Liability Waiver Signed by Cruise Line Passenger While on Sea-Doo Excursion is Void Under Limitation of Liability Act

As described in In re Royal Caribbean Cruises, 2013 U.S. Dist. LEXIS 14610 (S.D. Fla. Feb. 4, 2013), Linda Arnold and her husband, Glynn Daniels [the Court in its opinion refers to Daniels as her “boyfriend,” but in her filings in the case, Arnold says Daniels is her husband], went on a three-day cruise aboard Royal Caribbean Cruises, Ltd.’s (“Royal”) ship, the “MONARCH OF THE SEAS.” The cruise began and ended at Port Canaveral, Florida. While on a planned stop at Coco Cay, Bahamas (an island operated by Royal), Arnold and Daniels signed up for a personal watercraft (“PWC”) tour of the island, offered by Royal. To participate, they had to go through a safety orientation conducted by Royal employees. They were each also required to sign Royal’s liability waiver form, called a “Personal Watercraft (Wave Jet Tour) Express Assumption of the Risk – Waiver & Release of Liability.”

2010 Sea-Doo Model GTI-130

2010 Sea-Doo Model GTI-130

[As an aside, the Court in its decision refers to the PWCs throughout its opinion as “jet-skis” or “jet skis.” Even though the term “Jet Ski” is often used to refer, generically, to various makes of PWCs, I am confident the manufacturer of the product, and owner of the trademark, Kawasaki Motors Corp., U.S.A., would not be pleased. And, actually, the two PWCs involved in the accident you are about to read about were 2008, 2009, or 2010 model GTI-130 “Sea-Doos” (another registered trademark), manufactured by Bombardier Recreational Products Inc. Royal states in one of its filings in the case it’s unsure which Sea-Doos were actually involved in the accident: “there were fifty-eight (58) Seadoo jet skis in use by Petitioner at Coco Cay, Bahamas. All of these Seadoos were GTI-130 models and all were from the years 2008, 2009, or 2010. As the exact Seadoos involved are unknown, Defendant stipulates, for the purposes of this Complaint, that the jet skis involved in the crash were the most valuable jet skis in use at Coco Cay at that time, i.e., the 2010 GTI-130.”]

Royal Caribbean Cruises Ltd.'s MONARCH OF THE SEAS

Royal Caribbean Cruises Ltd.’s MONARCH OF THE SEAS

So, Arnold and Daniels go on the PWC island tour. This is held in single-file, follow-the-leader format, with guides aboard PWCs in the lead and tail positions, while the guests are to be widely spaced in between on their own rented PWCs. Arnold and Daniels were on the Sea-Doo which was sixth in line. Daniels was driving. Arnold was the passenger. The plan was that when the tour began, the guide who was to eventually ride at the end of the line would ensure guests only departed on their PWCs when there was a sufficient gap between them and guests in front of them. But, sometime after the tour began, the guests aboard the fifth-in-line PWC slowed down. Daniels in turn slowed his and Arnold’s PWC, which was just behind the fifth-in-line PWC. But, other PWCs behind them caught up, failed to maintain a gap, and Arnold’s and Daniel’s PWC was struck by the PWC operated by another guest, who was either the eighth or ninth in line. Arnold was injured.

Royal filed suit in Florida federal court under the federal Vessel Owners’ Limitation of Liability Act, 46 U.S.C. § 30505. This statute allows a vessel owner to seek exoneration from liability in an offensive filing in federal court, and, alternatively, to seek to have its liability limited to the post-casualty value of its vessel(s), if it can show that it lacked privity to or knowledge of the acts, events, or conditions which caused the accident. In its Limitation Act suit, Royal thus sought to be exonerated from liability for the accident, or alternatively that its liability be limited to $9,600, the maximum potential value of its two Sea-Doos involved in the accident.

In her Claim, filed in Royal’s Limitation of Liability Act case, seeking to recover for her injuries which she alleged were caused by Royal’s negligence, Arnold wrote:

“During the preparations for the excursion when the group participants came together, Plaintiff and other participants observed the driver of the Jet Ski who struck Plaintiff, and her companion, to be acting erratically, inattentive to the instructions, and overtly under the influence of drugs or alcohol, sufficient to give ample notice the Defendant, RCCL, its agents and employees, including the Jet Ski operators and instructors who have a duty, under the circumstances, to control said unfit participants and prevent them from participating as unable and potentially harmful to others.”

Royal asked the Court to dismiss Arnold’s claims. It argued Arnold had waived her right to sue when she signed Royal’s waiver. U.S. District Judge Robert N. Scola, Jr., however, denied Royal’s motion. He found Royal’s waiver was invalid under federal law, specifically, under another section of the Vessel Owners’ Limitation of Liability Act, 46 U.S.C. § 30509, which voids contractual provisions which purport to limit passenger vessel owners’ liability for personal injury or death. Section 30509, entitled “Provisions limiting liability for personal injury or death,” states:

“(a) Prohibition.

(1) In general. The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting–

(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or

(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction

(2) Voidness. A provision described in paragraph (1) is void.”

Trial of the Arnold case is scheduled to begin on September 9, 2013, in Miami.

The U.S. Eleventh Circuit Court of Appeals, in an unpublished decision rendered in December 2011, in Johnson v. Royal Caribbean Cruises, Ltd., similarly found Section 30509(B)(2) voided the same cruise line’s electronically-signed aboard ship release.  See http://www.ca11.uscourts.gov/unpub/ops/201111729.pdf

To learn more about the Vessel Owners’ Limitation of Liability Act, click the link to read my November 2011 column in MarineNews magazine, “The Vessel Owners’ Limitation of Liability Act — An Anachronism that Persists, For Now.

Finally, if you’re wondering why I included a discussion of this Royal Caribbean case, which seemingly has nothing to do with towboats and barges, in Towboatlaw, just send me an e-mail or “leave a reply,” and I’ll explain. 🙂

Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen and passengers aboard commercial vessels primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.   If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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