Partners Thomas Scolaro and Adam Rose successfully resolved a medical malpractice case on behalf of parents whose 9-month old baby suffered catastrophic injuries as a result of cruise ship doctors’ malpractice. The important and potentially case dispositive legal issues in this case included a passenger ticket contract with restrictive forum-selection and choice of law clauses. Unlike 99% of cruise ship ticket contracts this contract called for the application of law from our clients’ home country (United Kingdom). The U.K. is a signatory to the Athens Convention and its draconian cap on damages ($540,000). After strategic local and international litigation, Leesfield Scolaro was able to multiply client’s recovery by more than ten times the cap.
Facts of case were as horrific as the cruise line’s attempt to deny an innocent child justice
In the early days of a Caribbean cruise which departed from the Port of Miami, worried parents took their nine-month-old daughter to the ship’s infirmary. She was pale and lethargic, experiencing tachycardia and dehydration; all classic signs of a life-threatening meningococcal meningitis infection. Lethargy in an infant is a significant neurological change in condition that is a hallmark symptom for meningococcal infections.
The cruise ship’s doctor ignored the marked lethargy, missed all other red flags, and misdiagnosed the baby with acute gastroenteritis. The doctor ordered a suppository and a pain reliever. As soon as the pain reliever kicked in, the family was discharged back to their stateroom as part of an isolation protocol for the gastroenteritis.
Both mom and dad trusted the doctors and decided to listen and return to their stateroom thinking their daughter just had a stomach bug. However, this was no bug. The worried parents returned to the ship’s infirmary four additional times, each and every time their daughter exhibited worsening, alarming symptoms of lethargy, high fever, projectile vomiting, and later a non-blanching rash on her arms and legs. After each visit, the doctor discharged the baby to the parents’ care insisting it was nothing.
On the last visit, the family refused to be sent back to their cabin and demanded that the doctor prescribe antibiotics. Over protest the ship physician finally relented and prescribed life-saving antibiotics. However, it was far too late. The antibiotics came 16 hours after the first signs of an infection that should have been apparent to a first year medical student.
Despite changing this child’s diagnosis 16 hours too late, the doctor’s blunders were compounded when they refused to evacuate the family off the ship to a pediatric intensive case unit. The family pleaded with the staff on multiple occasions to medivac them off the ship, but each time mom and dad were told it was not possible. Instead, the medical staff agreed to arrange a shore side referral to the hospital at the next port of call.
Discovery revealed that the doctors never called the United States Coast Guard to inquire about the possibility of a medivac or emergency disembark. They never so much as arranged for a telemedicine consultation with a pediatric or an infectious disease specialist. Records showed that the doctor called the staff captain and asked how much time they would save if they sped up the ship. The doctor was informed they could arrive approximately 45 minutes earlier if requested. Adding insult to injury, other than making the initial inquiry, no request was made to speed up the ship. Even worse, when the ship arrived at the next port, the family realized that arrangements were not made to get them off the ship on a priority basis. Rather, they had to queue in line like everyone else. As a result of the compounded negligence by the cruise ship’s medical professionals our minor client suffered catastrophic injuries from an infection that grew uncontrolled.
The Athens Convention and its limits on injured cruise passengers’ damages
The 1974 Athens Convention, and its successor, the 2002 Protocol, operate to create a liability limitation for cruise corporations with regard to injury claims brought by its passengers. The Statute applies to all cruises and passengers regardless of nationality.
Article 7 of the Convention provides that a cruise carrier shall be liable for its negligence, however, the financial responsibility of cruise lines is capped to $540,000 per passenger. However, under 46 U.S.C. § 30509(a), the United States, which is not a party to the Athens Convention, forbids cruise lines from benefiting from the Athens Convention when their cruise touches a U.S. port. U. S. citizens embarking on a cruise leaving any port in the U.S. have little to worry about regarding these caps on damages.
