LITIGATING FOREIGN SHORE TOURS IN AMERICAN COURTS
WHERE DOES IT END?
(Published January
1995)
A cruise passenger collides with the side of a beach front hotel while parasailing in Acapulco. A train tour through the jungle of South America ends in derailment. On a bicycle tour down Maui's Haleakala volcano, cruise passengers are run off the road by an errant tour bus. A helicopter tour group in Tahiti is stranded on an isolated atoll when their aircraft breaks down. A scuba diving adventure offered in Grand Cayman ends in tragedy when a diverts air line bursts. Practically and legally, cruise lines should not be liable in these situations. When dealing with foreign shore excursion operators however, the cruise line is often the easiest target for American passengers claiming damages in U.S. courts.
As a service to their clientele, many cruise ships sell tickets for various shore excursions offered in the ports of call. Cruise lines typically disclaim liability for the torts of the shore excursion operators. In fact, many cruise ticket contracts and brochures specifically admonish passengers that the ship is only a ticketing agent for the shoreside tour operators, who are independent contractors, and the ship cannot be liable for their negligence. Cruise tickets also often indicate the ship cannot be liable for any casualties occurring off of the vessel. To the extent these provisions limit the ship's liability for another entity's negligence, they should be and have been enforced.
However, to the extent a ticket provision limits a cruise ship's liability for its own negligence, it is likely to be held unenforceable under 46 U.S.C. § 183, a federal statute, which prohibits a vessel owner from limiting liability for its own negligence. A line of cases holds shipowners liable for accidents during shore excursions whenever the line knew or should have known the excursion was unsafe. For example, in the recent case of Gillmor v. Caribbean Cruise Line Ltd.' 789 F.Supp. 488, 1994 A.M.C. 1329, (1).P.R 1992), the court noted a cruise line might be liable for the onshore mugging of a passenger if the line knew a local spot was a high crime area and referred the passenger there without warning. In the more famous case of Carlisle v. Ullvses Line, Ltd., 475 So.2d 248 (Flu. Ct. App.1985), a cruise line was even found liable for the shooting of passengers during an attack at a beach near a high crime area because a crewmember referred passengers there without warning. If a cruise Line has some independent knowledge that any shore excursion is unsafe and offers it to passengers nonetheless, liability may well attach. The most troubling aspect of this principle is that an American passenger may file suit against the cruise line in the United States, where the foreign tour operator may not even be answerable for its own negligence.
Nevertheless, in the absence of vessel negligence, the applicable law is generally favorable to cruise lines. In Lohmanv. Royal Viking Lines, 1981 A.M.C.1104 (D. Col. 1980), the court granted the cruise line's summary judgment motion because the ticket contract provided, "[i]n selling tickets, coupons, or vouchers or making arrangements for shore excursions, . . . the Carrier acts only as agent for others who . . . operate such services and all persons accepting or using tickets or authorizations in any form for such services shall thereby be deemed to agree and consent that the carrier shall not be or become liable. . . far any act or omission pertaining to such services OR for any loss, injury or damage to any person or property arising therefrom or in connection therewith." The plaintiff in Lohman was injured when she stepped off of a tour bus in Bali and was struck by a motorcyclist. She sued, alleging the cruise line was negligent for allowing the tour operator to disembark passengers in an unsafe manner. Plaintiff had purchased her cruise ticket and the shore excursion ticket from a travel agency, while the cruise line arranged for the shore excursion itself.
A threshold issue in Lohman was what law to apply. Plaintiff contended Colorado had the greatest interest in the case, while defendant argued Norwegian law should be applied because the ticket contract provided for the application of Norwegian law. The court aptly ruled the choice of law was irrelevant as the ticket provision was enforceable under both Colorado and Norwegian law. Rationalizing that a cruise line had no duty to provide shore excursions to its passengers in the first place, the court did not feel the ticket disclaimer was unfair. Moreover, there was no public policy prohibiting a cruise line from limiting its liability for another entity's negligence.
