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Last February, the Carnival Triumph set sail from Texas. Days later, in the middle of a 7-day Mexico cruise, a fire broke out in the engine room and caused the ship to be towed back to the United States. According to CNN AC360, which aired the video below last night, Carnival knew that only 4 out of 6 generators were operational at the time the cruise started, and knew of a generator fire hazard across its fleet of ships.

The result was a complete fiasco. To read our previous entry on the situation at the time, click here: Fire on Carnival Cruise Ship for the second time – Cruise Passengers stranded in the middle of the ocean

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On CBS This Morning, Leesfield Scolaro Maritime Law Attorney Carol Finklehoffe said that if Cruise Lines have deck attendants selling drinks and employees watching over the water slides, it is reasonable to have lifeguards around the pools as well:

This latest tragedy has placed Carnival Cruise Lines back in the spotlight. The loss of Qwentyn Hunter in one of the Carnival Victory’s pools prompts many to question whether conspicuous signage that there are “no lifeguards on duty” is realistically enough to fulfill the cruise line’s duty of care to provide a safe and proper place to bathe or swim.

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Over the weekend, a 6-year-old child, who was on a 4-day cruise with his family, drowned in the swimming pool of the Carnival Cruise ship. The young child was playing with his 10-year-old brother when the incident happened at approximately 4:45 pm while the pool was open to passengers.

The Victory returned to Miami on Monday morning, and the pool was closed off to passengers with police crime scene tape. Very limited information has been made available to members of the public other than Miami-Dade Police, which is investigating the matter, has released the name of the child, Qwentyn Hunter.

Clip_20.jpgAccording to witnesses, a person yelled over a microphone to rescue a child from the pool who was seen submerged underwater. As soon as he was taken out of the pool, chest compressions and CPR was performed, but unfortunately the boy never regained consciousness.

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This week, CLIA (the Cruise Lines International Association) announced the adoption by its Board of Directors of a “Cruise Industry Passenger Bill of Rights.” The Bill of Rights was declared as a commitment by the cruise industry to the safety, comfort and care of cruise passengers:

Cruise Industry Passenger Bill of Rights

1. The right to disembark a docked ship if essential provisions such as food, water, restroom facilities and access to medical care cannot adequately be provided onboard, subject only to the Master’s concern for passenger safety and security and customs and immigration requirements of the port.

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According to the following report filed by Orlando local station WKMG-Channel 6 last night, Disney Cruise Line knowingly delayed to report a sexual molestation crime to local police last summer. Rather than possibly be sitting in jail awaiting trial right now, the crewmember was allowed to fly back to his home country of India with a clean criminal record. Below is the chilling story reported by WKMG reporter Tony Pipitone.

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This report would be only chilling if it was not customary for crimes in general and sexual crimes in particular to be unreported or widely under-reported. Since the passage in 2010 of a mandatory reporting law of crimes occurring on cruise ships, the number of crimes has inexplicably decreased. One could leap to the conclusion that cruise ships are becoming safer and safer with time, but that would be the wrong assumption. In reality, when a crime occurs on a cruise ship, the cruise line has sole discretion to categorize an incident as criminal in nature. No one doubts that crimes aboard cruise ships is not the best publicity. Especially sexual molestations on minor children aboard a Disney cruise! So the cruise line must find a way to minimize and lessen the number of crimes it reports to the competent authorities. So a cruise line will categorize a crime as a non-criminal event and bypass the reporting laws.

The other way cruise lines have hidden the true frequency of crimes on their ship is by threatening victims. We have reported on several occasions that alcohol consumption aboard cruise ships is on the rise. Invariably, more alcohol being consumed translates in more fights and physical assaults. When the victim of an assault comes forward, the security officers will offer the victim to report the incident to the local authorities and press charges against the assailant at the next port. But the caveat is that, in order to do so, the victim must disembark the ship (sometimes with their entire party) and return home without further assistance from the cruise line. Faced with additional aggravations and a very deterring option, most victims choose to remain on the ship, and the crime goes unreported.

