Statement of
John H. (Jack) Hickey*
P:
305.371.8000
F:
305.371.3542
For
The
Committee on Transportation and Infrastructure
Subcommittee on Coast Guard and Maritime Transportation
Hearing on
March 27, 2007
*Board Certified Civil Trial Lawyer
by The Florida Bar and by the National Board of Trial Advocacy
Thank you Congressman Cummings for inviting me to speak before the Subcommittee on Coast Guard and Maritime Transportation. I am honored.
For 27 years, I have practiced maritime
law in the cruise ship capital of the world,
I am Board Certified as a Civil Trial
Lawyer by both The Florida Bar and the National Board of Trial Advocacy. I have been honored to serve as the President
of the Dade County Bar Association (the largest voluntary bar association in
the state of
The passengers I represent are people from all across our country. My clients are young and old, rich and poor. They all have one thing in common. They were severely injured either by the negligence of the cruise lines or by a sexual act of one of the cruise lines’ unsupervised, under trained, and overworked personnel.
This paper will briefly discuss some
of the issues regarding the safety and security of passengers on board cruise
ships the overwhelming percentage of whom are your constituents. (The cruise lines rely on and market to
Americans. According to the cruise line
supported trade association, Cruise Lines International Association, in 2005
11,180,000 people took cruises, almost 90% of whom (9,671,000) were from
THE ISSUES
Most claims brought by a passenger or crewmember against a cruise line are governed by maritime law. The passenger or crew member seeking justice against the cruise lines is met with more obstacles than in any other area of the law. This is
true because of the power wielded by the cruise lines over the accident or crime scene, over the evidence, and over the witnesses. This is also true because of strange twists of some federal legislation (namely the Death on the High Seas Act) (DOHSA) and some recent court opinions some of which run counter to maritime concepts which have been established for hundreds of years.
THE HYPOTHETICAL
The obstacles meeting the passengers and crew members can be best illustrated in a hypothetical. My comments and descriptions of real life cases are in brackets. Let us imagine this:
RoyalCarn Cruise Line schedules a
cruise of one of its ships to sail from a port right outside of
Lisa
Smith is a passenger onboard the Fantasy of the Seas. Lisa is a 35 year old school teacher from
RoyalCarn markets this concept of safety and security through its advertising and on-line literature. [When Carnival advertises itself as “the fun ships” in its literature it says, for example, “There’s nothing as carefree and fun-filled as a cruise vacation”. Carnival also says “A Carnival cruise is more than just a vacation. It’s an attitude. It’s a spirit to be yourself fun that no other cruise line can offer. From the inviting décor to the friendly staff, you will feel the difference right away”]
[Royal
Amazing ports of
call, exciting adventures and spectacular ships are certainly great reasons to
cruise, but the one thing that keeps people coming back again and again to
Royal Caribbean is our friendly and personal service. In fact, the feedback we hear all the time is
“It just feels like family”. A server who remembers your daughter’s teddy
bears’s name. The bartender who
remembers the extra olive. The
housekeeper who reminds you of your dinner reservation time. The
(Emphaisis added). Attached hereto as composite Exhibit 2 is a copy of a sample of the Carnival and Royal Caribbean literature].
Bill and Lisa are onboard the Fantasy of the Seas to celebrate their 10th wedding anniversary. Even though RoyalCarn serves wine, beer and liquor in its many restaurants, at the pool bars, in the discos and nightclubs, and just about anywhere on the ship, Bill and Lisa are not much for drinking. However, they celebrate their anniversary with a bottle of champagne in the restaurant. Lisa drinks too much. She gets up from the table and is extremely tipsy. In fact, she is slurring her words. She says she is not feeling well, excuses herself and goes back to the room leaving Bill at the table.
