Shipboard Releases - The Next Battle Ground

Leesfield & Partners
Miami, Florida
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Although there are several reported decisions involving the validity of releases executed by passengers for excursions and other activities occurring off of a cruise ship, there is surprisingly little authority regarding the enforceability of attempts to disclaim liability for shipboard activities. With the escalation of new and potentially dangerous shipboard activities, such as rock climbing walls, FlowRiders and even ballooning, the battle over the validity of releases for such activities will only become more prominent in the future.

One of the obvious impediments to the enforceability of such releases is the existence of 46 U.S.C. §30509 f/k/a 46 U.S.C. §183 c which provides:

(a) Prohibition.

(1) In general. The owner, master, or agent of a vessel transporting passengers between Ports in the United States or between a Port in the United States and a Port in a foreign country, may not include in regulation or contract a provision limiting:

(A) The liability of the owner, master, or agents for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or

(B) The right of a claimant for personal injury or death to a trial by court of competent jurisdiction.

(2) Voidness. A provision described in paragraph (1) is void.

Therefore, under the clear and unambiguous wording of 46 U.S.C. §30509, a shipowner is prohibited from disclaiming liability for its negligence on cruises which stop at a U.S. port.

A handful of cases have dealt with the issue of whether releases for shoreside excursions and activities occurring off of the cruise ship, such as snorkling, scuba diving and the use of jet skis are valid. The courts in these cases have upheld the releases, generally in reliance upon state law principles. See e.g. Borden v. Phillips, 752 So.2d 69 (Fla. 1st DCA 2000)(concluding there was no admiralty jurisdiction for recreational boating and scuba diving injuries).

None of these earlier cases, however, have involved claims occurring on the cruise ship itself or even discussed the application of 46 U.S.C. §30509. See e.g. In Re: The Complaint of Royal Caribbean Cruises, Ltd., 459 F.Supp.2d 1275 (S.D. Fla. 2006)(wave runner operated at out island during excursion), In Re: The Complaint of Royal Caribbean Cruises Ltd., 403 F.2d 1168 (S.D. Fla. 2005)(jet ski operated at out island during excursion).

In one of the first decisions to directly consider the application of 46 U.S.C. §30509 to releases involving shipboard activities, one federal district judge from the Southern District of Florida has recently concluded that the statute was inapplicable to prevent the enforcement of a release executed by a passenger to bar her claim arising from injuries during the course of a FlowRider shipboard activity. Johnson v. Royal Caribbean Cruises, Ltd., 2011 WL 1004583 (S.D. Fla. 2011). In this case, the court upheld a disclaimer signed by the passenger in which she agreed to “fully release and forever discharge” the carrier from “any and all actions” arising from “any accident or injury” in any way connected to her use of the FlowRider.

In its initial analysis, the court held that admiralty jurisdiction did not apply to the Plaintiff’s claim, thereby rendering 46 U.S.C. §30509 inapplicable. Although noting that the accident occurred on navigable waters, the court concluded that the activity had an insufficient connection to maritime commerce and traditional maritime activity as required under Gerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).

The court next determined even if admiralty jurisdiction existed that 46 U.S.C. §30509 would not bar the operation of the release, since it is only applicable to a carrier’s activities “in providing transportation and other essential functions of common carriers.” The judge reasoned that

“while courts have expanded the essential functions of a ship as common carrier to include the provision of ‘comfortable accommodations’ to passengers [citation omitted] recreational and inherently dangerous activities such as the FlowRider can hardly be considered essential functions of a common carrier, nor are they at all related to a passenger’s duty to provide safe transportation to its passengers.”

The court’s threshold presumption that the prohibition contained in 46 U.S.C. §30509 only applies to situations coming within admiralty jurisdiction belies the clear wording of the statute, which contains no such limitation on its face. Therefore, as a preliminary matter there appears to be no legal basis to add a judicial limitation to the operation of the statute, which is not contained within the statute itself.

