For a PDF version of this paper click here
A Qualitative Study of Victimization and Legal Issues Relevant to
Caitlin E. Burke
University of Florida
The purpose of this project was to conduct a qualitative study examining the litigation process of U.S. citizens who were victims of crime while onboard a cruise ship. Data was collected through interviews with female U.S. citizens who have been victims of assault. Participants interviewed pursued litigation post assault and filed against the cruise line, assaulter, or both. Interviews are intended to capture the most prevalent maritime and international laws used in court cases today. Data was compared on a case-to-case basis focusing on court case outcome. Once all data was collected and compared, further conclusions were compiled as represented in the results. This project does not encompass all of the laws and statutes applicable to the cruise line industry. Cruise line companies are registered under several countries in which laws differ in regards to statutes and jurisdictions. Maritime law is a complex legal system that differs greatly from federal or state law. Treaties, statutes, jurisdictions, etc. intertwine in international waters creating a sea of confusion with regard to what country is responsible for crime reporting and prosecution. Laws selected for use in this project are mere examples of the laws applicable to a U.S. citizen while at sea. There is a magnitude of statutes and facts affected by International, Maritime, Admiralty, etc. law that is pertinent to anyone interested in taking a cruise.
Cruise Line History
Whether it was the disaster in 1912, or the 1997 block-bluster hit, the Titanic is perhaps the most documented and well-known cruise of all time. The cruise industry today however, is not associated with icebergs and disasters but with large ships full of gaming activities on the way to beautiful destinations. “Cruise lines, diverging from the industry’s earlier affluence and glamour, began to market more affordable vacation cruises with a ‘fun ship’ image” (Tomlinson 2007, p. 133). This new image has proven to be very prosperous for the industry.
Cruise line companies have enjoyed the monetary benefits of their
success, and continually monitor the growth of the overall industry.
Over 12.5 million people took a cruise in 2007, as reported by the
Cruise Line International Association (CLIA). The total number of
passengers recorded in 1990 was 3.7 million. Additionally, the cruise
industry has witnessed an average growth rate of 7.4% annually. In 2004
U.S. citizens accounted for 76 percent of the global market share, and
has gradually declined since, reporting 73 percent in 2006. The CLIA
remains optimistic, reporting that 34 new ships are contracted or
planned to be added to the North American fleet from 2008 through the
end of 2012. This will accompany the 185 cruise ships already in
existence. The International Cruise Line Association is composed of 23
of the major cruise lines, representing 97 percent of the cruise
capacity in North America. CLIA was formed in 1975 and merged with the
International Council of Cruise Lines in 2006.
Given the current state of U.S. economic affairs it is impressive that
cruise lines are experiencing such growth in the leisure market. Even
with the decline in U.S. passengers the industry continues to grow,
counteracting the sinking economy by focusing on foreign markets. Aside
from the revenue generated by U.S. passengers, cruise lines are
independent of the U.S. economy. Even though nearly 75% of passengers
are U.S. citizens “cruise line corporations and their ships are not
traditionally American-owned or registered...” (Tomlinson, 2007, p.130)
Thus, cruise ships are not affected by changing laws inflicted upon
U.S. corporations. In reality, cruise lines are still flourishing while
the U.S. economy suffers.
Cruise line companies are not concerned about increasing minimum wage,
rising insurance premiums, or higher corporate taxes. Cruise lines
escape federal taxes and labor laws by registering their corporations
and vessels in foreign countries, i.e. Panama, Liberia, and the
Bahamas. In fact, employees of cruise lines are often mistreated
due to lackadaisical labor laws. Worst of all, employees will find
little to no recourse pursuing litigation. Likewise, a U.S. citizen
passenger faces the same predicament.
“A person who goes out to his local neighborhood bar and becomes so
intoxicated that he is unaware of his surroundings (and) subjects
himself to any number of situations- including criminal acts by other
persons. While that person may be able to sue the bar civilly if his
drunkenness results in his own injury, if the same events happen on a
cruise ship, he may have no recourse” (Porter, 2006, p. 597).
Employees and passengers may have difficulty litigating claims due to the fact that “international maritime law applies to the cruise industry because cruise ships sail in the waters of many countries, as well as in the waters of no country, otherwise known as the high seas” (Tomlinson, 2007, p.135).
Before immersing into the ramifications of federal
maritime law, it is important to consider the context and history in
which this law was developed. “…Consumers should be aware that the
cruise ship’s duties and liabilities are governed not by modern,
consumer-oriented common and statutory law, but by nineteenth-century
legal principles, the purpose being to insulate cruise lines from the
legitimate claims of passengers” (Dickerson, 2004, p. 451).
Courts today base their decisions on federal statutes enacted almost a
century ago. Essentially, these statutes are the reason cruise lines
have been able to dismiss claims brought against them from both
passengers and employees. “The antiquity of maritime law was made
manifest in Barbetta v. S.S. Bermuda Star [italics added], a case
approving the rule that ‘shipowners are … not vicariously liable for
the negligence of ship’s doctors in treating passengers” (Dickerson,
However, in August of 2003, the Florida Third Circuit Court of Appeal
rejected Barbetta and held that a ship’s doctor’s negligence should be
imputed to a cruise line (Carlisle v. Carnival corp., 2003). In
February of 2007, the Florida Supreme Court quashed the decision of the
district court and held that the ship owner is not vicariously liable
under the theory of respondeat superior for the medical negligence of
the shipboard physician (Carnival Corporation v. Carlisle, 2007). In
most cases, however, the Shipping Act of 1984 (46 USCS § 30511)
has been applied, relieving cruise lines of liability for the negligent
acts of its cruise ship staff (e.g., a shipboard doctor).
