The Law of Cruise Ship Passenger Injuries
All Lawsuits Against HAL Must Be Filed in Seattle, Washington.
Under federal maritime law, your right to bring a lawsuit is controlled by your cruise tour contract drafted by Holland America Line. You should retain all your cruise line documents to supply to your lawyers at the onset of your case. Holland America Line's cruise tour contract provides that all lawsuits against HAL must be brought in the Western District of Washington in Seattle, Washington:
ALL DISPUTES AND MATTERS WHATSOEVER ARISING UNDER, IN CONNECTION WITH OR INCIDENT TO THIS CONTRACT, THE CRUISE, THE CRUISETOUR, THE HAL LAND TRIP OR THE HAL AIR PACKAGE SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE, OR, AS TO THOSE LAWSUITS AS TO WHICH THE FEDERAL COURTS OF THE UNITED STATES LACK SUBJECT MATTER JURISDICTION, IN THE COURTS OF KING COUNTY, STATE OF WASHINGTON, U.S.A., TO THE EXCLUSION OF ALL OTHER COURTS.
Emphasis added. For a current version of the cruise contract consult your cruise documents or the HAL Cruise Tour Contract.
These "forum selection clauses" have been upheld as valid in cruise line tickets by the United States Supreme Court in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). As a result, you will need to retain a Seattle maritime injury law firm to file your case in federal court in Seattle, Washington.
All Lawsuits Against HAL Must Be Filed Within One Year of Injury
The cruise line industry has a powerful lobby in Washington D.C. and has been successful in convincing Congress to enact legislation to benefit the cruise line industry and undermine the rights of passengers. While providing glossy brochures of their cruise ships and facilities, the cruise lines have actively sought to insert provisions in the cruise line contacts that harm passengers' rights to bring valid personal injury claims for the cruise lines' negligence. By statute, the U.S. Congress has allowed cruise line companies to shorten the time limits for bringing personal injury claims against the cruise lines to one-year. See 46 U.S.C. §30508. Your HAL cruise tour contract provides that you must provide written notice of your claim within six months of your injury and file a lawsuit against HAL in federal court in Seattle within one-year. If you fail to file a lawsuit in federal court in Seattle within one-year, your will lose your right to bring the claim. The contract provides:
Time Limits for Noticing Claims and Filing and Service of Lawsuits: In any case governed by 46 United States Code Section 30508, which is a United States statute that permits any shipowner to limit the time during which a passenger may file a claim or commence suit against a shipowner, you may not maintain a lawsuit against us or the Ship for loss of life or personal injury, including emotional distress, unless written notice of the claim is delivered to us not later than six (6) months after the day of death or injury, the lawsuit is commenced not later than one (l) year after the day of death or injury, and valid service of the lawsuit on Owner, the HAL Company or the Ship, as applicable, is made within thirty (30) days following the expiration of that one-year period. For all other claims, including but not limited to claims for loss or damage to baggage, breach of contract, misrepresentation, illness or death or injury, not governed by 46 United States Code Section 30508, whether based on contract, tort, statutory, constitutional or other legal rights, including but not limited to alleged violation of civil rights, discrimination, consumer or privacy laws, or for any losses, damages or expenses, relating to or in any way arising out of or connected with this contract or your cruise, no matter how described, pleaded or styled, you may not maintain a lawsuit against us or the Ship, nor will we or the Ship be liable therefore, unless we are provided with written notice of claim within thirty (30) days after conclusion of the Cruise or Cruisetour, the lawsuit for such claim is commenced not later than six months after conclusion of the Cruise or Cruisetour, and valid service of the lawsuit on Owner, the Ship or the HAL Company, as applicable, is made within thirty (30) days following the expiration of that six-month period.
In the case of a claim by or on behalf of a minor or legally incompetent person, or in the case of a wrongful death claim, the time periods described above shall begin to run on the earlier of: (a) date of appointment of a legal representative for the minor or legally incompetent person, or their estate (as the case may be); or (b) three (3) years after the day of death, injury or damage, as applicable.
Emphasis added. The one-year limit for bringing lawsuits against HAL is frequently upheld by courts. See, e.g., Silware v. Holland America Line Westours, Inc., 1998 AMC 2262 (W.D. WA 1998); Davis v. Wind Song Limited, 809 F. Supp. 76 (W.D. Wa. 1992). For a current version of the contact, consult your cruise documents or the HAL Cruise Tour Contract.Holland America's Duty to Exercise Reasonable Care.
