When People Die at Sea, Cruise Operators Often Aren’t Held Liable

Originally published in the Wall Street Journal

Christy and Larry Hammer, two retirees from Nebraska, were asleep in their cabin on La Estrella Amazonica, a riverboat built for adventure cruises on the Peruvian Amazon, when a power strip in their cabin caught fire and spread to their luggage and mattress. The smoke eventually killed them.

The riverboat’s fire alarm “did not operate at all,” and its crew, lacking training and equipment, took more than 20 minutes to enter the Hammers’ cabin, Peruvian authorities said in an October report on the fire, citing a litany of violations of the nation’s maritime regulations.

The Hammer’s surviving daughters, Jill Malott and Kelly Lankford, have come to believe their parents’ deaths could have been prevented, as more information has surfaced since the April 10, 2016 fire.

But because of a 1920 law known as the Death on the High Seas Act, the cruise industry enjoys broad immunity from damages in wrongful-death cases involving retirees and other passengers who have no financial dependents.

International Expeditions, the Alabama-based company that charters the cruise and helped design the riverboat, has told the daughters through its lawyers that it has no financial obligation to the family under the law, according to Ms. Malott and her family’s lawyer.

“Getting on that boat cost our parents their lives,” Ms. Malott said. “These companies are going to keep prioritizing profits over safety until there is some kind of consequence.”

The family’s search for accountability has revived a debate about a law enacted decades before the advent of the modern cruise industry, which serviced more than 11 million Americans in 2015, according to industry figures. Travelers aged 60 to 74 account for about a quarter of all North American cruise passengers. River cruises, in particular, represent one of the faster-growing segments of the business, the Cruise Line International Association, an industry group, said in its 2017 outlook.

While Congress and states have made it easier for families to recover damages for fatal accidents that happen in the air and on land, the Death on the High Seas Act treats boat passengers the same as it did nearly a century ago.

Congress intended the Death on the High Seas Act to benefit the widows of seamen who died in international or foreign territorial waters. It permitted the widows to recover financial support their husbands would have provided, known as pecuniary damages.

Recoveries under the law end there. Cruise companies have no legal obligation to pay damages for the deaths of passengers who had no financial dependents. That leaves little recourse for families of retirees, children and other cruise passengers who weren’t earning wages and providing financial support to anyone at the time of their death.

In the past five years, cruise lines have used the Death on the High Seas Act to shield themselves from lawsuits filed by the families of an infant who died after allegedly receiving poor medical treatment by ship doctors, a college student with no dependents who fell overboard and a 17-year-old girl who was allegedly killed by bacteria-ridden food she ate aboard the ship.

Courts have held in several cases that the law prevents retirees from suing cruise lines for damages over the deaths of their spouses in accidents aboard ships. Many cases never make it to court. Ms. Malott said several lawyers turned her down, warning that the Death on the High Seas Act would preempt the family’s case.

Industry representatives said the law reflects international norms. If Congress amended the Death on the High Seas Act to allow greater damages, the U.S. would attract droves of foreign litigants, “burdening an already crowded U.S. judicial system,” said Christina Perez, spokeswoman for the Cruise Lines International Association.

Ms. Perez said insurance rates for cruise ships would skyrocket, increasing prices and potentially jeopardizing thousands of jobs created by the industry.

The Hammers’ daughters could file a lawsuit in Peru, but their legal costs probably would exceed any damages they might recover, lawyers told Ms. Malott and Ms. Lankford.

“If you’re on a boat in international waters, if you’re a kid or a retiree, the value of your life is zero,” said Ms. Malott.

Van Perry, president of International Expeditions, said the company reached out to the family “on a number of occasions” to discuss the fire. Ms. Malott said the company and its insurer asked the family to sign a confidentiality agreement before meeting, a condition the sisters rejected.

International Expeditions, which said in its promotional materials that it helped design the riverboat, sent the Hammers’ daughters a check for the amount of their parents’ tickets: about $10,000. Ms. Malott said they returned it.

“IE remains committed to cooperate with the authorities and shares the family’s desire for information as the Peruvian authorities continue their investigation,” Mr. Perry said in an emailed statement.

At 139 feet long, La Estrella Amazonica holds 31 passengers. Its amenities include satellite internet and air-conditioned cabins “with private balconies and floor-to-ceiling windows so you are constantly surrounded by rainforest vistas,” according to an International Expeditions brochure.

Mr. Hammer, 74 years old, was a retired administrator at University of Nebraska-Lincoln. Mrs. Hammer, 72 years old, had been a leadership-training consultant for Omaha-based Gallup Inc.

The fire started in the couple’s cabin, No. 27, on the first night of their 10-day cruise, while they slept, according to an Oct. 26 report by the harbormaster in Iquitos, Peru, whose office investigated the fire. No alarm sounded.

By the time the crew entered the Hammers’ cabin, 20 minutes and 47 seconds after first sign of smoke, Mr. Hammer was dead. The crew evacuated Mrs. Hammer but she died of carbon monoxide poisoning five minutes before arriving at a hospital.

The Oct. 26 report said the riverboat crew lacked emergency training and fire-fighting equipment required under Peruvian law, delaying its reaction time and rendering its aid “deficient” and “ineffective.”

International Expeditions had said in its promotional materials that the riverboat was built in compliance with international safety guidelines and would “exceed Peruvian safety standards.” The company removed the claims from the website after the fire.

Mr. Perry arrived in Peru about a day after the fire and told passengers an initial investigation showed one of the machines used by the Hammers for sleep apnea had caught fire, but he assured them that the boat was safe, recalled Sudip Dasgupta, a retired engineer from Wisconsin who was two cabins away from the Hammers.

The harbormaster’s report said an ”electrical extension lead” provided to the passengers by the ship’s crew short-circuited, igniting the carpeting near the Hammers’ bed and spreading from there.

Mr. Perry and a spokesman for TUI Group , the German tourism company that owns International Expeditions and the riverboat, declined to answer a list of questions provided by The Wall Street Journal, citing an ongoing investigation of the fire in Peru.

After TWA Flight 800 crashed off the coast of New York in 1996, killing 230 people on board, Congress amended the Death on the High Seas Act to allow families of international plane passengers to recover damages for the loss of care, comfort and companionship of their loved ones. Total damages can reach hundreds of thousands or even millions of dollars.

But Congress left in place the damages provisions that apply to passengers of sea vessels, at the urging of the cruise industry, which has spent about $30 million on Washington lobbyists since 2006, and lawmakers who represent districts where the industry accounts for thousands of jobs. Travel law experts frequently cite the inconsistency in support of amending the law.

“Why should passengers on planes be treated better?” said Thomas Dickerson, a New York-based lawyer and former judge.

Ms. Perez, of the Cruise Line International Association, said Congress “chose not to pass a similar reform for the maritime industry, partly because the maritime industry has a superior safety record.”

Since 2013, the U.S. Coast Guard has investigated at least 80 deaths aboard cruise ships, according to records provided to the Journal. A majority of the deaths are listed as stemming from preexisting medical conditions, but others resulted from accidents, disease and asphyxiation. Riverboats like La Estrella Amazonica are regulated by their native maritime authorities.

Democratic lawmakers have made several attempts to expose the cruise industry to the same damages airlines face, most recently in 2010 when legislation passed the House of Representatives but stalled in the Senate.

Ms. Malott and Ms. Lankford have reached out to members of Congress, the start of a campaign to amend the law “to prevent another family from having to endure what we have,” Ms. Malott said.

Rep. Doris Matsui, a California Democrat who has previously supported amending the Death on the High Seas Act, is interested in reviving the legislation, a spokeswoman said.