Cruise ship vacations are billed as a time for customers to relax, indulge and maybe try something new. In pursuing those indulgences, vacationers may splurge on “offshore excursions,” which are often heavily advertised by the cruise line and offered several times daily. People may somehow be made to believe that because the cruise operator is promoting the venture, it is a safe and hazard free way to add adventure to their cruise.
However, our Miami cruise injury attorneys know that these excursions are often conducted by much-smaller, third-party outfits, which are subcontracted by the cruise line. In this way, cruise line operators hope to shed liability for any injuries that may result, while still profiting from making them available.
This goal may have been accomplished with limited success in the recent case of Heyden v. Celebrity Cruises, Inc. Recently, the U.S. District Court for the Southern District of Florida ruled that the plaintiff could move forward with his personal injury claim against the cruise line for a shore excursion injury – but only on the counts of negligent selection and retention of the shore excursion operator, not for failure to warn or misrepresentation, as the plaintiff had also alleged.
According to court records, the plaintiff sustained serious injuries while riding on a “Segway” (a motorized, self-balancing transportation device) that was offered as an excursion option for passengers of the cruise sailing to the Bahamas in December 2011. Although the company was owned by an entity that listed its address as a residential property in Minneapolis, the cruise line heavily promoted the trip. Additionally, it was the cruise line that accepted payment for the outing and retained the “lion’s share” of the profits.
The plaintiff alleges that Segway vehicles are inherently dangerous, a fact that should have been taken into account by both the cruise line and the excursion operator. He indicated that a quick, “two-minute” instruction was given to participants before they were poorly guided down a bustling boardwalk at mid-afternoon. The plaintiff described the scene as an obstacle course – full of people and shops and restaurants – a setting poorly suited to novice Segway operators.
At one point, the rider says he and the others were led down a narrow pathway toward public restrooms. Suddenly, the corner of his vehicle clipped a bench that was nailed to the ground. This caused him to fall off the Segway, which then fell on top of him, causing severe injuries.
He sued the cruise line for damages in excess of $75,000.
In weighing the cruise line’s subsequent motions to dismiss, the district court judge noted plainly that cruise ship operators can’t be held vicariously liable for the negligence of an independent contractor. However, it’s well-established that a cruise line may be held liable for the negligent hiring or retention of an independent contractor. (See Smolnikar v. Royal Caribbean Cruises Ltd. and Davies v. Commercial Metals Co.).
To prove such negligence, the plaintiff has to show that the contractor was incompetent or unfit to perform the work and that the employer knew or reasonably should have known about the operator’s shortcomings. And further, that the incompetence or unfitness caused the plaintiff’s injury. The court found that in the Heyden case, the plaintiff sufficiently met these standards.
However, the court rejected the failure to warn claim on the grounds that it was only applicable to dangers not open and obvious to passengers (and a fixed object, like a bench, would be considered open and obvious). On the claim of negligent misrepresentation, the court ruled that the plaintiff had failed to show specifically which claims the cruise line made that were false.
So the case is allowed to move forward – at least in part.
Another negligence lawsuit brought in federal court against a different cruise line was recently given the green light, after a lower court had previously dismissed it. That case, Chaparro v. Carnival Corporation, stemmed from the death of a 15-year-old passenger who was innocently caught in the crossfire of gang-related gunfire while on a popular tourist beach. In that case, the girl’s family accused the cruise line and the excursion operator of failure to warn of the ongoing danger of gang violence on the island.
Court records in both cases don’t make mention of a negligence claim against the third-party excursion operator, though certainly, those agencies too could face litigation in such cases. For smaller companies (and most shore excursion operators are small ventures), a single personal injury lawsuit could tank an entire enterprise.
This is why it’s imperative that shore excursion providers carefully plan each trip. This means being mindful of the location, adequately training participants (if required) and being prepared to set clear age/weight/physical and stamina requirements if necessary to ensure safety.
Excursion operators who accept bookings directly (as opposed to through the cruise line) should understand that this will mean legally, any and all liability will fall on their shoulders.
Passengers should be adequately warned of any trip that could be physically taxing. For example, if an excursion requires long periods of walking or hiking or a certain degree of technical skill (bicycling, diving, etc.), it’s best for excursion operators to be crystal clear about this from the outset. If it’s a fun or exciting opportunity, chances are many people will still take the chance – but you reduce your liability.
Another way to reduce the impact of litigation is to ensure that your guides or instructors are appropriately trained, certified or licensed in whatever field they are operating. This improves the quality of the experience, and also lessens your potential liability.
To avoid any unexpected problems, tour guides and excursion operators should conduct routine and thorough risk assessments. All obvious dangers should be weighed – from traffic to crime rates to fall hazards to inclement weather – and appropriately plans should be in place. That could mean providing the right protective gear, having enough translators (if necessary), choosing a less (or more) populated area, making sure that appropriate telecommunications are available and that staffers know what to do in the event of an emergency.
It’s important for operators to have clear contingency plans in place as well. If a danger arises, excursion operators should be flexible. Plans should be in place to take a different route, improve instruction, add equipment or change the service. There is also always the option to cancel the excursion. It’s better than risking an injury.
If you’re in the Miami area and have been involved in a cruise ship accident, contact the Law Offices of Jose M. Francisco for a free consultation.
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