“…Love, exciting and new. Come Aboard. We’re expecting you. Love, life’s sweetest reward.

Let it flow, it floats back to you. The Love Boat soon will be making another run. The Love Boat promises something for everyone…”Jones, Jack (1979) “The Love Boat Theme” by Paul Williams. Nobody Does It Better [Record], Los Angeles, CA: MGM Records

Indeed, they do. Like the one in this famous 1980s TV show, cruise ships ‘promise’ their guests everything their heart’s desire. From belly-busting buffets to romantic revelry, it’s all about exotic locals, fun with friends and soaking up the sun, scenery and culture. Whether their touring the Caribbean or Alaska or just meant for seniors or honeymooners, personal injury lawyers are well aware there’s no shortage of action on these floating casinos. Unfortunately, even the best laid plans can go wrong and luxury liners can be liable for more than just losing your luggage.

Cruise Lines International Association (CLIA) represents 26 member lines and is the official trade organisation of the North American cruise ship industry. Each year, CLIA compiles global data that gives a snapshot of the industry and its position on the international tourism front. According to their 2013 statistics, new ships, global destinations and itineraries, as well as innovative shipboard facilities and activities have driven constant growth in cruise passengers.

CLIA member lines have experienced an average growth rate of 7.2% since 1980, with average yearly occupancies above 100%. Between 1980 and 2012, the CLIA North America fleet carried an estimated 225 million guests: 188 million from North America and 37 million from other parts of the world. Of course, Canadians are no stranger to the growing popularity of cruise ship travel. According to the CLIA, Canada was 6th in the passenger source rank last year and with the multi-million dollar revitalization projects that have just been launched or recently completed by commercial operators like Royal Caribbean International, Avalon Waterways and Carnival Cruise Lines, that number is expected to go up in the coming years.

In 2013, CLIA member lines and over 600 of their travel agent partners were surveyed on reasons clients opt for cruise vacations. Given high profile nautical disasters like those involving the South Korean ferry Sewol  in Apriland the sinking of the Italian Costa Concordia in 2012, you would think ‘safety’ would be a major concern , but it never even cracked the top 5. Over 300 people (counting the students still missing) were killed when the Sewol went down and 32 passengers lost their lives when the Costa Concordia sank, yet business is still brisk. Guess it’s not that surprising. After all, were talking about an industry that bounced back from Titanic.

Although Titanic-style catastrophes are rare, there are plenty of other problems to contend with once you cross the gangway. In “10 Things Cruise Lines Won’t Tell You” [Ian Salisbury, “ 10 Things Cruise Lines Won’t Tell You” , The Wall Street Journal, October 7, 2013, http://www.marketwatch.com/story/10-things-your-cruise-line-wont-tell-you-2013-05-10 ], financial writer Ian Salisbury lists the many ways cruise lines gauge their patrons and describes  the perils of being at sea. Arguably, the outside booze ban and insane internet rates are annoying, but the crime rates are more than a little disturbing. That said, cruise ships aren’t just about morning meringue lessons, they reportedly involve all kinds of personal injuries from slip and falls to stomach ailments and more severe occurrences such as drownings,  thefts and assaults. According to a study done on the cruise ship industry by Professor Ross Klein at Memorial University in 2008, the sexual assault rate on cruise ships is about 50% higher than on land. That’s food for thought, especially if you’re a single female who isn’t built like Jillian Michaels.

So, when an injury is caused by the negligence of a cruise ship line: who is responsible? What rights or recourse do passengers have? As mentioned in the previous discussion on recreational boating [see “Hook, Line, and Sinker: Recreational Boating and Liability in Ontario”, July 14, 2014], boating-related incidents can be quite complex; suing for negligence even more so. Basically, the success of any personal injury suit will depend on several factors, including the duty of care owed a passenger by the cruise ship line, the nature of the incident and the ship’s location when it occurred, the flag under which the ship operates and the contractual terms set by the commercial carrier and agreed to by the passenger.

