In the last several days, while families are grieving the loss of their loved ones on Royal Caribbean’s excursion to the White Island volcano, or are waiting for word whether the bodies of their loved ones will ever be located on the crater, several newspapers have erroneously announced that New Zealand’s so-called adventure tourism law will “prevent victims from suing for damages.”
Australia’s Daily Telegraph (in a subscription-only article) writes that “victims of the White Island tragedy and their families won’t be able to sue either the local tour operator or the cruise line for negligence thanks to New Zealand’s 30-year-old no-fault personal injury laws designed to protect its adventure tourism industry . . .” The New Zealand lawyer who was quoted in the article suggests that family members of those killed and left fighting for their lives will be limited to medical fees covered by New Zealand’s Accident Compensation Corporation. (Others have suggested that the maximum recovery under the no-fault provision are as low as USD $130,000). The opinion is based primarily on the mistaken belief that New Zealand laws will likely apply “because that is where the accident happened.”
Cruise Lines Require Suit to be Filed in Federal Court in Miami
But the fact of the matter is that cruise passengers killed or maimed during cruise excursions routinely file suit in Miami seeking compensation for the damages in a wide variety of mishaps which occur in ports of call around the world. Cruise ship passengers have been involved in numerous incidents involving excursion buses, boats, canoes, seaplanes, zip-lines, ATV’s, dune buggies, open-air jeeps, and scuba outings (see here for a more complete listing).
Miami, of course, is the location routinely chosen by Royal Caribbean as the exclusive location where lawsuits must be filed. Most cruise tickets drafted by Royal Caribbean include in the ticket’s terms and conditions a “forum selection clause” which requires that all lawsuits against Royal Caribbean, irrespective of the nationality of the passengers or the location of the accident, be filed in Federal District Court for the Southern District of Florida. Over thirty-years ago, the U.S. Supreme Court affirmed the right of a cruise line to require injured passengers to file suit here in Miami, notwithstanding that the guests, witnesses, and doctors are located, and the accident took place, far away from this jurisdiction.
Royal Caribbean’s Sister Company, Celebrity Cruises, has been Successfully Sued in Miami for Injuries to its Guests in New Zealand
In 2017, we reported on a cruise sponsored excursion, involving passengers from the Celebrity Solstice, who were involved in a tour bus accident in New Zealand near the South Island town of Akaroa. The terms and conditions of the passenger’s tickets required that suit must be filed in Miami. The injured guests filed suit against Celebrity Cruises for its alleged negligence / failure to warn and its vicarious liability for the excursion tour operator, seeking the full range of damages (pain and suffering, grief and bereavement, lost wages, disfigurement, medical expenses, etc.) permitted under the General Maritime Law. The case settled within a year.
A Court in Miami Will Ultimately Determine Which Law Applies
We have been successful in having the courts apply Florida’s wrongful death statute, in addition to the General Maritime Law, in cases filed here in Miami against Royal Caribbean arising out of deadly excursion accidents. The cruise line will try and avail itself of all possible defenses of course, but the no-fault laws of New Zealand should not be enforceable in litigation filed against Royal Caribbean here in Miami.
The General Maritime Law Required Royal Caribbean to Warn its Guests that the “Eruptive Activity” of the Volcano was “More Likely than Normal.”
The law is clear that a cruise line is legally required to warn its passengers of dangers in foreign ports of call which it knows or should know about. In a historic and tragic case, the Eleventh Circuit Court of Appeals acknowledged for the first time that cruise lines have a duty to warn their passengers of dangers ashore in places where their passengers are known or expected to visit during ports-of-call. You can read a summary of the opinion here.
Royal Caribbean, which has not even publicly acknowledged yet that it sponsored the tour, charged its guests $324 each for the “White Island Volcano Experience Cruise and Guided Exploration” (excursion number TR93). Royal Caribbean quickly deleted the advertising (image right) from its website the day after the catastrophe, but a cache copy can be reviewed here.
