Posted Nov 01, 2013 09:20 am CDT
The little girl with the Shirley Temple curls clung to her father, too frightened to cry.
She and her parents were aboard the cruise ship Costa Concordia, which began listing badly and taking on water shortly after scraping along a rocky reef off Italy’s Tuscan coast and gouging a bus-size hole in the port side just below the water line.
A year and half later, the silent child still makes a lasting impression on Georgia and Dean Ananias, a Downey, Calif., couple aboard the ship when it capsized on the night of Jan. 13, 2012. They were traveling with their adult daughters, Valerie and Cindy.
After trying to escape the ship for nearly five hours, the Ananiases believed they had only minutes left to live. They said their goodbyes and steeled themselves for the inevitable. “We knew we were going to die,” says Georgia.
The Ananias family describes being indelibly scarred by the thought of impending death and the screams of horror all around them. They are also haunted by the fact that they survived and at least 32 others didn’t.
Their recurring nightmares are one reason they hired Miami maritime lawyer John Hickey to sue the cruise line on their behalf. They say post-traumatic stress is every bit as troubling as the physical injuries they sustained. Besides numerous bruises and abrasions, Dean blew out his knee jumping 20 feet onto a bobbing lifeboat.
Four Costa Concordia crew members and a Costa Cruises manager were convicted in July under a plea deal. But the ship’s captain, Francesco Schettino, is being tried separately, as are numerous suits against him. CNN reported “more than 250 civil parties are represented in court.” Trial for a 20-client suit (including the Ananiases) against the cruise line is expected to begin next year.
Meanwhile the Ananiases are publishing SOS: Spirit of Survival, a book about their ordeal.
Even though the Costa Concordia is owned by Carnival Corp.—based just outside Miami—the case will be heard in Italy, and Italian law will apply because the cruise ship flies under the Italian flag, the trip began in Italy and, perhaps most important, the ticket stated that any judicial matters would be heard in Italy.
“One of our biggest gripes is that we entered into a contract here with them,” Georgia says, “… and yet we have no rights to any kind of court in the U.S. because the contract specifically said you have to try this in Italy.”
Even though she and her family have been on more than 60 cruises, and Georgia says they know the terms of a typical cruise contract, she explains how people can end up on a cruise not knowing that they waived their right to go to court in the United States.
“The thing about this is when you buy a ticket to go on there, you don’t get the contract,” she says. “You only get the contract if you [sent in] your money and it goes into effect. Then you get the contract a couple of weeks before you’re leaving. So what are you going to do when you get your contract and you read all of that?”
Though the ship began sinking some two hours after its launch, it took an hour and a half before the captain issued an order to abandon ship. Up until that point, messages in various languages over the ship’s public address system assured passengers all was well.
Once the abandon order was announced, the Ananiases say, the scene on board was far less genteel than the one on the Titanic—at least as portrayed in the movies.
“They started pushing kids,” Georgia says. “Adult men were pushing women and children away so they could get on a lifeboat.” Her husband concurs: “There was no such thing as ‘women and children first.’ It was all for yourself.”
“We told our kids to save themselves,” Georgia says. “ ‘Leave us. We’ve lived our lives. You go.’ And they refused.”
It quickly became evident that the crew was not properly trained for such an emergency. And the officers apparently didn’t stick around to help. “At the beginning there were no skilled people,” Dean says. “There were waiters and galley help. Officers were never seen.”
At one point the Ananias family ended up in a lifeboat that was rendered useless because the ship was listing so badly. “We went down but couldn’t go down all the way,” Dean says. “So they winched us back up.”
As an ex-Navy man, Dean knew that the ship was going to roll and that everything—including the passengers—would get thrown around. He looked for high ground so that he and his family could at least jump into the water to save themselves. Everywhere they looked the walls were too smooth to get a handhold.
