Op-Ed

Watch out for the fine print

TNS

Following the influx of negative publicity resulting from the fires aboard the Carnival Triumph and Splendor, and the grounding of the Costa Concordia, the cruise-industry trade group announced that its members had voluntarily adopted a Passenger Bill of Rights. Unfortunately, this is merely a publicity stunt, since the “rights” either already existed or are subject to so many qualifications that they are meaningless.

The Bill of Rights was an attempt to distract attention from the real problems that cruise-ship passengers face. Cruise-ship tickets contain fine-print provisions designed to protect cruise lines from their own negligence, no matter how egregious, when a passenger is injured or killed during their cruise.

For example, on international itineraries, cruise lines have provisions in tickets that limit damages to a fluctuating international monetary scale of approximately $70,000. This limitation applies even in the case of death or catastrophic injury.

Cruise lines also insert a forum-selection clause in tickets, requiring passengers to file suit in specified courts. As a result, all lawsuits against Carnival, RCCL, Celebrity and NCL must be filed in federal court in Miami, regardless of where the passenger lives, where the ticket was purchased or the location of the accident. Because of the requirements of federal court jurisdiction, these clauses also act to deprive Florida residents of their constitutional right to a jury trial.

Passengers of the Costa Concordia were shocked to discover that their claims had to be litigated in Italy. This provision was upheld although Costa maintains considerable U.S. business operations and the tickets were purchased in the United States by American citizens.

Port excursions are an integral part of cruising. Cruise lines design the excursion, select the local company to perform it, advertise it both online and aboard its vessels, sell the tickets, handle customers’ complaints and refunds and keep the majority of the fee. Yet passenger tickets contain language stating that cruise lines bear no legal responsibility for excursion accidents.

While disclaiming liability, cruise lines fail to advise passengers that should they be injured, the local tour operators will insist that claims be brought against them in the foreign territory where the accident occurred. Often, these entities have been successful, leaving the injured passenger with no recourse.

Tickets also contain similar language denying responsibility for ship’s doctors, spa operators and other onboard concessionaires. Until a recent 11th Circuit Court of Appeals decision, cruise lines were usually successful in disclaiming liability based on these provisions.

Courts are now required to evaluate the facts and circumstances to determine the actual relationship between the cruise line and its medical staff. This rule should apply to other shipboard concessionaires as well. Although not yet tested, the recent decision will likely have an impact on claims against shore excursion operators where similar disclaimer provisions exist.

Although Congress has prohibited cruise lines from disclaiming liability for their own negligence, cruise lines often require passengers to execute liability waivers for highly advertised activities aboard the vessel and on their private islands.

Once an injured passenger gets past all of these barriers and makes it into court, he still encounters ticket provisions designed to prevent him from introducing otherwise admissible evidence to support his case. For example, many cruise lines have a provision that prohibits guests from using their own photos, videos or recordings taken during the cruise for any purpose other than personal use. Some cruise lines have used this clause to object to courtroom use of these items.

While most states have a four-year statute of limitations, cruise lines limit the time to file a claim to one year. Passengers are often forced to file suit before they have even completed their medical care.

These are just a few of the fine print provisions designed to insulate cruise lines and their business partners from legal responsibility for their negligence. Passengers should be aware of the pitfalls and be ready to protect their legal rights when they fall victim to these ticket traps.

Carol Finklelhoffe is the Maritime Law Association Cruise Lines and Passenger Ships Committee Chair. Robert Peltz is a Miami-based attorney focusing on maritime law.

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