2013-01-18 / Columnists

Sullivan’s Court

Q. My husband and I were recently on a 14-day cruise. In the middle of the trip, he fell and hurt his ankle very badly. He was initially treated by the medical doctor on board, but required additional medical treatment and ultimately surgery when we returned home. Our daughter wants to call a lawyer for us and sue the cruise line for causing the injury as well as for the medical malpractice of the ship’s doctor for failing to properly diagnose the injury. Is this something that is possible to do? -M. Walsh

A. Mrs. Walsh, this is not a simple ‘yes - no’ answer. Cruises are very enjoyable vacation experiences. Some of the mega-cruise ships are essentially minicities with all the amenities of a fivestar resort and then some. However, when things go wrong -as they often can- dangerous and deadly accidents occur. These accidents can stem from poor maintenance, lack of proper security or improperly trained crew and staff, to mention just a few ways passengers get injured. In anticipation of such unfortunate events, cruise ship lines take advance measures to ensure they are maximally protected. Injuries stemming from activities on the cruise ship or while participating in cruise sponsored off-ship excursions, often prove to be legal rough seas for both clients and lawyers. As the circumstances of each case differ, it is important that you consult with an experienced maritime plaintiff’s attorney regarding the specifics of your husband’s injury.

Generally speaking, the cruise lines rely on the lengthy and very detailed ticket terms of the ticket, which in essence serves as a contract that you are forced to accept as the terms and conditions of using their vacation services. These tickets contain countless provisions that impact personal injury and wrongful death lawsuits.

To begin with, every cruise line chooses where they can be sued. Trust me; it will not be New York City! A majority of US-based cruise liners will only allow lawsuits against them to be filed in the Federal Court located in Miami Florida.

Another limitation found on the ticket “contract” is that the statute of limitations is often one year as opposed to the standard three years. Courts have held that this limiting provision is only enforceable if it is reasonably conspicuous on the ticket. Many cruise liners even insert releases stating that you the passenger agree that the cruise line cannot be held responsible for any and all acts of negligence or intentional conduct caused by them or their crew members. This is a clearly an overreaching provision and violates US Federal law barring such broad releases - provided the cruise included at least one US port.

The substantive law applicable to cruise ship accidents is Admiralty law as opposed to a general negligence cause of action. Additionally, the traditional law of medical malpractice does not apply to the ships medical staff when providing emergent care. If you go to a hospital for emergency treatment and malpractice occurs, both the medical staff that rendered the treatment, as well as the hospital can be held liable under a theory of malpractice. Under Admiralty law the cruise ship owner or operator cannot be held liable for the malpractice of the shipboard doctor. Further the damages in this unique area of the law often do not allow for recovery for psychological damages and bars the use of classaction lawsuits.

Take for example the Costa Concordia disaster in Tuscany, Italy from January 2012. 32 lives were lost and four thousand passengers were forced overboard when the ship hit a reef during an unofficial near-shore salute. The captain, after losing control of the ship, made no effort to contact the local harbor for help, delayed over an hour to order an evacuation and ultimately abandoned ship while most passengers were still on board. The cruise operator was only responsible for a maximum of $71,000 per passenger.

So enjoy the high seas, travel smart and know that you give up some of your legal rights when you leave the shore!

You can e-mail your questions for Keith Sullivan to SullivansCourt@gmail.com.

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP, an adjunct law professor and a lecturer for the national bar exam. He is also a Deputy Commissioner for the NYS Athletic Commission. Sullivan can be seen providing legal analysis on various television networks such as FOX News, CNN, HLN, NBC and MSNBC.

Sullivan’s Court provides general legal information only, is not intended as legal advice and does not create an attorney-client relationship.

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