Trial Magazine

For firms that regularly represent clients injured on cruise ships, 2020 rewrote the book on standard operating procedures. Like so many other industries, business has been anything but usual since all cruise companies stopped operations pursuant to the Centers for Disease Control and Prevention’s (CDC) “No Sail Order” in March 2020.¹

Here are five strategies that helped our firm keep our clients’ cruise passenger cases moving forward. As cruise companies plan for how to phase back into operating ships while meeting CDC guidelines, the future is still so uncertain that these tips will continue to be useful in the months ahead.

1  Know Your Deadlines

Cruise lines regularly shorten statutes of limitations through a clause in the passenger ticket contract. Pursuant to federal statute, virtually all major cruise lines have reduced the time frame to bring a suit to one year from the date of the incident or injury, which has been enforced across federal jurisdictions.²

Additionally, passenger tickets almost uniformly require that written notice of a claim be provided to the cruise line within six months of the incident. Missing this six-month notice requirement could be cause for dismissal of your client’s lawsuit.

Ticket contracts identify the proper corporate defendant to name in your client’s lawsuit and contain an enforceable forum selection clause.³ Smaller cruise lines and casino cruises have similar practices. In any passenger case, the first order of business is always to obtain the passenger ticket contract (easily found through a quick online search) and locate those key clauses.

During the early part of the pandemic, we suddenly found ourselves spending much more time tracking all the newly altered deadlines, status reports, and statutes of limitations for our cases than we had before the COVID-19 shutdown. For example, Carnival Corp. filed a mass motion in the District Court for the Southern District of Florida to stay all cases in which the corporation was a party. At that time, we also agreed with Carnival to extend the contractual statutes of limitations on all of our claims not yet in litigation. By comparison, the other major cruise lines took more of a case-by-case approach to determine which cases to stay or move forward.

All of the cases that were stayed had deadlines for conferring with the cruise line and filing a status report with the court stating whether the case was ready to resume. We also had to closely monitor federal court deadlines in cases that were not stayed.

Being flexible and willing to agree to extend deadlines with the attorneys for the cruise lines allowed us to focus more on cases where meaningful progress is possible despite the pandemic. To determine which cases to push forward and which are best stayed or with the statute of limitations extended, we considered several factors, including the cruise line involved, the size of the claim, the ship’s location, what information or discovery we already had, and who was available to testify.

For example, in a case involving a plaintiff who slipped and fell on the deck due to spilled food, a vessel inspection was not necessary because conducting slip resistance testing on the ship would not make a meaningful difference (you probably cannot recreate the condition of the food). It made sense to move forward since we already had most of the depositions we needed.

But in another case, the client lives abroad, creating logistical hurdles for client and doctor depositions and scheduling the defense medical examination (DME). Additionally, we need to conduct a vessel inspection because of the nature of the incident involved, but the ship is currently docked in Hawaii, and no one is allowed on it other than a few staff. It made more sense to not push forward at full speed in this case.

2  Get Creative With Discovery

The ability to obtain typical discovery is probably the largest obstacle presented by the pauses in cruise business operations—for the bulk of the shutdown no one has been allowed on each ship aside from a few crew members. This seems to be changing, although with all parties still attempting to limit contact and the cruise ship companies grappling with the CDC framework on phasing back into operations, it could be difficult to schedule inspections in the months ahead.

In many cases, the inability to board or inspect a vessel impacts several fundamental pieces, such as creating an expert witness report. With minimal crew on board, it also has taken longer to obtain information included in typical discovery requests from the ships such as deck logs, maintenance records, and other documents that are stored on the vessel.⁴

After the CDC first issued the “No Sail Order,”⁵ the cruise lines used their vessels to repatriate all crew members who are not U.S. citizens to their home countries. So with most of the crew scattered all over the globe—often without an updated address on file with the respective cruise line—it has been difficult to locate and depose crew members.

A strategy we used before the pandemic but have now increasingly relied on is to collaborate with other firms that have handled similar cases. We’ve been able to obtain helpful information, such as prior similar incidents, expert materials like slip resistance testing, and deposition transcripts.

Plaintiff attorney list servers also have been helpful for exchanging information. We’ve used Lexis or Westlaw to find similar cases and then check the case’s docket on PACER to track down evidence in the filings and attorney contact information. One attorney who handled a similar case gave us a substantial list of prior similar incidents and deposition testimony from several of the people who were injured in those incidents. Using this information, we defeated a motion for summary judgment.

