Washington Maritime Injury Lawyer Blog

As stated in our last blog post, in the 1991 U.S. Supreme Court case of Carnival Cruise Lines v. Shute, a "choice of forum" clause in a cruise ship ticket was upheld.

In dissent, Mr. Justice John Paul Stevens explained the purpose of choice of forum clauses like the one contained in the COSTA CONCORDIA tickets:

"Clauses limiting a carrier's liability or weakening the passenger's right to recover for the negligence of the carrier's employees come in a variety of forms. Complete exemptions from liability for negligence or limitations on the amount of the potential damage recovery, requirements that notice of claims be filed within an unreasonably short period of time, provisions mandating a choice of law that is favorable to the defendant in negligence cases, and forum-selection clauses are all similarly designed to put a thumb on the carrier's side of the scale of justice."

In the Shute case, the plaintiff was a lady from Arlington, Washington. She and her husband
purchased tickets through a local travel agent. She was injured aboard the Carnival ship TROPICALE, enroute from Los Angeles to Puerta Vallarta, Mexico. The ticket called for suit in Florida.

The Ninth Circuit Court of Appeals ruled that the forum selection clause was unenforceable. The Supreme Court reversed, relying on it's previous opinion in Bremen v. Zapata Offshore (1972). That case involved a clause in a contract for towage of an oil rig from Louisiana to a location in the Adriatic Sea, calling for litigation in London. To those of us representing injured passengers, it seemed a stretch to extend the Bremen doctrine to require a lady in Arlington to travel to Florida to seek redress for injury.

Justice Stevens would have none of it. Joined by Justice Marshall, he said that the clause in question was "the product of disparate bargaining power between the carrier and the passenger" which "undermine[d] the strong public interest in deterring negligent conduct."

If the courts will not permit suit against Carnival in this country, the Congress should act to rectify the injustice resulting from Carnival v. Shute and its progeny.

While the parent company of the owner of the stricken Costa Concordia is based in Miami, passengers who want to file a lawsuit in U.S. courts over the cruise ship disaster will encounter obstacles in the tickets issued by the cruise line.

That's because of fine print on the tickets purchased and signed by the 3,000-plus passengers before the ship capsized Jan. 13 off the coast of Italy, killing at least 16 and leaving another 16 missing. The ticket contract includes what's known as a "choice of forum" clause stating that lawsuits must be filed in Italy.

In a 1991 case of Carnival Cruise Lines v. Shute, the U.S. Supreme Court held that such a provision in a cruise ticket was enforceable. The result has been that many claims by injured cruise ship passengers have been deterred by the expense of filing a lawsuit in a foreign court.

For a Costa cruise that touches any part of the U.S., the clauses say lawsuits should be filed in federal court in South Florida. Same for Carnival Cruises – which owns Costa – and many other major cruise lines. But for cruises such as the Concordia that involve only foreign travel, the Costa ticket says lawsuits must be brought in Genoa, Italy where much of the subsidiary's operations are based.

The clauses in the cruise industry are not as common in other forms of travel. Lawsuits against airlines, for example, can be brought virtually anyplace they do business for domestic flights; for international flights, lawyers can generally sue in the airline's home location or where the flight departed, among other venues.

Last August, the 11th U.S. Circuit Court of Appeals ruled in favor of a forum clause in a case involving Regent Seven Seas Cruises Inc. A California woman, Nina Seung, fell and broke her leg aboard a cruise ship sailing from Tahiti, then tried to sue in Fort Lauderdale federal court. Her ticket required foreign cruise lawsuits to be filed in Paris, and the appeals court rejected her challenge.

Seung, who was 74 at the time of her accident, said in court papers that the clause essentially barred the door for her.

"I do not have any savings of note right now, I am going further and further into debt each month and because I cannot work, I don't see how I can ever afford this," she said in an affidavit. "So if I am forced to go to Paris, France, I just will not be able to bring my claim."

When the Shute case was decided by the U.S. Supreme Court, lawyers representing injured passengers were discouraged. It was obvious that passengers do not meaningfully agree to the fine print on the back of tickets issued by the cruise line. This is a classic "contract of adhesion," in which one party has never had any choice but to accept the terms, no matter how unconscionable.

The facts of the tragic sinking of the SWANLAND resemble those in Alaska fish boat cases.

Although, as noted in our earlier post, the SWANLAND is a Russian vessel, it was British managed. The British Maritime and Coastguard Agency is therefore conducting an investigation, much as the U.S. Coast Guard would conduct a marine casualty investigation.

The cargo ship which sank in the Irish Sea off Gwynedd, Wales with the loss of six crew had been at the center of repeated safety concerns, the BBC reported.

An analysis of safety inspection records for the SWANLAND reveals a high number of failings.

