Articles Posted in Cruise Ship Crimes

I first met Kendall Carver in 2005 in Washington D.C., when we were both testifying at Congressional Hearings addressing cruise ship safety and security. He was a very passionate man, having recently lost his daughter Merrian when she went missing during a Royal Caribbean cruise ship. At the time, I was representing the family of George Smith. George Smith had also gone missing on a Royal Caribbean cruise ship during his honeymoon cruise. Mr. Carver and I instantly formed a bond, which remains to this day.

This past Friday, my daughter and I attended the annual National Crime Victims’ Service Awards Ceremony in Washington D.C., where Mr. Carver, deservedly so, received the Ronald Wilson Reagan Public Policy Award from the United States Department of Justice. It was a very moving ceremony, where well-deserving recipients of the awards were honored for their achievements in devoting their lives to helping victims of crimes. Mr. Carver was recognized for his relentless pursuit of justice for the victims of cruise ship crimes, and  the support he has provided to the families and friends of the victims. He has had a very meaningful impact on the safety of the cruise ship industry. He started the International Cruise Victims Association, Inc., and he was instrumental in helping to enact the Cruise Vessel Security and Safety Act.

There has been interesting discusses going on among maritime experts regarding the old adage that the captain must go down with the ship. The discussion surfaced mainly after the sinking of the Costa Concordia where it was reported that the captain got off the ship before the passengers, and he was criminally prosecuted for doing so. The captain had a good excuse. He said he fell onto a lifeboat when the ship tilted sideways abruptly. He is being charged with manslaughter.

Obviously, a captain’s first obligation is for the safety of his crew and passengers. He should remain onboard until he is sure he knows that everybody is safely evacuated. There is an International Maritime Convention called the Safety of Life at Sea, which does state a captain is responsible for the ship and all the people onboard the vessel, but it doesn’t specifically say that the captain must remain onboard the ship until the very last minute and go down with the ship if necessary.

Most of the experts agree there is some type of balance. Obviously, the captain must stay onboard and take care of the passengers and crewmembers, but the captain doesn’t need to die with the ship based on any maritime law stating the captain must go down with the ship.

Some countries, including Italy and South Korea, have made abandonment of ship a maritime crime.

We heard of further examples of this kind of conduct in the recent sinking of a ferry boat in South Korea.

Regardless, of whether you feel the captain should go down with the ship, we have seen blatant examples of cowardness, and blatant violations of the duties associated with being a captain of a vessel. The captain of the Costa Concordia had the responsibility for thousands of passengers and crewmembers. His getting off the vessel early before everybody else was safely evacuated, under the circumstances, should result in criminal penalties against him. It was an act of cowardness on his part.
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Disney Cruise line is the cruise line currently making headlines. A very disturbing story has been reported involving a sexual molestation of an 11 year old girl aboard the Disney Cruise ship, the Disney Dream, while in a Florida port. The disturbing news is that the incident was caught on a surveillance video and reported to the cruise ship company. Despite this, the ship sailed without reporting the incident to United States authorities. The cruise line waited to report the incident until the cruise ship arrived in Nassau, Bahamas, where the cruise ship is registered. A local 6 investigation out of Orlando, Florida reports that the incident was not reported until the following day, long after the ship had left the Florida port, suggesting that the cruise line intentionally allowed the 33 year old crewmember (suspect) to avoid any investigation and potential prosecution by United States authorities.

To further illustrate the disturbing actions of the cruise line, the story by the local 6 investigation team states that Disney first stated they did report the incident while the ship was still in port on August 5th. However, after they were confronted by local 6 and the Port Canaveral police, which established that they did not in fact report the incident while the ship was still in Florida, the cruise line then recounted on its story. The cruise line than admitted the incident was not reported. The story than changed, and Disney originally claimed their employees were not aware of the incident until the following day. Disney’s next explanation was that what was reported to them was that the 11 year old had something happen to her to make her feel “uncomfortable”, and therefore they were unaware that an actual crime had been committed.

We all read about the horrific conditions passengers were subjected to when the cruise ship named Triumph caught fire. The ship was days at sea without power, and sewage flowing all over the ship. For some reason it took several days to get the ship back to port, and all the passengers had to endure days of horrible conditions.

Carnival at first made a small offer to everyone, nothing close to what should be paid to compensate the passengers for what they were needlessly subjected to.

It is still early in 2013 and Carnival Cruise Line seems to be plagued with cruise ship issues.

Just a few weeks ago, the Carnival Triumph had a fire in the ship’s engine room and left the ship drifting, without power, water or flushing toilets for five days. And already in March, the cruise line has two new shipboard emergencies.

Ever since the tragic incident involving the Costa Concordia, there has been a lot of talk about where any lawsuits would have to be decided. Many lawyers not familiar with maritime law were unaware that in passenger cases, the passenger ticket must be consulted immediately since it contains many time constrains and other limitations, including limiting the place where the lawsuit can be filed. In the case of the Costa Concordia, the ship is operated by the Costa Cruise Line Company out of Italy. The passenger tickets for the Costa Concordia provides for an Italian forum with the applicability of Italian law. This is because the Costa Concordia did not start or end its cruise in a United States port. Otherwise, United States law would govern, and the lawsuit would have to be filed in Broward County Florida, according to the ticket.

Several cases were filed here in Miami, Florida, which have been met with defense motions to dismiss based on forum non conveniens, and improper venue selection due to the passenger ticket requiring suit to be filed in Italy. One of those cases, Scimone v. Carnival Corporation at el, was filed in the Miami-Dade County Circuit Court. Since Carnival was added as a Defendant, and there are other Defendants other than Costa, the Plaintiff’s chose to try to file suit in Miami, Florida. They too were met with a motion to dismiss, but in this particular case the Defendants took a chance and removed the case to the Federal District Court here in the Southern District of Florida. The Plaintiffs moved to remand the case claiming that the Federal Court did not have jurisdiction.

