Trial Magazine

Sexual assault is a lifetime traumatic event, impacting survivors mentally and physically—and sadly, it is all too common.¹ When cruise passengers are assaulted thousands of miles away from their homes and communities, the trauma is aggravated even further.

There has been a disturbing and unmistakable trend in the cruise industry: The prevalence of sexual assaults against passengers increases year after year. From July through September 2019 alone, sexual assaults accounted for over 75% of all reported crimes on cruise ships.² Unsuspecting passengers are lulled into a false sense of security, viewing the vessel as a safe space. To make matters worse, typically an inadequate investigation, if any, is headed by biased security staff, often resulting in the loss of critical evidence.

The obstacles that survivors have to navigate when entering the court system amplify their stress and trauma. In cruise ship litigation, survivors must act quickly to comply with the requirements of their ticket contract—this typically includes a six-month notice requirement, a one-year statute of limitations, and a forum selection clause (many cruise lines require suits to be filed in federal court in Miami).³ And because their “brand” is exposed, cruise lines tend to aggressively defend these cases. Here are some tips for building a strong case from discovery to damages. 

Potential Claims

There are several possible claims to bring against a cruise line, depending on the specific circumstances of your client’s assault. 

Common carrier strict liability. When a crew member sexually assaults a passenger, the cruise line may be held strictly liable because courts consider cruise lines common carriers.⁴ A common carrier owes a nondelegable duty to protect and safely transport its passengers,⁵ and the carrier’s employees and onboard agents share in this duty of absolute protection owed to passengers.⁶

This common carrier relationship exists when an assault occurs on the ship, but you also may argue that it applies when the assault is land based. For example, in a case involving an intoxicated passenger who was assaulted by an off-duty cruise line waiter as he escorted her from an onshore club back to the ship, the court found an ongoing carrier-passenger relationship because the passenger accepted the waiter’s help, trusting him because he was a crew member.⁷ The court also found it significant that the carrier had a pecuniary interest in having its off-duty crew members socialize with passengers in a port-of-call because those interactions promote the success of the carrier’s tipping system, which compensates crew members for their services to the carrier.⁸

Breach of duty of care. Cases involving a passenger who was sexually assaulted by a fellow passenger are more complex. The owner of a vessel traveling in navigable waters owes all of its passengers a duty of reasonable care.⁹ A necessary prerequisite to imposing liability, however, is establishing that the carrier had actual or constructive notice of a risk-creating condition.¹⁰ Plead that the carrier had notice based on the specific facts of your case, but also allege that the carrier knew or should have known of the risk of sexual and violent crimes to its passengers.

A carrier’s duty of care is not excused when alcohol is involved: It is well-established that a carrier owes its ailing passengers a duty to exercise reasonable care to furnish aid and assistance as a prudent person would under similar circumstances.¹¹ This duty exists even when a passenger becomes voluntarily intoxicated.¹² Allege that the carrier knew or should have known that the risk of crime and injury to its passengers was enhanced by the sale of copious amounts of alcohol on its vessels.

Evidence that the carrier had notice of the danger to the plaintiff may include testimony that the plaintiff was visibly intoxicated. An intoxicated passenger’s behaviors—such as swaying, staggering, slurred speech, and other signs of impairment—are relevant to that determination.¹³ In addition to having a duty to aid passengers in distress, courts have found that a cruise line has a duty not to overserve alcohol.¹⁴

Recently, the Eleventh Circuit held a carrier’s duty of ordinary reasonable care includes the duty to monitor and regulate the behavior of passengers. In that case, a group of male passengers purchased alcohol for a minor onboard and, once she was intoxicated, steered her into a cabin where they assaulted her.¹⁵ The court noted that the carrier’s duty required it to refuse alcohol to minors and  to adults known to be buying it for minors.¹⁶ Going further, the court found that the carrier could be liable when its crew did nothing to intervene or help the obviously intoxicated girl, even after crew members saw the men leading her across the ship.¹⁷ Though that case dealt with a minor, these same principles and duties should be applied to appropriate cases involving survivors of any age. 

Inadequate security. Another potential claim is through a theory of negligence for inadequate security. Most cruise ships carry thousands of passengers and hundreds of crew members but have, at most, only a dozen or so security guards working in shifts. This clear deficiency should be exploited when the ship’s security program failed to adequately respond to a risk-creating condition it knew or should have known about.

For example, in 2016, a federal district court held that Carnival may be liable when security staff took approximately 15 minutes to respond to a call reporting an assault victim’s screams from a stateroom.¹⁸ While the call to security established actual notice, the court punted on whether Carnival’s history of 59 assaults in three years on its ships—most of which took place in staterooms—could alone meet the notice requirement.¹⁹

But in considering evidence that Carnival’s security officers had requested more manpower for years so they could station at least one officer per deck, the court suggested that additional security patrolling the decks for noises or signs of assault could prevent or ameliorate most assaults.²⁰

Additionally, at least one court has held that a carrier can be negligent for failing to adequately monitor its video surveillance system.²¹ But the mere installation of cameras does not create a duty to monitor them.²² Plaintiffs must allege that they relied on the cameras or that the carrier advertised the cameras—in posted signs, brochures, or otherwise.²³

When alleging inadequate monitoring, you also may need to show that an incident occurred long enough for any crew members monitoring cameras to have detected the risk and intervened. Showing that an opportunity existed to learn about a danger or to intervene is the crux of being able to argue the cruise line had constructive notice of a danger to passengers.