A 20-degree tilt made their up-hill journey a fight against gravity. They formed a human chain so everyone could get to the stairwell on the promenade that runs down the center of Deck 4, where the lifeboats were. That’s where they ran into a couple who had been on the lifeboat with them, the family with the speechless curly-haired girl.
The father, who spoke very little English, suddenly thrust the child into Georgia’s arms. He never told her his name or the little girl’s.
“ ‘Take my baby!’ ” Georgia recalls him saying in English. “And of course, what do you do? Your instincts are you just grab the kid. … So I grabbed the baby and I had to hold on with one arm … with the other I held onto a railing, because you can’t stand. … And then I was holding this baby with my other. She was more like a toddler.
“I held her.”
Some 17 million people in the U.S. go on cruises each year and return with suntans and tales of happy times. They often have little experience with the flip side of a shipboard vacation—one that can lead to misery, monetary loss—even death. And vacationers’ legal rights when they board a cruise ship in essence amount to entering a foreign country based on the flag under which it sails. In most cases that’s Bahamian, Panamanian or Liberian.
Being at sea is a dangerous business, says Charles A. Patrizia, co-chair of the Maritime Committee of the ABA Section of Public Utility, Communications and Transportation Law and a partner at Paul Hastings in Washington, D.C. Cruise passengers should be made aware there are inherent risks, he says, adding that the question is who pays for those risks.
“When you’re at sea, you don’t have all the backup that you do on land,” Patrizia says, explaining why cruise ship ticket contracts are so onerous. “When you read the stuff, it is scary. In some way it’s a recognition that goes back a long way in maritime law. Being at sea is a risk.”
Dealing with that risk comes down to cost. The ticket price goes up if the cruise line is expected to carry the risk. Or passengers have the option of buying travel or medical insurance to defray that risk.
According to Patrizia, few people read the contracts—lawyers included—before they take a cruise.
Maritime law allows a lot of room to negotiate a contract, but with a cruise ticket the passenger cannot pick and choose which clauses apply. There is no line-item veto.
“The plaintiffs lawyers will say these are contracts of adhesion,” he says—a deal in which one side has all the power and writes the contract to its advantage. “It is what it is. You don’t get to line it out. From the industry’s perspective, it’s not unlike the railroads and shipping. It’s the only way to control costs and risks. Go buy an insurance policy, buy medical or travel insurance if you want more protection.”
But Jeffrey Maltzman, the Los Angeles-based principal of Maltzman & Partners, denies that the ticket is a contract of adhesion.
“I think it’s a contract that defines the expectation of both parties so that everybody knows what they are getting when they walk onto the ship,” Maltzman says. “I don’t think it would be physically possible to negotiate different terms. They would spend all their time doing that. I honestly don’t see it any different than when you check into a hotel, when you go on an airplane. It’s like everything in life—it defines the terms and conditions.”
The most troubling aspects to a cruise traveler can be divided into three areas: mayhem—including murder (where the evidence, and the body, sometimes gets tossed overboard) and sexual assault, as well as piracy; medical—when a shipboard doctor misdiagnoses a malady, including who is responsible and what can be done to help the injured party; and misadventure—accidents happen, but can you recoup when a ship stinks (like the Carnival Triumph) or sinks (like the ill-fated Costa Concordia)?
Perhaps more than any other factor, the case of the missing groom helped crystallize public opinion regarding safety aboard cruise ships. Before George Smith IV disappeared from Royal Caribbean’s Brilliance of the Seas in July 2005, the cruise industry benefited from the romantic notion that passengers could cruise off into the sunset aboard the Love Boat. But the Smith case focused public attention not only on the potential for being thrown overboard but also on other unsavory acts, such as sexual assault and child molestation.
The sexual assault cases are legion and range from crew members French-kissing preteens to forcible rape by stewards using pass keys to enter passenger rooms. Several websites are dedicated to these and other tragic tales. For instance, last year an assistant cruise director on Norwegian Cruise Line’s Norwegian Star pleaded guilty to possession of child pornography. NCL authorities reported Senad Djedovic, a 29-year-old Bosnian, to the FBI after he bragged about having sex with a 16-year-old passenger and then persuading her to email him sexually explicit photographs of herself. Last October a federal judge in Tampa sentenced Djedovic to nine years.
