Cruise Ship Law

1. Cruise Ship Law Michelle Rigual Associate Director and Assistant Professor University of New Mexico School of Law Library

2. Big Business • In 1977, when The Love Boat premiered, fewer than 1 million passengers cruised from ports in the U.S. • Today, the number is approximately 11 million. • More than 3 million embark annually from the Port of Miami.

4. Staying Safe • Cruise ships are like small cities, use common sense. • Don't lean over the railings • Watch how much you drink • Walk away from disagreements or fights • Don’t walk down dark hallways • Don’t invite someone into your room if you don't know them • Don’t give personal information to strangers • Leave valuables at home

5. Personal Injuries to Passengers • Cruise lines owe passengers a duty of reasonable care • Passengers injured while onboard may bring suit the same as if they had been injured ashore through the negligence of a third party. • Passenger bears the burden of proving the cruise line’s negligence.

6. Liability for Intentional Torts • In cases of crewmember's intentional, wrongful act against a passenger: • Cruise line breaches duty of reasonable care • Obligation applies from embarkation to disembarkation • Questionable if this applies to acts that are not within the scope of the employment

7. Cruise Tickets are Contracts • In case of injury, your ticket is a binding contract that governs: • Forum selection - disputes must be taken to a particular court (usually Miami or Seattle). • Choice of law - disputes will be governed by a particular jurisdiction’s law. • Notice requirements - litigation will be initiated within a particular timeframe.

8. Contract Terms • Limited liability clauses are reasonable and permissible. • Clauses are enforceable if both: • Fundamentally fair • requires examination of the contract’s facial clarity • the provision must be sufficiently obvious and understandable - small print is OK • Reasonably communicated • passenger must have sufficient opportunity to reject the contract without forfeiting the ticket price

12. IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY BINDING CONTRACTISSUED BY CARNIVAL CRUISE LINES TO, AND ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND CONDITIONS APPEARING BELOW. NOTICE:THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TOCLAUSES 1, 4, AND 10 THROUGH 13, WHICH CONTAIN IMPORTANT LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS AND EMPLOYEES, AND OTHERS, INCLUDING FORUM SELECTION, ARBITRATION AND WAIVER OF JURY TRIAL FOR CERTAIN CLAIMS.#1

13. Carnival shall not be held vicariously liable for the intentional or negligent acts of any persons not employed by Carnivalnor for any intentional or negligent acts of Carnival’s employees committed while off duty or outside the course and scope of their employment. #2

14. Carnival shall not be liable for any claims whatsoever for personal injury, illness or death of the guest,unless full particulars in writing are given to Carnival within 185 daysafter the date of the injury, event, illness or death giving rise to the claim.Suit to recover on any such claim shall not be maintainable unless filed within one yearafter the date of the injury, event, illness or death. Guest expressly waives all other potentially applicable state or federal limitations periods. #3

15. Carnival shall not be liable for any claims whatsoever, other than for personal injury, illness or death of the Guest,unless full particulars in writing are given to Carnival within 30 daysafter the Guest is landed from the Vessel. Legal proceedings to recover on any claim whatsoever other than for personal injury, illness or death shall not be maintainableunless commenced within six monthsafter the date Guest is landed from the Vessel. Guest expressly waives all other potentially applicable state or federal limitation periods for claims which include, but are not limited to, allegations concerning any and all civil rights, the ADA, trade practices and/or advertising. #4

16. All disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before theUnited States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, beforea court located in Miami-Dade County, Florida, U.S.A. #5

17. Any and all disputes, claims, or controversies whatsoever, other than for personal injury, illness or death of a Guest, whether brought in personam or in rem or based on contract, tort, statutory, constitutional or other legal rights, including but not limited to alleged violation of civil rights, discrimination, consumer or privacy laws, or for any losses, damages or expenses, relating to or in any way arising out of or connected with this Contract or Guest’s cruise…shall be referred to and resolved exclusively by binding arbitration… solely in Miami-Dade County, Florida, U.S.A.#6

18. THIS CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON GUEST’S OWN BEHALFINSTEAD OF THROUGH ANY CLASS ACTION.  EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE. #7

19. It is stipulated and agreed that the aggregate value of Guest’s property, does not exceed $50 per guest or bag with amaximum value of $100 per stateroomregardless of the number of occupants or bags and any liability of Carnival for any cause whatsoever with respect to said property shall not exceed such sum. #8

20. Federal or State Court? • The Constitution granted original jurisdiction over maritime matters to federal courts. • By federal statute, you are only limited to federal court if you seek to either: • arrest a ship to enforce a maritime mortgage or lien • partition ownership of a ship. • This allows plaintiffs to choose between federal and state court for the vast majority of maritime actions.

