Approximately 7 million people worldwide go on cruises every year. Some go on long-weekend three-day cruises, others take six-month cruises, while many take cruises of two to four weeks. While the vast majority of passengers will have a delightful, memorable, and uneventful cruise, for some the dream cruise they had been planning for months, if not years, turns into tragedy when they are seriously injured or killed due to the carelessness (“negligence”) of the cruise line and its employees.
Any one of the following factors can cause injury or death, turning a fun cruise into a nightmare:
The legal rights of a passenger who has suffered an injury on a cruise ship, or of the heirs of a passenger who has been killed, depend largely on two things: maritime law and the provisions of the passenger’s contract/ticket for carriage. Deaths occurring more than three miles off the United States’ shore come under the jurisdiction of the Death on the High Seas Act (DOHSA), discussed separately. Under maritime law, a ship owner owes passengers a duty to take ordinary reasonable care under the circumstances.
A passenger’s contract/ticket is carefully drafted by the cruise line not only to tell you of your rights, but just as importantly— if not more so—to govern such things as what you can sue the cruise line for, the location where you must bring suit, how soon after the incident you must give written notice of your claim to the cruise line (usually six months), and the length of time you have to sue the cruise line (usually one year). What law applies to your ability to bring suit also depends on where the ship was at the time of the injury. For instance, the type and amount of damages you may be entitled to may vary greatly if the injury or death occurred while the ship was docked at Long Beach, was in Mexican territorial waters, or was on the high seas (more than three miles off most countries’ shores).
A passenger’s cruise ticket for an ocean voyage constitutes a maritime contract. Most ticket/contracts require that any lawsuits against the cruise ship must be filed only in certain places, usually cities or counties where the cruise line has its offices. The top places designated by the contract/ticket for filing a suit for personal injuries or death arising out of a domestic cruise ship’s negligent conduct are Miami, Los Angeles, New York, and Seattle. For purely international cruises, such as a Mediterranean cruise aboard a Greek cruise ship, if you should be injured or a loved one killed on the cruise, you are probably going to have to prosecute the claim in Greece, even though the ticket was purchased in the United States. But if the passenger set off aboard a cruise line out of the Port of Miami and went on a Caribbean cruise and returned to the Port of Miami, chances are that the contract/ticket provides that lawsuits against the cruise line for injury or death must be brought in Florida.
In determining where you can and must file your lawsuit against the cruise line, the contract/ticket contains language of where you must sue the cruise line if you have been injured or a loved one killed on a cruise. The standard applied is that the ticket must reasonably communicate the existence of important terms and the passenger must have the opportunity to become meaningfully informed of those terms. The court will also look to the location of any restrictive provisions and simplicity of the language used to limit a passenger’s rights. The question boils down to whether, taken together, the various notices and provisions of the cruise contract/ticket are legally sufficient to give effect to the various liability and claim procedures it contains. For example, a passenger who claims that requiring the case to be filed thousands of miles away is unreasonable has a heavy burden of demonstrating why enforcement of the site specified by the contract/ticket is unreasonable. Whether the terms and conditions of the passage contract were reasonably communicated is a question of law for the court to determine.
A cruise ship passenger who has been injured because of a cruise ship’s employee’s negligence is entitled to recover monetary damages for past, present, and future medical expenses, lost wages—both past and present—loss of earning power, and, if within three miles of the U.S. coastline, her pain and suffering and loss of enjoyment of life. Outside the limit of three nautical miles, the passenger must allege a physical injury to recover damages for purely emotional distress, mental anguish, and psychological injuries. In one case involving a cruise ship, approximately 210 passengers brought suit against the cruise line and its captain for extreme emotional distress. The gist of the cases was that their emotional injuries occurred because the captain sailed into bad weather that the ship’s officer was aware of but did not avoid. The cruise line proved that some 140 of the passengers did not have any objective physical injuries and were therefore not entitled to recover for their purely emotional distress.
If you are injured or a loved one killed on a cruise ship, you should report your injury or loved one’s death to the cruise ship employees as soon as possible. If there is a medical doctor or other health care professional aboard the ship, you should contact him for immediate treatment in the case of an injury. It may be necessary for you to be taken off the ship by a helicopter, or the ship may have to change its destination and head to the nearest port of call so that you can get prompt medical treatment.
