A year and a half ago, I wrote about the danger of serious injury and death created by the "FlowRider" attraction on Royal Caribbean's cruise ship. The article is entitled Wipeout! Liability of Royal Caribbean Cruise Line for FlowRider Accidents.
In the article, I discussed that the cruise line forces the passengers to sign "Onboard Activities Waivers" before they can participate in certain activities on board the cruise ships. Royal Caribbean claims that these "waivers" protect it from lawsuits whenever a cruise passenger is injured on a FlowRider, as well as during zip lining, rock climbing, or ice skating activities on the cruise ship. We disagree. In our article stated, we stated in no uncertain terms that:
". . . these waivers are invalid. They violate U.S. Federal law which prohibits shipping companies and cruise lines avoiding or limiting liability for injuries and deaths on the high seas . . . if you are seriously injured, check with a maritime lawyer before you take the cruise line's word that their so-called 'waivers' are valid."
Yesterday, the Eleventh Circuit Court of Appeal agreed with us. In a case involving a client represented by our firm and our co-counsel Jonathan Aronson, the Eleventh Circuit struck down the Royal Caribbean "Onboard Activities Waiver," pursuant to a federal statute, 46 U.S.C. § 30509.
The Court summarized the facts of the case as follows:
"Johnson was a passenger on the Oasis of the Sea cruise ship owned by Royal. One of the attractions of this ship was the FlowRider - a simulated surfing and body boarding activity. Before purchasing a ticket to participate in the FlowRider attraction, Johnson was instructed to sign her name to an electronic "Onboard Activity Waiver" ("the waiver"). When she signed her name to the waiver, Johnson agreed to release Royal and its employees from actions "arising from any accident [or] injury. . . resulting from . . . [her] participation in any or all of the shipboard activities [she] has selected."
While receiving instruction for the body boarding portion of FlowRider, Johnson received instructions from an instructor employed by Royal ("Mike") that deviated from the regular use of the body boards, which are different from the surfboards. Mike instructed Johnson to stand on the body board while he was holding it. When he released the board, Johnson fell off the board and suffered a fractured ankle. The maneuver attempted by Mike with Johnson was in violation of Royal's safety guidelines for the FlowRider attraction. These guidelines specifically state that the boards for the surfing portion can be stood upon, while the boards used for the body boarding portion should only be used while lying down."
After we filed suit against Royal Caribbean, the cruise line argued that the waiver precluded our client from recovering for her injuries. The trial court agreed and ended our case a few days before trial. We appealed.
In an opinion released yesterday, the Eleventh Circuit Court of Appeal reversed the lower court. The appellate court ruled that the Royal Caribbean waiver violated 46 U.S.C. § 30509 which prohibits contractual provisions which attempt to limit the liability of the owner of ships for "personal injury or death caused by the negligence or fault of the owner or the owner's employees or agents." The court held that the statute was clear and unambiguous, and there was no exception for recreational, inherently dangerous, or ultra hazardous activities. Although waivers of this type may be enforceable on land, such waivers are illegal and unenforceable on the high seas.
The ruling is significant because there has been at least one death and numerous serious injuries to cruise passengers on the Royal Caribbean FlowRiders.
The interesting thing about this appeal is that in addition to the efforts of Royal Caribbean, the cruise industry's trade organization, the Cruise Line International Association ("CLIA"), filed an amicus curiae brief, trying to convince the appellate court to strip the rights of passengers who are injured during cruises. If successful with this case, Royal Caribbean and the other 25 CLIA cruise lines undoubtedly would have required cruise passengers to sign waivers for all shipboard activities. I doubt that any travel agents who are members of CLIA know what the cruise lines were up to.
The appeal was handled by appellate specialist Phil Parrish.
You can read the entire opinion here. And don't forget to watch "Royal Caribbean WipeOuts!" video below:
Video YouTube lilmikee420
Photo: Cruise Critic