Cruise Lawsuit Raises Liability Question

Miami attorney Keith Brais says cruise operators should be responsible for employees’ actions

Eric Ewing was on a weeklong island cruise with his brother and sister-in-law aboard the Carnival Ecstasy on Jan. 25, 2018, eating pizza as he sat on his bed, when an upper bunk crashed down on his head.

His attorney, Miami maritime lawyer Keith Brais with Brais Law Firm, says his 53-year-old client suffered a traumatic brain injury and equilibrium issues. “Mr. Ewing’s injuries are life-altering, and will eventually make it impossible for him to ambulate on his own or even take care of himself,” Brais says.

Ewing’s lawsuit alleges that Carnival’s cabin stewards are required to check the safety of upper bunks on a daily basis, and that the cruise line is therefore vicariously liable for injuries sustained by the Jerome, Pennsylvania, man. However, the U.S. Court of Appeals for the 11th Circuit has a precedent, in maritime cases, of requiring that a cruise operator, in order to be held vicariously liable, must have had “notice.” That can mean either direct knowledge or sufficient opportunity to have had that knowledge.

In Brais’ opinion, the maritime courts have been getting it wrong. He contends that an employee’s awareness—or responsibility for awareness—of an unsafe condition should carry over to the employer, “thereby satisfying, actually nullifying, the ‘notice’ requirement [for] an employer.”

The suit contends that the upper bunk could only be unlocked with a special key available to crewmembers, including the steward, and that the steward should have noticed during daily room checks that it was not locked. Ewing made a video recording with his cellphone after the incident, showing the upper bunk beds on both sides of his stateroom were unlocked. The steward, Brais says, testified that he ensured the bunk beds were locked each morning. Carnival maintains that a loose screw, of which the steward was unaware, could have caused the bunk to fall open; Ewing’s expert has challenged that theory.

The case raises an interesting legal question. “Whichever way it turns out will have significant broad ranging implications upon all suits governed by maritime law,” says Brais, “most certainly cruise passenger claims.”

He continues, “As a general principle of law, an employer … is vicariously liable for the negligent acts of its employees and agents—actual or apparent—so long as the employee acted within the course and scope of their employment.”

Motions for summary judgment by both sides were denied July 7 by the U.S. District Court Southern District of Florida. Trial was set for Oct. 18, 2021.

If you find yourself in a similar situation, reach out to a transportation/maritime attorney for advice.

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