Working with the cruise lines’ counsel to compromise on discovery also has been effective. For example, in cases when the shipboard inspection isn’t a make-or-break issue, we’ve agreed to the defendant sharing photos from the incident investigation that they normally would not have disclosed or to having their crew who is on board take photos of the area or object involved.

In some cases, we agreed to have the cruise line choose a doctor for a DME in the client’s hometown since our clients live all over the country and often would be compelled to travel to the forum jurisdiction for the examination. This isn’t always the case though. For example, for a few of the more contentious and severe injury cases, the defense has elected to wait until our client can travel to Miami to be seen by their preferred expert doctor.

While these strategies are by no means a one-size-fits-all solution, using any one or a combination of these methods has helped keep the ball rolling in many cases.

3  Proving Notice

These negligence cases require evidence that the defendant had notice of the dangerous condition.⁶ Many of the typical ways we obtain the evidence needed to prove notice have become difficult to access during the pandemic—the crew who compromise the majority of our witnesses are scattered across the globe, it takes longer to access records such as deck logs and maintenance logs that are stored onboard, and we also cannot inspect or do testing on the vessels and their components.

We have been able to conduct many depositions by Zoom (mainly plaintiffs, doctors, experts, and family witnesses), but this has not been feasible for crew members since defendants often cannot locate them. Thus, a Federal Rule of Civil Procedure 30(b)(6) corporate representative deposition may be the only viable deposition you get from the defendant. Start your questioning with any information you’ve obtained about prior similar incidents.

For example, you may need to prove a threshold on a ship constituted a dangerous condition, and you may have a list of prior incidents involving this same threshold and other thresholds throughout the ship and on other ships in the same class. Question the witness on the details of each prior incident to uncover whether the thresholds are substantially similar and the circumstances involved in the prior incidents. Was the person involved doing anything that would cause a judge to decide those circumstances were too dissimilar from your client’s situation to put the defendant on notice?

It can be helpful to stipulate with the cruise line that it has not waived its work product privilege by agreeing to answer questions on reports from prior incidents without showing them the actual reports.

Another avenue is to tailor your questioning to the most recent cruise cases from your jurisdiction. This helps you gather evidence for proving notice and also ensures you have testimony and supporting case law to combat a future summary judgment motion.

A recent case from the Eleventh Circuit, for example, held that a crew member placing a bucket behind a blind corner in a high-traffic walkway was sufficient to establish that the defendant had actual notice of a dangerous condition that the plaintiff tripped over, severely injuring her shoulder.⁷ This is significant compared to prior rulings that held that simply because the cruise line created the subject condition did not mean it had knowledge that the condition was dangerous.⁸

Another recent case involved a plaintiff injured on a cruise ship after tripping over a four-inch doorway threshold that was not evident because of an optical illusion caused by stainless steel baseboards.⁹ The court held that similar thresholds elsewhere on the ship that were previously alleged to be a tripping hazard would be sufficient as evidence of notice because of the similar optical illusion created. This also is more favorable for plaintiffs compared to prior Eleventh Circuit rulings on proving notice through substantially similar incidents.¹⁰

4  Look Out for New Case Law

Set up alerts on your research services so you are notified of all new rulings in your jurisdiction related to cruise passenger injuries. This way you can stay up to date on any new case law as soon as it comes out.

While a case of ours was stayed but summary judgment was pending, two new Eleventh Circuit rulings came down that could be applied in favor of our client’s position.¹¹ We submitted the two new cases as supplemental authority to the pending motion for summary judgment. Soon after, the case resumed (as a matter of course, not as a direct result of our filing), and the judge ruled in our favor, relying heavily on the supplemental authority. There’s no guarantee of success, but finding a new decision that creates a new pathway to move forward has helped our firm push through potential road blocks in some cases.

5  Don’t Be Afraid to Ask

We’ve all been facing unprecedented and inevitable hurdles. But it’s crucial to be candid and detailed in explaining the circumstances to judges and opposing counsel. Through detailed motions outlining the logistical challenges and safety concerns, our firm has been successful at obtaining court orders for witnesses to appear for trial by Zoom. Before the pandemic, cruise lines typically hired an expert doctor to testify live at trial, and we’d have to play the video deposition of our client’s hometown doctor since treating doctors outside of Florida often do not have the time to take off from their practice and travel to Miami.