“Most importantly, the aggrieved passenger and his or her attorney should be aware that the passenger’s rights and remedies are governed by maritime law which in many important respects is very different from common law” (Dickerson, 2004, p. 476). Unlike common law, maritime law enables cruise lines to significantly limit their personal liability, as well as a passenger’s rights and remedies. Worst of all, the ticket-passenger contracts and the limiting-liability clauses within are enforced in most U.S. courts.
Flags of Convenience
Cruise lines have been circumventing U.S. statutes and regulations since as early as the 1920’s. “A number of U.S. vessels, namely the cruise liners the M/V RELIANCE and the M/V RESOLUTE, were ‘re-flagged’ in Panama in order to circumvent the U.S. law banning the sale of alcohol on U.S. registered ships (during prohibition)” (Wing, 2003, p. 175). The International Maritime Organization (IMO), to which the United States is a member, “requires all ships engaged in international trade to have a country of registry in order to sail in international waters. A ship is considered the territory of the country in which it is registered...” (Tomlinson, 2007, p. 137) The verbiage of this clause is particularly important as it states “a country” and could pertain to any country, developed or undeveloped. Even more importantly Tomlinson states that the ship is considered the territory of its country, thus making them subject to that country’s laws and regulations.
“By opting to re-flag in a new nation, a vessel owner becomes subject
to the safety, labor, and environmental codes of that nation.
Thus, those nations whose open registries have become the most popular
also tend to be those who possess the most lax labor, safety, and
environmental codes” (Wing, 2003, p.176).
A vessel’s country of registration is commonly referred to as the “flag
of convenience (FOC).” Flagging a ship under a foreign flag for the
convenience of the cruise line is nothing new, nor is it rare. The
majority of cruise ships today are registered to Panama, Liberia, or
the Bahamas. It is important to pay close attention as many vessels
within the same fleet are often registered to different countries.
Carnival Corporation, for example, has flagged their cruise vessel
Celebration under Panama and Destiny under the Bahamas. Cruise lines
often avoid drawing attention to the FOC of by using the term
“headquartered in Miami, Florida.” It is important to understand that
while the majority of these cruise lines have their headquarters in
Miami, they are not registered in the U.S. Thus, U.S. laws do not apply
and passengers are at the mercy of maritime law.
Consequences of the Flag of Convenience
The legal rights and remedies of U.S. passengers are greatly inhibited due to flags of convenience, partly because ticket-passenger contracts are written under the registered country’s law and can include limited-liability clauses. Under maritime law, such clauses are acceptable and enforced in court. Regardless of litigation locale, the majority of courts apply federal maritime law because crime while at sea falls under the admiralty jurisdiction.
“Most passengers do not realize that a cruise ticket forms a binding
contract between the passenger and the cruise line. These
passenger-ticket contracts have been heavily litigated because they
contain limited-liability clauses such as forum-selection clauses,
choice-of-law provisions, and notice-requirement clauses that limit the
rights of passengers” (Porter, 2006, p. 598).
“Forum-selection clauses, provide that any controversy arising out of
the cruise contract are to be litigated, if at all, in a certain
jurisdiction to the exclusion of all others” (Burke, 2000, p. 699). The
most important case to date in regards to forum-selection clauses is
Carnival Cruise Lines v. Shute. In 1991, the “United State Supreme
Court made several rulings that remain the law today” (Porter, 2006, p.
601). The forum-selection clause, as printed in the ticket-passenger
contract, mandated that Shute file claims and bring lawsuit against
Carnival Cruise Lines only in the state of Florida. The Shutes argued
that the forum-selection clause “was not the product of negotiation,
and enforcement effectively would deprive [them] of their day in
court.’ If enforced, the clause violated the Limitation of Vessel
Owner’s Liability Act, codified in 46 U.S.C. § app. 183c” (Porter,
2006, p. 602). The court dismissed the case based on precedent set in
Bremen v. Zapata Off-Shore Company (1972).
In doing so, the court solidified the enforcement of forum-selection
clauses on three accounts:
“First, the court observed that because a cruise line carries passengers from many locales, it could be subject to litigation in several different forums, and would thus have a ‘special interest in limiting the for[ums] in which it potentially could be subject to suit.’ n59 Second, the court noted that such clauses have the practical effect of dispelling any confusion about where suits must be brought and defended, as a result, spare ‘the time and expense of pretrial motions to determine the correct forum and [conserve] judicial resources that otherwise would be devoted to deciding those motions.’ Third, the Court opined that ‘passengers who purchase tickets containing a forum clause… benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the for[ums] in which it may be sued” (Burke, 2000, p. 700).
