FlowRider Accidents: Royal Caribbean Liability Waivers Are Unenforceable!

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 FowRider - Cruise Ship - Royal Caribbeanand 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

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Comments (11) Read through and enter the discussion with the form at the end
will - December 21, 2011 4:53 PM

You break something. It was you. You sue the ships and there goes the fun stuff. And high prices too

kevin - December 26, 2011 6:43 PM

I agree with Will, you are the guys that take the fun out of life for others. If you do not want to take the chance of being injured stay at home. Our country is so damn sue happy that it's left a very sterile and high priced life to live for our kids.

Normal Person - December 26, 2011 8:23 PM

I can tell that this is bogus because:

1. There is no ticket to purchase, so that's a lie.

2. There has never been a death attributable to the Flowrider on Royal Caribbean, because I have never heard of it. Why is this valid? Because the community on Cruise Critic would have been all over it, and there hasn't been a peep.

Q.E.D.

Jim Walker - December 26, 2011 8:23 PM

"Kevin:"

Of course you agree with "Will" who is equally afraid to leave a real full name like you.

When your children, who you mention, are maimed by corporate negligence - you will realize that cruise lines and other big companies may like your money but they care not a whit when their malfeasance harms your family.

Jim Walker

Jim Walker - December 26, 2011 8:57 PM

"Normal Person:"

Ah, another Cruise Critic cruise fan with a bogus name and fake email address.

Yes, you have to buy a ticket for a private lesson.

Yes, there was a death on the Royal Caribbean FlowRider. I mentioned it a year ago on this blog. The cruise line was forced to testify about it under oath. Would you like a copy of the deposition?

You should respond with your real name, address, e-mail address and telephone number (like I do here) and I will provide you the name of the dead passenger.

Perhaps you can call the wife and kids and tell them that it's "bogus" that their husband and father died?

Jim Walker

Dennis Singlet - December 26, 2011 9:16 PM

Jim, I have a question for you. If "Mike" hadn't instructed Ms. Johnson to stand on a board that was supposed to be used for kneeling or laying only and instead she got hurt just from normal usage would she still have the right to sue? And if so why?

Jim Walker - December 26, 2011 11:03 PM
Dennis Singlet - December 27, 2011 3:49 PM

Jim, the way I interpret this opinion is that the waiver is void due to the laws stated. But this doesn't answer my question. I understand that RCL can't limit liability if RCL or their employees are negligent. But if someone gets hurt doing an onboard activity without RCL or their employee giving advice contrary to normal usage is RCL still responsible?

Jim Walker - December 27, 2011 9:48 PM

Dennis:

Your first question was does an injured passenger have the right to sue. Yes. There is no legal prohibition insulating the cruise line in this situation. The second question is whether the cruise line is legally responsible. That depends on the facts of each case. Depending on the specific facts of a particular incident, the cruise line can be liable if it is negligent for failing to warn, and/or it operates the attraction negligently, and/or if it was involved in designing the attraction in a dangerous manner.

Thanks for your inquiry.

Jim Walker

Brenda Drapinski - January 19, 2012 4:01 PM

I think everyone who uses the flow rider should take a private lesson first, not every time but at least once. I did and I really enjoyed it, once I figured out the concept of what I was doing it was so fun. Sure I wiped out but I feel I was a better rider because I had training first.I'm over 40 so wiping out is a bit more brutal for me than a young kid, but no worries all my wipe outs were fine.

Laurie - December 5, 2012 11:41 PM

I want to pass on to your readers that the FlowRider is indeed dangerous. My husband was temporarily paralyzed on this attraction. Was dumped off in a foreign European port and ended up in a third-world hospital with no means of returning to the ship. Except for the wisdom of my teenage son who went with him, they were able to return to the ship and eventually return to the United States. He underwent spinal/neck surgery and over a year of rehabilitation to return to normal activities. This ride is not a joke, people need to be very cautious about riding it.

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