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When a passenger sustains an injury while on a cruise ship or while on a shore excursion purchased through the cruise line, a maritime law attorney must be contacted immediately so as to maximize the recovery of a potential personal injury claim or lawsuit, and more importantly to not jeopardize the investigation and fact-gathering process that must be done as early as possible and is absolutely critical in litigating against a cruise line.

caution.jpgMost passengers feel safe at sea and are confident that, whichever activity they chose to purchase, the cruise line has done its homework and would not risk the safety and livelihood of its passengers. That misconception has led to countless incidents. Worse, it has led passengers to trusting the cruise line in rectifying their mistakes, or acts of negligence.

Contact a cruise ship injury attorney as soon as you board off the ship
Most, if not all, cruise lines have important procedural conditions that all passengers must know prior to embarking on a cruise. One of these procedural conditions is the time frame within which an injured person must act in order to file a claim against the cruise line. Cruise lines have uniformly imposed a one-year statute of limitations on any and all personal injury claims against them. If a lawsuit is not filed within one year of the incident which caused a person’s injury, that passenger’s claim will be barred forever. Not only that, Cruise Lines have also uniformly and arbitrarily imposed a six-month notification deadline.

The clock on your potential personal injury claim starts ticking the day the incident happens, and if you wait too long, your case, which could have been worthy of representation months prior, could be turned down simply because it is too late to act. You must protect yourself and do your due diligence by contacting a reputable maritime law attorney as soon as possible after you return home from the cruise.

Do not trust the Cruise Line’s claims management process
Many passengers will elect to resolve their injury claim on their own. They will contact the claims management department several weeks after the incident and attempt to obtain a recovery without any professional help. That is the second biggest mistake you can make.

Like any insurance company, the claims management department’s objective is to avoid compensating injured passengers. To achieve their mean, several tactics are employed in almost every single claim:

waiting.gifFirst, the person assigned to your case will ask to obtain a statement from you about the incident. They will only ask questions that may put the blame on the injured person and not ask or inquire about any facts that may or may not show the cruise line’s negligence.

Second, they will stall the claim’s process. By now, the incident occurred several weeks, if not a couple of months ago. They will ask that you provide a copy of all of your medical records, and medical bills, so the claims department can “evaluate” your damages. Some passengers are quick to obtain medical records, but most are not knowledgeable enough and several months will go by before the claims person will be in possession of your medical records and bills.

The next step is full denial. At that point, the cruise line has all of your records, it has an idea of the damages you have sustained in the incident, and it also knows how the incident happened. They will invariably tell you that the statement you have given to the ship’s doctor or the ship’s security staff is inconsistent with the statement you gave over the phone. Or they will tell you that the damages you are seeking are unrelated to the injury you claim you sustained in the incident. Or they will dispute the charges you claim you have incurred, or stress the fact that your health insurance paid for your bills and therefore your medical bills are irrelevant. Or they will insist on telling you that they need more time to make sure their investigation is concluded before they can either deny the claim, or make your an offer.
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Article written by Robert D. Peltz and Carol L. Finklehoffe of Leesfield Scolaro, P.A. Published in the Massachusetts Academy of Trial Attorneys Journal.

The allure of exotic foreign ports and exciting new excursions form the centerpiece of the advertising campaigns of cruise lines, whether in the broadcast, print or electronic media:

• Parasailing in St. Thomas • Zip lining in Costa Rica • Snorkeling in the lagoons of Bermuda • Jungle trekking by ATV in Cozumel • Alpine hiking on Alaskan glaciers
Port excursions are not directed to just the adventurous, but to even the older and more timid passengers, extolling the virtues of

• Driving the scenic mountains of Tortola • Learning the secrets of the cooks of Caribbean by visiting local villages in Dominica • Visiting the Mayan ruins at Tulum
Over the past decade, the number of passengers cruising with North America’s largest cruise lines has literally exploded. According to industry figures, the number of passengers has dramatically increased from 9.5 million in 2003 to over 16 million passengers forecasted to cruise in 2012. As the industry itself is quick to admit, at least to its shareholders and tour excursion partners, the continued development of new and existing excursions has played a major role in this growth.