Failure to warn. This should be alleged in virtually all cases. The cruise line owes a duty of ordinary care to warn passengers of the known dangers of sexual assault aboard its ships.²⁴ A failure to warn does not breach that duty, however, unless the harm was reasonably foreseeable.²⁵ Similar to pleading notice, lay out fact-intensive allegations of foreseeability, as well as causation. For example, foreseeability may be established if you can prove the carrier anticipated crime on its ship, had experience dealing with sexual crimes between passengers, and had knowledge that the risk of harm was highest in passenger cabins and bars.²⁶

Alleging failure to warn is particularly useful when seeking to hold the cruise line liable for an onshore attack by a non-crew member. The carrier has a duty to warn its passengers of known dangers beyond the point of debarkation in places where passengers are invited or reasonably expected to visit.²⁷ That duty requires the carrier to warn of all known dangers that would not be open and obvious to passengers, such as particular risks of an area or that an area has a high crime rate.²⁸

A cruise line is not necessarily relieved of its duty to warn just because the plaintiff could have learned of the danger from an alternative source.²⁹ For example, a passenger who was raped just outside a Mexico shopping district that had been recommended by the cruise line alleged a narrow duty to warn of sexual assault and rape.³⁰ Evidence from the U.S. State Department, witnesses, and media showed a history of violent crime in the area that the carrier knew or should have known about. While this plaintiff lost on summary judgment because the evidence fell short of establishing specific notice of sexual assault and rape, the court tacitly suggested that the outcome may have been different had the plaintiff alleged a broader duty to warn of crime in the district.³¹

Make sure your allegations of notice are both general and specific: Allege notice of local violent crimes and assault, including but not limited to sexual assaults, as well as any other harm or crime involved in the subject incident. 

Investigation and Discovery

A good place to start in one of these sexual assault cases is identifying what the cruise line knew. 

Cruise line policies and procedures. Seek information on cruise line safety and security meetings, trainings, and policies and procedures. Get creative and expansive with discovery requests and Federal Rule of Civil Procedure 30(b)(6) depositions. Notice the depositions of corporate representatives, such as someone from the cruise line’s legal department, to testify about the carrier’s knowledge of and experience with sexual assaults. Ask these representatives about related issues, such as dangers from insufficient security and a carrier’s duty of care related to serving alcohol. Also review cruise line websites and printed material for representations the cruise line made about safety and security.³²

Prior incidents. Uncover evidence of prior sexual assault incidents on the cruise line’s ships. Start by compiling evidence that the cruise line had notice of the risk of sexual assault by consulting the U.S. Department of Transportation’s (DOT) “Cruise Line Incident Reports.”³³ Under the Cruise Vessel Security and Safety Act, carriers must report all criminal activity to the FBI and have a security guide for passengers setting forth security measures and processes for reporting crimes. This information is then categorized by date, carrier, and crime and published by the DOT.³⁴

For example, a recent report shows that in the third quarter of 2019, Carnival led all other carriers with 20 reports of sexual assault.³⁵ Use these reports to show that the cruise lines have actual knowledge of the risk of sexual assaults because such crimes occur regularly and overwhelmingly outnumber all other reported crimes combined.³⁶

Surveillance videos and recordings. One of the most vital pieces of evidence in discovery is surveillance video. Ideally, request any and all recordings showing your client, the assailant, and what they were doing in the minutes or hours leading up to the assault. Such video can be invaluable to help meet your burden of establishing notice. 

On day one, send a spoliation letter to the cruise line requesting the preservation of any surveillance video. If the cruise line fails to preserve the video, establish that it once existed, and use discovery and a corporate representative deposition to pursue a remedy for spoliation. When a cruise line “loses” video footage, it is considered electronically stored information under Rule 37(e), which allows the courts to order measures to cure any prejudice to the plaintiff.³⁷

Passenger manifest. Obtain the passenger manifest from the cruise line, as it will contain the names of potential witnesses. Then identify witnesses in discovery through Rule 26 disclosures, discovery requests, witness statements, and incident reports. Keep in mind that witnesses may have cell phone recordings of the incident.

Damages

While the battle in these cases will center on liability, be careful not to overlook damages. Survivors of sexual assault are not your typical personal injury claimants—their damages go far beyond what the eye can see. Perhaps even more important than helping jurors understand your client’s physical injuries is helping them understand the mental ones.

To prove mental damages, such as emotional distress or post-traumatic stress disorder, be prepared to call as witnesses your client’s therapist, any relevant treating physicians, and close family or friends who can testify to the toll the traumatic events have taken. If these witnesses are out-of-state and unable to appear live at trial, take their depositions by video to maximize the impact of their testimony with jurors. Depositions of any cruise line medical personnel who treated your client also may be helpful to depict a full and complete time line of your client’s condition. 