The Federal District judge entered an order granting the motion to remand the case to the State Court. The reason the case was remanded to the State Court is important. Some have believed that the mere fact the Federal judge remanded the case to the State Court was a determination by the Federal judge that Miami is in fact an acceptable forum to hear these cases. However, the Federal judge did not reach that ruling. The Federal judge did not address the Defendants motion to dismiss the case based on form non-conveniens, or the argument that the forum selection clause in the Costa ticket requires suit to be brought in Italy. Instead, the Federal District Court limited its decision to remand the case to a jurisdictional basis. The Defendants had removed the case from the State Court to the Federal Court under the Class Action Fairness Act of 2005. This statutory law allows for the removal of “mass actions”, which is a civil action “in which monetary relief claims of a 100 or more persons are proposed to be tried jointly on the ground that the Plaintiffs’ claims all have the common questions of law or fact.” 28 U.S.C. § 1332 (d)(11)(B)(i)

As for the Class Action Fairness Act being a basis for the Federal Court to have jurisdiction, the Federal Judge ruled that the lawsuit did not have 100 separate different Plaintiffs. In addition, the Plaintiffs did not propose to have all the cases tried jointly. Therefore, this statue did not apply and did not provide a valid basis to remove the case to the Federal Court.

An interesting point about the decision that the CAFA did not provide a basis for removal is that the court had to determine whether the Plaintiffs had engaged in “artful pleading” to deliberately avoid Federal jurisdiction, and if so, whether that was a basis to apply the CAFA in this particular case. The court noted a diversion of opinion among the District Courts on whether artful pleading can avoid the CAFA Federal jurisdiction. This particular judge agreed with the courts that concluded Plaintiffs may skirt the removal under the CAFA and mass actions by artful pleading. Thus, removal was not appropriate under the CAFA.
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In recent years, ship owners have increasingly been able to avoid their responsibilities and obligations under the United States laws that are designed to protect seaman, namely the Jones Act enacted by Congress in 1920, and the General Maritime Law which give seaman rights to maintenance and cure as well as claims for unseaworthiness of the vessel. Unseaworthiness is a form of liability without fault. The maritime laws have consistently been interpreted to protect seamen, who historically have been considered the wards of the United States Admiralty Courts.

Ship owners, including cruise ship companies, have fought hard, and spent lots of money, trying to escape their responsibilities under the favorable laws to protect seaman. They have petitioned Congress to repeal the Jones Act, or amend it to lessen the rights of the seamen. They have consistently tried to contract away their obligations, as they do in the context of passenger claims.

In recent years, courts have started to enforce arbitration provisions in a seaman’s employment agreement. Even though a seaman’s employment agreement is a take it or leave it employment agreement, with the seaman having no bargaining rights, and most of the time without any understanding of his legal rights, the courts have allowed ship owners to insert a mandatory arbitration clause into the seaman’s employment agreement.

The Jones Act, enacted in Congress in 1920, which is to be liberally interpreted to benefit seamen, provides for a right to a jury trial. This standard of causation in a negligence case under the Jones Act is very liberal, a seaman only has to prove that his injuries were caused in part by the employer’s negligence. If there was any negligence, no matter how small, which contributed in any way to the seaman’s injury, under the American law, the seaman is entitled to compensation.

Not only has mandatory arbitration provisions in a seaman’s employment contract taken away the seaman’s rights to a jury trial, the ship owners have now been using the employment agreement to take away the seaman’s rights under the Jones Act, putting a mandatory foreign choice of law provision into the employment agreement. The 11th Circuit Court of Appeals recently, in a case involving Norwegian Cruise Lines, enforced the mandatory arbitration clause in the seaman’s employment agreement which also contained a foreign choice of law clause. The court did not accept the argument that since the ship owner was trying to contract away the seaman’s statutory rights under the Jones Act the whole agreement should be stricken as against public policy and thus void. Instead, the court said the arbitration provision was enforceable, and if the seaman could prove at a later date that he was denied his statutory rights, he could come back to court and oppose enforcement of any arbitration award. Obviously, a long and tedious process for a seaman, who has little or no funds to pursue a big shipping company thru long and expensive litigation, especially a cruise ship company.
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Protestors in Venice are trying to ban the large cruise ships from entering in and out of the Venice passage, which is only yards from the city’s famous piazza, San Marco. Critics have stated that passage of these mega cruise ships poses a risk of environmental damage, as well as the fear of another Costa Concordia disaster which could destroy this historical city. There have been such criticism in the past of the cruise ships sailing in and out of Venice, but the recent Costa Concordia disaster has again brought into the spotlight the potential of enormous environmental damages, as well as the risk of an accident causing disaster.

The critics have been heard as the Italian government has been reported to be examining a new route for the larger cruise ships that visit Venice, which would divert them away from the San Marco area.

Ok, what is it about the theft of an iPhone that makes news in the New York magazine, as well as in USA today? My daughters have had several iPhones stolen and it didn’t make the newspaper.

However, today, New York Magazine and USA Today have a story about a stolen iPhone onboard the Disney cruise ship Wonder that happened in April.

I have previously discussed that my firm represented the parents of George Smith, who disappeared during his honeymoon cruise aboard a Royal Caribbean cruise ship, the Brilliance of the Seas in June of 2005.

I, along with the parents, went on a relentless mission to try to gather evidence to help solve the mystery. We faced many roadblocks, the main one being the cruise line’s reluctance to share information with the Smith family about what happened to their son. The F.B.I. was not allowed to share information as it was always described as an ongoing investigation. The Smith family became very disappointed and disillusioned, and extremely frustrated.