Cruise Ship LawCruise Ship LawMichelle RigualMichelle Rigual

Associate Director and Assistant Professor Associate Director and Assistant Professor University of New MexicoUniversity of New Mexico

School of Law LibrarySchool of Law Library

Big BusinessBig Business

In 1977, when In 1977, when The Love The Love BoatBoat premiered, fewer premiered, fewer than 1 million passengers than 1 million passengers cruised from ports in the cruised from ports in the U.S.U.S.

Today, the number is Today, the number is approximately 11 million. approximately 11 million.

More than 3 million More than 3 million embark annually from the embark annually from the Port of Miami.Port of Miami.

Staying SafeStaying Safe

Cruise ships are like small cities, use Cruise ships are like small cities, use common sense.common sense. Don't lean over the railings Don't lean over the railings Watch how much you drinkWatch how much you drink Walk away from disagreements or fightsWalk away from disagreements or fights Don’t walk down dark hallwaysDon’t walk down dark hallways Don’t invite someone into your room if you Don’t invite someone into your room if you

don't know themdon't know them Don’t give personal information to strangersDon’t give personal information to strangers Leave valuables at homeLeave valuables at home

Personal Injuries to Personal Injuries to PassengersPassengers

Cruise lines owe passengers a duty of Cruise lines owe passengers a duty of reasonable carereasonable care

Passengers injured while onboard may bring suit Passengers injured while onboard may bring suit the same as if they had been injured ashore the same as if they had been injured ashore through the negligence of a third party. through the negligence of a third party.

Passenger bears the burden of proving the Passenger bears the burden of proving the cruise line’s negligence. cruise line’s negligence.

Liability for Intentional TortsLiability for Intentional Torts

In cases of crewmember's intentional, In cases of crewmember's intentional, wrongful act against a passenger:wrongful act against a passenger:

Cruise line breaches duty of reasonable care Cruise line breaches duty of reasonable care Obligation applies from embarkation to Obligation applies from embarkation to

disembarkationdisembarkation Questionable if this applies to acts that are Questionable if this applies to acts that are

not within the scope of the employment not within the scope of the employment

Cruise Tickets are ContractsCruise Tickets are Contracts

In case of injury, your ticket is a binding In case of injury, your ticket is a binding contract that governs:contract that governs:

Forum selection - disputes must be taken to a Forum selection - disputes must be taken to a particular court (usually Miami or Seattle).particular court (usually Miami or Seattle).

Choice of law - disputes will be governed by a Choice of law - disputes will be governed by a particular jurisdiction’s law.particular jurisdiction’s law.

Notice requirements - litigation will be initiated Notice requirements - litigation will be initiated within a particular timeframe.within a particular timeframe.

Contract TermsContract Terms

Limited liability clauses are reasonable Limited liability clauses are reasonable and permissible.and permissible.

Clauses are enforceable if both:Clauses are enforceable if both: Fundamentally fairFundamentally fair

• requires examination of the contract’s facial clarity requires examination of the contract’s facial clarity • the provision must be sufficiently obvious and the provision must be sufficiently obvious and

understandable - small print is OKunderstandable - small print is OK Reasonably communicated Reasonably communicated

• passenger must have sufficient opportunity to passenger must have sufficient opportunity to reject the contract without forfeiting the ticket pricereject the contract without forfeiting the ticket price

IMPORTANT NOTICE TO GUESTS

THIS DOCUMENT IS A LEGALLY BINDING CONTRACT ISSUED 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 TO CLAUSES 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

Carnival shall not be held vicariously liable for the intentional or negligent acts of any persons not employed by Carnival nor for any intentional or

negligent acts of Carnival’s employees committed while off duty or outside the course and scope of

their employment. #2

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 days after 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 year after

the date of the injury, event, illness or death.

Guest expressly waives all other potentially applicable state or federal limitations periods. #3

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 days after 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 maintainable unless commenced

within six months after 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

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 the United 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,

before a court located in Miami-Dade County, Florida, U.S.A. #5

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

THIS CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES

THROUGH INDIVIDUAL LEGAL ACTION ON GUEST’S OWN BEHALF INSTEAD OF

THROUGH ANY CLASS ACTION.  EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE. #7

It is stipulated and agreed that the aggregate value of Guest’s property, does not exceed $50 per guest or bag with a maximum value of $100

per stateroom regardless 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

Federal or State Court?Federal or State Court?