Even if the operation of the statute could be considered limited to situations falling within admiralty jurisdiction, the court’s reasoning also clearly conflicts with over 50 years of nearly unanimous decisions from the United States Supreme Court, numerous Circuit Courts and countless District Courts, which have concluded that passenger accidents occurring aboard a cruise ship are subject to admiralty jurisdiction. In fact in the landmark case of Kermarec v. Compagnie Generale Trans-atlantique, 358 U.S. 625 (1959), the U.S. Supreme Court expressly held that a trip and fall by a guest of a crew member on a stairway carpet fell within admiralty jurisdiction. See e.g. Everett v. Carnival Cruise Lines, 912 F.2d 1355 (11th Cir. 1990)(trip over fire door threshold); Monteleone v. Bahamas Cruise Lines, Inc., 838 F.2d 63 (2d Cir. 1988)(trip and fall on stairway in cruise ship); McCormick Shipping Corp. v. Stratt, 322 F.2d 648 (5th Cir. 1963)(passenger injured by defective closet door). To accept the court’s rationale in Johnson would be to exclude virtually every passenger claim occurring aboard a cruise ship from the application of admiralty jurisdiction and maritime law.

The second basis for the court’s conclusion, that 46 U.S.C. §30509 only applies to the shipowner’s activities in “providing transportation and other essential functions of common carriers,” also ignores the overwhelming body of maritime law applicable to cruise ships, which has uniformly concluded that passenger injuries occurring during the course of recreational activities fall within admiralty jurisdiction. See e.g. Beard v. Norwegian Caribbean Lines, 900 F.2d 71 (6th Cir. 1990)(passenger injured while playing basketball on ship); Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2d Cir. 1983)(fall over stool in cruise ship’s disco dance floor); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989)(slip and fall on wet spot on deck in cruise ship’s outdoor disco); Moore v. American Scantic Line, 121 F.2d 767 (2d Cir. 1941)(passenger injured while skipping rope on the bridge deck).

Even if such a limitation was applicable on the operation of the statute, it is obvious that recreational activities such as the FlowRider are an essential part of the purpose and function of modern cruise ships. Whether one is reading a newspaper or magazine, watching television or using the Internet, it is hard to miss ads for cruise ships focusing on shipboard activities and amenities.

Maritime law has also long recognized that the function of a cruise ship is not limited to transportation, but also includes the recreational activities of its passengers. Accordingly, (B) The right of a claimant for personal injury or death to a trial by court of competent jurisdiction.

(2) Voidness. A provision described in paragraph (1) is void.

Therefore, under the clear and unambiguous wording of 46 U.S.C. §30509, a shipowner is prohibited from disclaiming liability for its negligence on cruises which stop at a U.S. port.

A handful of cases have dealt with the issue of whether releases for shoreside excursions and activities occurring off of the cruise ship, such as snorkling, scuba diving and the use of jet skis are valid. The courts in these cases have upheld the releases, generally in reliance upon state law principles. See e.g. Borden v. Phillips, 752 So.2d 69 (Fla. 1st DCA 2000)(concluding there was no admiralty jurisdiction for recreational boating and scuba diving injuries).

None of these earlier cases, however, have involved claims occurring on the cruise ship itself or even discussed the application of 46 U.S.C. §30509. See e.g. In Re: The Complaint of Royal Caribbean Cruises, Ltd., 459 F.Supp.2d 1275 (S.D. Fla. 2006)(wave runner operated at out island during excursion), In Re: The Complaint of Royal Caribbean Cruises Ltd., 403 F.2d 1168 (S.D. Fla. 2005)(jet ski operated at out island during excursion).

In one of the first decisions to directly consider the application of 46 U.S.C. §30509 to releases involving shipboard activities, one federal district judge from the Southern District of Florida has recently concluded that the statute was inapplicable to prevent the enforcement of a release executed by a passenger to bar her claim arising from injuries during the course of a FlowRider shipboard activity. Johnson v. Royal Caribbean Cruises, Ltd., 2011 WL 1004583 (S.D. Fla. 2011). In this case, the court upheld a disclaimer signed by the passenger in which she agreed to “fully release and forever discharge” the carrier from “any and all actions” arising from “any accident or injury” in any way connected to her use of the FlowRider.

In its initial analysis, the court held that admiralty jurisdiction did not apply to the Plaintiff’s claim, thereby rendering 46 U.S.C. §30509 inapplicable. Although noting that the accident occurred on navigable waters, the court concluded that the activity had an insufficient connection to maritime commerce and traditional maritime activity as required under Gerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).

The court next determined even if admiralty jurisdiction existed that 46 U.S.C. §30509 would not bar the operation of the release, since it is only applicable to a carrier’s activities “in providing transportation and other essential functions of common carriers.” The judge reasoned that “while courts have expanded the essential functions of a ship as common carrier to include the provision of ‘comfortable accommodations’ to passengers [citation omitted] recreational and inherently dangerous activities such as the FlowRider can hardly be considered essential functions of a common carrier, nor are they at all related to a passenger’s duty to provide safe transportation to its passengers.”

