Cruise Ship Liability; Rape and Injuries on the High Seas


The very same panoply of accidents that can occur on dry land can occur on cruise ships: slip and falls, falling objects, you name it. In addition, crime also occurs aboard ship - some of it committed by passengers and much by crew members. A great deal of high seas crime is property related, i.e., theft. However, of great concern, The U.S. Attorney General's office in Miami is now reporting that three out of every four crimes on cruise ships reported in Miami are sexual offenses and most involve young women under age 21.

Strict Liability

A cruise ship departing from a U.S. port is considered a common carrier of passengers under Section 3(6) of the Shipping Act of 1984. 46 U.S.C. §1702(6). Generally, a common carrier has a special duty to its passengers to see that they arrive at their destination safely and to use the highest degree of care to protect them against physical harm. See New Jersey Steamboat Co. v. Brockett, 121 U.S. 637, 645-646 (1887); Restatement (Second) of Torts §314A (1965). The special relationship between a carrier and its passengers involves one person entrusting himself to another's protection and care. See Holland America Cruises, Inc. v. Underwood, 470 So.2d 19, 20 (Fla.Dist.Ct.App. 1985) (finding that common carrier has a duty to protect passengers from criminal attack). A cruise ship's duty of safe transportation includes protection of the passenger from crew members' rapes, molestations, and assaults. M.J. Norris, The Law of Maritime Personal Injuries, §3:3, at 62-63; §3:12, at 78 (4th ed. 1990).

The Supreme Court first addressed crew member assaults against passengers in 1887. In the New Jersey Steamboat case, a passenger was physically injured when the ship's watchman violently removed him from a restricted area of the ship. The Court recognized that, by virtue of a contract for safe transportation, a passenger was entitled to protection against the carrier's servants' misconduct or negligence. It reasoned that the servants' misconduct or negligence should be imputed to the carrier because those servants are used to perform the contract of transportation with the passengers. Based on public policy and precedent from railroad cases, the Court held that a common carrier must absolutely protect its passengers from its own servant's misconduct if the act is committed in the course of the servant's employment.

The Supreme Court reaffirmed Brockett several years later in New Orleans & N.E. R.R. Co. v. Jopes, 142 U.S. 18 (1891). Although Jopes involved a conductor's shooting of a train passenger, the Court applied Brockett and further defined the rule for common carrier liability. In Jopes, the Court stated that a carrier is absolutely bound to ensure that its own servants do not unlawfully assault or injure a passenger. Jopes expanded Brockett by eliminating the requirement that the employee act within the scope of his employment and held the carrier strictly liable for any act of its employee against its passengers. Although Jopes involved a train rather than a passenger ship, the Court did not distinguish between modes of transport because both cases involved common carriers.

In Morton v. De Oliveira, 984 F.2d 289 (9th Cir.), cert. denied sub nom., Carnival Cruise Lines, Inc. v. Morton, 510U.S.907 (1993), in which a passenger alleged she was raped by a crew member in her cabin, the Ninth Circuit reviewed the issue of crew members' assaults on passengers in light of the usual "reasonable care under the circumstances" standard and held the ship liable.

Personal Injury Case - Reasonable Care Standard

In the context of the slip-and-fall accident of a man visiting a crew member aboard a vessel docked at a pier, the Supreme Court first recognized that a shipowner owed a duty of "reasonable care under the circumstances" toward persons lawfully aboard the vessel. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). In support of that conclusion, the Court cited admiralty cases dealing with personal injuries aboard vessels. The issue was whether invitee-licensee distinctions were recognized in admiralty, as they were in common law. The Court found that such distinctions derived from legal concepts completely foreign to the law of the sea. It concluded that it made sense to eliminate distinctions based on the plaintiff's status as a licensee or invitee and to apply a general standard of reasonable care. The Court supported its conclusion through reference to shipboard personal injury cases involving non-crew members.

The First, Fifth, and Ninth Circuits have interpreted Kermarec as creating a negligence standard of "reasonable care under the circumstances" for personal injury cases, while retaining Brockett's more stringent standards for crew member misconduct toward passengers.

Venue Selection Clauses

Most passenger tickets for cruises contain a forum selection clause, usually printed in microscopic type on the back of the ticket. Careful attention must be paid to the clauses, as they will usually control the venue in the case and, more importantly, the controlling law. Cruises departing California ports such as San Francisco and Long Beach generally designate a California Court and therefore, California law and 9th Circuit law control. But, the Miami-based cruise lines usually specify Miami as the venue. Objections may be made to the enforcement of the venue selection clause, but such challenges frequently fail.

Before the Supreme Court overruled it, the Ninth Circuit had held that, like other non-negotiated terms in contracts of adhesion, forum selection clauses in cruise line tickets are not enforceable. Shute v. Carnival Cruise Lines, Inc., 899 F.2d 377, 388 (9th Cir. 1990). The U. S. Supreme Court disagreed. Shute, 499 U.S. 585. Extending the "reasonableness" analysis, the Court held that, at least in the cruise line business, there are two reasons why a non-negotiated forum selection clause may be reasonable. 1. "[b]ecause a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. ..." 2. A forum selection clause would save the parties and the courts time and money by eliminating venue motions and would benefit passengers by reduced fares "reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued."

One claim that can be made is that intentional torts by crew members lie outside the Court's primary rationale because they do not involve a "mishap," large or small, but an alleged intentional act. Johnson v. Commodore Cruise Lines, supra, drew precisely this distinction in limiting another exceptional protection for adhesion clauses in cruise ship tickets: a shortened time-to-sue provision for bodily injury suits as authorized by 46 U.S.C. §183b. Plaintiffs sued for intentional infliction of emotional distress and other wrongs, based on an alleged conspiracy to conceal the rape of one of them by a crew member aboard a cruise ship. The contractual limitations period was much shorter than that provided for such suits under the law of Mississippi, where plaintiffs had bought their tickets. Rejecting this defense, the court wrote:

"Congressional concern in enacting the statutes in which § 183b was a part was to limit the liability of a shipowner for events arising in the general course of shipping and navigation. [Citation.] There is no suggestion in either the language of the statutes or in their legislative history of any intention to limit the liability of a shipowner for the affirmative misconduct or its mismanagement toward passengers. Accordingly, we find that § 183b does not preempt Mississippi's prohibition against contractually shortening limitations periods and, therefore, that the six-month time-to-sue provision in plaintiffs' tickets is invalid.Id., at 745.

Finally, plaintiff may assert that defendant's forum selection clause was unfair as applied to plaintiff because he/she had no opportunity to reject the clause without financial forfeiture. A forum selection clause may be unreasonable as applied to a passenger who does not learn of it until after the ticket is purchased and lacks opportunity to reject the contract without a penalty. Under these circumstances, the clause may be deemed unreasonable as to the plaintiff. See, Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1011-1012 (D. Haw. 1992) (clause not enforced); Kalman v. Cunard Line, Ltd., 904 F. Supp. 1150 (D. Haw. 1995) motion to dismiss denied pending resolution of disputed facts); cf. Cross v. Kloster Cruise Lines, Ltd. 897 F. Supp. 1304 (D. Or. 1995) (10 days' notice, $400 penalty, clause enforced).