Suing a major cruise line like Carnival for an injury that occurs during a cruise is extremely complicated and requires both experience with and knowledge of the Federal Rules of Civil Procedure, maritime law, and personal injury law. To win a case against a cruise line, the facts and the evidence must align–much like threading a legal needle–and rarely does the law help support an injured passenger’s claims. Almost weekly, cases are dismissed by Federal judges across the country, in favor of the cruise lines. Perhaps the most difficult of all cruise ship passenger cases are those that involve injuries that occur off the ship, in port, and during excursions.

Recently, a Florida Federal District Court Judge dismissed a case brought against Carnival by Ms. Delena Brown, who is represented by another excellent Miami maritime personal injury law firm. The court records reveal that she was a paid passenger aboard the Carnival Conquest when she participated in an off-shore excursion offered to Carnival Conquest passengers, known as the “Mi Dushi Sail & Snorkel with Lunch Tour.”

This snorkeling excursion was operated by a company called Windfeather Charters NV and Mi Dushi Sail & Snorkeling Tours Dutch Caribbean, and it consisted of a five-and-a-half-hour tour, which stopped at three different places. After the first stop, Ms. Brown was attempting to return to her seat on the boat when she slipped and fell on the boat’s steps, breaking her leg, ankle, and wrist. The steps had no handrail from the top to the bottom.

She sued Carnival and alleged that it had represented to her that the excursion was safe(( Delena BROWN, v. CARNIVAL CORPORATION, et al., Defendants. Case No. 1:16–cv–21448–UU)), and that its promotional material and information concerning the excursion did not require any level of boating experience to participate in the excursion. She also alleged that excursion operators were negligent in the hiring and retention of the tour guides.

Carnival filed a motion to dismiss her case on the grounds that the plaintiff failed to state plausible claims. Motions to dismiss are evaluated early in the process of litigation, usually before any discovery or investigation has been performed. The court simply looks at the four corners of the complaint to see if the wording of the pleadings meets the procedural requirements.

In this case, however, the trial judge agreed and granted Carnival’s motion to dismiss but allowed Ms. Brown to re-file her complaint to correct the pleading deficiencies.   Carnival then filed its motion to dismiss plaintiff’s amended complaint, re-raising arguments like those raised its prior motion to dismiss.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”  This standard is met when the facts alleged enable “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged and formulaic or template pleadings are not acceptable.”((Supreme Court of the United States John D. ASHCROFT, Former Attorney General, et al., Petitioners, v. Javaid IQBAL et al.))

Similar to its prior motion to dismiss, Carnival’s re-filing argued that her case should be dismissed because (1) it imposes heightened duties on Carnival beyond the duty to warn; and (2) it failed to allege sufficient facts showing that Carnival either knew or should have known of any dangerous conditions of the excursion boat giving rise to a duty to warn her of them.

To hold Carnival or any other cruise line legally responsible for a passenger’s injury on or off the ship, it must be shown that the cruise line’s actions were unreasonable under the circumstances. The benchmark standard for imposing liability is to show that the cruise line either knew or should have known of the risky condition(s) which caused the injury. Since these injuries occur during “maritime travel,” the circumstances a passenger encounters on a cruise differ from those of daily life.

The court found that the facts of what Carnival knew and when it knew of the conditions of the excursion boat–and if they were reasonable under those circumstances–were issues that would be better addressed in a motion for summary judgment once discovery, depositions, and other investigations were completed rather than being addressed in the early stage of the pleadings.

Suing cruise lines for the negligent hiring of an excursion company employee requires allegations that the employee was incompetent to perform the work, that Carnival either knew or reasonably should have known of the incompetence, and that this incompetence proximately caused the injuries. In dismissing this allegation, the court agreed with Carnival that there were little more than template allegations and thus dismissed with prejudice the claims for negligent retention or hiring.

Perhaps the most important element in holding a cruise line legally responsible for the actions of an excursion company is the theory of apparent agency. Commonly, cruise lines will argue that a shore excursion injury is not their legal responsibility but rather that of independent businesses operated in foreign countries. However, in cases where the plaintiff alleges that the excursions were marketed, sold, charged, and paid for through the cruise line, the filings may be sufficient to withstand motions to dismiss.

The court also addressed Ms. Brown’s claim for joint venture because she failed to allege facts which if proved would show that the defendant and the excursion operator had a “community of interest in a common purpose,” “had joint control,” or had “the right to share in the profits or a duty to share in the losses.” The court agreed with the plaintiff and found that she had sufficiently pleaded factual allegations to support plaintiff’s contention that Carnival and the excursion entities had an interest in a common purpose, had joint control or right to control, had a right to share in the profits, or a duty to share in any losses, and therefore denied Carnival’s motion to dismiss.

The court also agreed that Ms. Brown had properly pled her allegations for a third-party beneficiary claim, based upon the contract between Carnival and the excursion entities, and denied Carnival’s  motion to dismiss.  We are very pleased with this result and wish Ms. Brown and her excellent cruise ship accident lawyers continued success in their pursuit of justice.

This case represents the precise and demanding factual and procedural requirements involved in suing a cruise line and how much more difficult it can be to resolve claims that arise from accidents while in port and on excursions.

Hiring a Lawyer for a Shore Excursion Injury

If you have been injured while on a cruise ship–such as those operated by Carnival, Royal Caribbean, Celebrity, Disney, Norwegian, MSC, or others–we strongly recommend that you consult with an experienced cruise ship accident attorney and  Miami injury law firm as soon as possible. Most cruise lines require that claims be filed in Federal Court in Miami within one year of the date of the incident regardless of where in the world the incident occurred–since Carnival, RCCl, Celebrity, NCL, Regent Seven Seas, Oceania Cruises, and others all maintain their corporate headquarters in Miami near the Port of Miami, the world’s busiest and largest cruise ship terminal.

Aronfeld Trial Lawyers has over 30 years of combined legal experience, and we are proud to offer a free initial consultation to anyone who may have a potential claim against a cruise line. Call our office toll-free at 1-866-597-4529, locally at 305-441-0440, or reach us by email at [email protected] or SKYPE to speak with an experienced cruise ship accident claims lawyer today. We are ready to help you hold the cruise line accountable for your medical expenses, loss of enjoyment of your cruise, transportation reimbursement, lost time from work, and pain and suffering.