When Is a Negligence Claim Against a Cruise Ship Operator Appropriate Under the Death on the High Seas Act?
A negligence claim may be brought against a cruise ship under the “Death on the High Seas Act” when a death is “caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from the shore of the United States.”
Wrongful death aboard a Carnival Cruise
Case Review: Broberg v. Carnival Corp, 303 F.Supp.3d 1313 (2017)
In May 2016, Samantha Broberg joined two close friends aboard a weekend cruise trip from Galveston, Texas, to Cozumel, Mexico. From her afternoon arrival through the early hours of the next morning, bartenders served her multiple alcoholic beverages to the point where she was noticeably, visibly inebriated.
Video evidence from the ship reveals Samantha heading from the Promenade Bar on Deck 5 to Deck 10, where she utilized a chair to climb up atop the ship’s railing. At approximately 2:04 a.m., infrared cameras reveal Samantha sitting with her back to the ocean and falling backward beneath the waves, sinking into the Gulf of Mexico where she presumably drowned.
Despite the fall being captured on camera, the crew remained unaware of her disappearance until later the next day. They executed a thorough search of the ship, posting photos of Samantha and going room to room in an attempt to locate her.
It was not until 15 hours after the fall and 8 hours after Miss Broberg’s friends notified the ship’s captain, that Carnival reached out to the US Coast Guard to initiate a search and rescue operation.
Shockingly, her husband Karl was not contacted directly by Carnival regarding Broberg’s disappearance. Samantha’s friends reached out to inform him she was missing.
It was only by receiving numerous phone calls from multiple new stations that Karl learned his wife had in fact fallen overboard and had not been rescued.
Scope of Liability
Karl Broberg’s suit alleges that Carnival Cruises acted with reckless indifference by making public announcements about her death and identity without first notifying him of her fall.
Under the “Death on the High Seas Act” (federal statute 46 U.S.C. § 30302), defendants are liable for deaths “caused by wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from the shore of the United States.” See: Cubero, 2016 WL 4270216, at *2.
To plead negligence, a plaintiff must allege that 1) the defendant had a duty to protect the plaintiff from a particular injury; 2) the defendant breached that duty; 3) the breach actually and proximately caused the plaintiff’s injury; and 4) the plaintiff suffered actual harm. Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).
The U.S. Supreme Court has held that under maritime law, “a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” (See: Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959))
Carnival’s Defense to the Negligence Claim
First, Carnival Cruise attempted to have the case dismissed as an inadmissible “shotgun” pleading. Maintaining that, the complaint is characterized by the plaintiff’s incorporation of previous counts’ allegations, by reference, and results in superfluous information in several counts.
Carnival also argued that the charges should be dismissed because they were in part based upon the presumed duty of the crew members to warn and guard passengers against the dangers of over-consuming alcohol and its repercussions.
Carnival relied on a non-maritime case, Cook v. MillerCoors, LLC, 2012 872 F.Supp.2d 1346, 1351 (M.D. Fla. 2012), which dismissed a negligence claim by finding the dangers of excessive drinking are obvious and apparent; meaning the defendant did not have a duty to warn the decedent about exercising, drinking, etc.
However, Tello v. Royal Caribbean Cruises, Ltd. was a near identical situation where a plaintiff sued Royal Caribbean Cruises, after a passenger’s son was over-served to the point of inebriation, fell off the ship, and received no search and rescue assistance. The company was found negligent.
The Court Was Not Going to Dismiss the Lawsuit
Broberg’s complaint was a total of 102 paragraphs, the first 57 of which establish the facts of the case which were incorporated by reference in both counts of the lawsuit. The lawsuit included:
- Count I: alleged negligence under “Death on the High Seas Act,” and is based on the over-serving of Ms. Broberg, the failure to detect and report her fall, and the failure to initiate a search and rescue operation.
- Count II: allege intentional infliction of emotional distress by failing to notify the plaintiff before making public announcements about Ms. Broberg’s death.
Ultimately, the court found Broberg’s case did not qualify as a shotgun pleading despite including seven counts, a total of 123 paragraphs, and previous count’s allegations by reference, because it was sufficiently organized (Martins, 174 F.Supp.3d at 1358).
The court noted even if the plaintiff’s complaint had been deemed a “shotgun” pleading, the 11th Circuit Court of Appeals “has cautioned that dismissal of a claim should be the last resort” (Perricone, 2016 WL 1161214, at *3).
The defendant’s motion to dismiss the case was denied.
QUICK FACT: On April 26, 2017, Rep. Doris Matsui (D-CA) introduced the H.R. 2173, the “Cruise Passenger Protection Act of 2017,” to prevent situations similar to the Brobergs’. A companion bill was introduced in the U.S. Senate by Sen. Richard Blumenthal (D-CT). Section E of the legislation requires technology be installed on cruise ships that can detect when passengers have fallen overboard.
What Should You Do?
If you or a loved one were injured in an accident involving a cruise ship, speak with an experienced lawyer before you file a claim. A lawyer like Alan Sackrin can help you learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Alan offers a free initial consultation (over the phone or in person) to evaluate your claim and answer your questions.