The head waiter, Soliman, observes
this. He is from
When Soliman sees Lisa go back to her room, he meets up with her in a hallway. He realizes that she is not able to walk steadily and that she is drunk. Soliman escorts Lisa back to her room. When she opens the door to the cabin, Soliman pulls off Lisa’s clothes and rapes her. He leaves the cabin shortly after that. Lisa later wakes up but does not remember exactly what happened. There are no witnesses, but she knows she was raped. [This scenario with different names actually happened onboard a cruise ship. The head waiter still works for the cruise line we are advised].
Maria Casa is 43 years old and is a single mother of two children, 5 and 7. She is recently divorced. Maria’s mother, Beatriz, feels sorry for Maria and in order to get her out of her blues from the divorce pays for the two of them to go on this cruise. Beatriz knows that Maria is very attractive and has her whole life ahead of her.
On the third night out, when the ship is at sea, Maria goes by herself to the casino. There, she attracts the attention of an officer onboard the ship. The officer tries to chat with Maria who is not interested. The officer pushes forward with his advances.
Finally
the officer invites Maria out onto a landing outside the casino to look at the
ocean. Maria agrees. She goes out to the landing. The officer again makes advances on Maria,
this time trying to kiss her. Maria
strikes back by slapping him in the face.
The officer is from
There is a security camera trained on the landing. This camera, as all cameras onboard, is “monitored” in a central security room. In that room, there are numerous monitors with different views of the ship.
A security officer, Tony Calderon from the Philippines, is supposed to monitor those cameras. Unfortunately, Mr. Calderon was sleeping at the time. Mr. Calderon has been on board the ship for more than 5 months. A month before, Mr. Calderon had broken up a scuffle between crewmembers and broke his hand. The ships’ doctor diagnosed this as a sprain and told him to live with it. Mr. Calderon has chronic pain in his hand. He wanted to live with it because he knew that if he complained and demanded to be sent off the ship, even if the cruise line got him a doctor, they would fire him and send him home. Mr. Calderon cannot have this because he sends home money from his salary for his wife, 5 children, mother and uncle who live with his family back home.
Because of the chronic pain in his hand, Mr. Calderon does not sleep through the night. He takes pain medication. Because of the lack of sleep and the pain medication, he finds himself napping at various times during his shift. Unfortunately, he was napping when this incident took place and was unable to break up the scuffle on the landing.
The next day, Maria’s mother,
Beatriz, reports that Maria is missing.
Scratches are found on the officer who escorted Maria out to the
landing. Blood is found on the
landing. The blood, however, is cleaned
up by cleaners at 6:30 a.m. the next day.
In fact, the entire landing is cleaned up. There had been a wine glass and purse on the
landing. That was cleaned and taken
away. [The cleansing of the crime scene is taken
from the George Smith honeymooner disappearance case which happened on a Royal Caribbean
ship off the coast of
Before any outside authorities are
notified, the cruise line notifies its claims department in
Beatriz, Maria Casa’s 58 year old mother,
is beside herself when Maria is not found the next day. No one is telling her any details. This ship’s security officer, in charge of
investigations, has told her nothing.
The security officer tells her he has law enforcement experience. In fact, the officer, Charles Cheshire, is a
retired police officer from a small town in northern
After
a day of worrying and not being given details, Beatriz starts to have pains in
her chest and suffers from indigestion.
This goes on for approximately 2 days.
Maria goes to the ship’s doctor as the ship is still out at sea. Beatriz feels comfortable with this doctor
because the cruise lines calls these people “the ship’s doctor” and requires that
they wear the white officer’s uniform.
Beatriz felt comfortable also because the cruise line literature
mentioned that they have a doctor onboard for medical care; and the cruise line did not say anywhere that the cruise
experience is reserved only for the young and athletic. [In fact, most cruise line passengers are
American and are middle aged or older. Shipboard
medical personnel are rarely
Beatriz complains of the symptoms. The doctor says that she has an upset stomach and gives her Prilosec. Beatriz goes back to her cabin. The very next day, Beatriz suffers from a massive heart attack and suffers oxygen deprivation to her brain. As a result of this, Beatriz ends up in a wheelchair for the rest of her life.
