Drowning
One potential type of injury that can occur while on a cruise vacation are drownings or near drownings. Drownings can occur in a jacuzzi or in the pool while on board or on a beach or snorkel tour. Most people can appreciate the dangers of drowning and will avoid placing themselves at risk. Often drownings occur where children are unsupervised. There have been situations where children have been held under by the suction of the whirlpool or have hurt themselves in the pool. What often goes unappreciated however are the dangers of “near drowning or dry drowning”. While snorkeling, even the most experienced snorkeler can have waves wash over his snorkel and through the snorkel aspirate a significant amount of salt water into his lungs.
The passenger might vomit up the salt water, be a bit short of breath and feel better, however, although he is unaware, his lungs are being severely compromised and he needs immediate medical attention. Cruise lines and their vendors supervising such activities should be aware of the need to medically evaluate such incidents and be appreciative of the potential danger the passenger suffering from a near drowning faces.
Liability
Claims by passengers are based in negligence. In order to state a cause of action in negligence, a passenger must show that (1) the ship owner Norwegian owed him a duty, (2) there was a breach of that duty, (3) the breach was the proximate cause of the injury, and (4) the passenger suffered damages.
Duty
Federal maritime law determines the rights of the parties. See e.g. Continental Casualty Co. v. Canadian
Universal Ins. Co., 605 F.2d 1340, 1344 (5th Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d
762 (1980). Under general maritime law a shipowner owes passengers a duty of reasonable care under the
circumstances.
Negligence
1) Negligence Against Norwegian Cruise Line
In cases of dry or near drownings it can be argued that it was the duty of the cruise line and its vendor to provide the passenger with reasonable care under the circumstances. The cruise line could potentially be negligent in selecting and retaining the tour operator or that the tour operator itself was negligent in selecting, retaining and training the snorkel tour guide and that the snorkel tour guide was negligent in failing:
- to cancel the snorkel excursion when the sea conditions were too choppy to allow for safe snorkeling;
- to properly instruct the passenger on the snorkel conditions and use of his equipment;
- to properly inspect the equipment before providing it to the passenger;
- to properly and timely recognize the passenger’s distress and to directly assess his condition and get him timely medical intervention.
2) Negligent Selection and Retention of Tour Operator
The cruise line has the duty to exercise reasonable care to employ a competent and careful tour operator to perform snorkel and beach excursions. The cruise line should carefully vet the tour operator to insure the tour operator was competent and fit to conduct passenger tours and excursions.
3) Apparent Agency or Agency by Estoppel Claim
Most cruise lines try to hide the fact that their excursions are run by outside tour operators. Instead, they make manifestations that cause passengers to believe that the snorkel guides and the tour operators had authority to act for the cruise line.
4) Negligent Training, Assessment and Intervention
An industry publication counsels the following when it comes to proper training:
Training of snorkeling guides should be practical and assessment should be as realistic as possible, covering all operational variables. Practical training relevant to a worker’s duties should include how to:
- assess and identify at risk snorkelers
- perform an environmental assessment
- set up a snorkel site
- provide information to snorkelers
- demonstrate the use of snorkeling equipment
- fit equipment to snorkelers
- perform lookout duties, supervisor duties and guide duties
- conduct emergency procedures.
Snorkeling businesses should provide ongoing training and supervision of their workers to maintain and improve their competence. Emergency skills need to be practiced regularly and even experienced workers need their knowledge and skills reviewed. Snorkeling businesses should ensure their workers conduct regular snorkeler rescue drills and check that snorkel briefings contain all of the relevant information and advice.
These are opportunities to challenge and test workers’ skills individually and as a group. Monitoring should be based on realistic scenarios reflecting the standard operating procedures of your business. They should be practical and varied from month to month. Simple records of training and assessments should be kept and include names of all staff involved, the date of training, what the subject of the training was, and what assessment was undertaken.
Proximate Cause
As was stated in a recent article on the subject of “dry drowning”:
But experts are agreed, it is vital that people are made aware it is possible to drown even after they have been rescued from water. Joe Mulligan, head of first aid education at the Red Cross, said: ‘Dry drowning, secondary drowning and drowning are all one and the same, even though the latter are delayed. ‘The key message is that if a person is rescued from water, there is a still, albeit a small, chance they could drown while on dry land.’
DROWNING ON DRY LAND
He explained the phenomenon happens after a person has survived a near drowning incident. Water inhaled into the lungs can effectively irritate the lining of the lungs. It can cause inflammation or swelling that makes it difficult or impossible for the body to supply oxygen and remove carbon dioxide. Depending on how much water is inhaled, and the integrity of the water – whether it is sea water or dirty water, for example – it can affect a person’s breathing, Mr. Mulligan explained.
Damages
The injuries and damages flowing from incidents of drowning or dry drowning are often catastrophic – death, hypoxic brain injury or permanent lung damage. Medical expenses can exceed hundreds of thousands of dollars.
Liability Releases
Many passengers injured by drownings or near drownings fail to consider making a claim against the cruise line because they signed a liability release. Liability releases, while relevant to the situation and potentially preclusive of the cruise line’s liability are not always determinative and should not be a reason not to consult an experienced cruise line injury attorney for evaluation of your case.
All incidents of drowning or near drowning should be immediately evaluated by an experienced cruise line injury attorney. Such incidents require a complete and timely investigation and legal action to be commenced within one year of injury. Charlip Law Group, LC has experience in such cases and is available to assist you should you unfortunately experience such an incident.
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