February 25, 2020 Practice Points

Cruise Passengers’ Punitive Damage Claim Arising from “Bomb” Storm Is Dismissed

A recent case demonstrates some of the limitations inherent in alleging punitive damages in the maritime context.

By David Y. Loh

Despite strong “assumption of the risk” language in their terms and conditions, cruise lines are nevertheless forced to respond to passenger complaints concerning rough seas, seasickness, or objections to the weather conditions. In the case of extreme or sudden weather events, cruise lines often forced to contend with coordinated litigation by the plaintiff’s bar. Sometimes, depending on the circumstances, class action lawsuits can be filed against the cruise lines.

The Case: Donna Incardone, et al. v. Royal Caribbean Cruises Ltd.

On February 6, 2016, the cruise ship Anthem of the Seas left Bayonne, New Jersey, headed toward the Bahamas, allegedly right through the path of a major storm. Less than a month later, a proposed class action lawsuit was filed against Royal Caribbean Cruises (RCL). Shortly thereafter, another lawsuit was filed against RCL on behalf of a group of special-needs children and their families, commenced suit in against Royal Caribbean for their physical and mental trauma suffered while encountering 160 knot winds and 20-meter waves en route to the Bahamas. The lead plaintiffs, Donna Incardone and Constance Savage alleged three (3) causes of actions: (a) negligence, (b) negligence infliction of emotional distress (NIED) and (c) intentional infliction of emotional distress (IIED). Plaintiffs also requested punitive damages. Defendants moved for summary judgment in order to dismiss the entire case. On January 18, 2020, U.S. District Judge Jose E. Martinez of the U.S. District Court for the Southern District of Florida, Miami Division, denied defendant’s motion for summary judgment with respect the negligence and NIED causes of action, but granted defendant’s motion with respect to the IIED and plaintiff’s demand for punitive damages.

The court’s analysis with respect to the negligence, NIED, and IIED causes of action was fairly standard, but its analysis concerning punitive damages is noteworthy because of the recent line of Supreme Court cases dealing with punitive damages in the maritime context. Over the last ten years, the U.S. Supreme Court has had to address maritime punitive damages a total of three times: (a) Dutra v. Batterton (a seaman cannot recover punitive damages on a claim for vessel unseaworthiness), (b) Atlantic Sounding Co. v. Townsend (punitive damages are available in actions for maintenance and cure) and (c) Exxon Shipping Co. v. Baker (punitive damages are potentially available under maritime law for sufficient egregious employee misdeeds) . Overall, these cases stand for the general proposition that punitive damages are potentially available under maritime law.

The Ruling

Despite this Supreme Court precedent, Judge Martinez nevertheless dismissed plaintiffs’ right to collect punitive damages. In reaching this decision, Judge Martinez relied primarily on In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. On Sept. 22, 1993, 121 F.3d 1421 (11th Cir. 1997), which held “punitive damages are precluded in maritime personal injury claims except in exceptional circumstances and upon a showing of intentional misconduct.” With this standard in mind, Judge Martinez found that plaintiffs needed to show defendants (a) had actual knowledge of the wrongfulness of the conduct, (b) the likelihood that injury or damage would result, and (c) despite that knowledge, nevertheless intentionally pursued that course of conduct. With these elements in mind, Judge Martinez found that the parties clearly disputed whether the weather reports should have been interpreted to give sufficient warning to the cruise ship’s captain to divert or return to port. He clearly thought that a jury might conclude the master and his crew were negligent in failing to anticipate the nature and extent of the high winds and heavy seas, but he could not find any evidence that would even suggest that the cruise ship knew in advance that a hurricane-like storm was bearing down on it and that, despite this knowledge, nevertheless sought to continue on its designated course directly into adverse weather. Judge Martinez reached this decision even though plaintiffs alleged numerous “failures” on the part of the defendant, including failure to properly interpret weather forecasts, failure to timely review weather warnings, sailing despite this knowledge, failure to properly train its employees and lack of communication with shoreside personnel. In his view, these failures—viewed in the light most favorable to plaintiffs—rise only to the level of mere recklessness and, as a matter of law, could not rise to the level necessary for punitive relief.

The viability of an allegation of punitive damages is necessarily fact specific, but this case demonstrates some of the limitations inherent in alleging punitive damages in the maritime context.

David Y. Loh is a partner with KMA Zuckert in New York City, New York.


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