The court’s threshold presumption that the prohibition contained in 46 U.S.C. §30509 only applies to situations coming within admiralty jurisdiction belies the clear wording of the statute, which contains no such limitation on its face. Therefore, as a preliminary matter there appears to be no legal basis to add a judicial limitation to the operation of the statute, which is not contained within the statute itself.

Even if the operation of the statute could be considered limited to situations falling within admiralty jurisdiction, the court’s reasoning also clearly conflicts with over 50 years of nearly unanimous decisions from the United States Supreme Court, numerous Circuit Courts and countless District Courts, which have concluded that passenger accidents occurring aboard a cruise ship are subject to admiralty jurisdiction. In fact in the landmark case of Kermarec v. Compagnie Generale Trans-atlantique, 358 U.S. 625 (1959), the U.S. Supreme Court expressly held that a trip and fall by a guest of a crew member on a stairway carpet fell within admiralty jurisdiction. See e.g. Everett v. Carnival Cruise Lines, 912 F.2d 1355 (11th Cir. 1990)(trip over fire door threshold); Monteleone v. Bahamas Cruise Lines, Inc., 838 F.2d 63 (2d Cir. 1988)(trip and fall on stairway in cruise ship); McCormick Shipping Corp. v. Stratt, 322 F.2d 648 (5th Cir. 1963)(passenger injured by defective closet door). To accept the court’s rationale in Johnson would be to exclude virtually every passenger claim occurring aboard a cruise ship from the application of admiralty jurisdiction and maritime law.

The second basis for the court’s conclusion, that 46 U.S.C. §30509 only applies to the shipowner’s activities in “providing transportation and other essential functions of common carriers,” also ignores the overwhelming body of maritime law applicable to cruise ships, which has uniformly concluded that passenger injuries occurring during the course of recreational activities fall within admiralty jurisdiction. See e.g. Beard v. Norwegian Caribbean Lines, 900 F.2d 71 (6th Cir. 1990)(passenger injured while playing basketball on ship); Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2d Cir. 1983)(fall over stool in cruise ship’s disco dance floor); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318 (11th Cir. 1989)(slip and fall on wet spot on deck in cruise ship’s outdoor disco); Moore v. American Scantic Line, 121 F.2d 767 (2d Cir. 1941)(passenger injured while skipping rope on the bridge deck).

Even if such a limitation was applicable on the operation of the statute, it is obvious that recreational activities such as the FlowRider are an essential part of the purpose and function of modern cruise ships. Whether one is reading a newspaper or magazine, watching television or using the Internet, it is hard to miss ads for cruise ships focusing on shipboard activities and amenities.

Maritime law has also long recognized that the function of a cruise ship is not limited to transportation, but also includes the recreational activities of its passengers. Accordingly, maritime cases have provided seaman’s status to hair dressers, musicians, waiters, busboys, bartenders and entertainers, to name just a few. See e.g. Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165 (2d Cir. 1973)(hair dresser)(and cases cited therein). In fact, cases taking such an expansive view of the function of the vessel date back several hundred years. In the 1910 decision in the J.S. Warden. The Orient. The MT. Desert, 175 F.314 (S.D. 1910), the great Learned Hand relied upon a similar decision in 1806 to conclude that a bartender served an essential ships function on a steam paddle wheeler.

As a result, previous cases have applied the provisions of 46 U.S.C. §30509 and its predecessor, 46 U.S.C. §183 c to render releases and disclaimers appearing in tickets invalid for injuries occurring to passengers during the course of a cruise. See e.g. Moore v. American Scantic Line, 121 F.2d 767 (2d Cir. 1941)(disclaimer inapplicable to bar claim by passenger injured while skipping rope on the bridge deck); Hawthorne v. Holland American Line, 160 F. Supp. 836 (D.Mass. 1958)(barring enforcement of ticket provision disclaiming liability where the passenger was guilty of contributory negligence). Significantly, even prior to the adoption of 46 U.S.C. §183 c in 1936, such disclaimers have been rejected under maritime law on public policy grounds. See e.g. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332 (11th Cir. 1984)(citing Liverpool & Great Western Steam Co. v. Phoenix Ins. Co., 129 U.S. 397 (1889).