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Below is a timeline of events amid the cruise ship disaster that sunk off the coast of Italy, Isola del Giglio:

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Friday January 13, 2012

7:00 p.m.: The ship embarks on a 7-day cruise from Civitavecchia, near Rome, with 4,229 cruise passengers and crew members on board from 60 different countries.

9:15 p.m.: Ship takes a five miles detour to pass closer to the picturesque Tuscan Island of Giglio (Isla del Giglio)

9:30 p.m.: Ship strikes rocks 300 meters off the Island of Giglio. Five minutes later, the electricity goes off. many passengers begin to panic.

9:45 p.m.: The first alarm is sounded. Two long whistles and on short, informing the crew of a problem.

9:50 p.m.: The ship begins to list. In the restaurants, dinnerware falls off the tables. Some passengers rush to their cabins to put their life vests on.

10:00 p.m.: Captain Francesco Schettino tries to maneuver the vessel towards the shore.

10:10 p.m.: ‘Abandon Ship’ signal is given: Seven short whistles and one long. Lifeboats begin their deployment.

10:20 p.m.: Coastguards launch rescue boats and helicopters. Most of Giglio’s 800 residents turn out to help. Passengers jump into the chilly waters instead of boarding lifeboats. Many passengers are injured in the process, several seriously.

11:15 p.m.: The first lifeboat reaches Giglio. In all, around 4,000 people make it safely aboard a lifeboat.

11:40 p.m.: Captain Fransesco Schettino is found ashore.

Saturday January 14, 2012

Three bodies are found by rescuers, two French passengers and a Peruvian crewmember.

2:30 a.m.: Some 300 people are still aboard the sinking ship.

6:00 a.m.: Local fire chief says last survivor has been rescued from the ship, Rescuers continue their searches on the ship and underwater throughout the next two days.

3:00 p.m.: Captain Francesco Schettino detained along with his first mate on allegations of manslaughter and abandoning his ship.

Monday January 16, 2012

A sixth body is found at sea. There are 16 people still unaccounted for, including two Americans.
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As we previously reported here, Luiz Scavone is facing charges for committing a lewd and lascivious act on a 15 year-old girl while on a Royal Carribean cruise ship “Allure of the Seas”. Yesterday, Scavone’s defense counsel asked Broward Circuit Judge Matthew Destry to set a low bail or no bail at all. The prosecutors moved for a high bail arguing that Mr. Scavone, a Brazilian citizen, poses a substantial flight risk. Judge Destry will hear arguments from both sides before ruling on the bond issue, during a court hearing set for Friday morning. At the hearing, Judge Destry’s decision is surely going to take into account the fact that exists a loophole in Brazil’s constitution which was recently amended and now provides that the extradition of its natives accused of crimes in other countries is prohibited.

Luiz Scavone Mugshot.jpgLuiz Scavone, along with another 15-year-old male, also a Brazilian citizen, allegedly lured a teenage girl into a private cabin and sexually assaulting and raping her. The 20-year-old faces charges for a second-degree felony, punishable by up to 15 years in prison.

The lawyer and relative of the two Brazilians who were arrested at Port Everglades and now accused of sexually assaulting and raping the 15 year-old teenage girl stated that they are innocent and that the intercourse was consensual. The newspaper Folha de S. Paulo reports that the 15 year-old resident of Ponta Grossa (PR), said he met the girl in the nightclub of the ship. His attorney is claiming that the sex was consensual: “He’s a child. They went to the bedroom and had sex. At no time there was persuasion. Then, pressed by her family, she said she was raped. Her mother is a lawyer”.

The uncle added that the ship has cameras and the family intends to use the images to show that there was consent. To the police, the girl said she thought she would find friends, but in the cabin, the Brazilian was forced to have sex. She testified and underwent clinical examination. According to the lawyer, the Sao Paulo resident, Neto Luiz Antonio Scavone, also was in the cabin. He had invited another girl, who then walked away. The attorney for Luiz Scavone, said today that his client “will plead not guilty when formally charged”.
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In February 2011, a female cruise passenger, Jane Doe (“JD”), boarded a cruise ship in Fort Lauderdale, Florida for an 7-day cruise in the Eastern Carribean. She was traveling with a wedding party of 25 from Canada to celebrate her best friend’s wedding which was planned to take place on the beach in St. Thomas. JD was to be the Maid of Honor and was sharing a cabin with the bride’s mother.