The federal courts have adapted a test for measuring the enforceability
of forum-selection clauses, known as the two-prong test. In order for
forum-selection clauses to be enforceable, the terms of the contract
must be reasonably communicated to the passenger and the clause must be
fundamentally fair. There are some exceptions in which forum-selection
clauses are not enforced. However, for the most part, the rule
solidified by Shute sustains, and passengers must litigate at the
location stated in the ticket contract.
Shute additionally brought claim that forum-selection clauses were unenforceable on the basis of bad faith (the cruise line was trying to dissuade passengers from pursuing legitimate claims), but the Court ruled that no evidence existed. Mostly in part because Carnival Cruise Line is headquartered in Miami and the majority of their vessels deport from Florida, thus giving them motive to litigate in Florida.
Arguing Forum-Selection Clauses
“Plaintiffs bear a heavy burden of proof in order to invalidate a forum-selection clause on these grounds, and concerns about cost, distance, disability, or age are not considered tantamount to depriving litigants of their day in court” (Burke, 2000, p. 703). Although most courts uphold forum-selection clauses, there are a few exceptional circumstances in which they rule against them.
“According to the ‘two-prong test’ the passenger’s inability to reject
the ticket-passenger contract without sacrificing part or all of their
monetary investment is unfair and thus, unenforceable. U.S. courts
validate contracts if: (1) they are reasonable; (2) the contract is not
fraudulently induced; and (3) the passenger is given the opportunity to
reject that contract”(Tomlinson, 2007, p. 140). If the cruise line
“sent (a cruise ticket) at a time when (the passenger) could not
conceivably have canceled without avoiding a penalty” (Dickerson, 2004,
p. 491), the court may rule the contract is invalid.
In order for a contract to be considered fair, a passenger must be able
to negotiate or disagree to the terms without consequence. As litigated
in Schaff v. Sun Line Cruise, Inc. (1998), the plaintiff did not have
the opportunity to reject the ticket contract without forfeiting the
entire price of the cruise and therefore “the forum-selection clause as
it applied to the plaintiff was fundamentally unfair” (Porter, 2006, p.
606). If the passenger receives the contract and still has time to
cancel their cruise provided a full refund, then the court will hold
the forum-selection clause as enforceable (Vega-Perez v. Carnival
Cruise Lines, Inc., 2005). “Some courts have agreed that imposition of
a cancellation penalty means that the notice was inadequate rendering
the forum selection clause unenforceable while other courts have
rejected this concept” (Dickerson, 2004, p. 491).
Another instance where the forum-selection clause
was not enforced is in the case of Walker v. Carnival Cruise Lines
(2008). Walker purchased a cruise ticket from a travel agent who had
assured him (along with the cruise line) that both his room and the
cruise ship would be disabled accessible. After boarding, he found that
neither his room nor the ship itself was in compliance with the ADA
(American Disabilities Act, 1990). The court first dismissed the claim
and moved the case from California to Florida, on account of the
forum-selection clause. Later, the court decided not to enforce the
forum-selection clause for two reasons. “First, the plaintiffs’
physical disabilities and economic constraints were so severe that, in
combination, they would preclude plaintiffs from having their day in
court. Second, was the fact that the plaintiffs were seeking to
vindicate important civil rights”(Dickerson, 2004, p. 492).
Courts uphold forum-selection clauses so often that
cruise lines “have threatened to move for sanctions against plaintiffs
bringing suit in a forum other than that specified in the contract,n67
or to counterclaim against plaintiffs for breaching the contract of
passage by not bringing suit in the specified forum” (Burke, 2000,
Similar to forum-selection clauses, the ticket-passenger contract dictates which applicable laws will be used if claims are brought against the cruise line.
For instance in the case of Mansoor v. M/V Zaandam (2006) the court
“[T]his contract and its interpretation shall . . . be governed by and construed in accordance with the general maritime law of the United States; to the extent such maritime law is not applicable, it shall be governed by and construed in accordance with the laws of the State of Washington (U.S.A.)”(Porter, 2006, p. 607).
For the most part, maritime law applies to any claims brought against a
cruise line for incidents that occur while at sea.
In the absence of relevant maritime law, courts may apply state law, so long as the application of state law “does not frustrate the national interest in having uniformity in admiralty law” (Doe v. Celebrity Cruises, 2001; Erin Lynn Baker v. Carnival Corp., 2006).
An instance in which state law replaced the absence of maritime law was in the case of Jane Doe v. Celebrity Cruises, Zenith Shipping Corp., et al. (2004):
“The general rule is that the assault and rape of a plaintiff by the
defendant's employee is considered to be outside the scope of
employment and, therefore, insufficient to impose vicarious liability
on the employer (citations omitted). However, like other states,
Florida recognizes an exception for common carriers (citations
omitted). For example, (citations omitted), a Florida court held that
an ambulance service was vicariously liable for an ambulance
attendant's sexual assault of a passenger because the assault occurred
en route to the hospital. The court explained that an ‘established
exception to the general rule [of nonliability] is where the employer
is a common carrier for hire to the public, and the tort or attack is
by an employee upon a passenger while the contract for transport is
being accomplished (citations omitted).”
