Cruise Ship Liability:
Passenger Rights & Remedies for Rape & Injuries in the High Seas
Rape & Injuries on Cruise Ships
Cruise vacations have increased in popularity in the last three decades with eight million people taking their vacation on the high seas. As a result, the cruise industry has incurred the fastest growth rate in the vacation market. To meet the increasing demand, industry leaders plan to construct around fifty cruise ships in the next five years. Greater demand translates to billions of dollars in revenue to the industry. However, despite the successes of the industry, individual cruise lines have been reprimanded for their poor sanitation and safety practices. Some lines have admitted dumping polluted sewage in the ocean while other lines had fire accidents, collisions and even abandonment. Of increasing concern is the escalating incidence of physical injuries sustained during planned activities or excursions, accidents such as food borne illnesses and slip-and-fall, and crime aboard cruise ships ranging from theft to sexual assault and rape. These crimes are committed by both passengers and ship crew members against other passengers. (Demos, 1992)
Unfortunately for the injured parties or victims of accidents, physical injuries and criminal activities, cruise ships have developed efficient ways of limiting their liability through the inclusion of limited liability clauses for different types of activities printed in passenger tickets. Apart from limited liability clauses, cruise ships have also indicated on passenger tickets requiring that all lawsuits should be filed at the judicial courts having jurisdiction of the port of embarkation. This works in favor of cruise lines because of the knowledge that most passengers do not live near the port of embarkation and even outside of the state. Due to their lack of proximity to the area, passengers with legal claims become reluctant to pursue legal action because of the expected cost and inconvenience to them of traveling to another state for the trial. In most cases, the time limit for commencing suit just elapses freeing the cruise line from liability. (Booth, 1999)
The range of causes for court claims occurring aboard cruise ships or related to cruise ship activities show that the same injuries and crime committed on land may also be committed on the high seas. Despite the heightened efficiency of cruise lines in evading liability, succeeding discussions look into the rights and remedies available to cruise ship passengers from these causes of action together with the concurrent liabilities of cruise lines for these causes. A determination of these factors should result to a determination of recommendations on the manner that the rights of cruise ship passengers should be protected and the liabilities of cruise ships incurred.
Rights & Remedies of Cruise Ship Passengers & Cruise Ship Liability
Under Section 3(6) of the 1984 Shipping Act, cruise ships coming from United States ports are deemed as passenger common carriers. In general, common carriers hold the special duty to passengers in ensuring that they arrive at their destinations safely. Apart from this, common carriers also have the duty to exercise the highest degree of care in ensuring that no physical harm comes to their passengers. (Booth, 1999) The strict liability of common carriers has been established in the early case of New Jersey Steamboat Co. v Brockett (1887). Moreover, Holland America Cruises, Inc. v Underwood (1985) provides that a special relationship exist between the cruise lines and its passengers based on passengers entrusting their safety to the protection and care of cruise lines. In this case, the court held that common carriers hold the duty to protect their passengers from criminal attack. This means that the responsibilities of the cruise lines to ensure safe transportation encompass the provision of protection to passengers from rape, molestation and assault committed by its own crew members (Norris, 1990).
Translated into rights and remedies for cruise ship passengers, the provision of the law and jurisprudence provides for the rights of passengers to have a safe trip and to expect cruise lines to exercise due diligence in ensuring their safety even from its own crew members. Remedies emanating from violations of this right include action for damages under tort law for negligence such as accidents and other covered violations of the duty of care, civil action whenever applicable, and criminal action for the crimes of physical injuries, assault or rape committed to passengers of cruise ships by fellow passengers or crew members. (Kennedy, Sakis & Troy, 1999)
The assertion of rights of passengers of cruise ships against crew members has been covered by New Jersey Steamboat Co. v Brockett (1887). In this case, a passenger incurred physical injuries when the watchman of the ship forcefully removed the passenger from a restricted area. The court held that the right of the passenger to safe transportation involves protection from the personnel of the cruise ship. The court drew the right to protection against ship personnel based on the contract between the cruise lines and the passenger for safe transportation extending to the passenger entitlement to protection against the crew members due to either negligence or misconduct. Since the ship’s crew work for the cruise lines, the liability is imputed to the cruise lines because it is the crew of the ship that implements the contract. The imputation of liability is also supported by public policy.
The protection of the right of passengers of cruise ships was also affirmed in New Orleans & N.E.R.R. Co. v Jopes (1891). The case involved a conductor shooting a passenger in a train. However, despite the difference in factual circumstances, the court applied the decision in the Brockett case of imposing the absolute liability of common carriers towards the safety of their passengers. The court further expanded on the absolute liability by removing the condition that the employee of the carrier should have committed the act linked to liability while performing his or her functions. This means that even if the employee is off duty but the act has been committed against the passenger within the scope of responsibility of the common carrier, the carrier still accrues liability.
In the succeeding case of Carnival Cruise Lines, Inc. v Morton (1993), a passenger alleged that a crew member raped her in her cabin. In deciding the case, the court applied the principle of reasonable care in application to the circumstances of the case and found the ship liable.
