Cruise Ship Lawyers Blog

Published on: December 21, 2011

Flowrider Waiver Ruled Unenforceable in Case of Injured Passenger – Johnson v. Royal Caribbean Cruises

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.

Charlene 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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Published on: December 20, 2011

Celebrity Cruises Terminates Parasail Excursion After Death of Passenger

By Leesfield & Partners

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.

Bernice 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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Published on: December 13, 2011

Cruise Ship Passenger Dies after Falling Overboard

By Leesfield & Partners

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.

According 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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Published on: September 22, 2011

Wrongful Death Case of Cruise Ship Passenger Reaches Confidential Settlement with Miami Cruise Line

By Leesfield & Partners

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)

On 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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