Although state laws may favor passengers, cruise lines are aware of the
laws that apply in each state and are likely to have well established
defenses. Furthermore, cruise lines purposefully select states in their
forum-selection clauses that will rule in their benefit. Certain states
such as: Idaho, Montana, North Carolina, Alabama, and Georgia do not
enforce forum-selection clauses. Therefore, cruise lines will limit
passengers to only bring claims in states that enforce such clauses, as
well as other clauses in their favor.
Notice-requirement clauses (also stated in the ticket-passenger contract) limit the time in which passengers can file a claim against the cruise line. “Under maritime law, plaintiffs generally are afforded a three-year statute of limitations for personal-injury claims. However, the Limitation of Vessel Owner's Liability Act (2000) allows cruise lines to establish, through passenger tickets, a one-year statute of limitations” (Porter, 2006, p. 608). “For nonphysical injury claims, cruise lines may impose even shorter time limitation periods such as requiring that written suit be filed within six months instead of the one year allowed for physical injury lawsuits or requiring that written claims be filed within days as opposed to months after the accident” (Dickerson, 2004, p. 480).
In the case of Johnson v. Commodore Cruise Lines, Ltd. (1995) the defendant asserted that the plaintiff failed to notify it of the claim within the constraints stated in the ticket-passenger contract. According to the contract, Johnson would have had to notify Commodore within six months of the alleged rape and would have needed to initiate a suit within one year. Johnson brought the suit one year and seven months later, thus the court found that Johnson’s claims were time-barred.
In contrast, in Deck v. American Hawaii Cruises, Inc. (1999), American
Hawaii Cruises stated in their ticket contract that “other” claims must
be filed within 6 months with a 15-day notice provision.
“The court concluded that such language might not reasonably alert a
passenger of the time limitation applied to federal and state statutory
rights, as might the use of a more inclusive term, such as ‘any’
instead of ‘other.’ n115 Thus, the court held the limitation to be
unenforceable, particularly because [c]ruise passenger tickets are
contracts of adhesion and as such, ambiguities in them must be
construed against the carrier” (Burke, 2000, p. 709).
Typically, courts enforce notice-requirement clauses, unless the
ticket-passenger contract is unclear in language. Or as in the case
above, failed to specify which claims are time-barred. In response to
these outcomes, cruise lines alter their contracts to avoid the use of
ambiguous language. Thus, making it very difficult for the passenger to
argue against notice-requirement clauses held within the contract.
To prove negligence, a plaintiff must show: (1) that defendant owed plaintiff a duty; (2) that defendant breached that duty; (3) that this breach was the proximate cause of plaintiff's injury; and (4) that plaintiff suffered damages (Erin Lynn Baker v. Carnival Corporation, et al., 2006).
“Under general maritime law a shipowner owes passengers the duty of
exercising reasonable care under the circumstances. Kermarec v.
Compagnie Generale Transatlantique (1957). However, a shipowner is not
an insurer of its passengers' safety. . . . There must be some failure
to exercise due care before liability may be imposed. The standard of
reasonable care generally requires that a carrier have actual or
constructive notice of the risk-creating condition. Where it is
alleged, however, that defendant created an unsafe or foreseeably
hazardous condition, a plaintiff need not prove notice in order to show
negligence. The question becomes whether the defendant created an
unsafe or foreseeably hazardous condition” (Erin Lynn Baker v.
Carnival Corporation, et al., 2006, p. 5).
Today, most passenger tickets include clauses that disclaim liability
for problems that may occur during the cruise. In the U.S., contracts
cannot dismiss claims for negligence that is willful and wanton or
As stated in Royal Caribbean’s ticket-passenger contract:
12. (c) THE CARRIER HEREBY DISCLAIMS ALL LIABILITY TO THE PASSENGER FOR DAMAGES FOR EMOTIONAL DISTRESS, MENTAL SUFFERING OR PSYCHOLOGICAL INJURY OF ANY KIND UNDER ANY CIRCUMSTANCES, EXCEPT TO THE EXTENT PROHIBITED BY 46 U.S.C. 183C. (B). WITHOUT LIMITING THE PRECEDING SENTENCE, IN NO EVENT WILL CARRIER BE LIABLE TO PASSENGER FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES.
Under common law, the clauses held within Royal Caribbean’s
ticket-passenger contract would not be upheld in court. However,
because it falls under the jurisdiction of admiralty, federal maritime
law applies and the contract is enforced.
However, “as with consumer contracts on dry land, instances of gross negligence and intentional misconduct may not be disclaimed by common carriers” (Dickerson, 2004, p. 494). The challenge becomes providing enough evidence to prove that carriers were negligent in their actions under maritime law.
According to the Shipping Act of 1984, a ship-owner owes to its
passengers the duty of a high degree of care. The ruling of Kermarec v.
Compagnie Generate Transatlantique (1957) applied the rule of
reasonable care under the circumstances. The problem arises however,
when laws and regulations have not been established, of which
‘reasonable care’ can be based upon. For example: a company in the U.S.
must abide by labor laws. An employed sixteen-year-old is allowed to
work for X amount of hours and requires X amount of breaks. If this
employee is injured from working too many hours without a break, a
breach has occurred. There was a duty of care owed; that duty was
explicit, the employer ignored it, and thus is negligent.