And in June 2012, a federal judge in Baltimore handed down an 18-month sentence to a crewman aboard Royal Caribbean’s Enchantment of the Seas after he admitted having sex with a 14-year-old passenger. Fabian Palmer, a 25-year-old Jamaican national, met the girl while maintaining the ship’s pools and later lured her to a bathroom in the men’s locker room for sex.
Roughly a third of all sexual assaults on cruise ships involve children, says Ross A. Klein, a professor at Memorial University of Newfoundland who analyzes cruise ship crime data. His research reveals more bad news: “You’re 50 percent more likely to be sexually assaulted on a cruise ship than on land.”
Klein believes the public should be fully informed about the risks before buying a ticket. “At least you go forewarned,” he says. “I would never tell people not to go on a cruise, but go on forewarned and protect the children.”
Maltzman dismisses Klein’s estimate, saying, “I think his stats are a creation of extremely creative and misleading math.”
The lawyer, whose firm has offices in both Coral Gables, Fla., and Los Angeles, is a real advocate of the cruising industry, both as a cruise line defense attorney and as a supporter of that mode of travel and vacation. He says he’s legally represented nearly every carrier.
“I worked on 19 cruise ships before I went to law school,” he says. “I was the equivalent of Julie McCoy’s assistant on the Love Boat. I also worked as a kids’ counselor.” And these days “I cruise regularly with my wife and children and feel perfectly safe on any cruise.”
In July, Sen. Jay Rockefeller, D-W.Va., introduced the Cruise Passenger Protection Act of 2013 and held hearings to highlight the need for accurate reporting of shipboard crime and safety issues. Before the bill came up for a vote, the three major carriers—Carnival Cruise Line, Royal Caribbean Cruises Ltd. and Norwegian Cruise Line, which combined compose 85 percent of the industry—upstaged Congress by voluntarily publishing a list of crimes that took place on their ships.
“It shows a sign of desperation that they agreed to do what they are doing,” says Kendall Carver, an advocate for passenger safety. He founded the nonprofit International Cruise Victims Association after his daughter, Merrian Carver, 40, mysteriously disappeared from a Celebrity Cruises ship while on an Alaska trip in 2004.
After spending $75,000 to investigate her disappearance, Carver says, he is no closer to finding out what happened. He maintains that Royal Caribbean, which merged with Celebrity in 1997, gave him three different versions regarding the ship’s surveillance video the night his daughter was last seen. Based on that experience, he remains skeptical of the cruise industry in general when it comes to reporting crime.
According to ABC News, Royal Caribbean later issued a statement saying it appeared Carver had committed suicide on the ship. “That is the standard procedure of the cruise lines, to say it is suicide,” Carver charges. “If they knew it was suicide, why did they do everything to cover it up?”
Carver also notes that the Cruise Vessel Security and Safety Act calls for ships to be outfitted with technology that can be used for capturing images of passengers or detecting passengers who have fallen overboard, to the extent that such technology is available. The law went into effect three years ago, he says, and yet the systems are not in place.
“I don’t think the technology exists,” Maltzman says. “There are exterior cameras on ships, and in some instances they have documented situations when someone has jumped overboard or fallen overboard. I think it is going to be difficult to have an electronic device that’s going to figure out every time that happens and not be triggered when a seagull flies by the detector or a large wave splashes up the side of the ship.”
It doesn’t help that several plaintiffs attorneys also question the accuracy of the crime data released by the cruise lines. Miami maritime attorney John Hickey says the figures don’t add up.