That day, after enjoying a day of relaxation and sunbathing, JD decided she had enough sun and went up to her cabin. Once back in the cabin, she went to bed and fell asleep. Moments later, she was attacked by a crew member / room steward. JD’s attacker performed forcible oral sex on her and raped her as well. JD repeatedly told the crew member to stop, but he continued raping her. That is when the bride and her mother entered the cabin and walked in on their friend being raped.

It was established that the crew member had entered JD’s cabin by using his staff key while JD was asleep, Cruise Ship Attorney Alexander Perkins was able to reach a seven figure settlement for our client.

Cruise Lines Ignore Sex Crimes by Cruise Employees on Passengers

The repetitive problem of sex crimes by cruise employees aboard cruise ships finally surfaced in 2005 after several high profile incidents on the high seas. It culminated in congressional hearings, where the cruise industry leaders testified they would address the safety concerns and implement preventive measures, including uniform reporting of crimes and cooperating with federal authorities such as the FBI and Coast Guard. The specific problem of cabin stewards having unlimited access to passenger rooms was a major area of concern. The cruise line industry promised to take corrective action. Sadly for JD, the situation has yet to be addressed.

In September 2007, a Royal Caribbean cabin attendant used his key card to enter a female passenger’s cabin at night while she slept in her bed and raped her. In another publicized RCCL rape case, the Court required RCCL to provide the number of incidents of sexual assault and harassment on its cruise ships for a period of two and a half years. It indicated that over 250 women were sexually harassed, assaulted or battered. A large number of the incidents occurred in the passenger cabins. Between 2003-2005 there were 149 reported sexual assaults and in 2007 there were 69 sexual assaults reported aboard RCCL cruise ships, the majority by crew members against passengers. These statistics also do not include incidents between crew members, and of course the fact that many victims of sexual assault do not report it. The rate of sexual assault aboard cruise ships was found to be twice the rate found in the US.
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A 15 year-old girl, who was vacationing with her family on a ten day cruise that returned to Port Everglades on January 3rd, 2012, was raped by 20-year-old Luiz Scavone and another 15-year-old teenager. The young girl was lured from “Fuel”, the ship’s teen dance club, to a private cabin by the 15-year-old male, where she was told she was meeting friends for a party in the cabin. But when the girl entered the cabin, instead of seeing friends, she was face to face with Scavone who, with the help of the other male passenger, forcibly restrained her in the cabin. They ripped off her clothes, forced oral sex, and then both raped her. The Broward Sheriff’s Office said that the victim was unable to stop her assailants even though she repeatedly said “no” and begged them to stop while trying to fight her way out of the cabin.

According to the arrest report, the victim reported the assault immediately. Royal Carribean notified the FBI and BSO, and both alleged assailants were arrested at Port Everglades. Scavone, Brazilian, was arraigned at a first-appearance court hearing on Wednesday when he stood before Judge John Hurley. Scavone is accused of one count of lewd and lascivious act on a minor and faces a $10,000 bond. Judge Hurley also ordered Scavone to relinquish his Brazilian passport. Luiz Scavone is currently behind bars in a Broward County jail pending an immigration hold. The minor assailant was also charged with one count of lewd and lascivious battery and transported to Broward’s Juvenile Assessment Center.

 
https://www.youtube.com/watch?v=UmxjbF2vtAA
 
Video of Arraignment above

This tragedy is unfortunately not an isolated occurrence on cruise ships. In an article of January 2007, the LA Times revealed that “Royal Caribbean Cruises Ltd., the world’s second-largest cruise operator after Carnival Corp., accounted for 66 of the 178 reports of sexual assaults. But internal company records turned over as part of a civil lawsuit — and obtained by The Times — revealed that at least 273 people told Royal Caribbean that they had been the victims of sexual assault, battery, harassment and inappropriate touching during a shorter time period.” (over 32 months) Read the article here

