This week we review recent positive developments in the legal obligations of cruise ships towards their passengers. In particular, those cruise ships that touch US ports may now be liable under the doctrine of apparent authority for the on-board medical malpractice of ship’s medical staff and the negligent and contractual misconduct of shore excursion ground service providers.
Terror Targets Update
In Walsh & Fahim, EgyptAir Flight Believed to Have Crashed at Sea; Egypt Cites Possible Terrorism, nytimes.com (5/19/2016) it was noted that “The EgyptAir red-eye from Paris to Cairo, an Airbus A320 jetliner less than half full had just entered Egyptian airspace early Thursday (when it) plunged 28,000 feet, disappearing from the radar screens of Greek and Egyptian air traffic controllers…Egyptian officials suggested that terrorism was a more likely cause for the disappearance than mechanical failure…The loss of the l\flight was the second civilian aviation disaster to hot Egypt in the past seven months”; Walsh, Egypt Sends Submersible in Search for EgyptAir Jet’s Black Boxes, nytimes.com (5/22/2016) it was noted that “A statement from the Islamic State on Saturday failed to mention the EgyptAir crash, confounding speculations that the group, which claimed to have been behind the bombing of a Russian airliner in Sinai in October, might have been responsible”; Mexico ‘dissatisfied’ with Egypt’s failure to probe the killing of tourists, eturbonews.com (5/13/2016) it was noted that “Mexico has expressed its dissatisfaction with the Egyptian government’s response to an aerial bombing last year in which eight Mexican tourists were killed”.
In Gall, How Kosovo Was Turned Into Fertile Ground for ISIS, nytimes.com (5/21/2016) it was noted that “Kosovo now finds itself, like the rest of Europe. Fending off the threat of radical Islam. Over the last two years, the police have identified 314 Kosovars-including two suicide bombers, 44 women and 28 children-who have gone abroad to join the Islamic State, the highest number per capita in Europe”.
In Car bomb explosion injures seven in Istanbul, eturbonews.com (5/13/2016) it was noted that “Six soldiers and a civilian have been wounded after an explosives-laden car blew up near a military base in Turkey’s port city of Istanbul, the latest in a spate of bombings this year”.
In 25 killed and 56 wounded in Baghdad bombings, eturbonews.com (5/11/2016) it was noted that “A[t] least 25 people have been killed and 56 others wounded in two new blasts targeting a western neighborhood of the Iraqi capital city”.
Zika, Zika, Zika
In Herszenhorn, Senate Votes to Advance Emergency Funding to Fight Zika Virus, nytimes.com (5/17/2-16) it was noted that “The Senate voted on Tuesday to advance $1.1 billion in emergency financing to combat the mosquito-borne Zika virus-less than the $1.9 billion requested by the White House”; Steinmetz, UN WHO: Zika on doorsteps of Africa, eturbonews.com (5/22/2016) it was noted that “The United Nations health agency today confirmed that the Zika virus strain circulating in Cabo Verde, an island nation off the northwest coast of Africa, is the same as the one responsible for the outbreaks linked to neurological disorders and microcephaly in South America. The virus was most likely imported from Brazil”; Puerto Rico hotels focus on Zika protection for Guests, eturbonews.com (5/19/2016) it was noted that “The Puerto Rico Tourism Company has maintained close contact with the US Centers for Disease Control and Prevention (CDC) on the ground in Puerto Rico to communicate Zika facts to the public”.
Yellow Fever In Africa
In Steinmetz, Africa Yellow fever outbreak and the threat to travel and tourism, eturbonews.com (5/22/2016) it was noted that “A yellow fever outbreak was detected in Angola late in December 2015 and confirmed by the Institut Dakar (IP-D) on 20 January 2016. Subsequently, a rapid increase in the number of cases have been observed. As of 19 May 2016, Angola has reported 2420 suspected cases of yellow fever with 298 deaths…Three countries have reported confirmed yellow fever cases imported from Angola: Democratic Republic of the Congo (DRC) (42 cases), Kenya (two cases) and Peoples Republic of China (11 cases)”.
