As many attorneys representing clients in cruise ship negligence cases, whether in a plaintiff’s or defense counsel capacity, are already aware, knowledge of admiralty/maritime law is vital in ascertaining the appropriate course of action as it relates to issues regarding statute of limitations and choice of forum. Following the resolution of preliminary matters, the focus may then turn towards the applicable standard of care.
Pursuant to the Shipping Act of 1984, 46 U.S.C. 1702(6), cruise ships, by their very nature, afford passengers with the expectation that the cruise line carrier will act with a heightened duty of care. However, this elevated standard of care “requires, as a prerequisite to imposing liability, that the carrier have actual or constructive notice of the risk-creating condition.” See Keefe v/ Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Consequently, the difficulty then becomes proving, or disproving, that a duty owed to cruise ship passengers was breached, such that that the carrier’s action, or inaction, will be deemed negligent.
As determined in the often cited case, Kornberg v. Carnival Cruise Lines, Inc., 741 F. 2d 1332 – Court of Appeals, 11th Circuit 1984:
“A ship, as a common carrier, owes a special duty to its passengers. A contract for passage by water implies something more than ship room and transportation. It includes reasonable comforts, necessaries, and kindness . . . .It is the duty of the common carrier by water to provide his passengers with comfortable accommodations…unless there is a contract to the contrary or a fair understanding to the contrary; and the carrier must subject his passengers to no suffering or inconvenience which can be avoided by reasonable care and effort.”
As such, practical considerations include potential contractual limitations, which are often stated on the actual ticket, or that may otherwise exist as a result of a passenger’s agreement to board the cruise ship. Pursuant to Kornberg, and as stated in a 2010 New York Supreme Court case, “46 United States Code §30509 expressly invalidates any contract provision purporting to limit the liability of an owner of a vessel for its own negligence or the negligence of its employees or agents.” The notion is further enumerated in Liverpool & Great Western Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 441: “[T]he law does not allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions which are unreasonable and improper, amounting to an abnegation of the essential duties of his employment.” Liverpool & Great Western Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 441.
Presented with the applicable law, how then, can attorneys prove or disprove the existence and extent of a cruise line’s negligence in the most effective manner? The answer is simple: Supporting Evidence. However, supporting evidence presented must have evidentiary value both sufficient in regard to admissibility, as well as juror impact. The use of expert testimony has long been a valuable tool in assisting to overcome key evidentiary issues, and has become an increasingly prevalent constituent in civil litigation involving cruise carrier negligence. Employing the appropriate maritime expert witness will of course depend on the purported type of negligent commissions or omissions. Individual action involving a passenger’s disappearance, or injury resulting from a slip and fall, will certainly be assessed in a different manner, and thus require a different type of expertise than matters involving injury to all passengers, such as widespread on-board illness, or the ship colliding with an object, capsizing, or becoming otherwise disabled.
A recent example of injury occurring to all passengers occurred in February 2013, when a Carnival cruise ship left 4,200 passengers stranded after a fire in an engine room. The incident was similar to events occurring on a Carnival cruise ship in 2010 which left 4.500 passengers stranded. In cases where the purported negligence relates directly to the ship, and pre-incident operation thereof, expert testimony provided from marine engineers and cruise operation expert witnesses may offer crucial insight that can assist the jury in their contemplation of causation issues. These experts may guide in the juror’s understanding as to matters such as the cause and source of a fire, whether the incident may have been preventable through appropriate inspections or other precautionary measures, the presence emergency plans and supplies, the existence of employee training and preparation for emergency situations, as well as a plethora of additional standard and expectation related issues.
In cases such as the recent Carnival incident, cruise expert testimony may also assist the jury in evaluation of post-incident events, such as mitigation duties. That is, what strategies were implemented post-accident, or post-negligence, to minimize the harm to passengers. Cruise ship operation, Sanitation and Health and Safety experts can offer valuable insight with regard to both industry and legal standards and expectations.
Another practical consideration in cruise ship litigation is psychological damages, which are often frowned upon by jury members in nature. Expert testimony offered to prove or disprove the presence or extent of a psychological injury can provide valuable supporting evidence, beneficial to the jury’s determination.
In addition to causation issues, expert testimony can play a key role in the jury’s decision to reduce or enlarge an award of economic damages. Further, expert testimony can provide guidance for non-economic damages, which are often difficult to quantify, such as emotional distress.
By: Alicia McKnight, J.D.