Know Your Rights at Sea
By Jeff Miller
January 22, 2013 11:45 PM
It is extremely important that you be aware of how few rights your customers have when sailing on a cruise ship. That is why you need to make certain you have offered travel insurance to your clients in order to provide some protection that might not be available from the cruise line. You also need to advise your clients, in writing if possible, to read the cruise brochure, including the multiple pages of fine print on back of the document, which constitutes a legal contract pursuant to a decision of the U.S. Supreme Court.
Based upon numerous court cases in the United States and overseas, the cruise industry has been able to enact legal barriers to prevent, in most instances, having to face lawsuits with potential major damage awards in multiple legal venues around the world. The rights and obligations of both the cruise line and its passengers are typically spelled out in the last pages of the cruise brochure. In most instances, however, the passenger has never read the brochure and in some instances may never have even received it.
Major cruise lines serving the U.S. market have contracts that contain language establishing more difficult legal barriers for passengers seeking to file lawsuits. Indeed, as previously noted, the U.S. Supreme Court has upheld a provision in a Carnival Corp. brochure that indicated that lawsuits could only be filed in federal or state courts of Dade County (Miami) Florida, where Carnival is based. As a result of that Supreme Court case, cruise lines have generally provided the forum selection clauses restricting litigation to venues in South Florida, Los Angeles or Seattle depending upon the cruise line involved.
There also are restrictions in the legal language with regard to how long passengers have to notify the cruise line of a potential lawsuit or injury. These restrictions also reduce the time in which to file a lawsuit generally below the statute of limitations in that particular state. Again, state and federal courts have generally upheld these provisions, even though they are totally one-sided in favor of the cruise line. The basis for upholding the decisions is that the brochure constitutes a contract. The cruise passengers have agreed to its provisions simply by booking the cruise, even though it reduces their legal rights under state law.
I am certainly not suggesting you offer any legal advice or in any way suggest to your clients that they not select a particular cruise line based on such provisions. Rather, you should emphasize they should read the cruise brochure in full and suggest to them that some of the items that have been restricted by the cruise lines could be covered by travel insurance. Once again, I strongly recommend that the client either accept the insurance or sign a consumer disclosure notice that he or she has waived the offer to buy insurance.
There have been some instances where passengers on cruise shore excursions have died or have been seriously injured, but today most cruise lines try to resolve those issues without litigation. Many times cruise lines have argued they have no liability in these situations because the shore excursions were provided by independent contractors that have no connection to the line. In any event, cruise lines typically now accept liability for shore excursions booked through the ship that result in injuries to passengers.
Many legal observers have noted that cruise vacations may be some of the best travel values in the market place. Unfortunately cruise ship duties and liabilities do not fall within current consumer protection statutes but rather are governed by decade’s old legal theories. There are numerous court decisions that have found existing federal statutes were enacted to promote the shipbuilding industry and thus should be construed in the ship owner’s favor, not the consumers. The multitude of issues that could arise during a cruise, including accidents on the ship, heart attacks, disappearances, drowning, assaults and more are generally covered in the cruise brochure legal language and again, this restricts passengers’ rights.
Of course, this does not mean you should not book a cruise for your clients, but you also need to protect yourself from possible litigation if your client doesn’t understand the protection that the cruise lines have enacted for themselves through the legal language in the cruise contract. As a travel agent, you clearly derive a significant portion of your revenue from the sale of cruises and that is why it is essential that you protect yourself and your clients.
Jeff Miller is a Columbia, Md.-based attorney specializing in travel law. He is a regular columnist for Agent@Home magazine and this column is adapted from one appearing in the January 2013 issue. Visit his website at www.jmillerlaw.comor email him at email@example.com.