An Introduction to Cruise Ship Litigation (Part 2)

In the United States, claims for personal injuries and deaths that occur on or near navigable waters generally fall within a court’s admiralty jurisdiction and require the application of substantive maritime law, which is federal law. In order to successfully handle cruise ship injury or death cases governed by United States federal maritime law, an understanding of the relevant federal statutes and regulations is first required. The United States Congress addressed maritime wrongful death remedies in 1920 when it passed the Jones Act, ³⁶ which governs the right of recovery for crew members, and enacted the Death on the High Seas Act ( DOHSA),4 which provides a wrongful death remedy limited to pecuniary damages for fatalities on the high seas.

Courts have applied DOHSA to a variety of accidents in foreign territorial waters, including the death of a snorkeler from a heart attack in Mexican territorial waters during an expedition off the beaches of Cozumel; ³⁷ the death of a snorkeler in Jamaican waters when the decedent was struck by the propeller of a twenty-two foot motorboat; ³⁸ and the death of a cruise ship passenger of complications from an injury sustained on a gangway of a vessel in Mexican territorial waters. ³⁹ In one of our firm’s recent cases, DOHSA was also applied to the death of a scuba diver in Bahamian territorial waters which was the result of cruise ship negligence. The significance of the applicability of DOHSA in all of these cases is important. The measure of damages set forth in DOHSA, ⁴⁰ authorizing recovery by a decedent’s survivors for their pecuniary loss, applies in the case of a death on the high seas, and survivors may not recover additional damages under general maritime law for loss of society or pre-death pain and suffering. ⁴¹ State wrongful death statutes may not be used to supplement DOHSA remedies with nonpecuniary damages either. ⁴² On a positive note, DOHSA is not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the act. ⁴³

Another interesting situation arises when an accident occurs on the high seas but the death occurs elsewhere. Several cases have addressed this issue. In Howard v. Crystal Cruises, Inc., ⁴⁴ a passenger sustained a laceration while disembarking from a cruise ship in Mexican territorial waters. He was first treated on the vessel and then underwent surgery in Acapulco to repair the injury. He returned home to Sacramento and died within a month from blood clots. His widow filed a wrongful death suit against the operator of the vessel. Finding it “undisputed that Howard died as the result of a wrongful act that occurred ‘beyond a marine league (i.e., three nautical miles) from the shore of any State,” the court applied DOHSA as the exclusive remedy. ⁴⁵ In a case out of the Fifth Circuit, Motts v.M/V GREEN WAVE, ⁴⁶ the district court held that DOHSA did not apply to the claims because the delay in providing medical treatment caused Motts’ death. The Fifth Circuit disagreed, noting that DOHSA’s reach “is not limited to negligent acts that actually occur on the high seas.” Instead the court stated: “The place negligence or wrongful act occurs is not decisive. The place injury occurs and the function the injured person was performing are more significant.” ⁴⁷ Based on its review of the case law, the Fifth Circuit reasoned that the cruise ship’s actions invoke DOHSA jurisdiction even though all of the ship’s actions and the decedent’s death occurred onshore.” ⁴⁸ The Fifth Circuit concluded that the location of the accident determines whether DOHSA applies. ⁴⁹ “That said, as long as the decedent is still on the high seas at the time the negligence begins, DOHSA must apply to post-accident negligence.” ⁵⁰ An award of punitive damages as well as an award of nonpecuniary damages was reversed. ⁵¹

Although punitive damages are not awarded in cases which conform to DOHSA regulations, many courts have found that in certain circumstances state wrongful death remedial schemes can be applicable for maritime claims. In Yamaha Motor Corp., U.S.A. v. Calhoun, the Court held that a state wrongful death and survival statute could supplement federal remedies when a nonseaman’s death occurred in territorial waters. ⁵² Calhoun involved a twelve-year old who was killed in a jet ski accident on a beachfront resort in Puerto Rico. ⁵³ Finding that Congress had not prescribed a comprehensive tort regime for territorial waters, the Court held that the remedy for wrongful death was governed by state law. ⁵⁴ Two more recent cases have also allowed nonseamen to recover punitive damages in personal injury actions. In re Horizon Cruises Litigation, ⁵⁵ and In re Plaquemine Towing Corp. ⁵⁶ Both cases set forth an analytical framework for deciding the proper application of damages in claims brought under the general maritime law. The Plaquemine court stated: A court must first evaluate the factual setting of the case and determine what statutory remedial measures, if any, apply in that context. If the situation is covered by a statute like the Jones Act or DOHSA, and the statute informs and limits the available damages, the statute directs and delimits the recovery available under the general maritime law as well. The general maritime law will not expand the available damages when Congress has spoken to the relief it deems appropriate or inappropriate. ⁵⁷

