Since 1991 I have represented people who have suffered serious injuries and accidents on cruise ships in their claims against the major cruise lines, like Carnival, Royal Caribbean, Celebrity, Norwegian, Disney, MSC, and others. Perhaps the most difficult kind of cruise ship passenger injury claim to win against a cruise line is one that occurs when the passenger is injured while participating in an excursion off the ship. Excursions are typically day trips that passengers buy while on a cruise, to explore the different ports of call. They can be as simple as a rum tasting in a local factory or as involved as zip lining and dune buggy rides.
Just like accidents that happen onboard the ship, such as a slip and fall on a wet deck or a fall down a poorly lit staircase, excursion accidents also fall under general maritime law, which requires that the injured person has to prove that the cruise line had “actual or constructive knowledge” of the alleged danger that caused the injury. Proving this is even more difficult when the incident sometimes occurs hundreds of miles away from the port where the ship is docked.
For example, recently a case was dismissed from United States Federal Court against Royal Caribbean Cruise Line (RCCL) and its excursion provider. A passenger who was injured during a motorcycle accident on St. Maarten Island, John Kadylak, sued “ETA,” an excursion provider, the cruise line, and one of the cruise line’s employees, Sergey Denysov, the ship’s Staff Captain, claiming that their carelessness caused him serious injuries while he was participating in the excursion.
ETA sells group cruise ticket bookings and motorcycle tours for passengers while they are in certain ports. According to court records, ETA has no contract with and is not sponsored by RCCL. Instead, Steven Wallach, the owner and President of ETA, purchases cruise tickets for members of ETA excursions, and RCCL then allows excursion members to bring and store their motorcycles onboard the ship. At each tour location, ETA selects the motorcycle tour routes through a local representative, and Royal Caribbean has no involvement once the passenger leaves the ship.
John and Sandy Kadylak, through ETA, booked a nine-night cruise on Royal Caribbean’s Explorer of the Seas, departing from New Jersey. ETA required Mr. Kadylak to sign a Registration Form and verify that he had at least 3,000 miles of motorcycle riding experience. Once on board the Explorer of the Seas, he had to provide copies of his valid driver’s license and proof of insurance. As part of the registration form, the paragraph under the “Policy” section of the Sheet, stated the following:
It is agreed that you hold ETA and (cruise line name) and their agents/affiliates harmless for any damage and/or injury to your bike and/or person(s) either aboard the ship or on the islands during any of the rides.
Sergey Denysov, the Staff Captain of Explorer of the Seas, is responsible for ship’s safety, security, and deck maintenance. RCCL requires that either its Staff Captain or the Captain of the Ship must remain onboard the ship at all times. If the Staff Captain is onboard, he is on call twenty-four hours a day. If the Staff Captain is off the ship, the Captain of the Ship is on call.
Mr. Wallach and Staff Captain Denysov had known one another for many years and had previously discussed Staff Captain Denysov’s motorcycle riding experience. Staff Captain Denysov told Mr. Wallach that he had been riding motorcycles for over 20 years. At some point during the voyage, Staff Captain Denysov decided he wanted to ride a motorcycle on St. Maarten with ETA, but he never formally signed on as a participant of the ETA tour. He never paid ETA any fees nor signed any of the required paperwork. Most importantly, Staff Captain Denysov never claimed that he had the minimum mandatory 3,000 miles of motorcycle riding experience.
When the ship arrived in St. Maarten, Staff Captain Denysov completed his duties and informed the bridge personnel and the Captain of the Ship that he would be off-duty and was going ashore. He signed the ship’s off-duty sheet and disembarked wearing civilian clothing, not his RCCL uniform.
The motorcycles were offloaded, and the ETA group assembled in front of the ship with Mr. Wallach, who then introduced Mr. Denysov to the group as the ship’s Staff Captain. Wallach then took Mr. Denysov to a motorcycle rental shop, where he rented and paid for a Harley Davidson for him. Staff Captain Denysov then told Mr. Wallach that he had never driven a Harley Davidson, did not have a valid motorcycle license, had never operated a motorcycle with as much horsepower as a Harley Davidson, and in fact had not ridden or owned a motorcycle in at least five years.
While outside, the shop, Staff Captain Denysov inspected the motorcycle, discussed the throttle and brake, got on the bike and drove straight into Mr. Kadylak, crushing him between his motorcycle and another rider’s. Staff Captain Denysov acknowledged at the scene that the accident was his fault.
The common defense of all cruise lines in cases where a passenger sues them is to ask the court to dismiss the case under Federal Rule of Civil Procedure 56, Motion for Summary Judgment. A motion for summary judgment, if granted will end the case before a jury ever gets to hear the facts of what happened. It is supposed to be granted only when there is no dispute as to the facts of the case, and therefore a jury would be unnecessary. Instead, it has been fashioned into a shiv that favors defendant cruise lines, and it is used and abused as a legal doomsday device with terrifying efficiency and catastrophic effects on the people’s right to fair access to our promised right to a trial by jury.
When considering a motion for summary judgment, the trial judge is supposed to view the evidence in the light most favorable to the non-movant. That means that the plaintiff passenger is supposed to be given the benefit of the doubt as to whether or not there are genuine issues of material fact that a jury should decide. A genuine issue of material fact exists when a jury could reasonable find for the other side. It is up to the passenger who is defending against a motion for summary judgment to go beyond the mere allegations in the complaint and produce evidence to the trial judge to demonstrate that there are enough factual questions that a jury should consider.