The Fantasy of the Seas on its way
to
Also, Royalcarn represents in its literature that it “monitors” and “continuously reviews” it excursions. [This is actually the wording used by Norwegian Cruise Line in some of its literature. This is meant as a reason why the passenger should sign up for the excursion on the ship as opposed to getting off the ship in a port and getting an excursion there. The excursions are sold on board at an excursion desk. The passenger pays for the excursion through his or her onboard account. He settles the onboard account at the end of the cruise with his credit card. In fact, though, the cruise line typically takes 35% of the price of the excursion and lets some local company with little or no supervision or “monitoring”—and no training from the cruise line-- run the excursion].
Fred
and Ethel Mertz, two 72 year old retirees from
While leaving
Life boat Number 3 on the port side is manned by the Croatian First Officer onboard, Frederick Baklava. [Fire is the worst kind of shipboard disaster; they have ocurred on cruise ships in the past].
The only problem is that Baklava is nowhere to be found. A year before, Baklava was climbing down a latter which his superior officer said was to be utilized to enter fast rescue boats for security exercises around the port. Unbeknownst to Baklava, however, the ladder was broken. While climbing down this fixed vertical ladder, Baklava fell backward into the boat he was entering. He severely hurt his back. Baklava had problems ever since. The cruise line sent him to doctors. Some doctors said that Baklava had a herniated disc. Others said that he did not. The cruise line chose to believe the doctors who said there was no herniated disc. Even if the disc was only bulging, all agreed that Bakalva did not meet the physical requirements of a crewmember, the ability to lift up to 50 pounds. However, the cruise line sent him back onboard the ship. [This paragraph is based on a real life case].
Baklava came upon the fire. When he went to lift a fire extinguisher, a pain shot through his back and he had to drop the fire extinguisher. As a result of the fire in that part of the ship, 3 people died.
Baklava then headed to his life boat. He got into the life boat with another crewmember that was assisting him. The other crewmember was not trained on a lifeboat, however. In fact, just one month before, that same lifeboat was put out of service after the crew complained to the officer in charge of the drill that the handle on the throttle had come off. At that same time, the crew complained that some of the others of the crew were not trained to operate the lifting mechanism for the boat. Nothing changed.
On the day of this fire, the other crewmember hit a lever near the cockpit thinking that it needed to be locked. In fact, the lever was to release the boat and should have been locked if it was operating correctly. In any event, no one should ever touch the lever when the boat is dangling 90 feet in the air by its cables. The lifeboat, with Baklava, the other crewmember, and 4 other passengers, fell 90 feet from the side of the ship into the water below. The fiberglass lifeboat was severely damaged in this high impact crash. All people onboard were severely injured.
[On September 7, 2004, a lifeboat on the Royal Caribbean ship Empress of the Seas during a lifeboat drill fell from the side of the ship, approximately 60 to 90 feet, with 8 cremembers onboard. The 30 foot fiberglass boat broke apart on impact with the water. At least five of the men were severely injured. A similar incident had happened approximately one year before. The other facts in this paragraph, with the exception of the fire, actually happened].
That was the second time in as many years that that happened. However, no crewmember was willing to blow the whistle on the cruise line for not properly training people and not properly maintaining the equipment for these lifeboats. They knew that if the reported this to anyone, the crewmember would be fired and sent back to his native country, never to be hired again.
THE LAW ALLOWS THE CRUISE LINES TO ESCAPE JUSTICE.
Here are the issues:
A. Lisa
Smith – RAPE CASE
The problem in this type of case, as in all cases against cruise lines, is that cruise lines control the crime scene or the accident scene, the evidence, and the witnesses. Typically, the cruise line has sanitized or covered up the crime scene and shuttled witnesses back to their home countries. Few employees have ever been convicted of criminal sexual assault. That is because if there is any fear of true prosecution, in other words, if there is any physical evidence, against the individual, the individual is immediately flown home to the third world country over which the FBI has no jurisdiction.
