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Maritime Law Update: Passenger Vessel and Duty of Care Owed


Valierie Miller v. NCL (Bahamas) Ltd, No. 16-12019 (11th Cir., March 1, 2017)

Valierie Miller (“Plaintiff”) boarded the Norwegian Cruise Line (“NCL”) vessel, the Norwegian Gem, on February 18, 2015. The very next day, she suffered a fall aboard the ship. She admitted in her deposition that she was aware it was a possibility the Norwegian Gem might encounter bad weather and there was a potential for ship movement while on board the ship. Although Miller felt the ship move throughout the day, she did not feel as though it was too dangerous to walk around. In fact, Miller had been dancing in the Spinnaker Lounge for fifteen to twenty minutes, and at the time of her accident, she was dancing the Foxtrot or a four-count box step. As a result of movement of the ship, she fell to the ground and struck her head on the floor.

By way of background, on the first day of the cruise, the cruise line made emergency drill announcements to its passengers. During the announcements, NCL stated that all passengers should, “be aware of the motion of the ship at all times and also watch for trip hazards.” In addition, a safety video was played in each passenger’s cabin, which informed the passengers that, “[e]ven in calm seas or while docked in port, the ship can move suddenly, or the wind can change direction unexpectedly.”

Legally, to prevail on her negligence claim, Miller was required to prove:

(1) Defendant had a duty to protect Plaintiff from a particular injury;

(2) Defendant breached that duty;

(3) The breach actually and proximately caused Plaintiff’s injury; and

(4) Plaintiff suffered actual harm.

While cruise ship owners and operators owe their passengers, “the duty of exercising reasonable care under the circumstances of each case[,]” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959), the operator, “is not an issuer of its passengers’ safety…There thus must be some failure to exercise due care before liability may be imposed.” Generally, ship owners and operators do not owe a heightened or special duty of care to their passengers. Rather, the duty is one of reasonable care under the circumstances.

The analysis used to determine NCL’s duty in maritime law is intertwined with the analysis of whether a dangerous condition, in fact, existed. A dangerous condition is one that is not apparent and obvious to a passenger. The mere fact that an accident occurs does not give rise to a presumption that the setting of the accident constituted a dangerous condition.

The trial court found that Miller had failed to present sufficient evidence to show that dancing in the Spinnaker Lounge while the ship was moving constituted a “dangerous condition,” or that this condition required anything more than reasonable care by the cruise line. The Court held that Miller had not presented sufficient evidence to establish that any danger posed by dancing in the Spinnaker Lounge was not “apparent and obvious” to Miller as the passenger.

In this case, the Court concluded that any danger of dancing in the Spinnaker Lounge while on-board the cruise ship was an, “open and obvious” danger known to the plaintiff. Therefore, the Court concluded it was not required to analyze whether NCL had actual or constructive notice of a potential danger. Even assuming the danger of dancing on-board the Gem was not an “open and obvious” danger to the plaintiff, the Court still found there was evidence in the record to show NCL had actual or constructive notice of any such potential danger.

Turning to the “duty to warn”, the Court noted it, “extends to only known dangers which are not apparent and obvious.” Because plaintiff’s own deposition testimony conceded the dangers of potential ship movement were “apparent and obvious,” it followed that NCL did not have a duty to warn Miller of such dangers.

The district court granted summary judgment from which the plaintiff appealed. In a very brief decision, the 11th Circuit Court of Appeals on March 1 affirmed the analysis of the lower court judge and the dismissal of the plaintiff’s claims.

The full case is here: http://media.ca11.uscourts.gov/opinions/unpub/files/201612019.pdf

If you have any questions regarding this matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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