The Constitution granted original jurisdiction The Constitution granted original jurisdiction over maritime matters to federal courts.over maritime matters to federal courts.

By federal statute, you are only limited to federal By federal statute, you are only limited to federal court if you seek to either:court if you seek to either: arrest a ship to enforce a maritime mortgage or lienarrest a ship to enforce a maritime mortgage or lien partition ownership of a ship.partition ownership of a ship.

This allows plaintiffs to choose between federal This allows plaintiffs to choose between federal and state court for the vast majority of maritime and state court for the vast majority of maritime actions.actions.

The "Reverse-Erie Doctrine"The "Reverse-Erie Doctrine"

Absent a Choice of Law provision: Absent a Choice of Law provision:

U.S. state law applies if the events occur U.S. state law applies if the events occur within a state’s territorial waters. within a state’s territorial waters.

Maritime law applies if the events occur Maritime law applies if the events occur outside U.S. territorial waters.outside U.S. territorial waters.

State courts hearing maritime cases must State courts hearing maritime cases must apply federal maritime law, even if it conflicts apply federal maritime law, even if it conflicts with the state’s law.with the state’s law.

Applying Maritime LawApplying Maritime Law

Maritime law (also called admiralty law) Maritime law (also called admiralty law) governs the activity of carrying cargo and governs the activity of carrying cargo and passengers over water. passengers over water.

Maritime law does not have the same level Maritime law does not have the same level of consumer protection as state laws.of consumer protection as state laws.

Lawyer needs to have familiarity with Lawyer needs to have familiarity with maritime law.maritime law.

Territorial WatersTerritorial Waters

Water over which a nation has jurisdiction.Water over which a nation has jurisdiction.

Regarded as the sovereign territory of the Regarded as the sovereign territory of the state.state.

Extend 12 nautical miles (13.8 miles) from Extend 12 nautical miles (13.8 miles) from the mean low-water mark of a coastal the mean low-water mark of a coastal state. state.

Crimes Against PassengersCrimes Against Passengers

A complicated weave of international law A complicated weave of international law applies.applies.

Crimes are reported to the ship’s security Crimes are reported to the ship’s security officer.officer.

The security officer investigates.The security officer investigates. If a “serious,” suspect is detained.If a “serious,” suspect is detained. Suspect is removed at the next port of call Suspect is removed at the next port of call

(turned over to appropriate authorities).(turned over to appropriate authorities).

Ship’s RegistryShip’s Registry

Vessels register under a country’s Vessels register under a country’s authority (called the Flag State). authority (called the Flag State).

Most cruise ships are registered in foreign Most cruise ships are registered in foreign countries that have more lenient tax, labor, countries that have more lenient tax, labor, and safety laws.and safety laws.

Referred to as flying a “flag of Referred to as flying a “flag of convenience.”convenience.”

Ship’s RegistryShip’s Registry

Ship’s RegistryShip’s Registry Location of Location of OffenseOffense

Jurisdiction over Jurisdiction over CrimesCrimes

USUS US territorial waters US territorial waters OR high seas OR high seas

US US

USUS Foreign nation’s Foreign nation’s territorial waters territorial waters

US concurrent with US concurrent with host nation host nation

Foreign Nation Foreign Nation US territorial waters US territorial waters US (subject to intl law US (subject to intl law and treaties) and treaties)

Foreign NationForeign Nation High seasHigh seas US (subject to intl law) US (subject to intl law) IFIF offense is offense is

committed by or committed by or against US nationals against US nationals

Foreign NationForeign Nation Foreign nation’s Foreign nation’s territorial waters territorial waters

US (subject to intl law and US (subject to intl law and treatiestreaties) ) IFIF ship is departing ship is departing

from or arriving in the US from or arriving in the US ANDAND

offense is committed by or offense is committed by or against US nationalsagainst US nationals

Crime Scene InvestigationCrime Scene Investigation

Ship security officersShip security officers

First official law enforcement agencyFirst official law enforcement agency

Permission to board (granted by flag state) Permission to board (granted by flag state)

Notification of FBINotification of FBI

Medical CareMedical Care Doctors and nurses are independent Doctors and nurses are independent

contractors. contractors. No regulations governing cruise ship infirmaries No regulations governing cruise ship infirmaries

and medical staffing – board certifications are and medical staffing – board certifications are rare.rare.

