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I have previously reported about the enormous size of cruise ships, and how the cruise ships now have many shipboard activities available, such as rock climbing, zip lines, and other popular attractions. One of the popular attractions onboard the cruise ships is the FlowRider, which simulates the experience of surfing. In order to properly give a participant the experience of surfing, there is a powerful jet stream of water which creates the feeling of being in strong waves. When someone falls from the surfboard during the FlowRider experience, the person falls into the water and a powerful jet stream of water shoots the passenger to the back where the participant strikes a padded wall. This it to give the feeling one gets when they “wipe out” during surfing.

The judge determined it was inherently dangerous, and there is serious risk of personal injury. There is even a risk of death stated by the manufacturer.

Despite the inherent risks in the FlowRider activity, Royal Caribbean Cruise Lines operates the FlowRider as one of their major attractions to their passengers. When participating in the FlowRider activity, a passenger is required to execute a release and waiver of any liability on the part of the cruise line for any injuries arising out of the FlowRider activity.

In the case of Charlene Johnson vs. Royal Caribbean Cruises, Ltd., Charlene Johnson was on a Royal Caribbean cruise ship and decided to take a private lesson on the FlowRider. While participating in the activity, she fell and was violently thrown to the back against the wall, causing her to sustain a serious injury.

Although the Plaintiff presented evidence that the cruise ship company was negligently operating the FlowRider activity, including the fact that the distance of the area from where a person falls to the back wall, had been shortened from the manufacturer’s specifications so that the activity could be used on the cruise ship. Despite evidence of negligence, the Federal Judge enforced the waiver of liability, and dismissed the case against Royal Caribbean.

This is an interesting and worrisome case. There is a Federal Statute, 46 U.S.C. § 30509, which prevents a shipowner from contracting away any liability for negligence. In the Johnson case, Plaintiff argued that the waiver she executed was void under this Federal Statute and General Maritime Law. Judge Moreno, who is the Chief Judge in the Southern District of Florida, did note that the FlowRider was “inherently dangerous”; however, he determined that it was not an “essential function of a common carrier”. Accordingly, the Court determined that the waiver was valid and enforceable and 46 U.S.C. § 30509 did not apply.

Judge Moreno determined the case did not fall within the Admiralty Jurisdiction, and the General Maritime Law did not apply. The Court cited to the well known two prong test to determine whether Admiralty and Maritime jurisdiction exists in a case. The Court concluded that the FlowRider activity was not the type of activity which would have a potentially disruptive impact on maritime commerce.

The Court felt that it was purely a recreational activity which had no relationship to traditional Maritime activities, and the Court cited navigation, piloting and shipping as those traditional Maritime Activities that would have to be involved for Admiralty jurisdiction to apply. The Court questioned whether the injuries sustained during the FlowRider activity could have a potentially disruptive impact on Maritime commerce, but stated that even if so, the activity clearly did not bear a substantial relationship to traditional maritime activity.

This decision has been criticized by all of us Plaintiff Maritime attorneys. The Court read the two prong test too literally. The case law is replete with cases that state the exact activity should not be exclusively focused on in determining the applicability of General Maritime Law. A more broad approach should be taken. Since this is an activity involving passengers traveling on cruise ships, the fact the harm happened to a passenger while a cruise is sufficient to satisfy the two prong test. This activity is tied into the operation of the cruise ship, and obviously injuries to passengers during the operation of cruise ships clearly satisfies the requirement that the harm could potentially have a disruptive impact on maritime commerce. Shipboard activities during a cruise do bear a substantial relationship to traditional maritime activity. They are part and parcel of the operation of the cruise. The logic of the Federal Judge in this case could be applied to just about any activity one undertakes during a cruise, creating the danger that the cruise ship company could pigeon hole each activity a passenger participates in during a cruise, and require the execution of a waiver of liability for each activity.

The Plaintiff’s attorney who handled this case, has indicated he intends to take an appeal from this very unfavorable decision. For those interested in reading the decision, the case is Johnson vs. Royal Caribbean Cruises, Ltd., Case No.: 10-21650-CIV- MORENO.

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