You may consider hiring a mental health professional as an expert witness to educate jurors on the impacts of sexual assault on survivors. An expert witness in this field can bolster your client’s credibility as to the extent of damages by explaining in a general sense the dynamics of sexual assault and the experiences survivors go through. This expert also can help with jury selection, prepare the plaintiff for the mental toll of trial, and help you handle delicate issues.

When a client has been sexually assaulted at sea, it is crucial that you approach the case with compassion and an ambitious strategy. Turn over every stone to establish a detailed factual record, raise all applicable theories of liability, and adequately establish damages for the best chance of achieving justice for your client.

Ira H. Leesfield is the founder and managing partner of Leesfield Scolaro in Miami. Adam T. Rose is an associate at the firm. They can be reached at leesfield@leesfield.com and rose@leesfield.com. 

Notes

1. Recent studies indicate that more than one in three women, and nearly one in four men, will experience sexual violence in their lifetime. See Sexual Violence Is Preventable, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/injury/features/sexual-violence/index.html. 
2. See Cruise Vessel Security and Safety Act (CVSSA) Statistical Compilation: July 1, 2019–Sept. 30, 2019, U.S. Dep’t of Transp. [hereinafter CVSSA Statistical Compilation], https://www.transportation.gov/sites/dot.gov/files/docs/mission/safety/357031/q3-2019-cvssa-reporting-fbi-uscg.pdf; see also Cruise Line Incident Reports (Jan. 31, 2020), U.S. Dep’t of Transp., https://www.transportation.gov/mission/safety/cruise-line-incident-reports.
3. See Cruise/Cruisetour Ticket Contract, Royal Caribbean Int’l, https://www.royalcaribbean.com/content/dam/royal/resources/pdf/cruise-ticket-contract.pdf; Ticket Contract, Carnival, https://www.carnival.com/about-carnival/legal-notice/ticket-contract.aspx?icid=CC_Footer_84; Norwegian Cruise Line: Guest Ticket Contract, Norwegian Cruise Line, https://www.ncl.com/oci/contracts/en-US.
4. Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 893 (11th Cir. 2004) (“[U]nder federal maritime law, a cruise line is strictly liable for crew member assaults on passengers during the cruise.”). 
5. Id. at 909 fn.19.
6. Doe v. Celebrity Cruises, Inc., 389 F. Supp. 3d 1109 (S.D. Fla. 2019); Garcia v. Carnival Corp., 838 F. Supp. 2d 1334 (S.D. Fla. 2012).
7. Doe v. Celebrity Cruises, Inc., 394 F.3d at 914.
8. Id.
9. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959), overruled on other grounds by Moragne v. States Marine Lines, 398 U.S. 375 (1970). 
10. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). 
11. Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014). 
12. Hall v. Royal Caribbean Cruises, Ltd., 888 So. 2d 654, 655 (Fla. Dist. Ct. App. 2004).
13. Webb v. Carnival Corp., 360 F. Supp. 3d 1339, 1344–45 (S.D. Fla. 2017).
14. Doe v. NCL (Bahamas) Ltd., 2012 WL 5512347, at *4–5 (S.D. Fla. Nov. 14, 2012); see also Doe v. Royal Caribbean Cruises, Ltd., 2011 WL 6727959, at *4 (S.D. Fla. Dec. 21, 2011); Hall, 888 So. 2d at 655. 
15. K.T. v. Royal Caribbean Cruises, Ltd., 931 F.3d 1041, 1045 (11th Cir. 2019).
16. Id.
17. Id.
18. Horne v. Carnival Cruise Lines, 2016 WL 4808791, at *5 (S.D. Fla. Jan. 25, 2016). 
19. Id. 
20. Id. at *4. 
21. Doe v. Royal Caribbean Cruises, Ltd., 2011 WL 6727959, at *3–4.
22. Mizener v. Carnival Corp., 2006 WL 8430159, at *3 (S.D. Fla. June 16, 2006).
23. Doe v. Royal Caribbean Cruises, Ltd., 2011 WL 6727959. 
24. K.T., 931 F.3d at 1046.
25. Id. (citing Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)). 
26. See id. at 1044.
27. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).
28. Id. at 1337.
29. Lapidus v. NCL America LLC, 924 F. Supp. 2d 1352, 1360 (S.D. Fla. 2013). 
30. Burdeaux v. Royal Caribbean Cruises, Ltd., 562 F. App’x 932, 935 (11th Cir. 2014). 
31. Id. at 936.
32. See Safety and Security, Carnival, https://www.carnival.com/legal/safety-security.aspx?icid=CC_Footer_109; Safety & Security, Royal Caribbean Int’l, https://www.royalcaribbean.com/resources/safety-and-security.
33. Cruise Line Incident Reports, supra note 2.
34. Id. 
35. CVSSA Statistical Compilation, supra note 2. 
36. Id.
37. See Order on Plaintiff’s Spoliation Sanctions Motion, Sosa v. Carnival Corp., 2018 WL 6335178 (S.D. Fla. Dec. 4, 2018).