21. The "Reverse-Erie Doctrine" • Absent a Choice of Law provision: • U.S. state law applies if the events occur within a state’s territorial waters. • Maritime law applies if the events occur outside U.S. territorial waters. • State courts hearing maritime cases must apply federal maritime law, even if it conflicts with the state’s law.

22. Applying Maritime Law • Maritime law (also called admiralty law) governs the activity of carrying cargo and passengers over water. • Maritime law does not have the same level of consumer protection as state laws. • Lawyer needs to have familiarity with maritime law.

23. Territorial Waters • Water over which a nation has jurisdiction. • Regarded as the sovereign territory of the state. • Extend 12 nautical miles (13.8 miles) from the mean low-water mark of a coastal state.

28. Crimes Against Passengers • A complicated weave of international law applies. • Crimes are reported to the ship’s security officer. • The security officer investigates. • If a “serious,” suspect is detained. • Suspect is removed at the next port of call (turned over to appropriate authorities).

29. Ship’s Registry • Vessels register under a country’s authority (called the Flag State). • Most cruise ships are registered in foreign countries that have more lenient tax, labor, and safety laws. • Referred to as flying a “flag of convenience.”

30. Ship’s Registry

32. Crime Scene Investigation • Ship security officers • First official law enforcement agency • Permission to board (granted by flag state) • Notification of FBI

33. Medical Care • Doctors and nurses are independent contractors. • No regulations governing cruise ship infirmaries and medical staffing – board certifications are rare. • Each cruise line has its own set of standards • Cruise ship infirmaries tend minor problems and provide emergency response treatment to stabilize patients until they can be transferred or evacuated • Most basic insurance policies will not cover treatments given at sea.

34. Noroviruses • Noroviruses are a group of viruses that cause the “stomach flu,” • Routine methods to detect the virus on food items are not available • In November 2006, 679 (17%) out of 3,970 passengers and crew members aboard Carnival Liberty contracted the virus

40. Shore Excursions • Run by independent contractors • NOT subject to jurisdiction of US courts • Insured? Licensed? Responsible? • Again, be careful.

41. ADA • Foreign flagged cruise ships serving US ports must comply with the ADA’s public accommodations requirements. • “[a]bsent a clear statement of congressional intent, general statutes may not apply to foreign-flag vessels insofar as they regulate matters that involve only the internal order and discipline of the vessel.”

42. Environmental Impact • Average waste generated per day • Cruise ships - 4,400 kg • cargo ships - 60 kg • fishing vessels - 10 kg • Types of pollution: • Discharge of sewage, graywater, hazardous wastes, oily bilge water, ballast water, and solid waste. • Smokestack emissions from waste incineration.

43. Environmental Impact • About a third of the waste from cruise ships visiting the Caribbean is deliberately dumped. • Many ships do not have incineration units • Insufficient port facilities for unloading waste • Insufficient disposal sites once unloaded.

44. Pacific Coast - State Regulation • Ocean Ranger programs • Alaska (2006) • California (under consideration) • Require cruise ships to have aboard an ocean ranger employed by the state who is a licensed marine engineer and granted peace officer status.

45. Forced Labor? • The internet is full of horrible stories! • No way to verify….your thoughts? • Recent law suits filed….see handouts.

46. Let’s Revisit - Staying Safe • Cruise ships are like small cities, use common sense. • Don't lean over the railings • Watch how much you drink • Walk away from disagreements or fights • Don’t walk down dark hallways • Don’t invite someone into your room if you don't know them • Don’t give personal information to strangers • Leave valuables at home