Safety and security of cruise ship passengers, even if claimed by cruise lines as their paramount concern, has been all but neglected. Cruise lines refuse to implement proven security measures including additional security guards, monitoring closed-circuit cameras around the clock, or increasing visual police force to deter criminals. Allure of the Seas is the largest ship in the world and has a capacity of well over 6,300 people. While there are hundreds of cruise ship employees manning the restaurants, bars, clubs, malls, and shows, on the other hand this city on water has a minuscule number of employees assigned to passenger safety and security. As such, sexual assaults and other criminal acts on cruise ships are neither ever prevented nor stopped until it is too late.
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Cruise Ship Litigation and the application of the law is an ever-changing landscape. Below is a compilation of important cases recently published that have changed the law as it pertains to cruise ship and admiralty litigation:

Robert D. Peltz and Carol L. Finklehoffe Leesfield & Partners
Miami, Florida

Robert Peltz is the Chairman of the Cruise Line Committee (Maritime Law Association)
Carol Finklehoffe is a Member of the Cruise Line and Passenger Committee (Maritime Law Association)

Admiralty Jurisdiction

Gossett v. McMurtry, 2010 AMC 2122 (D.S.C. 2010)

A defamation claim by one sports fisherman against another for taking embarrassing photographs and then showing them to others ashore after the conclusion of a fishing trip did not meet either element necessary to establish admiralty jurisdiction. Initially, the court concluded that the tort of defamation was not completed until the defendant showed the photographs to others. Since this occurred ashore, the location requirement for asserting admiralty jurisdiction was not met. The court further held that the claim also failed to meet the requirement that the actions have an impact on maritime commerce.

Maintenance and Cure

Stanton v. Buchanan Marine, L.P., 2010 AMC 2170 (SD.N.Y. 2009)

In upholding a collective bargaining agreement provision that limited maintenance payments to 90 consecutive days, even if the injured seaman had not reached maximum medical cure, the court relied upon a long line of cases upholding limitations on maintenance in legitimately negotiated CBA’s. See e.g. Frederick v. Kirby Tanks Ships, Inc., 305 F.3d 1277 (11th Cir. 2000); Baldassaro v. United States, 64 F.3d 206 (5th Cir. 1995); Barnes v. Andover Co., L.P., 900 F.2d 630 (3rd Cir. 1990); AI-Zawkari v. Am. S.S. Co., 871 F.2d 585 (6th Cir. 1989); Macedo v. F/V Paul and Michelle, 868 F.2d 519 (11th Cir. 1989); Gardiner v. Sea-land SVRV. Inc., 989 F2d 943 (9th Cir. 1986); Ammar v. United States, 342 F.3d 133 (2nd Cir. 2003).

Punitive Damages

Nes v. Sea Warrior, Inc., 2010 AMC 2297 (Wash. Sup. Ct. 2010)

A Washington trial court concluded that the Supreme Court’s decision in Atlantic Sounding v. Townsend, 129 S.Ct. 2561 (2009) which upheld the imposition of punitive damages in maintenance and cure cases also allowed the recovery of such damages under the Jones Act. In rejecting the long line of cases to the contrary, the court concluded that the dissent in Townsend “makes it clear that it understands the majority decision to allow punitive damages under the Jones Act.”

Royal Caribbean Cruises Ltd. v. Doe, 44 So.3d 230 (Fla. 3d 2010)

Under Florida Statutes ‘768.72, which precludes the assertion of a claim for punitive damages in the absence of Aa reasonable showing by evidence in the record or proffered by the claimant which provides a reasonable basis for such damages,@ it was error for the court to permit an amendment in a seaman=s claim filed in state court without undertaking the requisite evidentiary analysis.

Arbitration

In Thomas v. Carnival Corp., 573 F.3d 1113 (11th Cir. 2009), the Eleventh Circuit concluded that an arbitration clause in a seaman’s collective bargaining agreement was unenforceable where it operated in conjunction with a Panamanian choice of law provision to deprive a seaman of his right to bring an action under the Seaman’s Wage Act. In over a dozen recent cases, different judges in the Southern District of Florida have construed Thomas in often conflicting manners. These cases, include:

Lindo v. NCL (Bahamas) Ltd., 2009 WLD 7264038 (S.D. Fla. 2009) (J. Graham).