Travel Consumer Philosophy
When consumers purchase travel services from suppliers and tour operators such as transportation [as provided by airlines, cruise lines, railroads, bus companies, rental car companies]; accommodations [as provided by hotels and resorts and cruise lines]; food and drink [as provided by the aforesaid and restaurants]; tours of local sights or more strenuous activities at the destination [as provided by destination ground operators often working with or for airlines, cruise lines, hotels and resorts and tour operators], they should receive the purchased travel services as promised and contracted for or which can reasonably be expected. If they don’t receive those services, in whole or in part, then the injured or victimized traveler should be properly compensated in a court of law, preferably in the jurisdiction wherein the services were purchased and/or where the consumer resides and subject to local law.
The Evolution Of Traveler’s Rights
When I first started writing about Travel Law in 1976, the rights and remedies available to travelers were few, indeed.
The Independent Contractor Defense
The concept that an airline, cruise line, hotel, resort or tour operator should be able to insulate itself from liability for the tortuous and contractual misconduct of so called independent contractors was universally accepted by the Courts on land and on the sea, until very recently.
The Barbetta Rule
In the context of maritime law, the near universal enforcement of the rule in Barbetta v. S/S Bermuda Star, insulating a cruise ship from liability for the medical malpractice of the ship’s medical staff is a perfect example of this rule. Indeed, a variation of this rule, that contractual disclaimers of liability for the misdeeds of ground service providers were also universally enforced.
The Franza Case
As noted in my 2004 Tulane Maritime Law Journal article, maritime law, as it related to passengers, was best described as 21st Century Cruise ships and 19th Century Passenger Rights. However, to my surprise and satisfaction, the 11th Circuit Court of Appeals recently, not only agreed with this analysis but decided to dramatically transport passenger rights, at least in part, into the 21st Century.
As noted in Franza v. Royal Caribbean Cruises, Ltd., “We decline to adopt the rule explicated in Barbetta, because we can no longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases…As Justice Holmes, famously put it, we should not follow a rule of law simply because ‘it was laid down in the time of Henry 4th’, particularly where ‘the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past…Here, the roots of the Barbetta rule snake back into a wholly different world. Instead of nineteenth-century steamships…we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities…In place of truly independent doctors and nurses, we must now acknowledge that medical professionals routinely work for corporate masters”.
A One-Sided Contractually Defined Relationship
Until recently, the relationship between travelers and suppliers, including cruise ships and tour operators, was governed by contracts, often printed in nearly invisible print and loaded with self-serving and unconscionable clauses, both substantive and procedural in nature. These contracts, irregardless of whether the traveler saw or agreed to the terms therein, were routinely enforced. Indeed, there were cases which held that promises made in advertising material would not be enforced because they were disclaimed or limited by contractual clauses. In essence, the suppliers or tour operator’s contractual definition of their relationship to the consumer was nearly universally enforced by the Courts.
The Franza Case
However, in Franza the Court noted that it is not the contract that should define the relationship between cruise ship and passenger but the facts of each case. “Royal Caribbean urges us to look beyond the complaint, to (the) passenger ticket contract…which purports to limit the ship’s liability for onboard medical services…even if we were to look to the contract at this stage, we would not consider the nurse and doctor to be independent contractors simply because that is what the cruise line calls them”. As noted by Michael Drennen in Captaining The Ship Into Culpability “This point strikes an ominous chord for cruise ship companies like Royal Caribbean which-in conjunction with the Barbetta rule-have faithfully relied on contractual limitation of liability clauses like the one in Franza to insulate them from imputed liability”.