By having your clients’ treating doctors testify by Zoom, the live virtual testimony should be more compelling and easier for a jury to engage with than a pre-recorded deposition—with the added benefit of allowing those who do not want to travel because of COVID-19 to stay home. Whatever the situation is, don’t be afraid to ask for relief that is reasonable to keep the case moving and everyone safe.

The pandemic required plaintiff attorneys to find new ways to ensure clients continued to receive the representation they deserve in already pending cases. Even as we have hope of resuming “normal” business practices soon, flexibility and creative solutions remain critical.

Catherine M. (Casey) Saylor is an attorney at Munch and Munch in Tampa, Fla., and can be reached at casey@munchandmunch.com.

Notes

1. Ctrs. for Disease Control & Prevention, No Sail Order and Other Measures Related to Operations, Mar. 14, 2020, https://www.cdc.gov/quarantine/pdf/signed-manifest-order_031520.pdf.; Ctrs. for Disease Control & Prevention, Quarantine and Isolation: Cruise Ship Guidance, https://www.cdc.gov/quarantine/cruise/; Ctrs. for Disease Control & Prevention, Framework for Conditional Sailing and Initial Phase Covid-19 Testing Requirements for Protection of Crew, Oct. 30, 2020, https://www.cdc.gov/quarantine/pdf/CDC-Conditional-Sail-Order_10_30_2020-p.pdf.
2. Federal law permits cruise lines to impose a one-year limit on the time passengers have to bring a civil action. See 46 U.S.C. §30508(b)(2). Courts will enforce such a limitation if the cruise ticket provided the passenger with reasonably adequate notice that the limit existed and formed part of the passenger contract. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1335 (11th Cir. 1984), Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir. 1979); Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 867 (1st Cir. 1983); Barbachym v. Costa Line, Inc., 713 F.2d 216, 218 (6th Cir. 1983); Dempsey v. Norwegian Cruise Line, 972 F.2d 998, 999 (9th Cir. 1992).
3. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991). Carnival Corporation, Norwegian Cruise Line, and Royal Caribbean require cases to be filed the U.S. District Court for the Southern District of Florida. Disney Cruise Line requires the U.S. District Court for the Middle District of Florida, Orlando Division or Florida state court in Brevard County. Princess has selected the U.S. District Court for the Central District of California in Los Angeles or, if there is no jurisdiction under federal law, Los Angeles County Superior Court. Holland America is in the U.S. District Court for the Western District of Washington. For sample passenger ticket contracts, see: Carnival Corp., Ticket Contract, https://www.carnival.com/about-carnival/legal-notice/ticket-contract.aspx; Norwegian Cruise Line, Guest Ticket Contract, https://www.ncl.com/oci/contracts/en-US; Royal Caribbean Int’l, Cruise/Cruisetour Ticket Contract, https://www.royalcaribbean.com/content/dam/royal/resources/pdf/cruise-ticket-contract.pdf; Disney Cruise Line, Cruise Contract, https://disneycruise.disney.go.com/contracts-terms-safety/cruise-contract/united-states/; Princess Cruise Lines, Ltd., Passage Contract, https://www.princess.com/legal/passage_contract/pcl.html; Holland America Line, Cruise Contract, https://www.hollandamerica.com/en_US/legal-privacy/cruise-contract.html.
4. This is not an exhaustive list, but typical materials that we seek during discovery that are kept on the ship include deck logs, security logs, hotel logs, CCTV footage, incident reports, maintenance records, and Safety Management Systems procedures required by the Safety of Life at Sea Convention.
5. Ctrs. for Disease Control & Prevention, supra note 1.
6. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989).
7. Higgs v. Costa Crociere S.P.A. Co., 969 F.3d 1295, 1303 (11th Cir. 2020).
8. E.g., Pizzino v. NCL (Bah.) Ltd., 709 F. App’x 563 (11th Cir. 2017); Malley v. Royal Caribbean Cruises Ltd., 713 F. App’x 905, 908 (11th Cir. 2017).
9. Bunch v. Carnival Corp., 825 F. App’x 713, 717–18 (11th Cir. 2020).
10. E.g., Sorrels v. NCL (Bah.) Ltd., 796 F.3d 1275, 1287 (11th Cir. 2015); Taiariol v. MSC Crociere S.A., 677 F. App’x 599, 601 (11th Cir. 2017).
11. Carroll v. Carnival Corp., 955 F.3d 1260 (11th Cir. 2020); Amy v. Carnival Corp., 961 F.3d 1303 (11th Cir. 2020).