Posted on Sunday, June 15, 2008
The issue is whether a Princess Cruise ship negligence case governed under California State practice and procedure precludes a loss of consortium claim as might a case governed strictly under Federal Admiralty/Maritime Law. Princess Cruise Ship Injury lawyers discuss recovery for loss of consortium. The answer appears to be answered in favor of the Princess cruise ship passenger forced to file the claim in California state court pursuant to the cruise line passenger passage contract, to allow such claims.
The Federal Law Is Exclusive Argument
Typically, counsel for Crown Princess cruise lines will argue that that federal law exclusively applies to all cruise ship claims, and that such law, known as “maritime law” does not allow loss of consortium. But some research indicates that the only time federal law would trump California state court here is if this were a Long Shoreman’s claim. (See e.g., Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963).) However, in Princess injury cases to be filed in California, this is a case where there would be a contractual passage contract which has a forum selection clause- mandating Los Angeles, California venue -in other words California State law would arguably apply.
The Passage Contract Says State Court
The venue clause as of June 15, 2008 states that “All disputes and matters involving claims for emotional or bodily injury, illness to or death of any Passenger whatsoever arising out of or relating to this Passage Contract or Your Cruise shall be litigated before a court of competent jurisdiction located in the city of Los Angeles, California, U.S.A., to the exclusion of the courts of any other country, state, city or county. You hereby consent to jurisdiction and waive any venue or other objection that may be available to any such action or proceeding being brought in such courts.”
The Contract Says State Law Applies
Thus, the passage contract does not appear to bar loss of consortium claims, nor loss of society claims. Nor does the passage contract say that federal maritime law will apply at all. Indeed, it appears to say the opposite- that California will be the forum and California law will apply.
The Law Of the Forum is the Law of the Case
Given the foregoing, the law is well settled. Although a case involving a forum selection clause in a passenger cruise line ticket contract is “a case in admiralty, and federal law governs the enforceability of the forum-selection clause” [Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991)], the law of the forum itself is what is used in deciding the case. Here, the law of the forum state, California, clearly allows- and encourages- loss of consortium claims.
Although a Federal Statute May Be Involved State Law Controls
In other words, even though federal statutory law may be involved, in the absence of contrary provisions in an applicable federal statute, the law of the state is controlling in all matters of practice and procedure. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1070; Bohme v. Southern Pac. Co. (1970) 8 Cal.App.3d 291, 297.)
Obviously, the Courts in California (Princess Cruise Line’s chosen forum) should apply California law. There is no federal statute that would appear to trump California law. A cruise line injury claim involving a passenger is not a Long Shoreman’s case. The California Supreme Court in Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382 at page 405, stated consortium includes conjugal society, comfort, affection and companionship.
California Jury Instructions Civil (5th ed.) (BAJI 14.40 (1974 Rev.)), states the measure of damages for loss of consortium includes love, companionship, comfort, affection, society, solace or moral support. In Sea-Land Services, Inc. v. Gaudet, 414 U.S. at 585, 94 S.Ct. at 815, the court, said: ‘The term ‘society’ embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.’ Apparently, there is a distinction without a discernible difference between loss of society and loss of consortium.
Since loss of consortium is a cognizable claim under state law, and the claim will need to be litigated in a state court, the chosen forum, and California law applies, admiralty law should not trump the state court claims for loss of consortium.
What Other States Say
Case law from other jurisdictions is in accord, although some draw a distinction between territorial and non-territorial waters. For example, a recent case, Christopher Anthony Liner v. Dravo Basic Materials Co., Civil Action No. 00-1908 SECTION: “J”(2), UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, 2000 U.S. Dist. LEXIS 16593, November 3, 2000, Decided November 7, 2000, Filed; November 8, 2000, Entered held as follows:
Two of the plaintiff’s boat hit an unmarked and submerged barge that was the property of the defendants. The plaintiff were riding in a 17-foot fiberglass recreational boat. Since plaintiffs, who sued for loss of consortium, were not seamen, and therefore not covered by United States Congressional statute, they could supplement their claims under general maritime law with applicable state law since the accident occurred in state territorial waters.
State law permitted claims for loss of consortium. The Court recognized that there is a general trend in the case law that also supported punitive damage claims under general maritime law when there were no overlapping federal statutes.
Uniformity is the Goal
In fact, for many years U.S. courts have tried to create uniformity in maritime laws regarding whether or not those injured at sea could recover non-pecuniary damages such as loss of consortium and loss of society. Loss of society involves damages for loss of intimacy and companionship stemming from a family relationship, and loss of consortium traditionally was that same type of loss, but through marital relations of the spouses.
The main thing deciding whether or not not a tort victim can make a claim for recovery of these types of loss seems to do with the status, such as whether or not the person harmed was a cruise ship passenger, as opposed to a seaman, or longshoreman, for example. It also matters if the accident or injury occurred in U.S. waters, as opposed to non territorial waters.
If there is already a federal statute covering this scenario, there may be a bar to non-pecuniary damages, which can include loss of consortium or loss of society tort claims. There are some statutes like the Death on the High Seas Act (“DOHSA”) that limit damages in wrongful death lawsuits to “pecuniary loss sustained by the persons for whose benefit the suit is brought.” (See e.g., 46 App. U.S.C. § 762.) And many courts have decided that the DOHSA disallows damages for loss of society and/or consortium. (See e.g., Mobil Oil v. Higginbotham, 436 US 618, 624, 1978 A.M.C. 1059, 1065 (1978).
The Jones Act also precludes any damages recovery for non-economic damages like loss of consortium and loss of society claims. Maritime law claims for unseaworthiness have normally allowed recovery of damages for loss of society/consortium. (See Sea-Land Services v. Gaudet, 414 US 573 (1974),1973 A.M.C. 2572 (1973) The Court pointed out that that claim did not involve a seaman. Therefore, the Jones Act did not apply. Also, the DOHSA did not apply since the wrongful death took place in territorial waters and was thus not a Death On the High Seas Act case.
Then later, the U.S. Supreme Court allowed recovery for damages in non death tort claims. (See e.g., American Export Lines. Inc. v. Alvez, 446 U. S.274 (1980). In that case, a spouse of a harbor worker who was seriously injured while on a ship in territorial waters was allowed to recover loss of society damages.
In Emery v. The Rock Island Boatworks. Inc., 847 F.Supp. 114, 1994 A.M.C. 2329 (C.D. I11.1994), the court allowed a a spouse of an injured passenger to seek loss of consortium damages since no statute, including the Jones Act or DOHSA, applied to limit such damages. The Emery court realized that no statutory law overlapped general maritime law in that case.
In that case, no one knew whether plaintiff’s injury occurred in territorial or non-territorial waters, the court ignored that distinction and seemed not to care, when it made its decision.
In conclusion, since the forum selection clause clearly indicates that the Princess Cruise ship case that will be decided in a California State Court, under California State Laws (ordinary negligence), the reasonable expectations of the Princess Cruise ship passengers bound by the contract, that was solely written by the cruise ship, are that the case would be decided in California state court using California state law(s).
California state law provides for loss of consortium and loss of society claims. Even if the territorial waters issue is pertinent, it is not conclusive.
Ambiguities and Reasonable Expectations Imply State Law Applies
At the very least the Princess cruise ship contract is ambiguous and therefore it is reasonable to apply state procedure and practice here, which both practically and procedurally allows a cause of action for loss of consortium. Princess Cruise Ship Injury lawyers discuss recovery for loss of consortium in order to educate the public and make sure victims aren’t leaving money damages on the table. Cruise ship accident attorney, Michael Ehline can be contacted at 888-400-9721
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