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Factual Analysis of Maritime Carrier’s Liability for Zip Line Accident Outside of Port

This is the second installment of a two-part blog post discussing the federal case of Wolf v. Celebrity Cruises, Inc.  This installment analyzes application of the law given the specific facts in the case, but you are invited to read Part I for a clear outline of the facts.  Wolf advanced a number of legal theories supporting liability that included: (1) duty to warn, (2) negligent hiring and retention, (3) joint venture, and (4) actual agency.  In analyzing these claims, the court observed that federal maritime law applies to torts committed aboard a ship on navigable waters.  These rules of liability also extend to ports-of-call and excursions on land according to the court.  Further, the court noted that the disclaimers in the passenger ticket contract and the OCT waiver cannot shield the cruise line from liability for their own negligence that causes injury to passengers.  Wolf contended that the cruise line was negligent in failing to warn passengers of dangerous conditions related to the zip line excursion.  He also alleged that the cruise line was negligent in selecting and retaining OCT.

In response to these contentions by Wolf, the cruise line presented the following evidence that it was not negligent:

  • The excursion had been offered through Celebrity for ten years without any safety problems.
  • The cruise line had received no negative feedback about the excursion.
  • OCT was considered the “industry leader” in zip lining.
  • Many other cruise companies and individuals use OCT.
  • The cruise company had not received any prior reports of adverse incidents or prior problems involving OCT zip line excursions related to safety concerns or the tour on the day of the accident.

The court considered these facts and the language in the ticket cruise contract with regard to each of Wolf’s arguments in support of the liability of the cruise line.

Duty to Warn: The court observed that the ship owner owed the passengers a duty of “ordinary care under the circumstances.”  However, liability can only be imposed (1) if a dangerous condition exists; and (2) the defendant had actual or constructive notice of the dangerous condition.  This means that the insurer also must warn of dangerous conditions that the cruise line reasonably should have known existed.  Further, this duty extends to locations on land where passengers are reasonably expected to go.  The duty to warn is limited to dangerous conditions that are not obvious and apparent to passengers.  Because Wolf failed introduce evidence demonstrating any knowledge or information about safety concerns or past accidents involving OCT, the court concluded that the cruise line did not have a reason to know of any unsafe condition.  Without such notice, the cruise line had no duty to warn.

Negligent Hiring and Retention: Although the cruise line cannot be “vicariously liable” for the acts of an independent contractor (IC), the cruise company can be liable for its own negligence in hiring or retaining an IC.  The court considered the inquiry conducted by the cruise company into the fitness and competence of OCT.  The court found that the pre-selection evaluation and ongoing monitoring that occurred on a monthly basis was sufficient in the absence of negative reports or accidents to hire OCT and continue working with the zip line operator.  The court noted OCT’s reputation in the industry, lack of negative incident reports, and positive consumer reviews.

Joint Venture: The court gave short shift to this argument given that the contract between the cruise line and OCT expressly rejected the notion that the companies were engaging in any form of joint venture.  While the court conceded that a joint venture can exist despite the characterization of the relationship in a contract, there were no facts presented that evidenced the intent of the parties to create such a relationship.

Actual Agency: Wolf contended that an actual agency relationship of principal and agent existed despite the contract between the two companies.  The cruise line exercised significant control over the daily operations of OCT.  According to Wolf, the cruise company imposed a number of “insurance, safety and service standard obligations on OCT” and “performed all billing, advertising, organizing, and direction of its passenger to the OCT.”  The court did not find these allegations to be a sufficient amount of control by Celebrity over OCT to overcome the clear disavowal of an agency relationship in the contract between the companies.

This case demonstrates the challenges in seeking damages from a cruise company for injuries suffered during a shore excursion.  If you have been injured because of the careless or inattentive actions of a cruise line, the Florida Cruise Injury Lawyers at Greenberg, Stone & Urbano offer the assistance you need to obtain the results you desire.  With over 130 collective years of experience representing policyholders across South Florida, our firm provides legal representation of unmatched excellence.  Contact our firm as soon as possible to start on the road to protecting your legal rights.  Our firm received an AV rating from Martindale Hubbell and was ranked as a top firm in South Florida by the Miami Herald.   Put our cruise accident attorneys to work on your case.  Call us at (888) 499-9700 or (305) 595-2400 or you can visit our website to schedule your initial consultation.



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