Shore Excursions Big Business For Cruise Lines
Shore excursions are big business for the cruise lines [Perrin, What I Learned Moonlighting as a Cruise Ship Trainee cntraveler.com/perin-post/2013/04 (“Cardozo works year-round, planning, scheduling and executing shore excursion for demanding passengers…These day trips are big business for the cruise lines: Royal Caribbean expects Navigator of the Seas to earn between $600,000 and $1,100,000 per week in onboard revenue, including tour sales”); Carothers, Cruise Control, Stop Press( “ Almost half of all cruise passengers-some five million a year-participate in shore excursions ranging from simple bus tours in port cities to more adventurous activities such as scuba diving trips and hot-air balloon rides. Excursions sold by a cruise line are generally the most convenient to book, and therefore are often more crowded-and more expensive-than those purchased independently… Perhaps, the safest bet is to purchase shore excursions through the cruise lines. Serious accidents on these trips are extremely rare although the lines disclaim any liability for mishaps that occur on these excursions, they say that they make every effort to ensure that the businesses they work with are licensed and reputable…” ); Solomon, Voyage to the Great Outdoors ( “ 250 passengers from a Carnival cruise ship had signed up and paid $93 for the experience of floating in inner tubes through a rain forest cave…Cruise lines now offer a buffet of shore excursions for their guests at every port of call…Passengers can attend a race-car academy in Spain, get their scuba diving certificate in the Virgin Islands and even take a spin in a MIG fighter jet in Russia “).
Active Promotion Of Shore Excursions
Cruise lines actively promote shore excursions [Perry v. Hal Antillen NV (shore excursion accident; discussion of relationships between cruise line, ground tour operator and subcontractor transportation providers; theories of liability); Gayou v. Celebrity Cruises, Inc. (cruise passengers sustained injuries riding zip-line); McLaren v. Celebrity Cruises, Inc. (cruise passenger injured disembarking snorkeling tour boat); Smolnikar v. Royal Caribbean Cruises Ltd. (cruise line passenger injured while participating in a “zip line” excursion tour in Montego Bay, Jamaica operated by independent contractor Chukka Caribbean Adventures); Koens v. Royal Caribbean Cruises Ltd. (cruise passengers robbed and assaulted in tour of Earth Village)].
Development Of New Duties
In an effort, perhaps, to circumvent the independent contractor defense, and faced with cases involving foreign ground providers not subject to US long arm jurisdiction, the Courts a few years ago began applying common law principals to the liability of tour operators for tourist accidents abroad and, more recently, in the maritime context, to cruise lines for shore excursion accidents. In so doing these Courts have recognized several new duties to travelers and passengers.
Breach Of Warranty Of Safety
A warranty of safety may arise when a travel purveyor promises in a brochure that some or all of the travel services will be delivered in a safe or careful manner and it can be shown that the tourist relied on such representations. For example, terms such as “highly skilled boatmen” [Chan v. Society Expeditions, Inc.], “unsinkable boats” [Wolf v. Fico Travel], “safe buses” [Rovinsky v. Hispanidad Holidays, Inc.], “perfectly safe” canoeing conditions [Glenview Park District v. Melhus], “perfectly safe” catamaran ride [Wolff v. Holland America Lines] and describing cliff jumping as “an approved and safe activity” [Gartland v. Douchette], may require the travel purveyor to actually deliver on the warranty.
Negligent Selection Of A Supplier Or Ground Services Provider
In an early case in 1992, Winter v. I.C. Holidays, Inc. the Court found a tour operator liable for the negligent selection of a foreign bus company which was not only negligent but was also insolvent, uninsured and otherwise unavailable to satisfy the claim of the injured travelers. Recently, the courts have recognized this duty.
The Zapata Case
For example, in Zapata v. Royal Caribbean Cruises, Ltd. the cruise passenger purchased excursion tickets onboard the cruise ship featuring “bell diving” during which decedent was asphyxiated, brought to the surface for oxygen but unfortunately the oxygen tank was empty whereupon decedent became unconscious and died.[claims against cruise line RCCL governed by Death on the High Seas Act (DOHSA) eliminating recovery of non-pecuniary damages; claims for negligent selection or retention of excursion operators and apparent agency or agency by estoppel legally sufficient if appropriate facts repleaded; claims of joint venture and third party beneficiary theory dismissed as expressly disclaimed in Tour Operator Agreement].