To make sure that the cruise line is covered for any potential civil action, the cruise line flies an attorney to the ship immediately after the rape occurs. These are insurance defense attorneys. They are there not to help the victim and not to assist the FBI, but to protect the cruise line’s civil liability. In other words, an adversarial position is taken immediately and the victim of the rape is either on board the ship, controlled by the cruise line, or put off in an unfamiliar, foreign port.
The cruise lines have a long
history, continuing to this day, of failing to properly disclose the incidents
of sexual assaults, sexual batteries and similar incidents. 1999 was the year in which the light started
to shine on the infection. In that year,
in a sexual assault case brought by a passenger, a judge in
Also that year, Royal Caribbean commissioned a report from Kay Krohne of the Krohne Connection, a well known consultant to corporations on sexual harassment and assault issues. In a 16 page report, Krohne found, among other things, that “improper activity occurs frequently aboard ships but goes unreported and/or unpunished”.
Specific recommendations were made to the cruise line. The cruise line admits even recently in sworn testimony that only some of those recommendations were implemented. In fact, the current director of Fleet Employee Relations and Performance for Royal Caribbean International testified in a deposition on July 13, 2006 that even though she is the person in charge of all of the sexual harassment and assault training of the personnel on all of the Royal Caribbean ships, she did not know that in the past there were studies about these problems.
The cruise lines use “hiring partners”, people in third world countries to bring prospective crew members to them for a fee per crewmwmber to do the hiring and screening. The cruise lines get involved only in the “training and monitoring”. Part of the training is by video and part by a talk given by their supervisor. In the manual which describes the training which is supposed to be given, it is suggested that the cruise line review the definitions of sexual assault and battery and other policies for only 10 minutes. Attached hereto as Exhibit 3 is a copy of pages of 15-17 of the New Employee Orientation of Royal Caribbean Cruise Line.
The other problem is in determining the incidence of sexual assault, battery, and other incidents. It seems that every time the cruise lines report these incidents, they arrive at a different number. The cruise line has a data base of its sexual assaults, rapes, and batteries. See, e.g., page 34 of the deposition of Pamela Powel (Manager of Guest Claims who has worked for Royal Caribbean for 18 years) taken on February 7, 2007, a copy of which is attached hereto as Exhibit 4.
The
cruise lines however never produce their databases. They produce some attorney generated document
which is based on some narrow, self-chosen definition of “sexual assault”,
“sexual battery”, or other phrase.
When
reporting to the Congressional subcommittee organized by Congressman Shays, Royal
Caribbean provided a list of sexual assaults or batteries onboard its ships for
a 3 year period of 2003 through 2005. A
copy of the list is attached hereto as Exhibit
5. The number was 66. However, in sworn answers to interrogatories
recently filed in
B. Maria Casa – ASSAULT – WRONGFUL
DEATH
Maria Casa drowned in international waters. The first challenge is to prove liability on the cruise line. The crime scene had been “cleaned up”. Thus, the physical evidence has been all but destroyed. The problem with any cruise ship is that the scene of the crime of the accident (a) moves constantly and (b) is under the complete control of the cruise line.
Why
is the ship under their complete control? Because the cruise lines flag, that is,
register, their vessels in foreign countries.
Virtually all cruise ships are foreign flagged. That is to take advantage of lax regulation
and little or no taxation in the flag state. These flag states typically are
Maria’s family, however, has an even larger hurdle; the Death on the High Seas Act (DOHSA), 46 USC § 761 et seq. DOHSA allows recovery generally only for economic damages. That is, neither Maria’s mother, Beatriz, nor any of her children or family will be able to recover for their pain and suffering from the loss of their mother. The only pain and suffering allowed is the pre-death pain and suffering. Here, Maria died within minutes. Further, as in many of these cases, there is no proof that Maria had lived for any period of time. Because Maria did not generate income, her family could not recover anything as a result of her death.