Currently, one of the hottest topics of debate in the United States courts concerns the nature and scope of the law governing cruise ship medical care. For the past 100 years, most courts in the United States have followed the same basic tenant: When a carrier undertakes to employ a doctor aboard a ship for its passengers’ convenience, the carrier has a basic duty to employ a doctor who is competent and duly qualified. If the carrier breaches its duty, it is responsible for its own negligence. However, where the carrier otherwise employs a competent professional, if the doctor is thereafter negligent in treating a passenger, that negligence will not be imputed to the carrier. ⁵⁸ The rational used by the court is that a ship-owner owes its injured passengers the “duty to exercise ‘reasonable care to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances,’” it is not legally obligated to provide a physician aboard its vessel. ⁵⁹ Accordingly, where a physician is provided, the ship-owner only has a duty to use reasonable care in the selection of such physician. ⁶⁰

Under federal maritime law, ship-owners are most often not vicariously liable for the negligence of the ship’s doctors in treating passengers. ⁶¹ In recent years, federal and state courts have revisited this draconian rule and twice found that a carrier may be liable for negligent treatment rendered by its on-board doctor. The most recent cases finding carriers liable for the negligence of shipboard doctors are the now overturned Florida state court decision of Carlisle v. Carnival Corp, ⁶² followed by the Illinois state court decision of Mack v. Royal Caribbean Cruises, Ltd, ⁶³These cases are the first since the 1959 decision of Nietes v. American President Lines, Ltd. [1] to hold that a passenger injured by the negligent treatment of a cruise line’s on-board physician can maintain a vicarious liability cause of action against the cruise line. In 2007 the Carlisle decision was unfortunately overturned on appeal to the Florida Supreme Court. The Florida Supreme Court reasons that the many years of precedent should not be overturned. [2] This leaves only the Illinois case of Mack v. Royal Caribbean Cruises Ltd. [3] In Mack the court stated: “While we acknowledge that we are bound by federal statute to follow federal maritime law in this matter ( see U.S.C. § 1333(1) (2004); Offshore Logistics, Inc., 477 U.S. at 222-23, 91 L. Ed. 2d at 189-90, 106 S. Ct. At 2494), Nietes and the federal cases that have followed its reasoning and holding indicate that the question of whether a vicarious liability claim against a ship-owner for the negligent treatment by its on-board doctor will stand under maritime law is not settled at this time. Accordingly, for the reasons stated above, we elect to follow the holding of the federal courts in Nietes, Huntley [4] , and Fairley. [5] ”

A promising federal decision out of the United States District Court for the Southern District of Florida is Doonan v. Carnival Corporation [6] . In this opinion, a cause of action for vicarious liability alleging an apparent agency theory of recovery was not dismissed. The court stated: “Apparent agency can be established despite the majority ruling of Barbetta. See Fairley, 1933 A.M.C. at 1639-40. [7] ” Florida courts have cited Doonen as making it “permissible for a court sitting in Admiralty, to hear vicarious liability claims premised upon the theory of apparent agency. [8] ” In other words, despite Barbetta a plaintiff may be able to sustain an apparent agency claim against a cruise line for the medical malpractice of the carrier’s on-board physician.

Cruise line litigation should not be attempted without a thorough understanding of cruise ship law, especially since many areas of maritime law are now in flux and merit careful attention. Issues such as procedural concerns, contract exclusions, statutory schemes, and recent court decisions are continually and rapidly evolving in the area of cruise ship law. Hopefully this article has provided a comprehensive preview into many of the cruise ship litigation concerns and complexities and will aid the practitioner in clearing the murky waters surrounding these floating cities.

³⁶ Act of June 5, 1920, ch. 250, 41 Stat. 988 (codified at 46 U.S.C. app. §688 (2000)).

³⁷ Moyer v. Klosters Rederi, 645 F. Supp. 620, 1987 (S.D. Fla. 1986).

³⁸ Kunreuther v. Outboard Marine Corp., 757 F. Supp. 633, (E.D. Pa 1991).