Based on a similar analysis, a federal district court in California upheld a similar disclaimer in Corbv v. Kloster Cruise Limited, 1990 WL 488464 (N.D. Cal.). Corby was a passenger aboard a cruise vessel when she participated in an onshore excursion tour of Dunn's River Falls in Jamaica. While climbing the falls, she slipped and fall and later brought suit against the cruise line. The district court granted the line's motion for summary judgment on the grounds: (l) plaintiff's ticket contract exempted the line from liability for injuries occurring ashore; and (2) the line was not liable for the torts of the excursion operator as an independent contractor.
As neither party addressed the choice of law issue, the court applied California law, noting exculpatory provisions are generally upheld as long as they do not involve a public interest. For the purposes of the analysis, the California Supreme Court defines a public interest as "a service of great importance to the public, which is often a matter of practical necessity for some members of the public." Tunkl v. Regents Univ. of Cal., 60 Cal.2d 92, 98-lOl (1963). Cruises are not publicly regulated; they are not public necessities; they are not necessarily available to any member of the public, nor do cruise lines have any duty to the public to arrange excursion tours. In upholding the provision exempting the vessel from injuries occurring ashore, the court noted a cruise exhibited none of the "public interest" characteristics.
The Court further held the cruise line could not be liable because the Dunn's River tour operator was clearly an independent contractor. In finding the Dunn's River tour operator qualified as an independent contractor, the court emphasized: (1) the brochure advertising the shore excursion clearly indicated the line did not "own or control any . . . tour operations or sightseeing tours of any kind"; and (2) the ticket contract providing the excursions were subject to the excursion operator's terms and the cruise line did not "guarantee the performance of any such service."
The Corby court also rejected plaintiff's argument that the shore excursion operator was the cruise line's agent. The key to an agency relationship is control over the means and methods of performing the excursion. This degree of control is generally absent between a cruise ship and a shore excursion operator because the cruise line usually only sells tickets and arranges a meeting between its passengers and the shore excursion operators. Cruise lines generally neither own nor operate the shore excursion, and cruise line employees are seldom present during every shore tour.
Although the applicable law is generally favorable in such cases, cruise lines should still be wary. At least one court rejected a cruise line's motion for summary judgment in a passenger shore excursion case. In Tavlor v. Costa Lines, Inc., 441 F.Supp. 783 (E.D.PA. 1977), plaintiff purchased a shore excursion ticket for an automobile tour of Trinidad and was injured in a collision. The cruise line moved for summary judgment on the grounds the tour operator was an independent contractor and based on the passage contract's exculpatory language. The Taylor court denied the motion, holding that under the facts a jury might conclude an "apparent agency" relationship existed between the cruise line and the tour operator. While the court acknowledged plaintiff had failed to present any direct evidence the cruise line controlled the shore excursion, the court found the cruise line advertised the tour as "well planned" without indicating who planned the tour. The ship's shoreside tour tickets had the cruise line's name printed on them and these factors, coupled with the cruise line's exclusive relationship with the tour operator, were deemed sufficient to defeat the summary judgment motion.
It is significant, of course, that the Taylor court did not conclude an agency relationship existed, but merely found there was sufficient evidence on the subject to justify the time and expense of a trial. For this very reason, and because most cruise lines have a U. S. office while most tour operators do not, often the line is plaintiffs' only litigation target. American juries are easily tempted by an apparent deep pocket, regardless who or what was really to blame for an accident.
Helpful Recommendations:
The best way to avoid the pitfall of litigating foreign shore tour claims in US courts is to carefully structure the tour arrangements in advance. In particular, a written agreement should be required of every operator and the following points should always be kept in mind:
- Require all shore excursion operators to contractually agree, if possible, to US jurisdiction in the event of passenger lawsuits against the cruise line;
- Require all shore excursion operators to provide proof of insurance covering US and foreign claims and naming the cruise line as an additional insured;
- Confirm that all ticket provisions and promotional material contain appropriate, conspicuous warnings and/or disclaimers;
- Verify that all relevant documentation clarifies the operator's role as an independent contractor and that ultimate control and responsibility for the excursion lies exclusively with the operator;
- Require shore excursion operators to contractually indemnify the cruise line and provide legal representation in the event of a suit; and
- Investigate tour operators to verify their safety records and quality of service.
