Since cruise ship injury cases are required to be litigated in Federal Court in the United States, many Federal Judges will order cases to go to mediation, often early in the process, hoping those cases can settle and make way for other cases on their busy trial dockets.
Mediation starts with the parties agreeing on who should serve as the mediator. In Miami, where I practice, there are dozens of mediators who are lawyers and sometimes judges, retired or retiring, who see mediation as a way to use their experience and expertise to help resolve disputes. In cruise ship injury claims, mediations are significantly different since the cases and the laws that apply to them are so specialized. I have found that few mediators really understand the intricacies of federal law unless they have practiced maritime law, and since Federal Judges hold lifetime appointments, I don’t know of any who have retired from the bench who want to mediate cases.
This leaves us with a choice between two types of mediators. The first has exceptional experience in helping parties resolve their disputes in non-maritime cases like divorce, commercial litigation, or traditional personal injury cases; the other type of mediator, who specializes in cruise ship passenger accident cases, is one of the few go-to mediators routinely requested by the cruise lines’ defense lawyers. In the end these cases rarely settle at mediation.
As I see it, the problem with mediation is that cruise line cases are different than cases involving Florida car accidents, medical malpractice, slip and falls at a Publix grocery store, or other traditional personal injury cases because cruise lines are insured by a complex web of layers of insurance policies issued by overseas insurers, known as “Insurance Clubs.” These clubs typically provide insurance coverage for thousands of vessels around the world, including cruise ships, ferries, luxury yachts, excursion boats, and cargo ships. Since legal liability can emerge even when passengers are not on board the ship, the club’s comprehensive coverage usually starts the minute a passenger purchases a ticket.
Complicating the issue is the fact that different jurisdictions around the world require different levels of insurance. Each jurisdiction must follow local regulations and litigation strategies that can affect how a club will evaluate, defend, and settle any passenger injury claim. Because of the differences in how cases are evaluated and defended, mediations can often be a complete waste of time for the passenger who has sued a cruise line and hopes to settle the case. First, the courts often require the passenger (or plaintiff) to attend the mediation in person, which creates a financial, emotional, and physical burden on the passenger to have to travel to Miami.
Even before mediations occur, the cruise lines’ defense lawyers usually will insist on deposing the passengers (by having them travel to Miami) and having them examined by a doctor or two of their choosing to verify the extent of the alleged injuries. In the meantime, the cruise lines will typically fight tooth and nail not to provide the injured plaintiffs’ lawyers the information and evidence needed to evaluate the claims fully. For example, depositions of the corporate representatives of the cruise lines will be delayed, or the cruise lines will provide witnesses who are unprepared to answer the questions posed. Interrogatories and requests to produce documents will be objected to, creating the need to seek court assistance to compel the cruise lines to produce the evidence needed. These delays and obstacles are used to bring the plaintiffs to the negotiation table at mediations without the evidence needed to demonstrate that they have any case at all.
Typically, since the evidence has yet to be obtained at the time of mediation, the cruise lines’ defense lawyers will start the mediation by “sincerely” apologizing to the injured passengers that they were hurt (typically in a slip or trip and fall on a wet deck, resulting in a serious fracture, surgery, or worse) and that their cruises were ruined, but then go on to tell them how they have to prove that the accidents were caused by the cruise lines’ negligence and that their cases will get dismissed and they will end up owing the cruise lines the cost of their defense, including the cruise lines’ attorneys’ fees and costs.
These presentations can often demoralize the injured plaintiffs, as they are intended to do, and often result in the plaintiffs simply throwing up their hands and accepting nominal settlements or, worse, just walking away with nothing.
Mediations in cruise ship injury cases routinely fail to result in settlements, which is the very reason they are ordered in the first place. In reality, they rarely provide an opportunity to conduct a meaningful discussion about settling the case. One reason this is so is that–in my 26 years of representing people who have suffered accidents on cruise ships from around the world–I have never heard a cruise line admit that it is at fault for the accident. It is simply never their fault.
And it need not be 100% the cruise line’s fault, but if somehow the cruise line could admit that the cause is a slippery deck, a poorly maintained staircase, failure to properly diagnose and treat an injury, or over-serving alcohol to an intoxicated passenger, then these cases could and would properly settle without requiring so much litigation.
That is yet another reason why the battle to hold cruise lines accountable for the injuries of passengers is so difficult. The cruise lines have enormous resources to defend these cases, which results in epic David-versus-Goliath legal battles. The typical passenger accident victim cannot go toe-to-toe with Carnival and their lawyers. Suing Carnival is like suing a country; they can simply outspend anyone who takes them on. Therefore, much like David, people who sue cruise lines and the lawyers who represent them must not be afraid of or intimidated by the giant with his armor and javelin. For our clients and our lawyers, the Federal Courtroom is our Valley of Elah, and we take each case on with the belief we will win, regardless of how big the corporate giant on the other side may be.
If you have been injured while on a cruise, we recommend that you consult with an experienced cruise ship accident lawyer as soon as possible. Our maritime accident attorneys are available to discuss your potential claim 24/7 by email at [email protected]; by telephone, toll-free at 1-866-597-4529, or locally at 305-441-0440; and by SKYPE. Call us today and let our 30 years of combined legal experience help you hold the cruise lines accountable when they put their profits ahead of their passengers’ safety. Contact us today–we are ready to help.