In order for a passenger to sue a cruise ship line for negligence, they must prove four things: a prima facie duty of care was owed to the injured passenger, that the applicable standard of care was breached by the carrier, the damage or loss resulting from the breach, and if the damage or loss that occurred was reasonably foreseeable. Please note that a negligence suit will not be successful if the injury could not have been prevented, even when ‘reasonable care’ was exercised. Booking a cruise can mean everything from whale-watching off the coast of Newfoundland to touring the Islands for a week on a Royal Caribbean International luxury liner. Although there are plenty of state-funded organizations that offer boat cruises through the Canadian Tourism Commission or say Ontario’s Ministry of Tourism, Culture and Sport, this article will focus on those offered by private operators and Ontario law to show the relevancy of provincial legislation when it comes to these lawsuits. Moreover, ‘carrier’ [in the context of this discussion] refers to those mammoth commercial ocean liners that navigate international waters and weigh over 70,000 gross tons.

It follows injured passengers can file for negligence against a commercial carrier under statute or common law. Because navigable waters fall under federal purview and boating-related incidents are multi-jurisdictional, a negligence claim against a cruise ship company can involve provincial laws such as Ontario’s Highway Traffic Act, 1990 [HTA] and Occupier’s Liability Act, 1990 [OLA] or federal statutes like the Criminal Code  and the Marine Liability Act, 2011 [MLA], specifically Part 3 which covers the limitation of liability and claims exempted from those limits and Part 4 which deals with the carriage of passengers, burden of proof of claimants, limitation of liability, loss of right to limit, time limitations, jurisdiction and exclusions.

As per section 1 of the HTA, boats are considered motorised vehicles and cruise ship operators are subject to safety regulations similar to those drivers follow. Transport Canada mandates that all Canadian motorised watercraft be registered and licensed in Canada and that boat operators prove competency. However, they cannot require the same of those foreign owned and operated by say Britain’s Norwegian Cruise Line fleet, which zips in and out of ports in Toronto or Vancouver picking up passengers from April to October.

Still, if a large commercial carrier gets into an accident in Ontario waters and passengers get hurt because the captain is [for example] impaired, the captain and/or carrier can be prosecuted provincially under section 48 of the Highway Traffic Act and/or federally under the s. 253 (1) and (2) of the Criminal Code for impaired driving. In that case, Article 13 of the Marine Liability Act may kick in, excluding the operator and/or carrier from the protection afforded by Article 7 of the MLA which limits the liability of claims involving fatalities and injuries to passengers. Under these circumstances, injured parties may be able to claim damages or compensation amounts normally prohibited by the statute.

As previously examined in our review of social host liability [see “The Great Canadian Summer: Duty of Care and Occupier’s Liability in Ontario”, July 7, 2014], tort law covers four types of occupants: trespassers, licensees, invitees and contractual entrants. The common law establishes separate levels of proof for different classes of entrants. A contractual entrant is a person who entered into a contract to use the premises, as opposed to someone who receives a particular good or service (e.g. a hotel guest, but not a restaurant patron). The reasonable standard of care owed a ‘contractual entrant’ is to ensure that the premises are fit for the intended purpose. As per section 1 of Ontario’s Occupier’s Liability Act “premises” include ships and vessels. Consequently, section 3 of the Act requires a general ‘duty of care’ which occupier cruise ship lines must provide for their contractual entrants and their personal property. Under the Act, if a person gets injured or sustains a loss, they may be able to sue the occupier for those damages.

Liability is initially established by proving there’s been a breach in the ‘duty of care’ set out in the statute. That ‘duty of care’ is a function of the ‘special relationship’ that exists between landlords and their tenants, businesses and their clients or [in this case] between carriers and their passengers as per the ‘test of proximity’ applied by the Supreme Court of Canada in Crocker v. Sundance Northwest Resorts Ltd. (1988), 51 D.L.R. (4th) 321 (S.C.C.) and Childs v. Desormeaux [2006] 1 S.C.R. 643, 2006 S.CC 18.  The next step is the “objective test of reasonableness’ or what the ‘standard of care’ must be for passengers as per the criteria established in Waldick. Finally, if that ‘standard of care’ was breached, was the injury or loss foreseeable or was the damage too remote too foresee as per the precedent set in Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.)  and later re-examined in Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27. If counsel can prove ‘proximity’, ‘duty of care’, a breach in the ‘reasonable standard of care’ and that the ensuing harm caused to the passenger was ‘foreseeable’, than the carrier may be liable [depending on the nature and gravity of the injury and the circumstances of the case] for general, special, compensatory, and/or punitive damages.

