“Holding the Cruise Line Responsible–Part I” discussed things that you can do immediately after the accident while you are still on the cruise ship. This article discusses what you need to do once you come home.
You should consult an attorney as soon as possible because time is of the essence in a cruise ship accident. The time limits are very short in cruise cases.
The cruise industry has adopted standard language on the back of the ticket which sets forth the passenger’s rights. It would be a little more accurate to call the back of the ticket passenger’s “lack of rights” in that the ticket is written solely in favor of the cruise company.
It is also a misnomer to call this recitation of rights “the back of the ticket.” In fact, the standard language goes on for a couple of pages beyond the back of the ticket. You will notice that there are a few pages of boilerplate language attached to the cruise ticket.
The back of the ticket has two rights which favor the cruise company. The client should be aware of them and the need to see an attorney as soon as possible.
I. The Notice of Claim Provision
Prior to commencing suit the cruise line will require a formal notice of claim from the injured party. Typically, the ticket will require a notice of claim within six months of the date of the accident. It must be sent to the cruise line’s main office. For example, the main office of Carnival Cruises is in Miami, Florida.
If the injured passenger does not present a notice of claim within the time limits, then he cannot sue the cruise line.
The courts have held that a notice of claim provision is allowable and that the cruise line can set a short time limit. Essentially, this is a matter of contract between the passenger and the ship, however, the passenger is unable to negotiate this term. Even if a passenger attempted to negotiate this point the cruise line would probably refuse to issue the ticket. Typically, the only negotiable terms in the ticket are the price and quality of accomodation.
Of course, a cruise line can provide a longer time period for the notice of claim. Therefore, the ticket has to be checked by the attorney. Do not discard it after the trip.
II. The Time to File Suit
Again, this is a matter of contract between the guest and the ship although there has not been one recorded instance of a passenger seeking to negotiate this term. The statute of limitations is also found on the “back” of the ticket.
A one year statute of limitations is allowable. The U.S. Supreme Court has said so. Of course, the cruise line can agree to a longer statute of limitations, but such is unlikely.
III. Other Issues
A. Venue of the Suit
A standard provision in the ticket is the choice of forum or venue provision. This means that the passenger and ship company have agreed to a location where a lawsuit will be brought. Again, the courts have upheld the fiction that this is a negotiated point although no passenger in the history of cruising has negotiated it when planning a vacation.
The typical choice of forum or venue clause states that a suit against the cruise line must be brought in the location where the cruise line is headquartered. The passenger can bring suit in either the state court or federal court where the cruise line’s main office is located.
For example, assume that a New York passenger was injured on the Queen Mary 2 while it is sailing between New York and Bermuda. The cruise started and ended in New York, and the cruise line, Cunard, has many cruises emanating from New York. The injured passenger cannot bring suit in either the New York State courts or the local federal courts. Under the choice of forum clause the passenger must bring suit in Florida where Cunard has its main office. To be specific, the injured passenger has the option to bring suit in either the Florida state court in Miami (Dade County) or the U.S. District Court located in Dade County.
This choice of forum clause tends to act as a filter so as to discourage minor injury lawsuits from being brought because a passenger with minor injuries might not find it worthwhile to go to Florida for depositions, a physical examination, and trial. Furthermore, a Florida law firm may be disinclined to take smaller injury cases against cruise lines. Based on some informal conversations with Florida counsel, the South Florida courts are pretty protective of the cruise industry which is a big employer.
Again, this choice of forum provision has been upheld by the U.S. Supreme Court, our country’s highest court in maritime cases. This provision is very unfair because it forces injured passengers to sue in the cruise line’s home city even though the cruise line does business in the passenger’s home city. In regular personal injury cases the defendant is not allowed to determine the venue of the lawsuit. For example, a choice of venue clause in a gym membership would not be enforced. Indeed, in regular personal injury cases venue is determined upon the county of residence of either plaintiff or defendant.
B. Admiralty Jurisdiction
Generally, an accident on the ship will be deemed to fall within the admiralty jurisdiction of the federal courts. Admiralty law is also known as maritime law or law of the seas. It is the law affecting property and personal rights on the sea.
As a consequence, an admiralty case must be brought in the federal court located where the ship company has its main offices. Furthermore, admiralty cases are tried before a federal judge without a jury.
A trial without a jury is a disadvantage. As compared to a trial by jury with six jurors, in a bench trial you are trying the case to an audience of one. Generally, judges can be quite conservative in finding liability as well as awarding damages. Additionally, as was indicated earlier, the cruise industry is a major employer in Florida where most cruise ship lines have their offices. Judges may be a little over-protective of the cruise industry.
In view of the short time deadlines, it is imperative that an injured person contact an attorney as soon as possible upon returning home.