About a week before the eruption, the New Zealand geological entity, GeoNet, stated that although the volcano was “regularly throwing mud and debris 20-30 meters into the air . . the current level of activity does not pose a direct hazard to visitors.” GeoNet forecast that “moderate to heightened volcanic unrest” was to be expected for the White Island volcano. On December 3rd, GeoNet stated, in part, that the “volcano may be entering a period where eruptive activity is more likely than normal” (emphasis added).
It does not appear that Royal Caribbean provided any written warnings to its guests, via its online brochure, that the excursion could cause them injury or death. The language of the Royal Caribbean online brochure, in fact, contains absolutely no warnings at all. It has not been made public whether the local tour operator, who Royal Caribbean refuses to officially disclose, may have provided some type of warning after the cruise guests had already booked the excursion.
The excursion descriptions and “general information” in the cruise line’s excursion guide for Australia/New Zealand does not contain a single word about a warning of any type.
The Royal Caribbean excursion brochure starts by stating “Royal Caribbean International prides itself in providing an array of exciting, appealing and enriching tours that make your experience unforgettable. As you travel to some of the most exciting places in the world, let our destination experts plan your time ashore.”
The brochure does not clearly and conspicuously state that the tour was operated by a company separate from Royal Caribbean. In the third to last sentence in its voluminous brochure, it states that “shore excursions are operated by independent third parties. Royal Caribbean Cruises Ltd. has no responsibility for the performance of the Shore Excursions herein specified.” There is absolutely no other reference to a third party in the brochure’s 79 pages.
It appears unlikely that any of its three dozen or so guests who went on the excursion ever read any of this text buried in the fine print in the cruise line excursion guide.
Shore Excursions are a Major Money-Maker for Royal Caribbean
Like most cruise lines, Royal Caribbean collects the bulk of its profits apart from just selling cruise tickets. The majority of the cruise line’s enormous profits comes from alcohol sales, operation of casinos, and shore excursions. Royal Caribbean takes its customers to 322 ports of call around the world. The cruise line sells dozens of shore excursions in each port of call. It advertises 79 excursions in its current online brochure for Australia/New Zealand, and 11 excursions alone just for Tauranga, New Zealand, including the tour to the volcano.
Royal Caribbean representatives have testified in prior lawsuits involving the death of its customers during excursions that it operates over 4,500 excursions using tour operators around the world. Its sister company, Celebrity Cruises, operates around 3,000 excursions. In addition to the legal duty to warn its passengers of dangers in ports of call, Royal Caribbean has a legal duty to conduct a thorough background check into the reputation, qualifications and safety record of each tour operators which it involves in its excursions. It is legally required under U.S. maritime law to vet the individuals and companies who/which provide excursions in each port of call.
Whether Royal Caribbean properly vetted the excursion company in question is yet to be determined, but it is clear that the cruise line cannot possibly properly vet over 7,500 different tour companies in the combined Royal Caribbean/Celebrity excursion offerings in any given year. Yet, pushing excursion sales is a fundamental part of this billion dollar corporation’s business model.
Did Royal Caribbean Warn Its Passengers or Vet the Excursion Company?
The answers to both of these questions is probably not, in my estimation. Primarily motivated by profit, this cruise line does a poor job vetting excursions and warning passengers of dangers it knows about.
Sending families without a warning into the crater with virtually no way to flee when it was more likely than normal for the volcano to erupt is exceedingly reckless.
The families affected by the White Island volcano eruption may face a lifetime of grief and bereavement following the loss of their loved ones, not to mention those who survived the ordeal but are facing ongoing pain and suffering and permanent disfigurement. These people are entitled to the full range of damages permitted by U.S. maritime law, not the pittance offered by New Zealand’s non-fault scheme.
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Photo credits/Screen grabs:
White Island Volcano Experience Cruise and Guided Exploration – Royal Caribbean Cruises.
Australia/New Zealand Shore Excursion Guide Cover – Royal Caribbean Cruises.
Ovation of the Seas – Maksym Kozlenko – Own work, CC BY-SA 4.0, creative commons / wikipedia.
Excursion Collage – CBS This Morning.