Nevertheless, at the first sign of an excursion gone awry, the cruise lines have been quick to try and disassociate themselves from responsibility for their own creations. In an effort to insulate themselves from liability, the cruise lines have utilized a system of disclaimers, which attempt to hide the true character of their relationships with their tour operating partners. These disclaimers are typically buried in the fine print in the passenger’s ticket of passage and in self-serving statements inserted into the cruise lines’ contract’s with their tour operators.

There is typically a wide divergence, however, between these self-serving statements and the facts on the ground when it comes to describing the cruise lines actual relationship with its excursion partners. Overcoming these inaccurate self-serving and inaccurate descriptions contained in the carrier’s written and electronic materials therefore typically becomes the first order of business.

Click here to read more about out firm’s cruise ship litigation practice

Contrary to these disclaimers, the most accurate description of the relationship between the carrier and its tour operating partners is best characterized by the joint venture. Nevertheless, because of the degree of control maintained by the carrier, various other agency relationships are equally as applicable in most cases. This article will discuss the nature of these various relationships, strategies for holding both the carrier and tour operator responsible for their conduct and the discovery which will be helpful in the process.

Holding the Tour Operator Responsible

Although most of the attention in excursion cases is typically focused on holding the cruise line responsible for its negligence, it is important not to overlook the case against the tour operator. Sometimes, one gets lucky and the tour operator is located in the U.S. Virgin Islands, Puerto Rico or some other domestic location. Most of the time, however, that is not the case. Nevertheless, that is not reason for despair.
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The Carnival Dream is the third ship in less than 2 years that has encountered serious propulsion, and engine issues, severe enough to prompt Carnival to seek rescue from the Coast Guards (Carnival Splendor & Carnival Triumph). The Carnival Dream is the latest incident where thousands of passengers were stranded in St. Marteen. Thankfully, Carnival did not make the decision to sail away despite mechanical issues, rather the Captain of the Carnival Dream opted to fly out all passengers back to the United States.

This latest event has prompted Senator John Rockefeller IV, Chairman of the U.S. Senate Committee on Commerce, Science & Transportation, to write a letter to Micky Arison, Chairman and CEO of Carnival Corp., and Carnival PLC. The letter can be downloaded here and is reproduced below:

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In the last 3 years, the cruise line industry has been dealt blows that would have knocked out any other business. Starting in 2010 with the fire aboard the Carnival Splendor, followed over a year ago with the deadly incident of the Costa Concordia. This month, another fire broke out aboard the Carnival Triumph, causing over 3,000 people to be stranded at sea for several days, forced to live in unsanitary conditions reminiscent of a third-world country slum.

Yet, Carnival Cruise Lines, and the rest of the cruise industry continues to strive and attract more passengers than ever. Translation: the cruise industry is bringing record revenues and earnings despite tragedies blames on cruise employees (Concordia) and business decisions made by some of the richest executives who working in the leisure business.

In a recent op-ed piece published in The Globe, the writer discusses the role of the media in manufacturing horror stories, mainly stemming from the Carnival Triumph fire, while disputing that there even was an incident worth reporting about. Kyle writes: “The Carnival Triumph cruise was supposed to last four days, and go to Cozumel, Mexico. That was before the engine fire, which crippled the ship and knocked out its propeller system, as well as sewage and air conditioning, according to the New York Times. The worst part of the incident was the sewage that leaked and soaked the carpets throughout the ship. Other than that, the patrons of the ship were simply inconvenienced.” The author makes several comparisons between the Costa Concordia and the Carnival Triumph calling one a tragedy and the other a mere inconvenience. Kyle concludes: “I think that some of the passengers of the ship need to suck it up; it’s not like it was the Titanic.”

