This article will discuss an interesting Florida case dealing with the liability of a cruise ship company to a passenger for an injury suffered while the passenger was being transported from the ship to land in order to attend a shoreside excursion. Since cruise ship companies try to escape liability for injuries to passengers when they get hurt during shoreside excursions, the question is who becomes responsible for getting the passenger from the ship to the shoreside excursion?
One of the interesting aspects of the Maritime Law with respect to liability to passengers is shoreside excursions, and the disclaimers in passenger tickets stating that shoreside excursions are operated by independent contractors for which the cruise line has no liability for negligence on the part of these independent contractors. Generally, shoreside excursion companies are considered independent contractors, and there is no vicarious liability on the part of the cruise ship company for the negligence of the tour operator. There are legal theories to impose liability on a cruise ship company if one is injured during a shoreside excursion. This article will not address these legal theories.
To help illustrate the legal principles involved, a Florida case involving Carnival Cruise Lines is discussed. In this particular case, the passenger was on a Carnival Cruise Line ship and purchased a ticket to attend a shoreside excursion in the Mayan ruins in Tulum, Mexico. The ship stopped in Playa De Carmen, Mexico, in order to disembark the passengers who were attending the Tulum tour. Because the ship could not anchor at a dock, it was required to anchor in the harbor and transport the passengers on a tender boat. The crew on the passenger ship, Imagination, assisted the passengers to get across the gangway onto the tender boat. The tender boat was actually owned and operated by an independent company called Turismo Aviomar. Since the tender boat was not a Carnival owned and operated boat, the issue arose whether the tender boat operator was an independent contractor for whom the cruise line could not be held liable for their negligence.
The tender boat had two levels, and the upper level was exposed to the elements. Because it was windy and raining, the upper deck became wet and slippery. The passenger, who brought this particular suit, made his way to the upper deck and while trying to find a seat on the upper deck slipped and fell on the wet and slippery upper deck of the tender boat. He brought a law suit against Carnival Cruise Line alleging that Carnival Cruise Line breached the duty of care to him by permitting a dangerous condition to exist on the tender boat and failing to warn him of the condition. Carnival defended initially on the grounds that the operator of the tender boat was an independent contractor, plus the cruise line relied on a disclaimer from the passenger cruise ticket which purportedly disclaimed any liability for negligence of the independent contractor.
It was eventually ruled that the disclaimer that Carnival was relying upon was against public policy, and thus unenforceable. The Court recognized the Maritime Law that states that the cruise ship company has a non-delegable duty to provide a passenger with safe transportation, under adequate supervision, to and from the ship to shore, including any of the port of calls the ship visits during its cruise. The reasoning behind this liability is because a cruise ship entices people to come aboard a cruise with promises of visits to exotic ports, and therefore the ship owner must make sure that these passengers receive embarking and disembarking in each of the ports the ship visits. Since it is a non-delegable duty, the defense of independent contractor cannot be asserted to deny a passenger recovery against the cruise ship company.
The cruise ship company also attempted to defend the case at trial by arguing that a wet and slippery condition was open and obvious since the passenger knew it was raining and was aware that the deck was wet. However, this defense was rejected based on well settled law that the owner of property cannot escape liability when the owner has reason to believe that others will encounter a dangerous condition regardless of the open and obvious nature of the condition. The Court pointed out that the fact the passengers would have to walk across a wet and slippery upper deck of the tender should have been reasonably anticipated by Carnival, and therefore held this was not a defense which could absolve Carnival of all of its liability.
Carnival argued another case where the Court ruled that passengers returning to the ship on a catamaran excursion operated by an independent contractor were not entitled to sue the cruise lines for the negligence the of catamaran operator because the catamaran operator was an independent contractor. The distinction that was made between the two different results was that in the catamaran excursion case, the shoreside excursion itself was the catamaran adventurer, not an excursion that was to take place on land. Therefore it did not involve the cruise ship’s obligation of taking the passenger safely from the ship to land. Therefore, a catamaran excursion was not considered a “tender boat” ride to shore for which the cruise line company could be held liable.
I hope this discussion sheds some light on possible liabilities for cruise ship companies to passengers. Shoreside excursions are a big part of the revenues of cruise lines. It is very true that cruise lines use exciting ports of calls to entice passengers to come onboard their vessel. It is important that the law recognizes the non-delegable duty to safely transport the passengers to any of the ports of call. However, one must keep in mind that the shoreside excursion companies are considered independent contractors and therefore the cruise lines may in fact be able to escape liability for the negligence of these independent contractors. Most of the time these independent contractors are foreign owned and operated companies which a passenger will know very little about, and have very little opportunity to investigate the company. Most passengers rely upon the cruise ship companies recommendations for these shoreside excursions, and I disagree with the law that allows them to escape liability on the basis of the disclaimers in the tickets that state they are independent contractors, and the law making a determination that the shoreside excursion companies are in fact independent contractors. Although there are some legal theories to establish liability on the part of the cruise ship companies, this continues to be the troubling area of Maritime Law for injured passengers who have suffered injuries as a result of negligence of a shoreside excursion operator in a foreign country during a cruise.