The Perry Case
In Perry v. Hal Antillen NV the cruise passenger returning from a cruise ship recommended and promoted shore excursion, was run over by shore excursion tour bus. [extensive discussion of liability issues regarding cruise lines which recommended and promoted shore excursion, local ground operator and tour bus that transported cruise passengers to and from shore excursion; liability theories include agency by estoppel, third party beneficiary, failure to disclose, negligent selection, joint venture, warranty of safety, negligent supervision and damages limitation under Washington’s Consumer Protection Statute].
The Gibson Case
In Gibson v. NCL (Bahamas) Ltd. the cruise passenger was injured attempting to board “‘Jungle Bus’ to transport her to a zipline tour in the Mexican jungle”. [no causes of action for negligent selection to excursion operator or “Jungle Bus”, failure to warn and negligent supervision; but causes of action stated for apparent authority and joint venture].
The Reming Case
In Reming v. Holland America Line, Inc. the cruise passenger fell into a sink hole during shore excursion in Mazatlan City. [cruise ship contract clause disclaiming liability for negligent selection of local tour bus company unenforceable thus expanding the scope 26 USC. § 30509 from accidents onboard to shore excursion accidents; cause of action for negligent selection of excursion operator stated; “HAL has failed to provide any evidence or argument regarding HAL’s inquiry into Tropical Tour’s competence and fitness as an excursion provider. Therefore, Plaintiff’s claim regarding HAL’s (negligent) selection and retention of Tropical Tours remains for trial].
Duty To Warn Of Dangerous Environments
In Chaparro v. Carnival Corporation the passengers took a cruise aboard Carnival’s M/V Victory during which a Carnival employee urged plaintiffs to visit Coki Beach and Coral World which plaintiffs did. “On their way back to the ship from Coki Beach (plaintiffs) rode an open-air bus past a funeral service of a gang member who recently died in a gang-related shooting near Coki Beach…While stuck in traffic, gang-related retaliatory violence erupted at the funeral, shots were fired and Liz Marie was killed by gunfire which she was a passenger on the bus”; motion by Carnival to dismiss denied, claim stated for failure to warn; complaint alleged, inter alia, “Carnival was familiar with Coki Beach because it sold excursion to passengers to Coki Beach; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft and gang violence…Carnival failed to warn (passengers) of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general or specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death”).
Third Party Beneficiary Theory
The Perry Case
In Perry v. Hal Antillen NV the cruise passenger was run over by a tour van hired as a subcontractor by the tour operator Rain Forest Aerial Tram, Ltd.(RFAT). RFAT had entered into a contract with the cruise lines (HAL) and executed a copy of a manual entitled ‘Tour Operator Procedures and Policies” (TOPPS). TOPPS required “a tour operator in the Caribbean to obtain minimum limits of auto and general liability insurance of ‘US$2.0 million/accident or occurrence’… [s]hould the Operator subcontract for services (such as aircraft, rail, tour buses or watercraft), the Tour Operator must provide a list of its subcontractors and evidence of the subcontractor’s insurance”. The cruise line asserted that RFAT “was ‘required to assure that any subcontractor it used to provide excursion related services had in place the equivalent USD 2,000,000 in auto and general liability coverage”. Here, it was discovered after the accident that the tour van operator only had $85,000 in insurance coverage and the Court held that the plaintiffs were third party beneficiaries of TOPPS and had a claim against RFAT for failing to disclose to HAL that tour van operator was a subcontractor and was only insured up to $85,000).
The Haese Case
In Haese v. Celebrity Cruises, Inc. the plaintiff and her mother were parasailing in tandem during shore excursion when “the guide rope supporting them broke and both women fell into the water”. As a result, mother died and daughter sustained “catastrophic injuries” [causes of actions based upon third party beneficiary theory and joint venture stated)].
Apparent Agency/Agency By Estoppel
On-Board Medical Malpractice
Traditionally, cruise ships have not been held vicariously liable for the medical malpractice of the ship’s doctor or medical staff [Barbetta v. S/S Bermuda Star].