C. Tony Calderon- Philippino Seaman – DENIAL OF MEDICAL CARE AND RIGHT TO SUE
Tony Calderon may also be out of
luck. Tony found that he is subject to a
collective bargaining agreement, the Philippino version of which is referred to
as the POEA. This is an agreement which
he had never signed. However, under this
agreement this cruise line has chosen to enforce a foreign arbitration
clause. That is a clause which erases
Tony’s rights to sue for denial of his medical care under the Jones Act and
other maritime doctrines. Under this
clause, the seaman is forced to arbitrate and to do so in this case in the
From the very beginning of American civilization, courts have protected seaman whom the courts have described as “unprotected and in need of counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. They are emphatically the wards of admiralty.” In the 1920’s, Congress adopted the Jones Act, formerly 46 USC § 688 and codified on October 6, 2006 as 46 USC §3010. The Jones Act codified the right of seaman which had been recognized for centuries. The Jones Act has been described as follows:
The protection of seaman, who, as a class, are poor, friendless and improvident, from the hazards of illness and abandonment while ill in foreign ports; the inducement to masters and owners to protect the safety and health of seaman while in the service; and maintenance of a merchant marine for commercial service in maritime defense of the nation by inducing the men to accept employment in an arduous and perilous service. Admiralty courts have been liberal in interpreting this duty for the benefit and protection of seaman who are its wards.
Vaughan v. Atkinson, 369
Yet, contrary to language in the Jones Act and language in the Federal Arbitration Act, 9 USC § 1 et seq., the Eleventh Circuit Court of Appeals recently has held that foreign seaman, specifically Philippinos in regard to their POEA, are prohibited from filing suit in the United States to enforce their rights. Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005).
The
Bautista case arose out of the Norwegian Cruise Line boiler blow up at the
One of the Jones Act remedies
available to the seaman if enforced in the
D. Beatriz
Casa – MEDICAL MALPRACTICE
Maria’s mother, Beatriz, also may be out of luck. She clearly is the victim of medical malpractice. She was onboard the ship and went to the only available physician, the ships physician. The ship advertised that it had a physician. The older cruisers liked the sound of that in the literature. The ship’s physician misdiagnosed her heart attack as indigestion. If he had promptly diagnosed the heart condition he could have administered aspirin, nitroglycerin, and oxygen. He also would have monitored Beatriz in the infirmary if he had the instrumentation to do that. If he did not, he could have recommended that Beatriz get off at the nearest port or take and air ambulance to the nearest medical center. Instead, the ship’s physician mislead Beatriz into a false sense of security, misdiagnosed her ailment and caused her severe and permanent injury. In this area, the cases seem to afford more protection for the cruise lines than for the safety and security of the 11 million people in 2005 who took cruises.
In
Carnival Corp. v. Carlisle, ___ So.2d
____ (
E. Fred and Ethel Mertz- THEIR EXCURSION CASE
Fred and Ethel if the cruise lines have their way also will be out of luck. The cruise lines market these excursions on TV and radio, in newpapers on their websites. The excursions are a part of the cruise experience. Plus, the cruise lines make various representations in its literature about the excursions, and how you the passenger should choose this excursion marketed by the line as the one which is safe and reliable. Further, the passenger pays for the excursion on the ship.
Yet, when contacted about a claim or even a complaint in regard to an excursion, the cruise lines contend that the excursion company is an independent contractor. Courts have been reluctant to hold that the cruise lines and the excursions are partners although the relationship does appear to be that in some instances. Liabiliity can depend on the representations, expressed or implied, by the line about the excursion and how the line screens it and monitors it.