If you are able to, take pictures of the area where you were injured. If you’re not able to do it yourself, then you should instruct your spouse or traveling companion to take pictures for you. Don’t forget to take pictures of your injuries. If you didn’t bring a camera and your mobile phone doesn’t take pictures, a disposable camera can be purchased in the ship’s gift shop for around $10. If you are unable to do so, your spouse or traveling companion should get the names and addresses of all witnesses to the accident, and if possible, a brief statement from them relating what they saw. The cruise ship employees have a duty to assist you in collecting this information when you are unable to do so yourself.
If you have been injured or a loved one killed while aboard a cruise ship, you should contact a personal injury lawyer with experience in maritime law and cruise ship injuries and deaths as soon as possible so your claim is not barred by the “statute of limitations.” The statute of limitations tells you how long you have to file a lawsuit in federal court or you will lose the right to sue forever. Maritime law and the contract/ticket with the cruise ship determine the amount of time you have to sue the cruise line for injuries or death. Although the normal time a person has to file under maritime law is three years, by signing the contract/ticket with the cruise line, that time is generally shortened to one year. And before you can bring a suit in court, the contract/ticket usually requires that you must first file a claim with the cruise line within six months of the incident.
The contract/ticket may also require you to submit a “Bill of Particulars” with your claim to the cruise ship within six months of the injury or death. Typically, in the Bill of Particulars you must send notice of your injuries or loved one’s death and tell them why you feel the cruise line is liable to you. If a satisfactory settlement cannot be reached with the cruise line, you must file a lawsuit within one year of the incident. The ticket inevitably will provide that you must present your claim to the cruise line within six months, and if you don’t, you lose your right to sue the cruise line forever. Unless your claim is very small, you should not attempt to negotiate with the cruise line itself. If you do send notice to the cruise line of your claim, you should send it and your Bill of Particulars via certified mail and request a return receipt to prove that you sent notice of your claim in on time. The cruise line is usually identified at the top of your ticket. Do not make the mistake of sending notice to the travel agent or ticket agent. The lawsuit is against the cruise line, and timely (i.e., usually six months) written notice of the accident and injury must be sent to it.
If your injuries are serious, or a passenger died on the cruise, you should contact an attorney promptly after you return home. An attorney experienced in cruise ship liability will know how, what, and where to file the notice and Bill of Particulars. Don’t forget to gather your contract/ticket and all other written information, pamphlets, brochures, receipts, documents, and pictures so you will have them ready when you meet with your lawyer. If you are injured and unable to go to the lawyer’s office, the lawyer will usually come to your home or the hospital. If your injuries are serious or a death is involved but you think you can handle the case yourself, think again. One respected study of injured and deceased victims demonstrated that, even after paying the lawyer’s fees, injured persons who had lawyers handle their case for them ended up with more money in their pockets than people who handled their cases by themselves.
In cases involving injuries or deaths from dangerous conditions existing aboard the ship, a cruise line is liable for injuries to its passengers only where it has actual or implied (“constructive”) notice of a dangerous condition. Without knowledge of any unreasonable risk or danger, the cruise line has no duty to warn of or remove the dangerous condition. In maritime law, constructive notice of an onboard dangerous condition is shown when it has existed long enough to give rise to an inference that crew members must have noticed it.
Suppose you are on a cruise that stops at an island and offers passengers various excursions, from souvenir shopping to paragliding or Jet Skiing. One passenger goes out on the Jet Ski and is injured by another person on a Jet Ski that deliberately ran into her. Can the injured passenger sue the cruise line? Generally not.
The contract/ticket usually states that the cruise line is not liable for injury caused by any act not shown to be caused by its negligence or the negligence of its employees. The contract/ ticket usually provides that shore excursions and other tours may be owned and/or operated by independent contractors and the cruise line makes no representation and assumes no liability for the wrongful conduct of the provider/operator of the shore excursion. The contract/ticket may state that if the passenger takes part in organized activities, whether on the ship or as part of a shore excursion, she assumes the risk of injury and the cruise ship is not liable or responsible for it.
When a passenger has died, for example, due the negligence of an employee of a cruise ship, and the incident occurs within three nautical miles of the United States, the death is said to have occurred within the state’s territorial waters and the wrongful death laws of the state apply. However, if the incident occurs more than three nautical miles off the U.S. coast, then the action is governed by the Death on the High Seas Act (DOHSA). In most such cases, DOHSA preempts general maritime law and limits the types of damages the heirs can recover.
