decision of the federal district court and sent the case back to the district court to allow the passenger to move forward with the claim for negligence causing personal injury arising out of the FlowRider activity onboard the Oasis of the Seas.

This is a setback for the cruise lines who rely on these waivers to escape liability for their shipboard activities. The cruise lines have become very fond of using contracts, including the passenger ticket, to impose unreasonable conditions on passengers who come onboard their vessels. The cruise lines place in the passengers tickets all types of terms and conditions which limit the rights of a passenger, including limiting their rights as to the location a passenger can file a lawsuit, provisions disclaiming any liability for shoreside excursions, and limiting the time period a passenger can file a lawsuit against them to a very short one year period of time.

This federal statute that was held applicable to strike down the attempt to limit liability for shipboard activities is designed to be a protection to the passengers from the overreaching of the cruise ship industry, recognizing the fact that passengers have no bargaining power when it comes to any written agreements with the cruise line company. It’s simply against public policy to allow a cruise ship company to contract away its negligence.

There are many unfavorable maritime laws, including laws that hold that the shipboard medical doctors are considered independent contractors, allowing the cruise ship companies to try to escape liability for the negligence of these shipboard medical personnel. This is despite the fact that the cruise line maintains a shoreside medical department and oversees the shipboard medical personnel, including implementations of the policies and procedures regarding the medical care onboard a cruise ship. The cruise ship often time receives profits from the medical care and treatment provided to passengers. Notwithstanding the clear appearance that shipboard medical personnel are employees of the cruise ship companies, wearing uniforms of the cruise ship companies, and being placed onboard the ship as an extra enticement to passengers to come onboard knowing there’s available medical care, the cruise ship companies consistently fight any attempts to hold them liable for the negligence of their shipboard medical personnel.

With respect to the many crewmembers employed by the cruise ship companies, hired mostly from third world countries, the cruise ship companies are now through the power of the pen and take it or leave contracts, attempting to deny seamen their major protection against the cruise line, which is holding a cruise ship company liable under a federal statute known as the Jones Act, as well as the General Maritime Law of the United States, when a crewmember is injured or dies. The cruise ship companies are inserting into the employment agreements with the foreign crewmembers, who have no knowledge of their rights, and no bargaining power when signing the employment agreements, provisions that deny them access to the courts to recover compensation for personal injuries and wrongful death. Instead, the cruise lines are attempting to force arbitration of their disputes, without a jury trial, and also attempting to escape the applicability of the United States law to these crewmembers, including the federal statute that was enacted in 1920 known as the Jones Act which was placed into law specifically to protect seamen and give them a right to a jury trial to receive compensation for their personal injuries and wrongful death.

Our firm continues to be safety advocates for both passengers and crewmembers who are harmed at sea.

I have been honored to have been selected previously to testify at Congressional Hearings addressing cruise ship safety matters.

I hope that the courts continue to closely scrutinize the cruise lines’ attempt to escape liabilities by the stroke of a pen utilizing these contracts and employment agreements that are presented on a take it or leave it basis to the passengers and crewmembers.

1 Comment

Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. Gerry McGill says:
    up arrow

    Brett, excellent post on an important recent appellate decision. I wonder why trial level Federal Judges continue to coddle the cruise industry?