Now, consider a sixteen-year-old employee on a cruise ship who abides
by the labor laws of the flag of convenience. Without strict labor
laws, the duty of care owed becomes ambiguous. Aforementioned, one must
prove there was a breach of contract in order to prove negligence. An
employee has a difficult time proving breach existed because the duty
of care owed is not explicit. The fewer rules, regulations, and
guidelines a company has, the more difficult it becomes to prove the
company was negligent.
Furthermore, ticket-passenger contracts greatly limit the amount of
punitive and exemplary damages one can receive. Thus, even if the
passenger proves the alleged negligence, damages received are bound to
the constraints of the contract and maritime law.
Traditionally, cruise ships have not been held vicariously liable for the medical malpractice of the ship’s doctor or medical staff.
In the case of Barbetta v. S.S. Bermuda Star, the Fifth Circuit stated: …”When a carrier undertakes to employ a doctor aboard a ship for its passengers’ convenience, the carrier has a duty to employ a doctor who is competent and duly qualified. If the carrier breached its duty, it is responsible for its own negligence. If the doctor is negligent in treating a passenger, however, that negligence will not be imputed to the carrier”(Dickerson, 2004, p. 495).
Fortunately, today more courts are holding cruise lines vicariously
liable for the intentional torts of their employees. Nadeau v. Costley
(1994) is a case on point.
As of now, there are no requirements for the training and competency of
hired medical personnel onboard cruise ships. In fact, a study
conducted by Feuer and Prager, which evaluated both medical facilities
and medical staff onboard eleven passenger cruise liners found that
“27% of doctors were not certified in advanced cardiac life support;
54% of doctors were not certified in advanced trauma life support, and
45% of doctors were not board certified in their area of practice”
(Gionis, 2001, p. 754). The extent of which cruise lines are held
vicariously liable is truly determined on a case-by-case basis. As
recently as 2005, the Southern District of Florida upheld Barbetta
(1987) which held that cruise lines are not liable for ship doctor’s
malpractice” (Doonan v. Carnival Corp., 2005).
Medical malpractice and accountability onboard cruise ships will always be a problem until something is done to change it. Laws and regulations need to be established to prevent cruise lines from hiring inadequate personnel. Regulations need to be in place to hold cruise lines accountable.
Interviews were conducted with female U.S. citizens over the age of 18 who were victims of assault while onboard a cruise ship. There were certain circumstances in which a victim could not conduct an interview. Under these circumstances, someone directly related to the victim had the opportunity to voice their story. To obtain participants, a memo was distributed, to which victims responded at will.
Interviews were conducted over the phone and participants had the option to be audio recorded. Audio recording was not necessary for the interview to take place. The interviewer conducted interviews in an isolated soundproof area with no distractions. Interviewees had the option of interviewing in any location they felt comfortable. If the interviewee decided to have the interview audio recorded, a small audio recording device was used during the conversation. The memo, consent forms, and interview questions were prepared and approved by the University of Florida Institutional Review Board prior to interviewing.
Interview questions were designed to obtain a general overview of the litigation process relevant to cruise ships. Responses were divided into two different categories: criminal and civil.
In regards to criminal, data was measured based on: attempt of
conviction, the statutes/case law/regulations that affected conviction,
and overall impact of the governing law.
In regards to civil cases, data was first sorted based on what type of
lawsuit was filed and the governing law that applied. Cases were
reviewed for allegations against the cruise line for negligence
regarding a crewmembers’ assault. If alleged, outcomes were reviewed to
see if the cruise line was held liable for the intentional torts of
their employee via respondeat superior.
For both civil and criminal cases, if admiralty was the governing law
applied then cases were reviewed for the enforcement of
limited-liability clauses. Cases were then reviewed for all other
applicable laws specific to maritime law. All cases were reviewed for risk management procedures, focused on
collection of evidence.
After informed consent procedures, interview times and dates were arranged between interviewees and the principal investigator (Caitlin Burke). Interviews conducted lasted approximately an hour in length and followed the interview questions. Follow up interviews were not necessary for the purpose of this project. Interviews that chose to be recorded were transcribed within 9 days of the interview. Victims were at liberty to discuss what they felt comfortable following the parameters of the interview. Personal information given during interviews regarding specific details of their assault was omitted. Interview results were first compared on a case-by-case basis, and then cross-examined for similarities and differences amongst participants.
Case 1: Victim and alleged assaulter were U.S. citizen passengers. The incident took place in international waters on a foreign flagged vessel. Evidence was not collected. The victim’s room was sealed with security tape and guarded by cruise ship security. Victim’s mother was told (by cruise line) “they are not in the business of conducting investigations.” Mother brought a lawsuit against the cruise line for medical malpractice and wrongful death. Victim’s mother still wants to press charges against the victim’s cabin mate but lacks sufficient evidence. Maritime law governed plaintiff’s claim against the defendant because the incident happened more than three nautical miles off the coast. Forum-selection, notice-requirement, and choice-of-law clauses were all enforced in court. The court ruled that the cruise line could not be held vicariously liable for the ship doctor’s alleged malpractice. Under admiralty law, the Death on the High Seas Act (DOSHA) applies. Recovery under DOSHA is limited to fair compensation for the pecuniary loss sustained by the individuals for whose benefit the action is brought (46 U.S.C.S. § 30303, 1983). Non-pecuniary damages are not recoverable. As, far as outcome is concerned, the enforcement of this law severely limited the damages received. Monetary value was based on her daughter’s worth prior to death (worth meaning how much she earned annually). DOSHA does not provide compensation for wrongful death or pain and suffering.