This policy was unfair and has been criticized by some Courts [ see e.g., Nietes v. American President Lines, Ltd., (cruise ship vicariously liable for medical malpractice of ship’s doctor who was a member of the crew) and commentators]
The Carlisle Case
In Carlisle v. Carnival Corp. a 14-year-old female passenger became “ill with abdominal pain, lower back pain and diarrhea and was seen several times in the ship’s hospital by the ship’s physician” who misdiagnosed her condition as flu when, in fact, she was suffering from an appendicitis. After several days of mistreatment, she was removed from the cruise ship, underwent surgery after the appendix ruptured and was rendered sterile. In rejecting a long line cases in the 5th Circuit absolving cruise ships for the medical malpractice of a ship’s doctor, the Carlisle Court stated “The rule of the older cases rested largely upon the view that a non-professional employer could not be expected to exercise control or supervision over a professionally skilled physician. We appreciate the difficulty inherent in such an employment situation, but we think that the distinction no longer provides a realistic basis for the determination of liability in our modern, highly organized industrial society. Surely, the board of directors of a modern steamship company has as little professional ability to supervise effectively the highly skilled operations involved in the navigation of a modern ocean carrier by its master as it has to supervise a physician’s treatment of shipboard illness. Yet, the company is held liable for the negligent operation of the ship by the master. So, too, should it be liable for the negligent treatment of a passenger by a physician or nurse in the normal scope of their employment, as members of the ship’s company, subject to the orders and commands of the master.” Unfortunately, the Florida Supreme Court reversed this decision in Carlisle v. Carnival Corp.
Recently, however, a few courts have allowed the victims of medical malpractice to assert a claim against the cruise line based on apparent agency and negligent or fraudulent misrepresentations [See Lobegeiger v. Celebrity Cruises, Inc., (“Plaintiff alleges Celebrity ‘held out’ Dr. Laubscher as an officer of the ship’s crew ‘through his title, his uniform, his living quarters on board the ship and his offices on board the ship’…Taking these allegations as true, Plaintiff has sufficiently alleged that Celebrity made manifestations which could cause Plaintiff to believe Dr. Laubscher was an agent of Celebrity”; cause of action for fraudulent misrepresentation stated); Lobegeiger v. Celebrity Cruises Inc. (summary judgment for defendant on apparent agency theory of liability for medical malpractice); Hill v. Celebrity Cruises, Inc. (no actual agency; no apparent agency; but misrepresentation that ship would have two doctors but only provided one stated claim for negligent misrepresentation).
The Franza Case
In Franza v. Royal Caribbean Cruises, Ltd. an elderly cruise passenger, Pasquale Vaglio, fell and bashed his head while on shore. Allegedly due to the “negligent medical attention” that he received from the ship’s Doctor and Nurse his life could not be saved. “In particular the ship’s nurse purportedly failed to assess his cranial trauma, neglected to conduct an diagnostic scans and released with no treatment to speak of. The onboard doctor, for his part, failed to meet with Vaglio for nearly four hours…Vaglio died about a week later”.
Indicia Of Apparent Agency
“For starters, Franza’s complaint plausibly established: (1) that Royal Caribbean ‘acknowledged’ that Nurse Garcia and Dr. Gonzalez would act on its behalf and (2) that each ‘accepted’ the undertaking. Most importantly, Franza specifically asserted that both medical professionals were ‘employed by’ Royal Caribbean, were ‘its employees or agents’ and were ‘at all times material acting within the scope and course of [their] employment… Furthermore, the cruise line directly paid the ship’s nurse and doctor for their work in the ship’s medical center. Third, the medical facility was created, owned and operated by Royal Caribbean, whose own marketing materials described the infirmary in proprietary language…Fourth, the cruise line knowingly provided, and its medical personnel knowingly wore, uniforms bearing Royal Caribbean name and logo. And, finally, Royal Caribbean allegedly represented to immigration authorities and passengers that Nurse Garcia and Dr. Gonzalez were ‘members of the ship’s crew’ and even introduced the doctor ‘as one of the ship’s Officers. Taken as true, these allegations are more than enough to satisfy the first two elements of actual agency liability”.