In Lindo, the Plaintiff’s CBA required that he submit his claims to arbitration proceedings in his home country (Nicaragua), which would apply the law of the vessel’s flag (Bahamas). Although the Plaintiff argued that the provision would therefore deprive him of his claims under the Jones Act, the court refused to extend the holding in Thomas to bar enforcement of claims arising outside of the Seaman’s Wage Act. Instead, it held that it must rely upon the Eleventh Circuit’s explicit holding that a Jones Act claim is subject to arbitration in Bautista v. Norweigian Cruise Line, Ltd., 396 F.3d 1289, 1302 (11th Cir. 2005). But see contra Williams v. NCL (Bahamas) Ltd., 2011 WL 1206820 (S.D. Fla.)(Lenard).

Bulgakova v. Carnival Corp., 2010 WL 5296962 (S.D. Fla. 2010) (J. Seitz).

In Bulgakova, another federal district judge utilized a different analysis, but reached the same result in refusing to void an arbitration provision for a seaman’s claims under the Jones Act, unseaworthiness and for maintenance and cure. The court concluded that while Panamanian substantive law might bar the seaman’s Jones Act claim, it would likely recognize his non-statutory claims as a basis for recovery. Therefore, while the choice of law provision might “threaten to extinguish the plaintiffs claims,” there was no indication in the case that the court would subsequently be deprived of an “opportunity for review” at the award enforcement stage. Thus, it held that if the plaintiff was in fact denied his U.S. maritime remedies during the course of the arbitration, his remedy would be to come back after the arbitration and raise the claim in the post proceeding enforcement stage. Accordingly, the court ruled that the plaintiff s request for relief was “premature” until after the arbitration was actually conducted.

Sorica v. Princess Cruise Lines, Ltd., 2010 Fed. FLW D437 (8/14/09) (J. Huck)

Another judge rejected the seaman’s request to have an arbitration provision declared null and void after the cruise line had stipulated to having the case governed by U.S. substantive law, even though it was to be arbitrated in Bermuda. Although this stipulation removed the crux of the Thomas objection to arbitration, the court nevertheless went on to note in dicta:

the fact that the arbitration agreement may not be enforceable because it is purportedly null and void, does not mean that the arbitration agreement does not exist or that the dispute is not one that “relates to an arbitration agreement … covered by the convention.” … in other words, jurisdiction is not contingent upon the validity or enforceability of the arbitration agreement, but simply whether the four jurisdictional prerequisites have been met and the claims relate to the arbitration agreement.

See also Orozco v. Princess Cruise Line, Ltd., 2010 WL 3942854 (S.D. Fla.)(King) (compelling arbitration based upon cruise line’s agreement to waive choice of law provision); Gawin v. Princess Cruise Lines, Ltd., 706 F.Supp.2d 1261 (S.D. Fla. 2010)(Ungargo)(same); Matthews v. Princess Cruise Lines, Ltd., 728 F.Supp.2d 1326 (S.D. Fla. 2010)(Gold)(same); Krstic v. Princess Cruise Lines, Ltd., 706 F.Supp.1271 (S.D. Fla. 2010) (Gold)(same).

Harrison v. NCL (Bahamas) Ltd., 2011 WL 1595170 (S.D. Fla. 2011)(Cook)

Yet another district court judge reached the opposite result in Harrison, concluding that since it takes two parties “to stipulate” that the cruise lines agreement to waive a choice of law provision was ineffective, thereby causing the contract to run afoul of Thomas. The court further determined that since the contract did not have a severability clause, that it would have been inappropriate in any event to severe the offensive choice of law provision.

Kovacs v. Carnival Corp., 2010 Fed. FLW D438 (S.D. Fla. 2009) (J. Huck)

In yet another variation on the theme, the cruise line stipulated to arbitrate the plaintiff’s Seaman’s Wage Act claim under U.S. law, but refused to similarly stipulate as to the accompanying Jones Act claim. The Court concluded that Panamanian law does not provide a seaman with a reasonable equivalent to the rights provided by the Jones Act. Accordingly, it held that it would be against public policy to compel arbitration of the plaintiff’s Jones Act claim “because to do so would deprive her of important statutory rights provided by Congress to effectuate public policy.” The court went on to further hold that it would be inefficient to bifurcate the plaintiff’s separate claims and accordingly, granted the seaman’s request to remand the case back to state court.