Case 2: Victim was a U.S. citizen. The alleged
assaulter was a foreign crewmember employed by the cruise line at the
time of the assault. The incident took place in international waters on
a foreign flagged vessel. Evidence was not properly collected; evidence
personally collected by the victim was turned over to cruise ship
security personnel. The victim was later told that the FBI was given
all evidence. The crewmember was fired and sent to his home country
immediately following the incident, thus victim has not been able to
press charges against him until he is found. The victim brought a
lawsuit against the cruise line for negligence in regards to several
torts. The incident occurred over three nautical miles off the coast,
thus, admiralty law applied. Forum-selection, notice-requirement, and
choice-of-law clauses were all enforced in court. The case was
eventually settled after over a year of trial without judgment. Victim
stated: “I needed to redirect my focus on continuing to heal myself and
getting better so that I could help people like (victim’s name omitted)
and other women out there. You know I just couldn’t deal with (cruise
line name omitted), I wasn’t going to get anywhere with them! I was
better to get out of that and end it… and then move on from that.”
Victim is not at liberty to discuss the amount she received.
Case 3: Victim and assaulter were both U.S. citizens
and crewmembers. The incident took place at a U.S. port on a vessel
registered to the U.S. Evidence was not collected properly and the
victim was refused a rape kit and examination. Victim was “taken to a
U.S. hospital were I met the U.S. police department, and they couldn’t
figure out who would be in jurisdiction.” The victim was unable to
press charges against the alleged crewmember due to lack of evidence.
When questioned, the alleged assaulter claimed he never entered the
victim’s room. He later changed his story saying that she seduced him
and that it was consensual. The FBI claimed that it could not be tried
in court, because it was a he-said, she-said case due to lack of
evidence. The victim later tried to file a lawsuit against the cruise
line and the U.S. hospital. However, her lawyer dropped her case when
she refused to sign a gag order.
Case 4: Victims were U.S. citizens. The alleged
assaulter was a foreign crewmember employed by the cruise ship at the
time of the assault. The incident took place in international waters on
a foreign flagged vessel. Assaulter entered 5 different staterooms,
sexually assaulting 5 women in the same night. Crewmember was caught by
a victim’s cabin mate and was severely beaten by cruise ship security
while trying to jump ship. At the next port, Bermuda police came on
board to collect evidence and statements. Trial was held in Bermuda as
it was the governing jurisdiction and law applied. The court ruled that
the assaulter was guilty on all 5 accounts and was sentenced to 9
months in jail for each assault, which he served concurrently before he
was deported back to his home country. Of the five victims, three
settled and two brought lawsuits against the cruise line for
negligence. Forum-selection, notice-requirement, and choice-of-law
clauses were all enforced in court. Because punitive damages were not
available under the Jones Act (1983) or the Death on the High Seas Act
(1983), the court reasoned that the policy of maintaining uniformity in
maritime law dictated a finding that punitive damages were not
available under federal general maritime law. Since allowing punitive
damages under state law would have antagonized the policy of
uniformity, and federal maritime law set the standards for liability in
the passengers' personal injury actions, the court held that punitive
damages were unavailable to the passengers. The jury found the cruise
line was not liable at all to one of the victims, and liable to the
other in an amount ($20,000). The court found that the cruise line was
not negligent at all to one of the victims because she was the first of
the five assaulted, thus the cruise line insinuated there was never a
breach of contract. The other victim was the last of the five
victimized and thus there was a breach in the duty of care owed. She
was granted $20,000 for her past pain and suffering and nothing for her
future pain and suffering.
All victims interviewed were asked at some point to
sign a gag order and refused. These women are rare, most victims of
sexual assault settle with the cruise line, and per the gag order
commit to never talking about the assault or the recompense.
“A not uncommon problem is the allegation of sexual assault on passengers by crewmembers, particularly cabin, table or bar stewards. Members must have rigorous policies prohibiting socializing between crew and passengers. Any crewmember, found in a passenger area where he should not be, should be subject to dismissal for the first offense. A cruise operator must take reasonable care to investigate a crewmember’s background before hiring him. There is at present a split of authority between US courts as to whether cruise operators are strictly liable for assaults by crew or whether operators are only liable if they are negligent in hiring or supervising crew members. The majority of the circuits have decided that operators are only liable for negligence. (A Guide to P&I Cover, The Standard, 2007, Testimony by Ross Klein on June 19th, 2008).