The U.S. Coast Guard, which releases information only on those cases closed by the FBI, has reported that 44 crimes occurred in the past 2½ years. But the most recent figures on alleged crimes, released by the major carriers before the vote on the Cruise Passenger Protection Act, are far higher. They indicate that 237 serious crimes as enumerated in the 2010 Cruise Vessel Security and Safety Act—sexual assault, theft in excess of $10,000, tampering with a vessel, assault with serious injuries, kidnapping, missing U.S. nationals, suspicious death or homicide—were alleged to have occurred during the same time period from 2011 through the first half of this year.
“Our system allows the cruise lines to report low numbers when it requires only FBI files which have been resolved to be reported,” Hickey says. “That is a bad system.”
“I’m going to make a motion [in my cases] that we use the Florida Public Nuisance Statute to disclose this information,” he says. “If something is a public nuisance, it should not be confidential.”
Asked for an industry response to allegations in this article, David Peikin, director of public affairs for the Cruise Lines International Association, said, “We don’t have anything to add to your story.”
But Maltzman counters Hickey, saying, “I don’t agree that the stats don’t match. I think plaintiffs lawyers ask different questions as to what matches crime. If a lawyer asks, ‘Tell me instances of sexual impropriety,’ that may involve cases that are not criminal.”
The Rockefeller legislation also calls for the U.S. Department of Transportation to:
• Create a toll-free hotline and website for consumer complaints.
• Track delays, cancellations and skipped ports of call.
• And impose civil and criminal fines for lapses by the cruise lines.
It would also:
• Create a DOT consumer advisory panel.
• Institute a federal director to serve as the primary point of contact for cruise ship crime victims.
• Impose more stringent crime scene preservation.
• And call for improved video surveillance of public areas.
Carver believes the law should go a step further and create a written list of rights to be read to victims of shipboard crime, similar to the Miranda rights read to U.S. crime suspects.
“In Arizona if you are arrested for a crime, they must give you a form that shows you your rights,” he says. “Let’s say you are raped, … you have the right not to disclose anything to the cruise lines.”
Not only should victims’ rights be enumerated, Carver says. The ship should also provide access directly to the FBI in the wake of a crime, he says.
Alan Hill was a spry 82-year-old when he boarded the Celebrity cruise ship Summit in January 2009. Hill had a history of diabetes and hypertension, but he was trim and fit from daily work as a charter boat captain in Boston, where he often took tourists on whale-watching excursions aboard the Yankee Queen. There was no reason to expect he would get sick, much less nearly die, while cruising in the Caribbean.
What happened to Hill is a cautionary tale. Cruise passengers often overlook warnings boldly spelled out on their cruise ship tickets and nowadays posted on cruise line websites. Injured passengers not only have a limited window in which to file a tort claim (within one year of the injury, illness or death); they also have to let the cruise line know of their intent to file suit within six months.
Further, the cruise lines disavow any liability for treatment rendered by the shipboard doctors hired to work in the vessel’s medical facilities. Celebrity’s ticket contract goes so far as to warn passengers that if they seek help from the ship’s doctor, they “do so at their sole risk.”
On Jan. 11, 2009, Hill went to the ship’s sick bay with a 104-degree temperature, according to documents filed in federal court in Miami. The physician on duty, Dr. Eilif Dahl, assured Hill and his wife, Carol, that all would be well if Hill stayed onboard in his care. But he got progressively worse.
The next day, he began shaking and vomiting. The day after that he stopped drinking and eating and had to be treated with IV fluids. By Jan. 15 he had begun bleeding profusely through his rectum. The next day he was so anemic he had a hemoglobin level of four. Hemoglobin, which carries oxygen in the blood, is typically about 14 to 17 in healthy men.
Despite these warning signs, Dr. Dahl, according to court documents, actively blocked attempts by Carol Hill to have her husband evacuated from the ship.
“The guy almost bled to death,” says attorney Hickey, who sued Celebrity on behalf of Hill, alleging it was directly negligent for “violating its own policies and procedures for failure to divert the ship, speed up the ship, arrange for medical evacuation, and call in consultants from medical specialists, whether they are on the ship or on land.”