DOHSA was originally enacted in 1920 to make it easier for widows of seamen to recover damages for future earnings when their husbands were killed in international waters. The cruise industry has since used the law to limit damages when a passenger aboard a cruise ship is killed on the high seas. In 2006, the Death on the High Seas Act was revised and reenacted (United States Code Title 46, sections 30301 et seq.). Under the new provisions, the Death on the High Seas Act states:
When the death of an individual is caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of the decedent’s spouse, parent, child, or dependent relative.
Damages under DOHSA are primarily determined based upon the actual or projected value of the financial benefit that would have been received from the decedent, so-called “pecuniary damages.” A spouse can recover for the actual value of the financial contribution the deceased spouse would have made to the family had he lived, reduced by the amount determined to have provided for the care and maintenance of the decedent personally. DOHSA does not provide for a loss of society or consortium, but the surviving spouse and dependents can recover for the monetary value of the household services the decedent would have provided. This portion of recovery is based on the number of hours the beneficiaries would have expected to receive in services from the decedent and are calculated based upon an hourly rate for those services projected over the decedent’s life expectancy.
Under the 2000 Death on the High Seas Amendment, the victim’s family can recover for the non-pecuniary loss of care, comfort, and companionship resulting from the death of their loved one in addition to such pecuniary damages as lost past and future wages. But recovery is still not permitted either by the families or the passenger’s estate for the pre-impact pain and suffering experienced by the passenger in the cruise line disaster.
Under the 2000 amendment, dependent children can recover for the value of parental care, nurturing, training, and guidance they would have received from the deceased parent, as well as the loss of an expected inheritance. Pecuniary damages for the death of a loved one include pre-death medical expenses, as well as funeral and burial costs. However, DOHSA does not authorize recovery for non-pecuniary losses, such as pre-death pain and suffering (in most cases), loss of comfort and society, grief, sorrow, and other “intangible,” or non-pecuniary, damages. The only damages available to other eligible persons (parents and dependent relatives) are the lost monetary sums the deceased person would have contributed to them had he survived. Under DOHSA, a lost monetary sums claim related to an older, retired person who is not employed, or a child who is not working, would likely result in only minimal damages, since they were not making any or much money or making a significant financial contribution to the family.
DOHSA does not allow for a “survival” action. A survival action covers the period from the time the person is injured until she dies. For example, if a person is severely injured and suffers intense pain for two weeks before succumbing to her injuries, the survivors are not allowed to bring a survival action to get compensated for the physical and emotional pain and suffering their loved one endured before dying. (They would, however, be able to recover the medical expenses incurred during this time as they are pecuniary damages.) The exception to the rule that damages for pre-death pain and suffering are not recoverable is that, if an injured person files a DOHSA lawsuit and dies before it is resolved, the personal representative of the deceased person can be substituted as the plaintiff and the lawsuit is not otherwise affected.
Actions based on DOHSA must be filed within three years, although cruise lines may shorten that time to as little as one year in their contract/ticket. DOHSA lawsuits can only be brought by a deceased person’s personal representative, for the exclusive benefit of the decedent’s spouse, parent(s), child(ren), and dependent relative(s). Additionally, before a DOHSA lawsuit may be filed, the ticket/contract with the cruise line often requires that the cruise line be given notice within six months after the injury or death of the passenger, along with a “Bill of Particulars”—a statement of what injuries the passenger suffered and what the alleged cause(s) of such injury were or what the bases are for holding the cruise line liable for the death of the passenger.
Where the DOHSA case must be filed does not depend on where the person lives. Rather, it depends on where the negligent act that ultimately caused the death occurred. So if the person was injured on the high seas but taken to a hospital in California where he died of the injuries, the case is governed by DOHSA rather than California state law. In the case of cruise ships, usually the place(s) where the cruise line can be sued is specified on the contract/ticket.
Suppose a personal representative files a DOHSA lawsuit on behalf of a widow and her three children. The case is successful and a single monetary amount is awarded. How is the award divided among the four plaintiffs? It is up to the court (i.e., the judge) to apportion the recovery among those individuals in proportion to the loss each has sustained.