Cruise Vacations: Sailing into “The Heart of Darkness.”

“What doesn’t kill us makes us bitter.”

~Chuck Lorre

Over the past few days, the media has been all abuzz about the ill fated Carnival Triumph cruise ship that caught fire, resulting in an inoperable engine, major plumbing back ups, raw sewage leaks, and damage to the extent that the ship had to be pulled via tugboat for days to Alabama. While there are ports in Mexico much closer than Alabama, Carnival has failed to provide any clear explanation why it chose to dock its ship in Alabama. There are those who believe this was done purely for economic reasons, although the entire incident is still under investigation.

Passengers generally describe the conditions of the ship as horribly abysmal. Among other numerous problems, there were stinking, feces filled, and flooded hallways. People were forced to relieve themselves in plastic bags. The stabilizers on the ship also did not work. This caused the ship to violently rock from side to side for days, spilling human waste and garbage throughout the hallways. Those suffering from seasickness must have felt like they were on an evil nonstop vomit producing merry go round.

There were also problems getting unspoiled food to the thousands of passengers, causing near riots, fights, and complaints of constant hunger. The passengers slept on the upper decks covered with towels because the flooding and stench of the lower decks was intolerable.

Passengers who were on the ship for their honeymoon, birthday, anniversary, and other special occasions all had their vacations completely ruined. Many of the passengers state that they will never again travel on a cruise ship. Their entire view of travel by ship is scarred forever.

As compensation, Carnival has offered a refund for the cruise, credit towards a future booking, travel expense reimbursement, and $500.00 per passenger.

What is the likelihood of passengers prevailing if they decide to file lawsuits against the cruise line? It appears that a passenger’s chance of obtaining any large amount of money recovery is highly uncertain.

To begin with, a passenger suing Carnival will have to prove some type of “physical injury.”

Cruise line tickets prohibit passengers from suing over emotional distress, without any form of personal injury. This provision is contained in the numerous pages of conditions that accompany each cruise ticket. Cruise tickets go largely unread by travelers, although they are binding contracts.

Tickets issued by Carnival and other similar cruise line companies contain strict time limits, language limiting how a passenger may recover any damages, and also set the location of the court where any lawsuit can be filed. The location typically heavily favors the cruise line company. For example, passengers may live in Alaska and injured on the open sea, but if they want to sue Carnival, they have to file their lawsuit in Miami. This also makes the case more expensive because depositions, hearings, inspections, and trials must take place in Miami.

Gerald McGill, a plaintiff’s lawyer in Pensacola, Florida, who specializes in maritime cases, says it seems unlikely that passengers on the Carnival Triumph will be able to recover damages for distress because they also have to show physical injury. Simply put, the constant state of fear, smell of feces and exposure to potentially diseased squalor, may not be sufficient, in and of itself, to constitute a physical “injury.”

Notwithstanding existing obstacles, Plaintiff attorneys are not discouraged by the limitation language on the cruise tickets.

While there have been no physical injuries, if a person contracted a disease from unsanitary conditions on the ship, they could argue for physical injury, maritime trial attorney John H. Hickey told CNN. And due to the conditions on board, many could have been at risk of these diseases.

“I think that a case can be made that everyone on that ship is at risk of actual physical injury,” he said, adding that the cruise line will no doubt want to diffuse the situation as quickly as possible.

 

Additionally, a Florida maritime law firm has filed a class-action lawsuit on behalf of passengers aboard the Carnival Triumph.

The lawsuit, filed on Feb. 18 in the  United States District Court for the Southern District of Florida, claims that Carnival was negligent for allowing the Carnival Triumph to embark on the failed five-day cruise when the company was aware the ship was prone to mechanical and/or engine issues.

Attorneys at Miami-based Lipcon, Margulies, Alsina & Winkleman filed the lawsuit on behalf of passengers Matt and Melissa Crusan of Oklahoma, and more than 100 other passengers aboard the vessel. Most of the plaintiffs in the lawsuit are from Texas, according to attorney Mike Winkleman.

 

From Feb. 10 to 15, the lawsuit states, passengers "were forced to sleep on deck and/or in other communal areas on the vessel, relieve themselves into buckets, bags, showers, sinks, were given spoiled or rotting food that was unfit for reasonable safe human consumption, and were generally forced to live in squalid conditions that created a severe risk of injury, illness and/or disease."

Due to the lack of working plumbing and sanitation systems on the ship, the petition states, "sewage and/or putrid water filled with urine and feces leaked onto floors, walls, and ceilings. This sewage and/or human waste sloshed around the vessel as the vessel listed while drifting and/or while under tow."

 

"Conditions became increasingly unbearable each day," the lawsuit alleges, "due to the lack of a working ventilation system on the vessel, leading to noxious odors and gasses that caused numerous passengers to vomit and/or become nauseous."

The lawsuit also charges that Carnival's decision to tow the Triumph to
Mobile, instead of to the closer port of Progreso, Mexico, caused passengers to endure more time aboard the disabled vessel than necessary, prolonging their ordeal.

"The primary motivation for that (decision) was money," Winkleman said. "It was much cheaper for Carnival to tow the ship to Mobile where it would be repaired, rather than (have it towed) to Mexico and have another tow (from there) back to Alabama. It's cheaper to put 3,000 people on buses to Galveston than to have to fly them from Mexico."

Quoting, Robert Stanton, “Class-action lawsuit filed in cruise ship fiasco.”

 

"I think people are going to file suits and rightly so," maritime trial attorney John Hickey told ABCNews.com. "I think, frankly, that the conduct of Carnival has been outrageous from the get-go."

Hickey, a Miami-based attorney, said his firm has already received "quite a few" inquiries from passengers who just got off the ship.

"What you have here is a) negligence on the part of Carnival and b) you have them, the passengers, being exposed to the risk of actual physical injury," Hickey said.

The attorney said that whether passengers can recover monetary compensation will depend on maritime law and the 15-pages of legal "gobbledygook," as Hickey described it, that passengers signed before boarding, but "nobody really agrees to."

One of the ticket requirements is that class action lawsuits are not allowed, but Hickey say there is a possibility that clause could be voided when all the conditions of the situation are taken into account.

Notwithstanding the aggressive creativity of numerous Plaintiff lawyers, who certainly are not going to give up easily, other maritime lawyers familiar with cruise ship lawsuits suggest angry passengers should think twice before rushing to the courts. Unless passengers suffered major injuries or other losses due to negligence by the cruise operator, they may be better off accepting compensation from Carnival.

Some lawyers’ opinions are that even if monetary damages are obtained by a Plaintiff lawyer, it will likely be so minimal that waiting for the lawsuit to finish, plus the fees and costs that the attorneys will subtract for themselves, is just not worth the time, aggravation, and effort that will be spent by a passenger.

"The cruise lines want each person to have to go to arbitration and get a lawyer and spend money," said attorney Adam Brum of Morgan & Morgan in Miami, who has talked to several passengers but hasn't filed a case yet. "It makes it very hard."

The success that passengers may have with their lawsuits against Carnival will depend on whether Plaintiff attorneys can convince the courts that the numerous limitations on cruise tickets are unfair, or that the facts of their client’s particular case do not fall within the limitations set forth in the cruise ticket.

The bottom line is, if travelers do not want to waive all of their potential rights that cruise lines have (rather sneakily) created as litigation obstacles, it may be a better option to take a nice road trip like the good old days with mom and dad.

Bon voyage!

~Leonardo G. Renaud