F. Frederick
Baklava – DENIAL OF JONES ACT CLAIM AND DENIAL OF MEDICAL CARE
Baklava, through the new foreign arbitration clause in his contract, has been denied his right to assert a Jones Act claim. He has also been denied medical care.
Even though the life boat fell a
year ago in a similar mishap but involving no injuries, Baklava did not report
this. He would have been fired and sent
back to his country. Also, he dares not
to protest his medical care of the doctors.
Now that his rights to bring a lawsuit and enforce his Jones Act rights
in the
Why should you care about Tony
Calderon, the security officer from the
- Approximately 90% of the passengers on cruise vessels
for the
- The cruise ship is isolated body out in the ocean where the passengers cannot get off and go back home easily.
- The passengers rely on the cruise line to take care of their food preparation, their health, and their security.
- The passengers have an interest in having crew who are healthy and comfortable with reporting their health problems.
- Recently, there have been a rash of extremely contagious cases of Norovirus and other infectious diseases on cruise ships. Passengers and crew have gotten extremely sick for days, and there have been some deaths and aggravation of health issues as a result of these outbreaks. These outbreaks always involve the crew as well as the passengers.
- Crew members are responsible for the safety and security issues onboard. If the crew are working in a sick or injured condition, then they cannot fulfill their duties. Further outbreaks of disease from the sick crewmember handling food may easily result.
- There have been fires in recent years resulting in injuries and potential disasters on cruise ships. Fire is the most treacherous and potentially disastrous condition on any ship. It is crucial that all crew members be in top shape in order to deal with a fire emergency.
- Crew members are responsible for the lifeboat drills and for supervising passengers getting into lifeboats if there is a fire or other event which requires abandoning ship. Crewmembers are also responsible for fire patrol and for putting out fires. For that reason, in their job description, all of them have to be able to lift up to 50 pounds. Crew have to be physically fit and able to carry people who are injured, to carry and use a fire extinguisher to assist passengers some of whom may need to be carried onto life boats. The crew members subject to this requirement include the hotel staff, that is, waiters, busboys and dishwashers. If a crewmember is sick or injured because they have not reported an illness or injury (out of fear of retaliation) these operations can be compromised and the safety and security of the passengers can be compromised.
RECOMMENDED SOLUTIONS
Congress should consider amending the Death
on the High Seas Act so that victims of a cruise ship’s negligence are treated
the same as victims of commercial aviation accidents. Lead by the
Senior citizens are particularly vulnerable to a cruise ship’s negligence. Cruise lines market to older Americans as a safe way to travel. If a senior citizen is assaulted in her cabin and left to die, the only remedy a spouse has under the DOHSA is burial expenses. Congress should amend the DOHSA so that all victims who die in international waters have an adequate remedy.
Congress should consider requiring the cruise lines to preserve crime scene evidence. All too often, cruise line management orders the cleaning crew or maintenance staff to scrub a potential crime scene clean. Before any official report or investigation can occur, blood, clothing and other physical and trace evidence is destroyed. The cruise industry should be required to preserve crime scene and potential crime scene evidence until appropriate authorities can investigate the matter.
Congress should consider creating a central data base to collect information about crime on cruise ships. Incredibly, cruise lines are not required to report crimes occurring on board to any authority. While the FBI has jurisdiction over crimes occurring in international waters, they are often not notified. And the public has no way of knowing of a particular cruise line’s safety record. Since a cruise ship is a self-contained entity, cruise lines can provide a false sense of security to their passengers. The data collected should be available to the public. A knowledgeable consumer can make better choices about how to spend his or her vacation dollars.
Congress should consider providing
whistleblower protection for cruise line employees who report crimes. While cruise lines cater primarily to
Congress should consider amending the Federal Arbitration Act to make it even clearer that the Act does not apply to actions brought by seaman under the Jones Act or for other maritime remedies. This would be in the conformity with the original intent both of the Federal Arbitration Act and the Jones Act.