Court case outcomes would have been different had assaults been
properly investigated and U.S. laws applied. Failure to collect
evidence and the improper handling of evidence is a significant problem
in regards to cruise ship crime. If authority personnel onboard are
properly trained and investigations completed in a timely and thorough
manner, victims would have a better chance of conviction. Cabins are
routinely cleaned twice a day, using products that are chlorine bleach
based to prevent outbreaks of Noroviruses. The use of such products
destroys pertinent evidence during the delay between attack and landing
Cruise lines need to have risk management procedures for handling
sexual assault cases. Instead of firing a crewmember and sending them
to their home country, they need to be questioned, trialed, and
convicted. Paper trails do not exist without conviction, making it easy
for crewmembers to gain employment under a different cruise line
immediately following termination. Serial rapists should not have the
ability to move from company to company and habitually assault women.
In one case, for example, “it was subsequently learned that the
crewmember had previously worked for a different cruise line that had
‘do not rehire’ marked on his personnel file. But he passed background
checks and was hired by the current cruise line. It seems the cruise
line also failed to notice that the name under which the man had
applied for employment was different than the name on his passport”
(Ross Klein, 2008).
“My greatest fear is that sexual offenders figure out that they can continuously go on cruise ships and take advantage of the lax regulations.” –Anonymous, 2009
Passengers who have been victims of cruise lines, whether it be assault, fraud, or deceptive trade practices, are unaware that their rights have been limited through the ticket-passenger contract. It is disheartening that individuals interviewed found out they unknowingly entered a contract forfeiting and limiting their rights. “He (the attorney) had us bring the ticket book (victim’s friend’s name and I) and he opened it to the back, and he’s the one who read to us that for any theft… or anything really, that happens while out to sea, would have to be trialed in Florida, as a civil or criminal case” (Anonymous, 2009). It is “fundamentally unfair to the unsuspecting passenger who does not realize the clauses exist until the ticket has already been purchased” (Porter, 2006, p. 616).
“In very small print, but yea… it’s in there.”
“Currently, U.S. federal law enforcement agencies, including the FBI,
Navy, and Coast Guard, must obtain permission from a cruise ship's flag
country before beginning a criminal investigation; U.S. agents cannot
even board a cruise ship that may be the scene of a crime committed by
or against an American citizen if the ship is located beyond U.S.
waters” (Tomlinson, 2007, p. 151).
The Cruise Line International Association claims that cruise ships are
inherently secure because ships offer a controlled environment with
limited access. “However, there has been some startling statistics
between 2003 and 2005: 24 people were reported missing and 178 people
reported a claim against sexual assault. Additionally, the FBI has
opened investigations on 305 cruise-based crimes, from 2000-2005”
(Porter, 2006, p.597). The CLIA compares these statistics to U.S. crime
rates and harps on being the safest form of transportation and
inherently secure. They fail however, to examine the context to which
these statistics apply.
Ross Klein, a professor at Memorial University of
Newfoundland, conducted a study based on the total number of
passengers, total number of passenger nights, and the likelihood that
they will be sexually assaulted during that time. Klein testified at a
congressional hearing on March 27th, 2007.
During his testimony he stated:
“I conclude that one has a 50% greater chance of sexual assault on a Royal Caribbean International ship as compared to the US generally and that the pattern on Royal Caribbean International is consistent with that of other mass market cruise lines operating ships of similar size and style… a rate that is 48.065 sexual assaults per 100,000... The U.S. rate of sexual assaults… is 32.2 per 100,000.”
On the bright side, cruise ship crime is finally starting to receive media attention and is slowly beginning to create awareness. The highly publicized disappearance of 26-year-old George Allen Smith IV on his honeymoon aboard the Brilliance of the Sea in July of 2005 was the final straw that pushed cruise related crime to the forefront. Jennifer, (George’s wife) settled with the cruise line the same day his parents brought a lawsuit against the cruise line for deliberately portraying the incident as an accident, intentionally destroying evidence, and failing to not only properly investigate the crime, but failure to accurately report details to the FBI.
Congressman Christopher Shays not only pushed but also chaired the
first two congressional hearings regarding cruise ship crime. On March
27th, 2007 during the congressional hearing “Crimes Against Americans
on Cruise Ships” Ross Klein’s testimony explained the high propensity
for sexual assault aboard cruise ships. Fortunately, progress was made
in April 2007 when the industry voluntarily signed an agreement with
the FBI and the Coast Guard to report all incidents against Americans.
“The only apparent weakness of this approach is that it does not define
what constitutes a crime. This is important given the industry’s
propensity for manipulating definitions” (Ross Klein, 2008).
Furthermore, because the agreement was a voluntary compliance, cruise
lines cannot be penalized for failure to report crimes. Taking into
account cruise lines were already required to report crimes against
U.S. citizens prior to the agreement; it is unlikely this voluntary
compliance will motivate them to radically change their behaviors and
accurately portray cruise ship crime.
Although the industry has been firmly resistant to change and continuously denies that a problem exists, their actions acknowledge they are well aware. Royal Caribbean Cruise Line (RCCL) recently installed peepholes in all passenger stateroom doors of their entire fleet. Whether Royal Caribbean’s action was motivated by pressure from an increasing public awareness or their personal desire to keep passengers safe is unknown. However, it is important to note that RCCL did not install deadbolts or top locks along with the peepholes. Thus, crewmembers possessing keycards are no less prohibited from making an attack than they were before. The industry needs to implement significant change in order to insure the safety of its passengers.
