SAILING INTO STORMY SEAS - IS SOMEONE ALWAYS LIABLE?
(Published April 1992)
Tropical storms and hurricanes are as old as the oceans themselves. Despite numerous advances in modem weather technology available today, severe storms and hurricanes cannot always be avoided. When a vessel encounters a severe storm or hurricane, passengers, crew or property may suffer injuries. Despite the best efforts of a ship's crew, cruise ships do on occasion run head on into mother nature at her most ferocious. This article surveys selected cases evaluating a cruise line's liability for storm-related injuries and highlights the salient points cruise operators should boar in mind in the event their vessels encounter rough weather.
In ARABIC, 1931 A.M.C. 1377 (2d Cir. 1931), a vessel owner was found negligent for faulty navigation and liable for injuries sustained by passengers during a hurricane. The ship's officers had not issued orders for passengers to remain in their cabins resulting in many passenger injuries while on deck. Even though the severity of the storm was apparent to all aboard, the court rejected the contention passengers who ventured out on deck voluntarily assumed the risk of injury or were contributorily negligent.
The court found the issue of negligent navigation liability was contingent upon what the navigators knew, or should have known, about the approach of the storm. Failure to seek deeper waters in the approach of the hurricane formed the causal link between the faulty navigation and the resulting harm suffered by passengers. The court concluded, "A master is in supreme command of his ship and should make plain his orders for the safety of passengers and see that his orders are carried out." (p. 1381) Thus, under the ARABIC test, a shipowner is required not only to warn passengers of dangers they might reasonably be expected to encounter during a storm, but also to verify the ship's safety directives are, in fact, carried out.
Two years later, the U.S. District Court in Northern California ruled that a passenger who sustained injuries when she was thrown from her chair as a result of a sudden roll or lurch of the vessel could not recover from the shipowner merely because the weather and the seas had been rough for a considerable length of time before the accident. WINNIPEG, 1933 A.M.C. 1528 (N.D. Cal. 1933). The court concluded plaintiff, an intelligent woman and experienced ocean traveler, knew as well as those in charge of the ship the vessel might roll and lurch in the prevailing weather. Id. The court held a single large roll or larch was not to be expected merely because the seas wore rough, and thus found under the circumstances there was no duty to warn plaintiff of danger. Nonetheless, the court commented if the ship encountered a severe storm, the duty of its officers would have been greater.
The US District Court for the Eastern District of New York followed similar logic in Ludovic v. Serpa Pinto, 1942 A.M.C. 1011 (E.D.N.Y. 1942). In Ludevic, a passenger was injured when a rogue wave broke over the ship, throwing him into a stanchion, causing a fractured hip. Noting plaintiff was an experienced ocean traveler, the court held the vessel was not negligent for failing to rope off portions of the open deck or warn passengers of the danger of a single wave washing over the ship's stern. At the time of the accident, the vessel had been heaved to and headed into the wind at reduced speeds for 11 hours.
An appellate level federal court, in Voltmann v. United Frail Co., 1945 A.M.C. 124 (2d Cir. 1945), arrived at a different view of liability. The plaintiff in Voltmann claimed the vessel operator was negligent for failing to fasten down furniture properly; allowing passengers to use public rooms during a severe storm, and faulty navigation of the ship during the prevailing weather conditions. One of the principal issues was whether the ship's master took adequate precautions for the safety of passengers in view of the prevailing weather and available information. The court rejected the shipowner's claim that it discharged its liability to passengers merely by employing a competent master who used skill and careful judgment.
Although several cases have noted furniture aboard passenger vessels is typically not bolted to the deck, a New York Supreme Court found a vessel liable when its crew failed to warn passengers of the danger of sitting in unanchored chairs. Gerrish v. Panama Canal Co., 1957 A.M.C. 2104 (N.Y. Sup. Ct. 1957). The passenger in Gerrish sustained injuries during a severe storm when her unanchored chair slid across the main lounge. The court noted that some, but not all of the ship's furniture was anchored to the deck and no orders or instructions had been provided to passengers to warn against using unanchored chairs during the storm. In finding the ship liable, the court concluded the ship's officers had knowledge of the storm several hours before the accident; the crew had to re-secure equipment on the vessel's deck which had come loose in the rough weather just two hours before the accident; the chef had been alerted to stow and secure gear in the galley; and, finally, the captain and certain officers inspected the ship shortly before plaintiff's accident and observed plaintiff and others in the lounge sitting in unanchored chairs. The court declared the duty of the vessel's of officers was to exercise care for the safety of passengers, including warning passengers "of dangers which the ship's employees might reasonably anticipate and which are not readily apparent to passengers" (at 2106, citing 80 C.J.S. Shipping, p. 113, § 193(4)). The court stated in the face of obvious or foreseeable perils, greater care must be exercised than under ordinary circumstances (at 2106, citing 58 C.J.S. Shipping, p. 555, § 970(7)).
Six days before Gerrish, the federal appellate court for the Eighth Circuit affirmed a judgment holding a Lake of the Ozarks operator liable for injuries and deaths of passengers for failing to anticipate an approaching storm. Lot-Wood Bout & Motors v. Rockwell, 245 F.2d 306 (8th Cir. 1957). The court commented neither tornadoes nor hurricanes drop out of clear skies and passengers on holiday had a right to rely on those who hold themselves out as maritime carriers to observe the weather conditions and not permit them to sail into the path of a storm. The court in Lot-Wood applied an older maritime common carrier standard of "very high degree of care" stating that the owner is liable for even slight negligence. While Lot-Wood concerned a small tour boat on an inland lake, the court's comments on duty of care are noteworthy. Even under the usual "reasonable care" standard established under Kermarec v. Compagnie General Transatlantique, 358 US § 625 (1959), a shipowner is required to exercise additional care when facing uniquely maritime dangers. Storms at sea may arguably fall into that category.
Most recently in an unpublished decision, a Louisiana federal court echoed the ruling in ARABIC, and held a shipowner responsible for what it actually knew, as well as what it should hove known. The court found the shipowner's failure to warn passengers of possible dangers of moving about the ship during a severe storm, and the failure to order passengers to remain in their cabins or in an enclosed part of the ship, constituted negligence. The court held the captain and crew should have taken reasonable precautions to prevent foreseeable injuries to passengers when they had the ability to do so.
Clearly the easiest way to reduce liability for storm related losses is to avoid the worst weather conditions, if possible. In the event rough weather is expected, cruise operators should warn passengers well in advance of, and regularly throughout, the rough weather of the hazards of moving about the ship. Passengers might be admonished to be cautious in lounges or on deck. If weather conditions are severe, the master might order passengers to remain in their cabins and without jeopardizing the safety of the craw, see that those orders are enforced with regular patrols. Documenting these precautions and keeping passengers fully informed are the ingredients for a successful defense of any future litigation.