Remember this cruise left from the Port of a Miami, so seemingly the cruise line would be precluded by US law from limiting its liability for everyone on board. At least, that’s what one would reasonably think. Not so fast. Corporations and their army of lawyers will not be denied. Not surprisingly, the cruise lines have engineered a back door way to get its liability limitations by carving out separate contracts for Europeans, regardless of whether the ship touches a US port.
Embedded in our European clients’ contract was a choice of law and forum selection clause which required them to file suit in the U.K. With the application of U.K. law (application of the Athens Convention and its cap on damages). That is different from every single other contract for U.S. passengers.
For years passengers have argued against this deceitful practice claiming that this tactic was prohibited under 46 U.S.C. § 30509(a) because the cruise ship touched a U.S. port. Passengers’ lawyers had previously argued that the cruise lines were forbidden from having European passengers rights limited so long as the ship touches a U.S. port. Unfortunately, in 2012, the U.S. Court of Appeals for the Eleventh Circuit disagreed when it decided the Myhra case.
The plaintiff in Myhra, a citizen and resident of the United Kingdom, fell ill while on a Royal Caribbean cruise and died sometime later. A lawsuit for medical negligence was filed in Miami on behalf of the Estate seeking damages for his death. The cruise line moved to dismiss the Miami action claiming the passenger ticket contract required the lawsuit to be brought in Myhra’s home country under the laws of England and Wales (The UK is a signatory to the Athens Convention, which consequently meant its financial limitations applied to Myhra’s Estate). The trial court dismissed the lawsuit.
On appeal, the Eleventh Circuit agreed with the cruise line and held that the forum-selection clause included in the ticket contract was valid, even if the chosen forum might apply substantive law that would impose a limitation on liability (like the Athens Convention) regardless of whether the ship touched a U.S. port.
Specifically, Myhra looked at 46 U.S. Code § 30509(a) which prohibits a ship owner transporting passengers, and touching a U.S. port, to include a contract provision that limits the owner’s liability for personal injury or death caused by the negligence or fault of the owner. The Eleventh Circuit ruled however that this provision was only to forbid the unilateral imposition of liability by the ship owner without any recourse to judicial process, and therefore the forum selection clause in Myhra’s ticket contract did not contravene the statutory policy expressed in 46 U.S. Code § 30509(a). The Court essentially held that since the country itself decided to sign onto these limitations, private contractors were within their rights to exploit this loophole so long as they themselves are not the ones specifically imposing the liability limits.
Myhra’s unacceptable consequences for cruise passengers
Myhra validated the disparate treatment of passengers based solely on their citizenship, openly limiting passenger’s financial recovery just because they hold a different passport.
For example, if an American baby, a Canadian baby, a Brazilian baby (none from an Athens Convention country), and a British baby were all on the same cruise out of Miami and all sustained catastrophic, life-altering injuries because of the cruise line’s negligence, the cruise line would require the American, Canadian, and Brazilian babies to file suit in Florida and would be liable to those babies for every penny of the substantial damages they caused. The British baby, however, would have to sue in the United Kingdom, which would apply the Athens Convention and limit her damages to a maximum of $540,000. Tough luck kid.
If, on the same ship the British baby was on, a passenger (not from an Athens Convention country) slipped and fell and broke a bone, the cruise line would owe that passenger greater liability than it owes the British Baby, and that passenger could recover an unlimited amount greater than the British baby in damages.
Leesfield Scolaro “busts” the unacceptable cap of the Athens Convention
Within 6 months of representing the family, and despite Myhra’s unfavorable precedent, Leesfield Scolaro was able to secure more than ten times the cap on damages for its minor client. Through a disciplined and creative legal approach never tried before, Thomas Scolaro and Adam Rose carved out a strategy that ensured full financial compensation despite the legal obstacles at play.
This latest result possibly represents the genesis of a new era in cruise ship litigation for injured passengers who are citizens of Athens Convention signatory countries.