“We decline to adopt the rule explicated in Barbetta because we can no longer discern a sound basis in law for ignoring the facts alleged in individual medical malpractice complaints and wholly discarding the same rules of agency that we have applied so often in other maritime tort cases”
Apparent Agency Applies
“We are the first circuit to address whether a passenger may use apparent agency principals to hold a cruise line vicariously liable for the onboard medical negligence of its employees…we conclude that a passenger may sue a ship owner for medical negligence if he can properly plead and prove detrimental, justifiable reliance on the apparent agency of a ship’s medical staff member…The federal circuits have made only passing references to apparent agency principals in maritime tort cases…Nonetheless, given the broad salience of agency rules in maritime law…and the important role the federal courts play in setting the bounds of maritime torts…we think apparent agency principals apply in this context. Indeed, the equitable foundations of apparent agency are just as important in tort as in contract…Having long applied the principals of apparent agency in maritime cases, we discern no sound basis for allowing a special exception for onboard medical negligence, particularly since we have concluded that actual agency principals ought to be applied in this setting as well”
Additional Cruise Cases Discussing New Liability Theories
The Witover Case
In Witover v. Celebrity Cruises, Inc., a disabled passenger using a scooter disembarking for shore excursion fell to the ground and the scooter fell on top of her. The Court discussed several liability theories including breach of contract, duty to warn of foreseeable danger, negligent retention of tour operator and vicarious liability for tour operator negligence.
The Richards Case
In Richards v. Carnival Corporation, the cruise passenger was injured during a shore excursion tour when the ATV he was riding “flipped over throwing the Plaintiff off’”. The Court discussed various liability theories including various alleged negligent acts, apparent agency or agency by estoppel, joint venture between cruise line and ground operator and negligent misrepresentation.
Assumption Of Duty/Due Diligence Investigations
Some cruise lines make a concerted effort to perform due diligence in the selection of shore excursion operators [See e.g., Smolnikar v. Royal Caribbean Cruises Ltd.(cruise line passenger injured while participating in a “zip line” excursion tour in Montego Bay, Jamaica operated by independent contractor Chukka Caribbean Adventures Ltd. (Chukka); Court addressed three theories of liability against the cruise line one of which was the negligent selection of the zip line operators finding that based on Florida law the cruise line had such a duty which could not be disclaimed (46 USC. 30509); “Under Florida law, a principal may be subject to liability ‘for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor…Where such a duty exists, a plaintiff bringing a claim for negligent hiring or retention of an independent contractor must prove that ‘(1) the contractor was incompetent or unfit to perform the work; (2) the employer knew or reasonably should have known of the particular incompetence or unfitness and (3) the incompetence or unfitness was a proximate cause of the plaintiffs injury’…In determining whether Royal Caribbean knew or reasonably should have known of (Chukka’s) alleged incompetence…the relevant inquiry is whether Royal Caribbean diligently inquired into (Chukka’s) fitness…Royal Caribbean has provided…a multitude of reasons why it found (Chukka) to be a competent and suitable zip line tour operator before and while it was offering the Montego Bay zip line tour. Those reasons include (1) that Royal Caribbean had an incident-free relationship was Chukka dating back 4-5 years before offering the Montego Bay tour, (2) that it had never been made aware of any accidents occurring on any of Chukka’s other tours, (3) the positive feedback received from Royal Caribbean passengers who participated in Chukka’s other tours, (4) Chukka’s reputation as a first class tour operator…(7) that at least two other major cruise lines had been offering the Montego Bay zip line tour for approximately one year, (8) that it had sent representatives to participate on the tour and there was no negative feedback…(12) that it never received any accident reports from Chukka pertaining to the Montego Bay tour. These indicate that Royal Caribbean’s inquiries were diligent and that its decisions (in selecting Chukka) were reasonable”).
Cruise vacations can be wonderful experiences. While there has been a noticeable and positive sea change in cruise passenger rights and remedies, especially, as they relate to onboard medical malpractice and shore excursion accidents, potential cruise passengers are still well advised to think carefully about their legal rights should they be dissatisfied, injured, or worse while traveling on a cruise vacation.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
This article may not be reproduced without the permission of Thomas A. Dickerson.