ALI-ABA Telephone Seminar Cruise Ship Cases: What Personal Injury Lawyers Need to Know. May 21, 2007 Live Telephone/Audio Webcast

Size: px

Start display at page:

Download "ALI-ABA Telephone Seminar Cruise Ship Cases: What Personal Injury Lawyers Need to Know. May 21, 2007 Live Telephone/Audio Webcast"

Damian Allison
8 years ago
Views:

1 1 ALI-ABA Telephone Seminar Cruise Ship Cases: What Personal Injury Lawyers Need to Know May 21, 2007 Live Telephone/Audio Webcast Cruise Ship Cases: What Personal Injury Lawyers Need to Know By David W. Brill Juan M. Garcia Downs Brill Whitehead Pembroke Pines, Florida and Jonathan B. Aronson Leigh McMillan Rodriguez, Aronson & Essington, PA Miami, Florida

2 2 2

3 3 Cruise Ship Cases: What Personal Injury Lawyers Need to Know Monday, May 21, 2007 Presented By: David W. Brill, Esq. Juan M. Garcia, Esq. Jonathan B. Aronson, Esq. Domingo C. Rodriguez, Esq. Leigh McMillan, Esq., LL.M. Miami-Dade 55 Miracle Mile, Suite 200 Coral Gables, FL Tel: (305) Broward Mercantile Bank Building th One Southwest 129 Avenue Suite 305 Pembroke Pines, FL Tel: (954) Ponce de Leon Blvd. Suite 730 Miami, FL Tel: ( 305) Palm Beach Crystal Tree Commerce Center 1201 US Highway One, Suite 403 North Palm Beach, FL Tel: (561)

com Miami-Dade 55 Miracle Mile, Suite 200 Coral Gables, FL 33134 Tel: (305) 444-8226 Broward Mercantile Bank Building th One Southwest 129 Avenue Suite 305 Pembroke Pines, FL 33027 Tel: (954)

4 4 CRUISE SHIP CASES: What Personal Injury Lawyers Need to Know 1. Limitation of Liability under the Passenger Ticket: A. Statute of Limitations B. Forum Selection Clause, Enforceability 2. Applicable Substantive Law: A. Maritime Law B. Restatement (Second) of Torts C. State Law, under what circumstances does it apply? 3. Standard of Care Owed Under Maritime Law: 4. Causes of Action: A. Reasonable Care Under the Circumstances for Injuries Arising Under Traditional Maritime Circumstances B. Duty to Warn as to Injuries Sustained in Garden Variety Premises Liability Circumstances Negligence - Injuries sustained aboard the vessel; Injuries sustained aboard a tender; Injuries sustained shore-side; Injuries caused by employees Injuries caused by shipboard medical malpractice Intentional Torts - Americans With Disabilities Act Death on the High Seas Act Causes of Action Not Available to a Passenger - 5. Damages: 6. Apportionment of Liability 7. Attorney s Fees ****************************************************************************** Page 2 of 29

Reasonable Care Under the Circumstances for Injuries Arising Under Traditional Maritime Circumstances B.

5 5 ***************************************************************************** 1. Limitation of Liability Under the Passenger Ticket: A. Statute of Limitations - Passenger ticket contracts for cruises are maritime contracts governed by federal admiralty law, so the provisions contained in them are presumed valid and binding on the parties. The Moses Taylor, 71 U.S. 411 (1866) (contract for ocean passage is a maritime contract governed by federal law); Schenck v. Kloster Cruise, Ltd., 800 F. Supp. 120, 122 (D.N.J. 1992), aff'd, 993 F.2d 225 (3d Cir. 1993); Vavoules v. Kloster Cruise Ltd., 822 F. Supp. 979, (S.D.N.Y. 1993) (stating that since 1946, courts, without exception, have applied federal maritime law in cases involving passenger cruise tickets and other maritime contracts ); Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 132 (3d Cir. 2002); Fisk v. Royal Caribbean Cruises, Ltd., 2005 AMC 2087 (2005) (passenger s ticket is a contract for carriage, which is a maritime contract, governed by the federal maritime jurisdiction). The traditional statute of limitations on suits under the maritime law is three years. 46 U.S.C. App. 763, re-codified as 46 USC 30106, provides that Unless otherwise provided by law, a suit for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date the cause of action occurred. Thus, absent an enforceable contractual provision for a different period, an action for maritime death or injury must be brought within three years of the date the injured party knew or should have been aware of the injury. Cruise lines typically limit the statute of limitations to claims filed against them to one year, as allowable under 46 U.S.C.App. 183b (1983), re-codified as 46 U.S.C , permitting a ship owner to limit the time for a claimant to file a suit seeking to recover for death or personal injury from that shipowner to a period no shorter than one year. Such provisions are presumed valid, provided that the ticket brings the limitations to the passenger s attention. Marek v. Marpan Two, Inc., 1986 U.S. Dist. LEXIS (E.D. Pa. 1986) (limitation clauses may be printed in small type, and will be effective as long as the clauses are not too muddled or illegible as to be unenforceable. ); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335 (11th Cir. 1984); In Lerner v. Karageorgis Lines, Inc., 66 N.Y.2d 479, 497 N.Y.S.2d 894, 488 N.E.2d 824, 1986 A.M.C (1985), reargument denied 67 N.Y. 2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234, the New York Appellate Court held that the print size requirements outlined in CPLR 4544 of 8 point type does not apply to passenger ship Passage Contract tickets because they are maritime in nature and should be governed by federal maritime law. If the plaintiffpassenger no longer has the ticket, the full text of the ticket is usually contained on the cruise line s website. The Cruise Lines International Association Council ( contains links to all of the major cruise lines websites. Additionally,... it is well established law that the defense of inability to read the terms of the Passage Contract because of infancy, minority or unfamiliarity with the English language are insufficient to excuse the passenger from the terms and conditions of the Passage Contract. David W. Brill, Esq., and Juan M. Garcia, Esq. Downs Brill Whitehead Jonathan B. Aronson, Esq., Domingo C. Rodriguez, Esq., and Leigh McMillan, Esq. Rodriguez Aronson & Essington, P.A. Page 3 of 29

parties. The Moses Taylor, 71 U.S. 411 (1866) (contract for ocean passage is a maritime contract governed by federal law); Schenck v. Kloster Cruise, Ltd., 800 F. Supp. 120, 122 (D.N.J.

& INSURANCE SEMINAR RESPONDEAT SUPERIOR OR STRICT LIABILITY? Presented by: Keith S. Brais, Esq.

& INSURANCE SEMINAR RESPONDEAT SUPERIOR OR STRICT LIABILITY? Presented by: Keith S. Brais, Esq. ICCL LEGAL & INSURANCE SEMINAR SHIP S S MEDICAL NEGLIGENCE: RESPONDEAT SUPERIOR OR STRICT LIABILITY? Presented by: Keith S. Brais, Esq. Brais & Associates, P.A. New World Tower 100 Biscayne Blvd. Suite