"VISITORS" ON
BOARD CRUISE SHIPS: WHAT IS THE LEGAL DUTY OWED?
(Published February
1996)
Often in the cruise industry, the question arises what is the duty of care owed to visitors on board a vessel. The general rule is that visitors on board for any purpose "not inimical (i.e., hostile or adverse) to the shipowner's interest" are owed a duty of reasonable care under the circumstances. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 627, 79 S.Ct. 406, 1959 A.M.C. 597 (1959).
Should a cruise line wish to limit its liability to visitors or "guests," a valid disclaimer may have that effect, so long as the visiting party is made fully aware of both the disclaimer and its exculpatory provisions. Nina Economy v. Peninsular & Oriental Steam Navigation Company, 1977 A.M.C. 2154 (Super. Ct. Cal. 1977) [a visitor's boarding pass executed by a non-paying ship's visitor and relieving steamship company from liability for its own negligence is valid and enforceable as a matter of law]; Chervy v. Peninsular & Oriental Steam Navigation Co., 243 F. Supp. 654, 1965 A.M.C. 749 (S.D. Cal. 1964), aff'd on other grounds, 364 F.2d 908, 1966 A.M.C. 2260 (9th Cir, 1966), cert. denied, 385 US 1007, 87 S.Ct. 714, 1967 A.M.C. 568 (1967).
The keys to an effective exculpatory clause are twofold: (1) the visiting party must be made aware of the existence of the clause; and (2) the clause cannot exculpate the cruise line for either gross negligence or wanton or willful misconduct. Chervy, a, 1965 A.M.C. at 751. In Chervy, plaintiff was a guest aboard a ship berthed at Long Beach, California. Prior to boarding, plaintiff signed a written agreement relieving the line of liability for personal injury, in return for which the line allowed plaintiff and his friends to board as social guests of ship's officers. Plaintiff waited until three minutes before sailing time before attempting to go ashore when warnings for guests to disembark had been broadcast for one hour. He subsequently fell on the gangway, injuring himself and sued the line for negligence. The district court concluded plaintiff's status was as a guest. He was made aware of the exculpatory provisions, the cruise line was entitled to rely upon the exculpatory provisions and the case was dismissed.
The Chervy court based its holding on the theory that personal guests of the officers are not "passengers" and therefore do not fall within the scope of Title 46 United States Code Section 183c (which invalidates any contract provision purporting to limit a vessel owner's liability for negligence to its passengers). Section 183c was intended to govern only the relationship between common carriers and passengers, not the social guests of various officers. The court also concluded enforcement of the disclaimer was not against public policy. "The common law rule that because of public policy a common carrier cannot secure immunity from liability for its own negligence has no application when the carrier is acting outside of performance of its duty as a common carrier." Id. at 754. The court determined that entertaining visitors on board ship was not a part of the obligation of the steamship company as a common carrier; it was a gratuitous service which a visitor could accept or decline upon the terms and conditions offered. (Of course, under modern general maritime law, a cruise line is no longer considered a common carrier, nor held to a higher standard of care on that basis.)
When a visiting party is not made fully aware of an existing disclaimer, and/or its exculpatory provisions, the disclaimer will not be enforced. In Kermarec, plaintiff boarded a ship for a social visit with a member of the ship's crew. Kermarec's friend obtained a pass from the vessel's Executive Officer authorizing the friend to board; it contained the following language:
The person accepting this pass, in consideration thereof, assumes all risks of accidents and expressly agrees the Compagnie Generale Transatlantique shall not be held liable under any circumstances whether by negligence of their employees or otherwise, for any injury to his person or for any loss or injury to his property.
The trial court instructed the jury that this disclaimer could have no effect unless it had been made known to plaintiff. Since the evidence presented at the time of trial established Kermarec never saw the pass, the jury implicitly found he had not been informed of the exculpatory language.
Under a different scenario, if no exculpatory clause exists, the courts will apply the Kermarec standard. For example, in Billie Carol Esau v. United States of America, United States Navv and USS CHICAGO, 1979 A.M.C. 736 (SD Cal. 1978), no pass containing a disclaimer or exculpatory clause was issued to the plaintiff, and the court held defendant shipowner owed to legitimate visitors the duty to exercise reasonable care under the circumstances for their safety. Aumen v. Flota Mercante, 1987 A.M.C. 385, 386 (D.C. Md.1986), also applied the Kermarec standard to reach its holding that the owner of a ship in navigable waters owes to all who are on board as guests the duty of exercising reasonable care under the circumstances.
Another problematic scenario arises when persons are invited on board free of charge, such as travel agents for inaugural cruises, who have a business purpose and are not merely social guests. Can these invitees be issued an enforceable disclaimer? The answer is not entirely clear. Travel agents could argue they are "business invitees," not social guests, and that entertaining them in order to promote cruises is within the scope of the shipowner's role as a passenger carrier. In such situations, a recommended course of action is to issue a shun voucher with a total disclaimer and the more important standard provisions of the cruise ticket, such as the time bar and forum selection provisions. Distributing such a voucher would ensure that even if a court refuses to enforce the disclaimer, the cruise line would still preserve its back-up defenses embodied in its usual ticket contract.
Disclaimers in any form are generally disfavored by courts and are usually construed narrowly in the plaintiff's favor. Although the disclaimers discussed are in the majority of jurisdictions legally valid, there can be no guarantee as to their enforceability. To increase the likelihood of enforceability when issuing such disclaimers, cruise lines should be sure to obtain some sort of acknowledgment (such as a signature) from the visiting party that they indeed received the disclaimer and are aware of its provisions.