³⁹ Howard v. Crystal Cruises Inc., 41 F.3d 527, (9th Cir. 1994).

⁴⁰ 46 App. U.S.C.A. §762.

⁴¹ Dooley v. Korean Airlines Co., Ltd., 524 U.S. 116 (1998).

⁴² In Re Korean Airlines Disaster of Sept. 1, 1983, 117 F.3d 1477 (D.C. Circuit 1997), aff’d, 524 U.S. 116 (1998).

⁴³ Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).

⁴⁴ 41 F.3d 527, 1995 A.M.C. 305 (9th Cir. 1994).

⁴⁵ Id. at 529.

⁴⁶ 210 F.3d 565, 2000 A.M.C. 1521 (5th Cir. 2000).

⁴⁷ Motts, 210 F.3d at 569.

⁴⁸ Id. at 569-70 (quoting Smith, 684 F.2d at 1111).

⁴⁹ Id. at 570.

⁵⁰ Id. at 571.

⁵¹ Motts, 210 F.3d at 571-72 (footnote omitted).

⁵² 516 U.S. 199, 206-07, (1996).

⁵³ Id. at 199.

⁵⁴ Id. at 215-216.

⁵⁵ In re Horizon Cruises Litigation, 101 F. Supp. 2d 204, 213 (S.D.N.Y. 2000)(quoting Gravatt v. City of New York, 53 F. Supp. 2d 388, 427-29 (S.D.N.Y. 1999)).

⁵⁶ In re Plaquemine Towing Corp., 190 F. Supp. 2d 889, 892-94 ( M.D. La. 2002).

⁵⁷ Id. at 893.

⁵⁸ Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988); The Great Northern, 251 F. 826, 830-32 (9th Cir. 1918); Di Bonaventure v. Home Lines, Inc., 536 F. Supp. 100, 103-04 (E.D. Penn. 1982); Cimini v. Italia Crociere Int’l S.P.A., 1981 AMC 2674, 2677 (S.D.N.Y. 1981); Amdur v. Zim Israel Navigation Co., 310 F.Supp. 1033, 1042-43 (S.D.N.Y. 1969).

⁵⁹ Barbetta v. S/S Bermuda Star, 848 F.2d 1364, 1371 (5th Cir. 1988).

⁶⁰ See Barbetta, 848 F.2d at 1372; Cummiskey v. Chandris, 895 F.2d 107, 108 (2d Cir. 1990); Nanz v. Costa Cruises, Inc., (S.D. Fla. 1991), aff’d 932 F.2d 977 (11th Cir. 1992); Jane Doe v. Celebrity Cruises, Inc., 145 F. Supp. 2d 1337, 13454-46 (S.D. Fla. 2001); Gillmor v. Caribbean Cruise Line, Ltd., 789 F. Supp. 488, 491 (D.P.R. 1992); Hilliard v. Kloster Cruise, Ltd., 1991 AMC 314, 316-17 (E.D. Va. 1990); Mascolo v. Costa Crociere, 726 F. Supp. 1285, 1286 (S.D. Fla. 1989).

⁶¹ Id.

⁶² Carlisle v. Carnival Corp., 864 So.2d 1 ( Fla. DCA 2003).

⁶³ Mack v. Royal Caribbean Cruises, Ltd., 838 N.E. 2d 80 ( Ill. App. 2005).

[1] 188 F. Supp. 219, 221 (N.D. Cal. 1959).

65 Carnival Corp. v. Carlisle, 953 So. 2d 461, 470 ( Fla. 2007)( “ this Court and the Florida district courts of appeal must adhere to the federal principles of harmony and uniformity when applying federal maritime law. At the time the instant case was decided by the Third District, with the exception of Nietes, the federal maritime law uniformly held that a ship owner is not vicariously liable for the medical negligence of the shipboard physician”).

[3] Mack v. Royal Caribbean Cruises, Ltd., 838 N.E. 2d 80 ( Ill. App. 2005).

[4] Huntley v. Carnival Corp., 307 F. Supp. 2d 1372, 1373 (S.D. Fla. 2004).

[5] Mack v. Royal Caribbean Cruises, Ltd., 838 N.E. 2d 80 ( Ill. App. 2005).

[6] Doonan v. Carnival Corp., 404 F. Supp. 2d 1367 (D. Fla. 2005).

[7] Id.

[8] Hajtman v. NCL ( Bahamas) Ltd., 526 F. Supp. 2d 1324 (D. Fla. 2007).