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In 2010, a fire broke out in the engine room of the Carnival Splendor, disabling the large cruise ship, leaving thousands of passengers and crew-members stranded at sea for days. In early 2012, the Costa Concordia ran aground after its captain committed the unthinkable, which caused the death of 32 people. Despite these avoidable tragedies, and the public relations storm it found itself in at the time, Carnival Cruise Lines is reporting steady revenues and earnings.

carnival-triumph rip.jpgFor 2010, Carnival reported revenues of $14.4 billions. In 2011 and 2012, revenues increased to $15.7B and $15.3B respectively. While posting very strong revenues, the company’s earnings are just as strong, posting earnings of $2.42B in 2011, followed by $1.88B in 2012.

Tragedies and public relations disasters affect Carnival, and the entire cruise industry, relatively mildly compared to other businesses. Empirical data shows that the public at large, and cruise line customers have a very short collective memory when it comes to vacationing on a luxurious cruise ship. Since 2006, North American cruise passengers have steadily increased from 9.13 to 9.72 million in 2011. Worldwide in 2010, it is estimated that cruise ships were visited by 14.3 million passengers.

The question begging to be answered is, even if the public’s collective memory fades so rapidly that it does not affect traffic and consumption, why aren’t cruise lines taking a financial hit for their serious miscues? Answer is simple: Cruise lines do not respond to anyone or anything.

Let’s look at the thousands of passengers who were stranded aboard the Carnival Triumph for 5 days in the middle of the Gulf of Mexico. The only thing Carnival can reasonably fear is that they lost 3,143 customers for life. That is a drop in their books. The cruise line industry responds to nobody because cruise companies have handcuffed their passengers in disclaiming the cruise line’s responsibility for everything that happens on their ship, except their own negligence (46 U.S.C.A. § 30509 expressly invalidates any contract provision aiming to limit a ship’s liability for its own negligence to its passengers, but is limited to cruises visiting a U.S. port.)

Cruise lines know that their ticket-contract provisions are essentially “almighty” and have been interpreted and declared legal and binding by competent courts. Prior to embarking on the Carnival Triumph, all passengers received a ticket which contains the following:

“Carnival shall not be liable to the passenger for damages for emotional distress, mental suffering/anguish or psychological injury of any kind under any circumstances, except when such damages were caused by the negligence of Carnival and resulted from the same passenger sustaining actual physical injury, or having been at risk of actual physical injury, or when such damages are held to be intentionally inflicted by Carnival.”

Carnival also disclaims that the ship is not responsible for, and entitled to do anything its Captain decides in the event of a “breakdown of the vessel”. The ticket also contains a “Class Action Waiver” which provides that passengers waive the right to form a class action to seek recovery. In cases where the passengers only claim is a ruined vacation, class actions may be the only form of effective remedy. The legal validity of the clauses is still an open question.

Under what circumstances could a Carnival Triumph passenger sue Carnival?
Carnival can be sued if its ship committed an act of negligence that resulted in a passenger’s physical injury. For instance, if a passenger slips on urine in the middle of a hallway, and ends up fracturing a hip, Carnival can be held responsible. A passenger, who becomes physically ill from the poor conditions or contracts an illness, will also likely have a valid claim against Carnival. But the hundreds of passengers, who were “merely” subjected to sleeping on the floor with hundreds of other people in hallways flooded with urine smells and worse, will have a much more difficult time asserting claims. Although claims for so-called negligent infliction of emotional distress are allowed in certain circumstances, they are generally limited to situations where the passenger was within the “zone of danger” of physical harm and suffered an emotional injury with some physical manifestation or psychological diagnosis.

Recently, Leesfield Scolaro very successfully resolved a cruise passenger claim after our client fell due to conditions caused by a fire on board a different ship that had left the vessel stranded in the middle of the ocean, thereby creating an unstable platform for walking.
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