Morocho v. Carnival Corp., 211 U.S. Dist. LEXIS 4316 (So. Dist. Fla. 2011)(J. Martinez)

Still another judge concluded that a seaman’s complaint seeking recovery for violation of the Jones Act, unseaworthiness, failure to provide maintenance and cure, failure to treat and for penalty wages was not subject to arbitration where the employment contract contained a choice of law provision requiring the application of Panamanian law in reliance upon Thomas. In reaching this conclusion, the Court noted that while the validity of the seafarers agreement is typically a question for the arbitrator to determine, the issue of the validity of the arbitration clause contained within the contract is appropriate for resolution by the court.

Doe v. Princess Cruise Lines, Ltd., 696 F.Supp. 2d 1282 (S.D. Fla. 2010)

In another crew member case arising in a different context it was held that an arbitration provision in a crew contract did not apply to sexual assault claim by one crew member against another, since the dispute “did not arise out of the seaman’s employment.”

Forum Non Conveniens

Wilson v. Island Fees Investments, Ltd., 590 F.3d 1264 (11th Cir. 2009)

In an opinion arising from a case against a resort in the Bahamas, the Eleventh Circuit Court of Appeals reversed a dismissal based upon forum non conveniens, which will likely have an impact on cruise line cases involving similar issues. In its opinion, the court concluded that while the financial inability of a Plaintiff to bring a lawsuit in a foreign forum will not affect the analysis of whether the forum provides a reasonable alternative, nevertheless, a patty’s claim of financial hardship “is a factor to be considered in the balancing of interests that bears upon convenience, a balancing process that is to be performed after identifying an alternative forum.” See also Gross v. British Broad. Corp., 386 F.3d 224 (2d Cir. 2004); Nowak v. Tak How Invs., Ltd., 94 F.3d 708 (1st Cir. 1996).

Discovery

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla.)

A security video is not privileged from disclosure on the grounds of work product and a carrier is not entitled postpone the production of the video until after it deposes a passenger, whose fall was captured on the video. The fact that the carrier “preserved the video from destruction” in anticipation of litigation did not transform the video into work product protected material.

Shore Excursions

Koens v. Royal Caribbean Cruises, Ltd., 2011 WL 1197642 (S.D. Fla. 2011)

A suit arising out of a shoreside excursion during which the passengers were robbed at gun point was dismissed by a federal judge in reliance upon an old intermediate Florida appellate court decision, Carlisle v. Ulysses Line Ltd., 475 So.2d 248 (Fla. 3d DCA 1985). The plaintiffs had purchased a ticket aboard the ship for a segway tour conducted on a remote 162 acre private nature preserve in the Bahamas known as “Earth Village.” During the course of the tour, a number of the excursion participants were attacked by armed robbers, who stole their possessions after terrorizing them at gun point. The court dismissed the Plaintiff’s complaint on the grounds that “the duty to warn [of foreseeable criminal activity] is limited to dangers known to exist in the particular place where the passenger is invited to, or reasonably may be expected to visit.” Accordingly, the court concluded that allegations of the rising crime rate in Nassau in general were insufficient to give rise to a duty to warn of the potential for crimes occurring at the Earth Village Nature Preserve. The court went on to further hold that the failure to allege any specific deficiencies in regard to the safety record of the excursion operator would preclude a claim against the cruise line for negligent misrepresentation based upon the claimed failure to “fully vet and vouch for the safety record of the tour operator.”

Bridgewater v. Carnival Corp., 2011 WL 817936 (S.D. Fla. 2011).

In order to state a claim against a cruise line for the purported negligence of a shore excursion operator under the theory of apparent agency, the Plaintiff must allege a sufficient basis to establish the required elements that: (1) the carrier made representations which caused the passenger to believe that the excursion operator had authority to act for it; (2) such belief was reasonable and (3) the passenger reasonably relied upon this belief to its detriment. The court similarly held that in order to state a claim under the theory of joint venture, the Plaintiff would have to sufficiently plead facts to support the following five elements: (1) the intention of the parties to create a joint venture, (2) joint control or right of control, (3) joint proprietary interest in the subject matter of the venture, (4) the right of both venturers to share on the profits and (5) the duty of both to share in the losses.

Samuels v. Holland American Line – USA, Inc., 2010 WL 3937470 (W.D. Wash. 2010)

A passenger who was rendered a quadriplegic during a beach excursion as a result of being flipped by a wave so that he landed on his neck was barred from recovery against the carrier on the grounds that the sea conditions were considered to be open and obvious.