Each cruise Each cruise lineline has its own set of standards has its own set of standards Cruise ship infirmaries tend minor problems and Cruise ship infirmaries tend minor problems and

provide emergency response treatment to provide emergency response treatment to stabilize patients until they can be transferred or stabilize patients until they can be transferred or evacuatedevacuated

Most basic insurance policies will not cover Most basic insurance policies will not cover treatments given at sea.treatments given at sea.

NorovirusesNoroviruses

Noroviruses are a group of viruses that Noroviruses are a group of viruses that cause the “stomach flu,” cause the “stomach flu,”

Routine methods to detect the virus on Routine methods to detect the virus on food items are not available food items are not available

In November 2006, 679 (17%) out of 3,970 In November 2006, 679 (17%) out of 3,970 passengers and crew members aboard passengers and crew members aboard Carnival Liberty Carnival Liberty contracted the virus contracted the virus

Shore ExcursionsShore Excursions

Run by independent Run by independent contractors contractors

NOT subject to NOT subject to jurisdiction of US jurisdiction of US courtscourts

Insured? Licensed? Insured? Licensed? Responsible?Responsible?

Again, be careful.Again, be careful.

ADAADA

Foreign flagged cruise ships serving US Foreign flagged cruise ships serving US ports must comply with the ADA’s public ports must comply with the ADA’s public accommodations requirements.accommodations requirements.

““[a]bsent a clear statement of [a]bsent a clear statement of congressional intent, general statutes may congressional intent, general statutes may not apply to foreign-flag vessels insofar as not apply to foreign-flag vessels insofar as they regulate matters that involve only the they regulate matters that involve only the internal order and discipline of the vessel.” internal order and discipline of the vessel.”

Environmental ImpactEnvironmental Impact

Average waste generated per dayAverage waste generated per day Cruise ships - 4,400 kgCruise ships - 4,400 kg cargo ships - 60 kg cargo ships - 60 kg fishing vessels - 10 kgfishing vessels - 10 kg

Types of pollution:Types of pollution: Discharge of sewage, graywater, hazardous Discharge of sewage, graywater, hazardous

wastes, oily bilge water, ballast water, and wastes, oily bilge water, ballast water, and solid waste.solid waste.

Smokestack emissions from waste Smokestack emissions from waste incineration.incineration.

Environmental ImpactEnvironmental Impact

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

Pacific Coast - State Regulation Pacific Coast - State Regulation

Ocean Ranger programsOcean Ranger programs Alaska (2006)Alaska (2006) California (under consideration)California (under consideration)

Require cruise ships to have aboard an Require cruise ships to have aboard an ocean ranger employed by the state who ocean ranger employed by the state who is a licensed marine engineer and granted is a licensed marine engineer and granted peace officer status. peace officer status.

Forced Labor?Forced Labor?

The internet is full of horrible stories!The internet is full of horrible stories!

No way to verify….your thoughts?No way to verify….your thoughts?

Recent law suits filed….see handouts.Recent law suits filed….see handouts.

Let’s Revisit - Staying SafeLet’s Revisit - Staying Safe

Cruise ships are like small cities, use Cruise ships are like small cities, use common sense.common sense. Don't lean over the railings Don't lean over the railings Watch how much you drinkWatch how much you drink Walk away from disagreements or fightsWalk away from disagreements or fights Don’t walk down dark hallwaysDon’t walk down dark hallways Don’t invite someone into your room if you Don’t invite someone into your room if you

don't know themdon't know them Don’t give personal information to strangersDon’t give personal information to strangers Leave valuables at homeLeave valuables at home