SUING AN EXCURSION COMPANY FOR AN ACCIDENT IN PORT
In its motion for summary judgment, ETA claimed that Mr. Kadylak’s lawsuit should be dismissed because he signed a release and waiver. The release and waiver contained a clause that required it to be interpreted under Tennessee law–an interesting example of how complex these cases are, in that a Miami Federal Court was being asked to decide a motorcycle accident that occurred in St. Maarten and apply the laws of Tennessee. In interpreting the waiver in light of the Tennessee case law, the court found that the waiver did not prevent the Plaintiff’s claim of negligence against ETA.
ETA then sought to dismiss the case, claiming that the Staff Captain was not part of the tour because he had not signed the paperwork. The judge was not persuaded by this because ETA had introduced him to the group and purchased the rental for him, among other factors including that it knew that he did not have the requisite 3000 miles of experience and had never ridden a Harley before. Therefore, because there were so many factual disputes, ETA’s motion for summary judgment was denied, and the case allowed to proceed to the jury.
SUING ROYAL CARIBBEAN FOR AN EXCURSION ACCIDENT
The Plaintiff sued RCCL and claimed that it was responsible for his injuries because it allowed one of its officers to participate in a motorcycle excursion tour when it knew or should have known that Staff Captain Denisov did not have adequate training and experience; the suit also claimed that RCCL had failed to properly monitor their crewmember and failed to adopt and/or enforce procedures prohibiting ship’s officers from participating in shore excursions with its passengers.
The Plaintiff attempted to apply the theory of “strict liability” against Royal Caribbean because of its legal status as a “common carrier.” Under this theory, Common carriers, like cruise ships, have an “unconditional responsibility for the misconduct of crewmembers toward passengers.” Strict liability, however, is limited to a common carrier’s responsibility for its crewmembers’ intentional acts, such as the rape of a passenger.
In negligence cases, the Supreme Court has held that cruise ship owners like RCCL, NCL, and Carnival owe only a duty of exercising “reasonable care” towards their passengers. This has been defined as “ordinary reasonable care under the circumstances.” This requires that before a cruise line can be held accountable to an injured passenger, there must be evidence that the cruise line had actual or constructive notice of the risk-creating condition, at least where the danger is one commonly encountered on land and not clearly linked to a “nautical adventure” or, in other words, something that is unique to ships.
In excursion cases, once a passenger leaves the ship, the cruise line only “owes its passengers a duty to warn of known dangers beyond the point of debarkation in places where passengers are invited or reasonably expected to visit.” In fact, cruise lines have to warn passengers only of those dangers that “the cruise line knows or reasonably should have known,” and “which are not apparent and obvious to the passenger.”
Unfortunately, in this case the Plaintiff did not produce any facts or evidence to suggest that RCCL either knew or should have known of any “dangerous or unsafe condition” associated with the ETA tour. For example, there is no evidence that Staff Captain Denysov or any other RCCL crewmember had ever caused an accident with a motorcycle group in the past. Moreover, there was no evidence that RCCL had a duty to request information about Staff Captain Denysov’s motorcycle driving history.
Consequently, without evidence of Royal Caribbean’s actual or constructive knowledge of a dangerous condition, the court found that RCCL had no duty to warn Mr. Kadylak and granted its motions for summary judgment.
This case is highly illustrative of the complex laws and regulations that apply to holding a cruise line accountable for an accident that occurs on an excursion. The biggest challenge of course is notice, and as a lawyer who sues the major cruise lines like RCCL, I find this to be a chimera because the only way to prove notice is to ask the very defendants what they know and when. Doing so requires the parties to rely on the efficiency and efficacy of their self reporting and file organization, and then to disclose it in a legal proceeding. If they disclose notice, doing so incriminates and exposes them to liability. It is like asking people what is in their browser internet history without being able to verify what the answer is. Do you really think people will honestly and accurately disclose every search they have made and every page they have looked at? Of course they will not, and that is precisely what happens in every one of these cruise ship accident cases. As a result, cruise lines like RCCL routinely escape liability and accountability to their injured passengers by simply stating, “this has never happened before, and we didn’t have notice.”
INJURED ON A ROYAL CARIBBEAN CRUISE SHIP? FOR A FREE CONSULTATION, CALL 1-866-597-4529
Since 1991, our cruise accident lawyers have been fighting every day against the powerful cruise line industry on behalf of people hurt while on a cruise. We take these cases on a contingency fee basis, which means we do not get paid until we are able to win your case. Call us today and speak with an experienced maritime accident and injury attorney. We offer free initial consultations via telephone at 305-441-0440, or toll free at 1-866-597-4529, email [email protected], SKYPE, or FACETIME. We urge you to call us as soon as possible after the incident so that we can begin a thorough investigation of the accident scene, obtain and preserve evidence like CCTV footage, and find and interview the witnesses necessary to prove and win your case. Contact us today–we are ready to help.
1The complaint against the excursion company alleged that ETA breached this duty by “failing to ensure that all riders had the requisite level of experience and/or skill to partake in the planned excursion,” “permitting riders to partake in an excursion organized by ETA that did not have the requisite level of experience and/ or skill to operate in a safe manner,” “permitting inexperienced employees of [Royal Caribbean] to join paying customers in their planned excursions,” “failing to take the necessary safety measures to prevent an accident,” and “failing to properly monitor participants of their excursion, so as to prevent accidents.
2According to the rule, “summary judgment is appropriate only where there ‘is no genuine issue as to any material fact’ and the moving party is ‘entitled to a judgment as a matter of law.’ ”
3Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).
4Smolnikar v. Royal Caribbean Cruises Ltd., 787 F.Supp.2d 1308, 1315 (S.D.Fla.2011) (Jordan, J.) (citations omitted).
5The court also found that Staff Captain Danysov was not acting in his official capacity as a crewmember on behalf of RCCL at the time of the accident and therefore dismissed the claim on the basis of vicarious liability.