Criminal Law

U.S. v. Williams, 2011 WL 1057550 (11th Cir. 2011)(unpublished)

U.S. Customs did not need “reasonable suspicion” to search a passenger’s cabin and accordingly, the discovery of cocaine while the vessel was docked in Port Everglades following a return from Costa Rica did not constitute a violation of the passenger’s Fourth Amendment rights. See also U.S. v. Alfaro-Moncada, 607 F.3d 720 (11th Cir. 2010)(reasonable suspicion not necessary for Customs officers search of a crew member’s cabin while vessel was docked in U.S. territorial waters).

Shipboard Medical Care

Wajnstat v. Oceania Cruises, Inc., 2011 WL 465340 (S.D. Fla. 2011)

In an effort to circumvent the Barbetta line of cases, which hold that a cruise line may not be held vicariously liable for the negligence of a ship’s doctor, Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988), the Plaintiff alleged that the carrier was negligent in equipping the vessel’s medical center, training the shipboard medical staff, failing to provide communication equipment to reach shoreside medical providers and for failing to timely evacuate the Plaintiff. The court rejected the first three arguments on the grounds that they were barred by that portion of the Barbetta rule which provides that “a cruise ship is not a floating hospital.” The court rejected the Plaintiff’s evacuation claim on the basis that there were no allegations that the Captain had overruled any order by the ship’s doctor to evacuate the passenger.

Rinker v. Carnival Corp. __ F.Supp. 2d ___ (2010 WL 4811760) (S.D. Fla. 2010)

The court rejected additional attempts to circumvent the Barbetta rule by arguing that the carrier was negligent for failing to hire a ship’s doctor licensed by either the state of the vessel’s home port (California) or its flag (Bahamas) on the grounds that no such duty exist. The court rejected the Plaintiff’s further argument that vicarious liability could be imposed on the grounds that the carrier violated the international safety management code on the grounds that the ISM does not create any legally enforceable duties to cruise ship passengers. See also Calderon v. Reederei Claus-Peter Offen, 2009 WL 3429771 (S.D. Fla. 2009).
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In its decision of December 20, 2011, the Court of Appeals for the Eleventh Circuit ruled that the waiver, signed by Charlene Johnson, a Cruise passenger, before injuring herself while using the on-board attraction Flowrider, was unenforceable, and the injured passenger was no longer barred from bringing her personal injury claim against the Cruise Line for its negligence.

07flowrider-surfing.jpgCharlene Johnson was a passenger on the Oasis of the Sea cruise ship owned by Royal Caribbean Cruise. Mrs. Johnson wanted to ride the Flowrider, a simulated surfing and body boarding activity located on the ship. Before Charlene Johnson, or any passenger, could ride the Flowrider, she was required to read and sign her name to an electronic “Onboard Activity Waiver”. By signing such waiver, Charlene Johnson agreed to waive her rights and release Royal Caribbean Cruises, Ltd., and its employees from legal actions “arising from any accident or injury resulting from her participation in any and all of the shipboard activities she selected” (including the Flowrider). In other words, Charlene Johnson agreed to waive her rights to file a lawsuit against the cruise line and its employees should she injure herself while using the Flowrider.

After she signed the electronic waiver, Charlene received instructions on how to ride the Flowrider on a body board. The instructor who was supervising Charlene told her to stand on the body board, which was a clear deviation from the regular use of the body board and the cruise line’s policies. Royal’s safety guidelines for the Flowrider attraction clearly state that only the surfing boards can be stood upon, while the body boards should only be used while lying down. Upon receiving instruction to stand up on the body board, Charlene stood up and when the instructor let go of Charlene’s hand, she fell and fractured her ankle.

The Southern District of Florida dismisses Johnson’s case
A lawsuit was filed soon thereafter against Royal Caribbean Cruises, Ltd. The cruise line moved for Summary Judgment arguing that Charlene Johnson had signed a waiver that precluded her from suing Royal and from recovering from her injuries. The plaintiff argued that Federal Statute 46 U.S.C. §30509, which prevents a shipowner from contracting away its liability for negligence, should apply to her case and render the waiver unenforceable to her claim. In a decision of March 18, 2011, Judge Moreno, Chief Judge in the Southern District of Florida, ultimately agreed with Royal’s argument and dismissed Charlene Johnson’s case. The Court determined that the case did not fall within the General Maritime Law and therefore the Federal Statute did not apply.