Hickey also blames the ship’s guest services and the doctor because they “refused to arrange for medical evacuation of the plaintiff off the ship despite a direct request to do so; refused to speed up the ship despite a direct request to do so; refused to call in a specialist, even from among its passengers, despite a direct request to make such a request; and refused to allow the plaintiff’s wife (who accompanied the plaintiff on the cruise) to speak to the ship’s command, including the captain, to request among other things a medical evacuation in person, telling her that that was not possible, and there were as many as six captains onboard the ship.”
Today Hill has a constant reminder of that trip in the form of a colostomy bag, brain damage and scars from surgery to repair a perforated colon, as well as a medical bill from the ship for “almost $20,000,” Hickey’s filing says. That’s on top of medical bills incurred once he got off the ship: emergency surgery in San Juan, Puerto Rico; a private medical flight to Boston, and medical care at Massachusetts General Hospital.
In December 2011, Hill settled with the cruise line for an undisclosed amount.
Dr. Raymond “Rusty” Oenbrink, a family physician who worked on three Norwegian Cruise Line ships from August 1989 through January 1990 and later wrote an online book, Adventures of a Traveling Physician, says the shipboard doctor calls the shots when deciding to evacuate a patient. In that instance he outranks the captain.
On his first cruise as the doctor on duty for the S.S. Norway, Oenbrink was working to save the life of a terminally ill cancer patient when both the ship’s captain and the staff captain showed up in the ship’s hospital.
In this case, Oenbrink ordered the medical evacuation. That meant the ship had to steam from St. Martin to St. Thomas, which had the nearest runway that could accommodate a Lear jet air ambulance. Complicating matters, Hurricane Dean was approaching. With its stabilizers retracted to increase speed and the swells from the hurricane, the ship rolled from side to side, according to Oenbrink, but made it to Red Hook at 2 a.m. The doctor and his patient boarded the ship’s tender to go ashore, uncertain of the reception they would get.
“On the islands, we might have a state-of-the art U.S.-type ambulance, or we might have an old pickup truck,” Oenbrink says of the vehicle that transports an ill passenger to the airport. “You never know what you’re going to have to get you to the tarmac. You off-load the patient, help load them up into the Lear jet, get back in any transportation to the pier, get back in the tender. The ship is already leaving the area. … So all of this is happening right at sunrise. And most passengers don’t have a clue that the ship diverted and made an unscheduled stop. It’s just split-second timing. ”
That’s what is supposed to happen, but cost can be a huge disincentive. Oenbrink notes that diverting a ship was “quite a responsibility for me,” especially when he learned the ship burned a gallon of fuel for every 8 feet sailed.
If the doctor refuses to evacuate the patient, the passenger can opt to disembark at one of the ship’s ports of call. That’s what the family of 14-year-old Elizabeth Carlisle did in 1997 when she fell ill aboard the Carnival cruise ship Ecstasy. The shipboard doctor had misdiagnosed her ruptured appendix as the flu.
Although a doctor in Elizabeth’s home state of Michigan succeeded in removing her appendix, an infection rendered her sterile.
At one point the Carlisle case was precedent-setting in that it established culpability for the cruise lines when the doctors they hire commit malpractice. But in 2007 the Florida Supreme Court overturned that ruling. Charles R. Lipcon, a Miami maritime attorney who represented Carlisle, believes the appeal was wrongly decided using old law that pertains to informal arrangements made between a doctor receiving free passage in exchange for providing free medical care during the cruise.
Though the matter has never been before the U.S. Supreme Court, the Florida Supreme Court ruled in the Carlisle case that general maritime law does not impose liability to the cruise line for a doctor’s negligence. In other words, the court held, the doctrine of respondeat superior, or the relationship between a employer and employee, does not exist between the cruise line and the doctor.