Cruise ship lines have many tools at their disposal to limit their liability for claims involving fatalities and personal loss or injuries to passengers. The most popular way is via cruise ticket contracts. These passenger contracts generally favour the carrier rather than the paying guest. They are often lengthy and include terms and conditions that are legally binding and impact the passenger’s rights and entitlements. However, they tend to be heavy on legal jargon so most passengers either by pass the fine print or don’t fully understand what they’ve signed or its ramifications. That said, cruise ticket contracts can affect the litigation process in critical ways, including jurisdiction, time limitations and compensation. Contrary to their proactive approach towards recreational waivers of liability, Canadian judges have been much more conservative about invalidating cruise ticket contracts, especially their ‘forum selection clauses’.

Forum selection clauses are crucial because they state where a plaintiff may commence an action. When a passenger signs a cruise ticket contract with such a clause, they’re basically waiving their right to file a lawsuit in any other jurisdiction other than the one stipulated in the clause. The biggest obstacle to any negligence lawsuit against a commercial carrier is voiding this section of the Canadian passenger’s contract, so they can pursue tort action in Canada. In Allen v. Carnival Corporation 2007 CanLII 557001 (ONSC), plaintiff Jasmine Allen took a tumble while aboard a Carnival Cruise Line ship and injured her ankle. She launched a personal injury suit against the defendant, but lost because she violated the terms and conditions of her cruise contract. She breached the forum selection clause by commencing an action in Ontario instead of Florida and exceeded the legal deadline by filing after the one-year limitation period.

But, even if a passenger’s cruise ticket contract doesn’t limit forum selection, the MLA’s jurisdictional provisions may. As per Article 17 of the Marine Liability Act, jurisdictions include: the place where the defendant carrier has their permanent residence or principal place of business; the place of departure or of destination under the contract; the place the plaintiff is domiciled or has permanent residence provided the defendant also [italics mine] has a place of business in that State; or the place where the contract of carriage was made if the defendant has a place of business in that State. In Nicolazzo v. Princess Cruises, 2009 28217 (ON SCDC), an Ontarian couple booked their cruise with a Hamilton travel agent, boarded in Italy and disembarked in England. During their stay, $ 5,000 was stolen from the safe in their state room. They commenced an action in Ontario to recover the stolen money from Princess Cruises, but their action was dismissed under Article 17 of the Marine Liability Act because the defendant had no place of business in Canada.

Another way a defendant carrier may seek to limit their liability is through volenti. Like recreational boat operators, commercial carriers may argue that the harm or loss suffered by a passenger came as a result of “risks willingly assumed’. Although some cruise ship contracts include exclusionary clauses for what is known as ‘adventure tourism’, section 37.1 of the Marine Liability Act specifically absolves carriers of any negligence or from any legal responsibility for injuries suffered by passengers participating in dangerous activities that expose them to greater risks then normal. This means that injured claimants can not seek redress under Part 4 of the MLA. In any case, carriers often resort to volenti to protect themselves from liability or to show the contributory negligence of the claimants suing them.

In certain cases, the injured party does not prove negligence, but rather contributory negligence. As per the precedent established in Bow Valley Jusky (Bermuda) Ltd v. Saint John Shipbuilding Ltd., (1997), 153 D.L.R. (4th) 385 (S.C.C.), plaintiff’s have a duty to mitigate”, which is premised on the notion that the plaintiff cannot recover from the defendant damages which they themselves could have avoided by adopting more ‘reasonable’ measures. In other words, Canadian courts see a big difference between a slip and fall on the ship’s deck on the way back from your six o’clock salsa session and wiping out head first after dinner thanks to one to many rum punches with your red snapper.