The Eleventh Circuit Court of Appeals Reverses the Southern District’s Decision
After hearing the case on appeal, in a decision published on December 20, 2011, the Court of Appeals for the Eleventh Circuit agreed with Charlene Johnson and reinstated her personal injury claim. The Court of Appeals disagreed with the lower court for failing to look at the plain and unambiguous language of the statute and failed to apply it to the facts of this case. The Court of Appeals determined that the waiver at issue is a contract that limits the liability of the shipowner for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents. Because the waiver in question contains no exception regarding the type of activity in which the passenger is participating when the injury occurs, the waiver is deemed invalid on its face under Federal Statute 46 U.S.C. §30509.

The Eleventh Circuit’s ruling clears the way for future cases where Plaintiffs signed a waiver to participate in an on-board activity. By rendering these waivers unenforceable, passengers, who sustain an injury because of the negligence of the shipowner or its employees, are no longer precluded from filing a lawsuit even if they have signed a waiver.
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Bernice Kraftcheck, a Celebrity Cruises passenger, fell to her death while parasailing in tandem with her daughter off the coast of St. Thomas. Danielle Haese, Brenice’s 34 year old daughter was also very seriously injured during the incident.

After several days of investigating the facts of this tragic incident, the theory that squalls and wind gusts that afternoon may have caused the mother-and-daughter tandem to fall from the sky and crash into the waters of St Thomas. Celebrity Cruises announced that it was terminating parasailing excursions pending the result of the investigation. Other Cruise companies followed suit and Norwegian Cruise Line and Royal Caribbean have also suspended their parasailing excursions across the Caribbean. Carnival Cruise also canceled its parasailing excursions in St. Thomas, but not in the rest of the Caribbean.

parasailing1.gifBernice Kraftcheck and her daughter were passengers on a Celebrity Cruise and booked a cruise excursion through the cruise company’s website. Cruise lines offer passengers to book excursions, such as parasailing, either directly on the cruise lines’ website, or while on the ship at any time during the cruise.

Deadly and catastrophic accidents occur every year when cruise passengers are on excursions, and this incident, as tragic as it was, was not the first time a cruise passenger died while on a cruise excursion.

The cruise lawyers of Leesfield & Partners have been representing passengers who have been injured during shore excursions, as well as the families of cruise passengers who died during an excursion. These shore excursions are operated by companies independent from the Cruise companies. There is however a financial relationship between the cruise lines and the local tour companies who offer excursions to cruise passengers. Cruise lines offer their paying passengers to book directly from the cruise lines’ websites an excursion, or to book it at the excursion desk located on each and every cruise ship. In exchange, the local tour companies agree to pay the cruise lines a percentage of their sales that are generated by cruise lines.
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Cruise lines have the duty and responsibility to provide a safe environment to their paying customers and to prevent the risk of injury or death of passengers while on a cruise ship. Sadly, every year several passengers who board cruise ships disappear or fall overboard through no fault of their own.

Clip_8.jpgAccording to the Los Angeles Times. Long Beach Fire Department spokesman Steve Yamamoto confirmed that Kelly Ryann Dorrell, a 26-year-old woman, who was a passenger on the Queen Mary ocean liner fell over the handrail from the ship’s fourth story (some 75 feet). In her fall, the woman collided with several parts of the ship and sustained massive trauma to the head before eventually falling into the water. Her boyfriend, who witnessed the fall, jumped in the water in an attempt to rescue the woman, along with two police officers who were nearby.

Some early reports indicate that the woman was drinking at the time and fell overboard after she lost her balance. After being rescued by the firefighters, Kelly Dorrell was transported to the hospital in critical condition and pronounced dead later that day. An autopsy on Dorrell’s body on December 15, 2011 will help to determine the level of blood alcohol content of the deceased at the time of the incident.

In cases where a cruise passenger falls overboard, Leesfield & Partners cruise ship attorneys will look at all legal avenues to determine whether the cruise line met its duties and if the incident could have been prevented:

Defective or Inadequate Handrail:
In the Cruise Ship Safety Act passed by Congress, all cruise ships are required to have handrails at least 42 inches (forty-two) tall. This new law will be effective by January 1, 2012. If a handrail is found to be in violation of the law, and a passenger falls overboard or disappears, the cruise line could be responsible for its own negligence.