Under federal maritime law, Holland America Line owes a duty to its passengers to exercise reasonable care under the circumstances to prevent injury. See, e.g., Catalina Cruises, Inc. v. Luna, 137 F.3d 1422, 1425 (9th Cir. 1998). However, courts have held that special circumstances surrounding maritime travel may influence the standard of care: "The extent to which circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passengers, will determine how high a degree of care is reasonable in each case." Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983). Moreover, in cases of sexual assault or other assaults by Holland America crew members against passengers, the courts have held that HAL is strictly liable for passenger assaults and a showing of negligence is not required. Morton v. De Olivera, 984 F.2d 289 (9th Cir. 1993); Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004).
In our practice, we regularly encounter passenger injuries while boarding tender vessels to and from shore, injuries from slips or falls on substances spilled on the deck of the cruise ship, injuries on stairs, injuries caused by crew member negligence, injuries from defective equipment, crew member assaults, injuries caused by poor lighting, and many other instances of negligence.
Holland America's Attempts to Limit Liability for Foreign Travel.
When a cruise trip begins and ends outside of the United States of America, Holland America Line has attempted to use an obscure treaty, the Athens Convention, to limit the amount of damages that a passenger may claim, regardless of the degree of harm caused by the cruise line's negligence or the amount of the passenger's medical expenses, economic loss, or suffering. Although the United States is not even a signatory to the Athens Convention, HAL has inserted reference to the Athens Convention into its cruise tour contract to limit passenger claims. In deciding whether such limitations of liability are enforceable, the Ninth Circuit Court of Appeals requires that fine-print limitations contained in passenger tickets be reasonably communicated to passengers, and uses a two-part test to determine whether this standard has been met. The first part of the analysis examines the physical characteristics of the ticket and the second part looks to the circumstances surrounding its purchase and retention. See Dinklage v. Holland Am. Line-Westours, 2007 U.S. Dist. LEXIS 21919, 5-6 (D. Wash. 2007). Accordingly, the particular circumstances of your purchase of the ticket will be relevant to whether the provisions are enforceable.
Holland America Line's cruise tour contract provides, in relevant part:
(b) This contract is issued at Seattle, Washington. As to any cruise that does not begin, end or call at a port in the United States of America, we shall be entitled to any and all damages limitations, immunities and rights applicable to us under the "Convention Relating to the Carriage of Passengers and Their Luggage by Sea" of 1974 as well as the "Protocol to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea" of 1976 ("Athens Convention"). The Athens Convention limits our liability for death or personal injury of a passenger to no more than 46,666 Special Drawing Rights as defined therein (approximately U.S. $70,000, which fluctuates depending on the daily exchange rate as published in the Wall Street Journal). In addition, and on all other cruises, all the exemptions from and limitations of liability provided in or authorized by the laws of the United States shall apply, including Title 46 of the United States Code, sections 30501 through 30509 and 30511. Except as otherwise set forth, this contract shall be governed by and construed in accordance with the general maritime law of the United States; to the extent such maritime law is not applicable, it shall be governed by and construed in accordance with the laws of the State of Washington (U.S.A.).
Emphasis added. For a current version of the contact, consult your cruise documents or the HAL Cruise Tour Contract.
If reasonably communicated to the passenger, such provisions have been held enforceable. See, e.g., Paul v. Holland America Line Inc., 463 F. Supp. 2d 1203 (W.D. Wash. 2006).
In contrast, other courts have rejected the limitation where it is not reasonably communicated. For instance, in Dinklage v. Holland America Line, 2007 U.S. Dist. LEXIS 21919, our law firm represented a man who was severely burned in a sauna on a HAL cruise ship. The company asked the court to enforce fine print in the cruise tour contract that provided for application of the Athens Convention's limit on damages. Application of the fine print in the cruise tour contract would have limited our client's claim for his severe injuries and medical expenses to approximately $70,000 U.S. dollars (46,666 Special Drawing Rights). Rejecting Holland America Line's attempts to enforce the contract and holding in favor of our client, United States District Court Judge John C. Coughenour held that the limitation of liability was not reasonably communicated to our client. After the Dinklage case in 2007, however, Holland America Line has now changed its contractual language in an ongoing effort to limit its liability for severe injuries and the new language has not yet been tested in court.
Questions? Just Call and Ask.
Our lawyers have been prosecuting claims against Holland America for decades and have a keen understanding of the complexities of the maritime law and how it may apply to the facts of your specific case. If you would like to discuss your case with one of our lawyers without obligation, contact us at 1.800.848.8008