Reasonable care has also been applied in the determination of liability of cruise lines for accidents resulting to personal injuries in cruise ships. Kermarec v Compagnie Generale Transatlantique (1959) involved a person meeting a slip-and-fall while visiting a crew member on board a cruise ship. In determining the liability of the cruise ship, the court held that the ship owner owes the duty to exercise reasonable care to people lawfully on board the vessel. The court determined that in considering the liability of ship owners for accidents on board the vessel, the general standard of reasonable duty of care applies, provided only that the person is deemed lawfully boarding the vessel. This implies that people lawfully on board a ship are entitled to the right to safety based on the general standard of duty of care accruing to the ship owner.
A consideration of the jurisprudence relating to the rights and remedies of cruise ship passengers and the liabilities of cruise lines or ship owners means that in accidents, the rule in Kermarec applies but in cases involving violations committed by crew members towards passengers, the rules in the Brockett case applies.
Litigation Venue for Actions Occurring Aboard Cruise Ships
Most passenger tickets for cruise vacations include the forum selection clause printed in microscopic letters at the back of the ticket. Unknown to most passengers, the forum selection clause is important in cases of actions against the cruise ship because the clause controls the venue for litigating any action arising from the contract of transportation. The venue of action then determines the law that applies in the determination of the case. The state or location from which the cruise ship departs from is usually designated as the forum for filing court actions regardless of whether the cause of action occurred within the geographic jurisdiction of the court in the port of departure or if these occur in the high seas. (Booth, 1999)
Objections against the applicability of forum selection clauses have been made by plaintiffs due to the difficulty they entail in complying with the clause especially if the cause of action was committed in the port of arrival in the high seas. However, these challenges have failed due to the decision of the Supreme Court in Shute v Carnival Cruise Lines, Inc. (1990) held that in applying the test of reasonableness, there are two major reasons for holding as reasonable non-negotiated forum selection contract terms. One is the fact that cruise ships carry passengers from different places and it would be impractical or unreasonable to have to hold the cruise ship liable for accidents, injuries or crimes in different court jurisdictions. The other is the ability of the forum selection clause to minimize the monetary and time cost involved in the filing of venue motions. This also benefits passengers through the reduction of fares because the cruise ship does not expect to incur these costs.
However, there are certain claims that plaintiffs may bring out in court to question the applicability of the forum selection clause. In Johnson v Commodore Cruise Lines (1995) distinguished the spheres covered by court determination. The case held that intentional torts committed by crew members fall outside of the determination power of the court because these acts do not involve mishaps but alleged intentional acts. The distinction was used to limit the applicability of adhesion clauses covering the venue of court action, time for filing court action, and the type of actions to be filed against the cruise lines.
Another basis for questioning the applicability of the forum selection clause is the decision of the court in the Johnson case interpreting the laws covering cruise ship liability as not providing or allowing for the limitation in the liability of cruise lines. In the case, the plaintiff filed an action for the intentional imposition of emotional distress together with related wrongs through the act of the cruise lines in conspiring in order to cover-up the rape of a passenger by a crew member while aboard the cruise ship. The contract of adhesion provides for a shorter period of filing actions. The court held that despite the rule provided in the Shute case, legislation on liability does not include in its contemplation allowing the limitation of the liability for intentional misconduct. This means that in the case of forum selection, the plaintiff may still file venue motions in instances where the application of the forum selection clause results to the limitation of the liability of the cruise ship for intentional wrongs.
Still, another basis for questioning the applicability of the forum selection clause in passenger tickets is the unfairness of its application because the plaintiff was not given the opportunity to rebuff the clause without forfeiting financial claims. This may be raised in instances where the passenger learns of the forum selection clause after purchasing the ticket and the passenger was not given the opportunity to reject the contractual provision without incurring any penalties. In Corna v American Hawaii Cruises, Inc. (1992) the forum selection clause was not enforced due to the finding that this worked unfairly to the plaintiff. In Kalman v Cunard Line, Ltd. (1995) the motion to dismiss the venue motions was denied while considering the resolution of the factual dispute. In the case of Cross v Kloster Cruise Lines, Ltd. (1995) the forum selection clause was enforced but the cruise line incurred penalty due to the non-compliance with the period of notice provided in the contract of adhesion.
Conclusion
Cruise ship companies incur liability for accidents, physical injuries and crimes committed aboard the vessel. The liability of cruise ships emanate from the tort principle of strict liability they have for occurrences violating the right of passengers to a safe transportation. Cruise ships are deemed as common carriers so that the principle of strict liability accruing to all common carriers applies to cruise ship companies. Strict liability refers to the absolute liability of cruise lines for accidents, physical injuries and crimes committed on board the ship causing harm and encroaching on the safety of passengers. Moreover, the principle of standard of reasonable care also accrues to cruise ship companies covering personal injury cases filed by passengers.
Since cruise ship companies incur liability for accidents and crimes committed onboard their ships, a relevant issue is the venue for filing claims. The US Supreme Court has provided in the Shute case that forum selection clauses in contracts of adhesion are reasonable. This means that actions involving cruise ship transportation should be filed in the venue specified in the contract. However, there are certain exceptions to the rule such as the action involving intentional acts, the unfairness of clause’s application, and the specific circumstances of the case.
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