Failure to Warn of Bad Weather:
One of the misconceptions of the public at large about to board a cruise ship for the first time is the effect rough weather conditions can have on their safety. Being on a very large ocean liner does not immune cruise passengers from injuries when the ship enters a patch of rough weather. When at sea, cruise lines have the duty to warn its passengers from bad weather as soon as the dangers become known. To fulfill their duties, cruise ships are equipped with radars that detect patches of rough weather far in advance of feeling their effect. Cruise lines can be held liable for failure to warn passengers who injure themselves or fall off the ship during a storm.

Cruise Lines can be held Strictly Liable
In past cases, passengers were pushed overboard by the cruise ship’s crew members. If a passenger dies, disappears or sustains injuries because of a crew member’s violent act, the cruise line will be held strictly liable. Cruise lines have the duty to protect their passengers from violence, especially violent behavior from crew members.

Violence between Passengers
In general, a cruise line will not be held strictly liable for a passenger’s injuries or death caused by the physical assault of another passenger. However, cruise ships may be held liable if it failed to provide adequate security or failed to prevent an assault or contributed in some way to the assault. (Alcohol Consumption)

Alcohol Consumption
Today, most cruise lines allow passengers 21 years of age and older to drink alcohol on the ship. Even though cruise ship employees are trained to request the ID card of passengers, it is not infrequent that teenagers and under-age passengers consume alcohol on cruise ships. Cruise lines also have the duty to limit passengers’ alcohol intake. This self-imposed duty can result in the cruise line’s liability if it is determined that a passenger became intoxicated and fell off the ship.

Rescue Operations
When a passenger is reported missing, cruise lines must perform a reasonable and adequate search and rescue operation. If the cruise line fails to search for a missing passenger or performs an inadequate rescue operation, it may be found liable for the disappearance or death of the passenger.
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A common carrier has a continuing duty and obligation for the care of its passengers. Its duty is to warn of dangers known to the carrier in places where the passenger is invited to, or may be reasonably expected to visit. This duty extends throughout the length of the voyage, and does not cease at each port of call, only to resume when the passenger re-embarks. Carlisle v. Ulysses Line Ltd., S.A., 475 So.2d 248 (Fla.3d DCA 1985)

lifeboat.jpgOn the second day of a seven day cruise, Passenger Doe became ill and began vomiting blood. He presented to the cruise ship’s infirmary, however, instead of receiving life saving medical care, or being evacuated to a proper medical facility, the ship’s medical doctor and Captain made the decision to place him and his wife in a lifeboat in the middle of the ocean, in the dark of night, and transport them to a coastal village in a foreign country.

In desperate need of a blood transfusion, he was brought to a makeshift medical facility. After a horrific trip, and in dire need of blood transfusion, Mr. Doe and his wife were told that the facility did not have blood readily available to him. The facility attempted to get blood, but when the blood finally arrived, it was frozen and had to be thawed under heat lamps. The thawing process took several hours, and before any blood could be transfused into Mr. Doe’s body, as he laid on a gurney, with his wife at his side, he died. Teh couple forty-year life together ended in the most atrocious of circumstances.

This awful event was even more tragic because this elderly couple spent their lives helping other people. When this couple went into retirement, they served as missionaries traveling throughout North America in their mobile home to various Christian ministries providing carpentry, plumbing, painting, electrical help, as well as tutoring to the poor and needy. Sadly, when they needed help, no one was there for them.

The cruise ship injury lawyers at Leesfield & Partners fought for justice and were able to reach a confidential settlement with the cruise line. In addition, the cruise line assured our client that because of this tragedy measures had been taken to ensure that an event like this would never happen again. They promised that rather than evacuating dying passengers on life boats, they would try their best to heliport injured passengers to avoid further delays in getting medical treatment offshore. They also promised to make sure that injured passengers would be taken to well-equipped medical facilities and hospitals and avoid at all costs evacuations to small clinics that do not have the personnel, manpower, and most importantly, the proper medical equipments to not only save lives but stabilize patients in need of immediate medical attention.
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