The court relied upon Barbetta v. S/S Bermuda Star, which cited a slew of supporting cases dating back to 1918. “When a carrier undertakes to employ a doctor aboard ship for its passengers’ convenience, the carrier has a duty to employ a doctor who is competent and duly qualified. If the carrier breaches its duty, it is responsible for its own negligence. If the doctor is negligent in treating a passenger, however, that negligence will not be imputed to the carrier.”
“The Barbetta case stands for the proposition that if a cruise line hires a qualified doctor, they have no further obligation,” says Lipcon, who also wrote Unsafe on the High Seas: Your Guide to a Safer Cruise. “Because the cruise lines have no liability for bad medical care, that’s what you get on a ship—bad medical care.”
But Oenbrink notes cruise customers do have influence on what medical services the carriers offer.
“It’s a business,” he says. “The lines know that if they develop a reputation for substandard care, it’ll hurt their bottom line.
“That being said, different lines market to different classes of clientele. Carnival attracts the younger set with the ‘fun ship’ slogan. There probably aren’t too many sickly elderly aboard their ships. By contrast, NCL, Crown and Holland America market toward the older crowd. Those lines will probably be a bit more selective in their medical staffing and medical capabilities shipboard, as well as [have] a better lineup of port agents to help arrange medevacs.”
Even so, Lipcon advises as a general rule to avoid going to the shipboard doctor if you are seriously ill; and if you or a travel companion is too ill to disembark to seek treatment elsewhere, insist that the shipboard doctor call for a medical evacuation. And if the doctor refuses to listen, Lipcon says, make a stink.
“Call the Coast Guard and demand to be taken off,” he says. “That’s free.”
But the night of the Costa Concordia wreck, there was no hope of being taken off, or even getting off, the sinking ship. With efforts failing and options vanished, the Ananiases faced what seemed to be a grim fate.
“All of a sudden we knew this was the end for us,” Georgia Ananias says. “My husband had been in the Navy. He said, ‘This is it, guys. This thing is going to roll. And please hope that it goes fast. This is the end.’ ”
That’s when Georgia returned the curly-haired tot to her father.
“At that point, then, I felt this baby can’t die with me. The baby needs to die with her parents. I’m a stranger to her. At that point, when I knew that it was the end for us, I handed the baby back.”
She remembers telling the father: “You need to be with your baby now.”
Shortly after, the ship rolled onto its starboard side. “That’s when, as they say, the wall became the floor and the floor became the wall,” Dean Ananias says.
The Ananias family had turned right in the corridor, heading toward the bow of the ship. Those who were toward the stern began screaming.
“When it rolled over, water rushed in and it led to a vortex and it sucked some of the people down, they figure, into the bottom of the corridor,” Dean says. “Fortunately we were at the top third, but the people down on the lower third got yanked away.”
“If it had been 10 minutes [sooner], we wouldn’t be here talking right now,” Georgia adds.
The family escaped by getting onto the ship’s hull, sliding on their backsides and crawling 75 yards to where a lifeboat was bobbing in the water some 20 feet below. One by one they jumped to safety, with Dean narrowly missing getting crushed between the lifeboat and the ship.
It remains a mystery what happened to the man and the little girl. Georgia has searched for them on the ship’s manifest and on the list of the dead to no avail. The only clue she has is that they were from Argentina and had been living in Majorca.
“We never saw him again,” Georgia says. “We never saw him from the moment I handed the baby back.”
This article originally appeared in the November 2013 issue of the ABA Journal with this headline: “Cruising Toward Calamity: For vacationers encountering trouble on board, U.S. laws may provide little help—it’s all in the ship’s contract.”
Print and initial online versions of “Cruising Toward Calamity,” November, should have stated that attorney Charles A. Patrizia is co-chair of the Maritime Committee of the ABA Section of Public Utility, Communications and Transportation Law.
Siobhan Morrissey is a lawyer and freelance writer in Miami.
Siobhan Morrissey is a lawyer and freelance writer in Miami.