As a Florida cruise ship passenger injury lawyer I was disappointed that Holland American Cruise Line won a substantial case in front of the 9th Circuit Court of Appeals this week in defending an appeal brought by its passenger, Gerald Samuels. Mr. Samuels alleged that while he and his two children were on a seven-day Holland American cruise in November 2008 he was injured while in the port of Cabo San Lucas, Mexico.
[youtube]https://www.youtube.com/watch?v=NjCw3GfQ-_k[/youtube]br />
According to Mr. Samuels he had never been to Cabo San Lucas before and had asked several “unidentified” Holland American crew members about the possible on-shore activities. He testified that he was assured that a visit to Lover’s Beach, located at the very tip of the Baja Peninsula separating the Sea of Cortez and the Pacific Ocean via tender, was safe. He was also promised that he would return in time for the ship’s departure. Lover’s Beach is a public beach and there are no lifeguards or warning signs regarding any potential dangers.
Upon arriving at the port, he and his children were met by a tender operator who agreed to drop the family off at Lover’s Beach. After wading in the water for about five minutes on the Sea of Cortez side, Mr. Samuels decided to swim in the Pacific Ocean side. Within moments of entering the Pacific Ocean side, he testified that he felt “pulled upside down” and hit his head on the ocean floor. He claims he sustained significant and severe brain damage, central-chord syndrome and is now a quadriplegic.
He sued Holland American for negligence and alleged that the ship’s crew owed him a duty to warn him of the dangers of swimming in the Pacific Ocean side of Lover’s Beach and that, had he received such warnings, he never would have entered the ocean. Holland American entered evidence that in 27 years of sailing to Cabo San Lucas they have never received any complaints or claims regarding the Pacific Ocean side of Lover’s Beach and owed no duty to warn Samuels of an unknown danger for a shore-side activity.
The district court granted Summary Judgement in favor of the cruise line and struck the evidence proffered by Samuels. The appellate court affirmed it and stated that in order to recover for negligence against a cruise line an injured passenger must establish the following:
1. Duty
2. Breach
3. Causation
4. Damages
Citing the case of Morris v. Princess Cruise Line, Inc. ” …the owner of a cruise ship owes all on board the duty to exercise reasonable care under the circumstances of each case. …” Cruise ship reasonable care is different than the extent of the duty owed in daily life since a cruise ship involves more danger to a passenger.
However, the court found that the wading into the Pacific Ocean side of Lover’s Beach was “not uniquely associated with maritime travel” and that nearly 100,000 Holland American passengers visited Cabo in 2008 without a single incident of injury. Since Holland did not have active or constructive (knew or should have known) knowledge of the danger the case was dismissed.
Our Broward cruise line injury law firm is dedicated to protect the rights of passengers and urges everyone that is considering a cruise to be extra careful both on board and on shore. Based upon this ruling passengers injured on off-the-ship excursions such as kayaking, zip-lines, scuba diving, and parasailing will have a very difficult time successfully suing a cruise line if they are hurt.
To read the complete opinion of Gerald E. Samuels v. Holland American Line-USA Inc. opinion from the United States Court of Appeals for the Ninth Circuit filed September 2, 2011.
