I’ve been handling maritime cases for approximately 30 years. Over those years, the cruise ship companies have continued to explore different parts of the world to take their passengers, advertising exciting vacations and ports of call. The portrayal by the cruise lines are that these ports of call are exciting, fun, and safe. Once onboard, the cruise ship companies actively promote these ports of call, selling shore side excursions for which the cruise lines make a profit. In addition, over the years I’ve learned many of the cruise ship employees will refer passengers to different places at the various ports of call in exchange for some type of referral fee agreement they have negotiated with local vendors.
What does this mean to a passenger on a cruise ship?
The uninformed, or misinformed passenger, will feel safe at these various ports of call and freely roam and explore. However, not only are many of the shore side excursions the cruise lines promote dangerous, but many of the places that the cruise ships visit have dangerous areas with very high crime rates.
The cruise ship companies do not want to publicize the fact that crimes happen onboard cruise ships, including sexual assaults, fearing their image will be tarnished and passengers will be swayed from taking a cruise. Similarly, the cruise ship companies do not like to tell the passengers about the dangers in the various ports of call they take their passengers to.
The question then becomes what happens if a passenger is harmed as a result of a danger in one of these ports of call that the cruise line either knew about, of should have known about.
The maritime law imposes a duty on a cruise ship company to warn about dangers they know or should have known of. The cruise line company has previously been held liable for a murder that happened at a port of call because they failed to warn of the known dangers in that particular port of call. The same applies to accidents involving use of various shore side facilities at these ports of call.
Who is on the best position to learn of the dangers to their passengers?
Obviously, the cruise line. The cruises bring in significant money to these various ports of call, and there are big profits made from use of these exciting ports of call. Therefore, a cruise ship company must use their resources to investigate the various ports of call, including consulting with local authorities to determine any risk or dangers at the particular port of call.
In a recent case involving this important legal principle under maritime law our Federal Appellate Court, the 11th Circuit Court of Appeals, reaffirmed that a cruise line can be liable to a passenger who is a victim of a criminal act at a port of call if the passenger can show that the cruise line knew or should have known of the danger, and failed to warn.
In this recent 11th Circuit Court of Appeals decision, Chaparro v. Carnival Corporation, No. 11-14047 (11th Circuit September 5, 2012), a passenger was encouraged by a Carnival Cruise line’s employee to visit their port of call in Coki Beach on St. Thomas. Carnival also sold excursion tickets for this port of call. This area had experienced gang violence and public shootings, which were allegedly known to Carnival. In addition, the lawsuit claimed that Carnival was aware of the area’s high rate of crime, involving drug sales, theft, as well as gang violence.
This particular lawsuit arose out of a passenger going into this area on a day that involved a funeral for a gang member who was killed by member of another gang. This was obviously going to be a very volatile time, and there was a likelihood of retaliation from the other gang.
The uninformed passengers were actually a family with 15 year old daughter. The family was on the way back to a ship on an opened/air bus when the bus passed the funeral services of the gang member who had been killed in the gang related shooting near Coki Beach. As could reasonably be foreseen, gang-related shooting occurred, killing the innocent passenger on the bus.
A lawsuit was filed in the federal district court alleging that the passengers had been encouraged to visit this particular place. The lawsuit alleged that Carnival Cruise lines sold excursions at this place, and knew of gang violence and public shootings, as well as the area’s high crime rates. The negligence alleged was encouraging the passengers to visit this area and failing to warn them of the dangers.
The Federal District Court dismissed the lawsuit stating there was no cause of action under maritime law for the facts alleged in the complaint. The District Court found Carnival cannot be responsible. The Federal Appellate Court, citing to a case that was decided 27 years ago in a Florida State Appellate Court, Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, (Fla. 3rd DCA 1985), reversed the District Court’s decision. The 11th Circuit Court of Appeals held there is a duty on the part of the cruise line to warn of known dangers. Therefore, the allegations in the complaint, if proved, would establish a basis to proceed forward against the cruise ship company.
Since a motion to dismiss a lawsuit must take all the allegations in the complaint as true, the Federal Appellate Court said that the complaint did state a cause of action, and the lawsuit should proceed forward. The allegations must now be proved, which will require proving that Carnival did in fact know, or should have known, of the dangers to their passengers of visiting this area, and thus were negligent in failing to warn, as well as actively encouraging passengers to visit the area.
Passengers face many dangers when going onboard a cruise ship, including criminal activity onboard the cruise ship. We have read about many instances of disappearances on cruise ships with passengers or crew members going overboard and never being found.
There are many accidents onboard cruise ships, including accidents during the shipboard activities that are being provided. Cruise ships are continuously trying to increase the amount of shipboard activities, and are taking many land based fun filled activities and placing them on moving cruise ships on the high seas. They are adapted to fit on a cruise ship, but you can’t take away the fact that it is still a cruise ship plying the high seas, and therefore creating increased risks of danger to the passengers. However they are big profit items, as well as shore side excursions.
Shore side excursions can also pose dangers to passengers because they are operated in foreign countries in which the United States has no control over regulating these activities. Many times it is unknown how the equipment is maintained by these shore side excursion operators, how their employees are trained, and what their history is with respect to safety. After an accident happens, the cruise lines tries to deny liability arguing the shore side excursion operators are independent contractors. The passengers then are faced with tricky jurisdictional issues in trying to sue the shore side excursion operator from the foreign country, as well as trying to pursue a claim against the cruise ship company who sold the shore side excursion.
Cruise lines also attempt to deny liability for the negligence of the shipboard medical staff, claiming they are also independent contractors. This is despite the fact that cruise ships are now operating basically as floating cities, and require a police force to monitor criminal activity (although they do not have such at this time), as well as the necessity to maintain a ship hospital with emergency room trained physicians and nurses. Despite the fact that cruise ship companies now have technology to regularly communicate with the shipboard medical staff, and maintain shore side medical experts who supervise the medical staff, the cruise ship companies continue to state they have no control over the medical treatment provided onboard a cruise ship and take advantage of laws which has determined that shipboard medical doctors are in fact independent contractors for which the cruise ship company has no liability for their negligence.
If you are considering taking a cruise, you should check the internet where new laws require the posting of criminal activity that is reported on cruise ships. However, there has been arguments that the information is misleading because not all crimes are in fact reported, and further not all crimes that are reported end up being posted on the website in accordance with the new law. Ken Carver, chairperson of International Cruise Victims Organization, is very critical of the new laws’ loophole which he states has resulted in a severe under reporting of the number of crimes that actually do occur onboard cruise ships.
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