Whether a cruise ship or ferry is liable for injuries to a passenger turns on maritime law and admiralty law that is a lot like the “tort law” we find on land. That is, with one important exception a cruise ship or ferry operator does not guarantee the safety of its passengers. Only if the ship operator failed to exercise due care is the ship owner “negligent”, or responsible.
Negligence often turns on whether the operator knew about the dangerous condition which harmed the passenger. If the operator knew about the dangerous condition (or should have known about it) but failed to fix it, the operator may have been negligent and may therefore be liable for compensating the passenger for his or her injuries.
Whether the operator should have known about the dangerous condition is looked at from the point of view of the “reasonably careful ship operator.” Therefore, even if the operator in a particular case was ignorant of the dangerous condition, if a reasonably careful operator would have known of the condition, there may have been negligence. Conversely, if a careful operator would likely not have known about the dangerous condition, no negligence.
Whether there was negligence will very often be proven by an “expert witness.” For example, suppose a ship takes a very deep roll while going fast in a storm, and a passenger is injured. The ship operator will provide a witness who is expert in the operation of cruise ships, and he or she will tell the jury that a ship of the type in question was built to travel fast in the prevailing conditions, and that the very deep roll was the result of a very big sea which could not have been predicted, or some other “act of God.” The passenger will provide a similarly qualified expert witness to tell the jury that it was dangerous to operate the ship fast in those conditions, because there was a genuine risk that the ship would meet a big sea and take a dangerous roll. It is then up to the jury to decide who to believe.
Obviously other non-expert evidence is important. For example, the mate may have suggested to the captain that the ship slow down, warning that there was the possibility of a deep roll – you can bet the jury would hear about that.
Often negligence is proven by reference to Coast Guard or other government regulations. Suppose a ferry passenger is burned in a cabin fire. There was a sprinkler head in the cabin but it did not function. The sprinkler system had passed an inspection 60 days before the fire, and at trial the operator relies on the inspection to argue that it was reasonably careful and therefore not liable. But the plaintiff points out that Coast Guard regulation (let us suppose) requires inspections every week. The failure to obey the regulation tends to prove negligence, or may even be conclusive proof (negligence per se)
Similarly, if some industry trade group to which the ferry operator belonged recommended weekly inspections, the judge would probably allow the jury to learn that as evidence of negligence. Internal guidelines or standard operating procedures of the ferry line would also be useful evidence.
All of this supposes that the timely inspection would have resulted in the sprinkler working when the fire broke out, and that a working sprinkler would have prevented the burns. In law school we learned that it takes four elements to have a negligence case: Duty (as in the ferry line’s duty to timely inspect the sprinkler system); breach of duty (failure to perform the inspection); legal causation (but for the failure to inspect, the sprinkler would have (a) worked and (b) prevented the burns); and damages (injury). Take out any one of those four and – no case!
The rules are often different when a passenger is injured by a crew member. Generally speaking, on land an employer is liable for an employee’s assault only if a reasonably careful employer would have foreseen that the employee was dangerous, and there was therefore a foreseeable risk that he would assault someone. At sea, some courts – not all - have ruled that ship owners are absolutely liable for injuries caused to passengers by crew assaults, even if the assault could not have been foreseen. This rule of law may apply even if the assault occurs on shore.
Cruise ships have hospitals on board. What if a passenger is injured by a careless doctor? Most courts hold that so long as the doctor is qualified to be a doctor by training and license, a passenger may sue the doctor, but not the ship. Some courts (and the number seems to be growing) hold that it depends on whether the doctor is an employee of the shipping line or an independent contractor: if he or she is an employee (or, maybe, tells the passenger she is an employee), the line may be sued.
A big issue in cruise and ferry passenger injuries is contractual limitations on liability. You know all that tiny print crammed on the back of a ferry ticket, or attached to your cruise contract? If you are injured you will find that contract language to be very important indeed. Typically, and this is important, the language requires that if you make an injury claim against the shipping line, you must (1) present the claim in writing in a short time, generally within six months; (2) sue within a short time, often one year from the injury; and (3) bring your suit in the jurisdiction stated in the contract, very often south Florida, where so many cruise lines are headquartered.
If you miss the deadlines for noticing the Jones Act Claims or for bringing suit, you may be out of luck, but talk to a cruise ship injury lawyer. There are many technical legal defenses to enforcement of these deadlines, too numerous and too technical to cover here, except that I will say one defense is that even if the plaintiff didn’t tell the line within six months, the line knew about the injury or death. And do keep in mind that almost any claim for maritime personal injury or death must be brought within three years of the injury or death, or it will be forever barred.
Nicholas Walsh is a maritime lawyer in Portland, Maine, with a national practice. He may be reached at 207-772-2191, or see www.nicholaswalsh.com