One of the most powerful and lethal legal shields routinely utilized by the cruise industry to insulate themselves and their profits from lawsuits by people who may have been hurt aboard a cruise ship is the Venue Selection Clause. This highly technical legal language is buried deep in the small print of the “terms and conditions” found in the passenger contract, or ticket, and the general legal principles of admiralty law.
It is not uncommon for our passenger claims law firm in Miami to receive a call or email from a lawyer who does not regularly sue cruise lines and is trying to represent someone who has tripped and fallen on a Carnival cruise ship. That lawyer is often unaware of the requirement that claims against Carnival be filed within one year of the date of the incident in Federal Court in Miami, regardless of where the accident happened or where the plaintiff resides.
Take, for example, the unfortunate case of Marie Newell, who unsuccessfully sued Carnival Cruise Lines for an injury she sustained, after the cruise was over, when she fell over a metal stand located between the luggage claim and the United States Customs station located at the Port of Miami. (Our firm was not involved in any manner with her claim.)
Her lawyers sued Carnival in Florida State Court located in Miami-Dade County. The claim was based on the assertion that Carnival was negligent in its maintenance of the walkway by placing the metal stand in such a way that it caused her to fall.
There is no question that Ms. Newell, like any passenger cruising with Carnival, establishes a contractual relationship with the cruise line by booking a ticket. And in this case, Ms. Newell had a contract with Carnival as its passenger. A Carnival Cruise Line ticket requires that any dispute arising from any incident, including travel to and from the ship, must be litigated, “if at all, before the United States District Court for the Southern District of Florida.” In other words, law suits against Carnival must be filed in Federal Court and not the Miami-Dade County courthouse. Ironically, both courthouses are within walking distance from where she fell and just a few blocks from each other.
Carnival’s well respected and very experienced defense lawyers–Mase Lara Attorneys– successfully moved to dismiss Ms. Newell’s lawsuit, supported by the deposition (a sworn interrogation) of Carnival’s supervisor of guest logistics, as well as the language of the passenger ticket. Florida Circuit Court Judge Hon. Norma S. Lindsey agreed with Carnival and dismissed Ms. Newell’s case with prejudice.
Ms. Newell appealed to Florida’s Third District Court of Appeal–a three-judge panel consisting of Judges Rothenberg, Scales and Shepard–and argued that the trial judge erred by dismissing her case since at the time of the incident her cruise was over, and when she fell, she was actually walking through the disembarkation area of the Port of Miami; therefore, admiralty law should no longer apply. I think it was a good argument, but I question why the case wasn’t removed to Federal Court or filed in Federal Court–which surely would have eliminated this defense in its entirety.
The legal test to determine whether or not a case is subject to the Admiralty jurisdiction of the Federal Courts was outlined by the United States Supreme Court in 1995 in the case of Grubart v. Great Lakes. In that case, the court created a two-part test. The first prong requires that the injury occurred on navigable waters; the second part, which is generally called the “Nexus Test” or “Connectivity Test,” is met if the injury had some “disruptive” effect on maritime commerce or was substantially related to a maritime activity.
The Appellate Court in the Newell proceeding had no difficulty finding that Mrs. Newell’s fall was connected to a maritime activity, which follows rulings in a slew of cases involving people who have been hurt on the gangways, tenders, and other means of disembarking from cruise ships.
The location test was a bit more of a stretch since this fall did not occur on navigable waters, but rather happened while Ms. Newell was walking in the terminal on her way to Customs. The court took a very broad view of this requirement, even though it appears that she was well off the ship when she fell, and found that it actually was connected to her disembarkation.
The opinion relied in large part on the testimony provided by Carnival’s employee witness, Marie Dominique Ho-Ding-Ming (“Ho-Ding-Ming”), who stated that Carnival’s employees participated and assisted passengers during the unloading process that allegedly led to Ms. Newell’s injury. Here is the pertinent part of her deposition:
Q. I see. Well, tell me about the debarkation procedures at the completion of a cruise.
A. Debarkation?
Q. Right.
A. Sure. Debarkation starts as soon as the ship docks and is cleared by Customs Borders and Protection and once we get clearance from Customs Boarders [sic] and Protection, we do have guests coming off the ship through the gangway and going down to the luggage hall and as soon as the guests are cleared by CBP, they come out of the terminal and this is basically what the debarkation process entails. . . . .
Q. Who directs the passengers once the debarkation process is started by Customs clearing the vessel, who directs the passengers from the gangway into the luggage hall?
A. Our team, which is guest logistics department team, our agents.
Q. And who directs the passengers from the luggage hall once they have gotten their luggage through these stanchions or ropes that counsel referred to?
A. The same team which is guest logistics, Carnival logistics did.
Q. Once the passengers cleared with the Customs agent, who directs the passengers from that point out of the terminal building?
A. Our team, guest logistics agents, uh-huh.
Q. And where does that debarkation process end?
A. The guests exit the terminal, the luggage hall.
Q. After they clear Customs?
A. After they clear Customs.
Q. All right.
A. So which is a secured and protected area, a controlled area.
The case is yet another example of a potentially viable claim and serious injury not even getting past the trial judge and to a jury on a hyper-technical legal issue–not over whether Carnival was actually responsible for her injury, but over which court house she filed her claim in.
The cruise lines take advantage of legal technicalities all the time, and while I am not judging Ms. Newell’s attorneys, nor their decision to file the claim in state court over federal court, I am criticizing the fact that the substantive nature of her claim never was and never will be fairly evaluated by a jury. You can read the entire Third DCA opinion here.
Injured On A Cruise Ship
Those injured on cruise ships should seek the advice and counsel of experienced maritime injury lawyers who understand that even cases that occur after the cruise has ended and in the actual port terminal are still subject to the complex labyrinth of maritime law.
Our lawyers have successfully sued cruise lines like Carnival, Royal Caribbean, Celebrity, Norwegian, Disney, Holland America, Princess, Silverseas, and others since 1991 on behalf of people who have been injured onboard their vessels around the world. We offer a free initial consultation to anyone who has a potential claim.
Because of the strict statutes of limitations that apply to cruise ship accident cases, we suggest that you contact us as soon as possible, even from the ship, toll-free at 1-866-597-4529, by email at [email protected], or by SKYPE. In the meantime, we urge you not to sign anything or provide any kind of “investigational” or “security” statement to the cruise line until you have had the benefit of our formal investigation and counsel.