Presently, Representative Doris Matsui of the 5th district of
California introduced a bill, The Cruise Vessel Security and Safety Act
of 2009 on March 12, 2009 (S. 588, 2009). This bill has been
introduced, in some form every year since 2004, and has never been
voted on. The bill was prepared in conjunction with suggestions made by
the International Cruise Victims (ICV) association during previous
congressional hearings. Areas addressed in the bill are: improving ship
safety, providing transparency in reporting, improving crime scene
response, improving training procedures, enforcing safety and
environmental standards, and amending the Death on the High Seas Act
(1983). The amendments of this bill are of the utmost importance and
need to be passed.
Even if passed, the cruise industry has a long way
to go to insuring safety at a high degree of care. Passengers at sea
need to be as equally protected as they are on land. U.S. citizens
should not be allowed to unknowingly enter contracts forfeiting the
same rights and remedies customary to common law.
Moving in the Right Direction
Only recently has the court mandated that cruise lines adhere to the guidelines established by the Americans with Disabilities Act (1990). The U.S. Supreme Court ruling was based on a class action lawsuit pursuant to Title III of the ADA. It was decided that foreign flagged vessels must comply with the public accommodations requirements established by the ADA. For the most part, the U.S. Supreme Court adheres to federal maritime law, removing itself from interference. It is doubtful this law would have passed had it not been such a severe case of injustice against civil rights.
Hopefully, through awareness and persistence, the cruise industry will
feel the pressure to change for the benefit of everyone. Cruise lines
have not been successful in preventing devastating experiences. Taking
a cruise can be the experience and memory of a lifetime. It is
imperative that this is the case for everyone, and to not brush aside
those who have suffered. The interviewed victims were individuals
taking a cruise for the same reason as everyone, to have a fun and
enjoyable experience. Instead, they suffered an unthinkable
tragedy. It is clearly evident that if it happened to those
interviewed it could happen to anyone.
“Passengers check their brain at the door, thinking it’s a perfectly
safe environment, but it’s not…”
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (1990).
Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189
Barbetta, et al v. S/S Bermuda Star et al., 407 U.S. 1 (1987).
Bremen v. Zapata Off-Shore Company, 407 U.S. 1 (1972).
Burke, D.D. (Summer, 2000). Article: cruise lines and consumers:
troubled waters. American Business Law Journal, 37(689), March 5th,
Carlisle v. Carnival corp., 864 So.2d 1 (2003).
Carnival Corporation v. Carlisle, 953 So. 2d 461 (2007).
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).
Death on the High Seas Act, 46 U.S.C.A. § 761 (1983).
Deck v. American Hawaii Cruises, Inc., 51 F. Supp. 2d 1057 (1999).
Dickerson, T.A. (Summer, 2004). Article: Recent Development: the cruise
passenger’s dilemma: twenty-first-century ships, nineteenth-century
right. Tulane Maritime Law Journal, 28(447), March 2nd, 2009.
Doonan v. Carnival Corporation, 404 F. Supp. 2d 1367 (2005).
Erin Lynn Baker v. Carnival Corporation, Carnival Cruise Lines, Denie
Hiestand and Shelley Hiestand, 2006 U.S. Dist. LEXIS 88249 (2006).
Gionis, T.A. (Spring, 2001). Article: Paradox on the high seas: evasive
standards of medical care-duty without standards of care; a call for
the international regulation of maritime healthcare aboard ships. The
John Marshall Law Review, 34(751), February 6th, 2009.
Jane Doe v. Celebrity Cruises, Zenith Shipping Corp., et al., 145 F.
Supp. 2d 1337 (2001).
Johnson v. Commodore Cruise Lines, Ltd., 897 F. Supp. 740 (1995).
Jones Act, 46 U.S.C.A. § 688 (1983).
Kermarec v. Compagnie Generate Transatlantique, 245 F.2d 175 (1957).
Limitation of Vessel Owner’s Liability Act, 46 U.S.C. 183a (2000).
Mansoor v. M/V Zaandam, et al., 2006 U.S. Dist. LEXIS 39787 (2006).
Nadeau v. Costley, et al., 634 So. 2d 649 (1994).
Porter, S.S. (2006). Comment: passenger protection will not sink the
cruise-ship industry. Thomas M. Cooley Law Review, 23(597), February
Schaff v. Sun Line Cruise, Inc., Royal Olympic Cruises, Ltd., 999 F.
Supp. 924 (1998).
Shipping Act of 1984, 46 USCS § 30511 (1983).
The Cruise Vessel Security and Safety Act of 2009, H.R. 1485, S. 588,
Tomlinson, S.J. (2007). Smooth sailing? Navigating the sea of law
applicable to the cruise line industry. Villanova Sports and
Entertainment Law Journal, 14(127), March 24, 2009.
Vega-Perez, et al. v. Carnival Cruise Lines, et al., 361 F. Supp. 2d 1
Walker v. Carnival Cruise Lines Inc. et al., 383 Ill. App. 3d 129
Wing, M.J. (Winter, 2003). Comment: rethinking the easy way out: flags
of convenience in the post-september 11th era. Tulane Maritime Law
Journal, 28(173), January 19th, 2009.