Members of the crew claim the vessel was vulnerable in rough seas because of a history of unsafe loading. This has been a recurrent issue in Alaska shipwreck cases.

The ship's operator, Torbulk Limited, said it had been regularly inspected and any faults "promptly rectified". This is the typical response by vessel interests after a loss such as this, but the 34-year-old British-managed ship had a history of defects, according to safety inspections by the Maritime and Coastguard Agency. Over the past five years, 85 faults were highlighted - including cracks in the ship's decks and defective life-saving equipment identified in May this year. Marine safety management expert Dr Phil Anderson said that, even allowing for the ship's age, the number of defects seemed surprisingly high.

"You wouldn't expect to see that number of deficiencies. It's quite serious. It could indicate a systemic breakdown of safety systems."

Former crew members have also raised concerns about the techniques used to load the ship.

Alexander Tsybin, a former Russian captain who worked on board the Swanland for 11 years, believes the vessel's hull had been weakened by the way the cargo was sometimes loaded to save time on each voyage.

Instead of loading evenly from either end, it would be deposited in the middle.

"While the ship was being loaded, it would cave in a little, and while it was being unloaded, it would bulge out," he said.

"So the middle of the ship would always be subject to pressure which meant that in the end it became weakened."

Maritime safety experts have also told the BBC that loading heavy, unsecured cargo into a single hull could cause displacement which might cause a ship to roll in bad weather.

They say the combination of the crew's concerns about loading and the historical defects involving structural safety and cracked decks "give rise for concern".

The vessel was caught in a gale force 8 storm off the Lleyn Peninsula, north Wales, at the end of November.

According to Vitaliy Karpenko, one of the two survivors from the all-Russian crew, the ship's hull suddenly cracked.

"It broke in half right across the middle. I saw it with my own eyes," he said. "We saw through the porthole that it was hopeless trying to save her."

The ship's Grimsby-based operator Torbulk Shipping said in a statement that it understood the vessel was loaded in accordance with good practice, adding: "Any working sea-going cargo vessel... will be inspected on a regular basis and may incur minor deficiencies.

"These deficiencies are required to be promptly rectified or the vessel would not be permitted to trade.

"We are unable to comment on specific instances. However, we can state that any deficiencies identified are always rectified within the time-scale specified [by the authorities]."

The vessel, which was British-owned, was flagged to the tiny Cook Islands in the Pacific.

The islands have a higher number of ships with safety problems, and the international shipping authorities regard their flag as inferior to those from European maritime regulators.

As the official British maritime investigation and civil litigation proceed, it seems unlikely that vessel interests will be able to sustain their burden of showing that they exercised due diligence to see that the SWANLAND was seaworthy when she departed Wales enroute to the Isle of Wight. An oceangoing ship should be able to withstand Force 8 winds without breaking in half.

Before the LADY MARY sank off Cape May, N.J., in 2009 with the loss of six lives, it had been structurally modified "without consulting a naval architect," federal safety officials said.

The scallop trawler's owners hadn't assessed its stability. The crew didn't realize the importance of keeping the vessel watertight during severe weather. And the vessel's master failed to make an effective Mayday call, officials said.

Those findings were part of a National Transportation Safety Board report this month that made safety recommendations for the nation's commercial fishing industry, which is waiting to see how they will be implemented and what they'll cost to implement.

With the highest fatality rate among all U.S. occupations, the industry has generally welcomed the input.

The Lady Mary's failings are frequently referred to in the NTSB report, which calls on the Coast Guard to establish new standards for commercial fishing industry vessels of 79 feet or less, including measures to improve stability, watertight integrity, and training. Vessels under 79 feet are lost at a higher rate, the Coast Guard has reported.

An NTSB investigation into the sinking of the 71-foot Lady Mary said it was caused by flooding through an access hatch left open during 10- to 12-foot seas, "contrary to safe shipboard practice."

The report this month also recommended that ship owners install recovery devices to rescue anyone who has fallen overboard, and that crew members wear flotation aids at all times while on board and be trained in the use of all emergency equipment.

"While numerous laws have been passed to protect fishing grounds and fish populations, regulations to improve the safety of commercial fishermen are long overdue," NTSB Chair Deborah Hersman said.

In the United States, on average, there were 158 deaths annually from 1992 to 2008 for every 100,000 commercial fishermen, compared with an average of four fatalities per 100,000 workers in all occupations.

The Coast Guard is responsible for offering any new regulations.

Some regulations may mean "more expense," a Coast Guard spokesman stated.

Keith Laudeman, whose Cold Spring Fish & Supply Co. in Cape May owns boats and harvests scallops, said he's in favor of "anything that promotes safety and can save a life."

"The cost is minor compared to saving a life," he said. "We are in a dangerous line of business."

Continue reading "NTSB Makes Fishing Industry Safety Recommendations" »