It appears federal law sees a significant difference between these two scenarios as well, and has accounted for it in the Marine Liability Act and its many provisions. Part 3, Article 1 lists persons entitled to limit and Article 2 lists claims that are subject to limitation of liability. The claims most relevant to passengers include those related to loss of life or personal injury, loss or damage to property, claims for consequential losses or for delays in the carriage of passengers.

Part 4, Article 3 covers liability and the burden of proof. As per the MLA, carriers are liable for damages suffered due to the death or personal injury of passengers or for the loss or damage to the passenger luggage where (1) the incident which caused the damage occurred during the course of carriage and (2) the damage was due to the fault or neglect of the carrier or his servants or agents acting within the scope of their employment. Under the MLA’s regime, it’s the claimant who must prove the carrier’s negligence. Only in claims for loss or damage to luggage or in cases involving a shipwreck, collision, stranding, explosion fire or ship defect is the onus on the carrier to prove their not liable.

Part 4, Article 7 and Article 8 deal specifically with limiting carrier liability . Article 7 limits a cruise ship line’s liability in the event of a passenger’s death or personal injury to a maximum of $273, 000 multiplied by the number of passengers the ship is authorized to carry on its certificate. Under Article 8, the maximum liability a cruise ship can incur for loss or damage of a passenger’s luggage is $2,800 and $15,600 for any loss or damage to a vehicle , including the luggage carried in the vehicle. Other types of luggage are subject to a limitation of $4,200 per passenger per carriage.

Part 4, Article 13 is important because it actually makes negligent carriers and operators accountable for their actions. The defendant loses his right to limit liability if it’s proven that the damage resulted from an act or omission done with intent to cause harm or recklessly and with the knowledge that such damage would probably result from it.

Finally, we have Articles 16, 17 and 18 of the MLA which respectively detail the prescribed time limitations for filing a personal injury claim [ two years from the passenger’s disembarkment date unless otherwise indicated in the cruise ticket contract], jurisdictions in which a passenger may file a claim [unless otherwise indicated by the forum selection of the cruise ticket contract] and exclusionary clauses related to carrier liability, compensation limits, burden of proof and restrictions on claimant access to specified jurisdictions. In Friesen v. Norwegian Cruise Lines et al.,, 2003 BCSC 256, a British Columbian plaintiff slipped and fell out of a hot tub while she was on an Alaskan cruise. When the plaintiff tried to sue the defendant for damages in her home province, the defendant claimed she was in violation of the selection forum clause of her cruise ticket contract. Although the Court initially held that the Article 17 of the Marine Liability Act didn’t apply, it felt that the plaintiff had met her evidentiary burden and since all the witnesses resided in her province, a stay of action favouring Florida over Vancouver would come close to denying the plaintiff any chance for justice at all. Friesen is a good example of not only the limitations of Article 17, but of how Article 18 prevents carriers from restricting claimant access to specified jurisdictions under the MLA.

With all due respect to the blinding smile Kathie Lee Gifford flashes us from the deck of her Carnival cruise ship, “love boats’ aren’t all fun and games. A week long voyage out to sea with hundreds of other people sober or drunk of all ages, types and backgrounds can generate all kinds of problems; most minor, but some major. Whether were talking petty theft or catastrophic injury, it’s crucial that victims understand what their rights and responsibilities are, especially any that have been limited by the terms and conditions set by their cruise ticket contract. While Canadian courts have been reticent to take on passenger contracts, that shouldn’t deter any injured party from pursuing a claim against a negligent cruise ship line. Although the multi-jurisdictional quality of boating- related incidents can be challenging, it’s nothing that an attorney well versed in torts and maritime law can’t handle. If you’ve suffered some kind of injury or loss during a cruise, please contact a qualified personal injury lawyer who will act on your behalf to get you lawfully compensated, so you and you and your loved ones can put this behind you and resume living life on a more even keel.