Metropolitan News-Enterprise

Tuesday, September 6, 2011

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Cruise Line Not to Blame for Swimming Mishap, Appeals Court Rules

By a MetNews Staff Writer

A cruise line had no duty to warn a passenger of the potential danger of swimming at a popular beach near the port where his ship was docked, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Judges upheld a ruling by Chief U.S. District Judge Robert Lasnik of the Western District of Washington, who granted summary judgment to Holland American Line-USA in a suit by Gerald E. Samuels.

Samuels sued in the Seattle-based court after he was after he was swallowed and tossed by Pacific Ocean waves at Lovers Beach in Cabo San Lucas while on a seven-day cruise with his teenaged children in November 2008. Waves knocked Samuels down as he waded, chest-deep, into the Pacific side of the beach, which sits at the tip of the Baja peninsula beside the Sea of Cortez, he alleged.

Serious Injuries

Samuels hit his head on the ocean floor and had to be rescued by bystanders since there were no lifeguards. Doctors have classified Samuels as a high-functioning quadriplegic with significant pain and mobility limitations, the court said.

Samuels claimed that he went to Lovers Beach at the recommendation of unnamed employees of the cruise line, and that he should have been warned of the potential danger.

In moving for summary judgment, Holland American presented evidence that in 27 years of sailing to Lovers Beach, Samuels was the first passenger to be injured, and that some 96,000 cruise-line passengers visited Cabo San Lucas in 2008 without incident.

Two travel industry experts submitted declarations on behalf of the plaintiff, saying the dangers of Lovers Beach were sufficiently well-known in the industry that a warning should have been given.

Experts Rejected

Lasnik, however, struck the material portions of those declarations, saying the experts failed to support their opinions with evidence from any industry source. He also noted that one of the experts had left the cruise industry years earlier and presented no evidence of industry practices since that time, and that the other had never worked for a cruise line and never explained what made her qualified to opine on the dangers of Lovers Beach.

Sixth Circuit Senior Judge Ronald Gilman, writing for the Ninth Circuit and sitting by designation, said that the district judge did not abuse his discretion in striking parts of the declarations. Stripped of the experts opinions, he said, the plaintiff failed to support his claim of a legal duty.

The evidence, Gilman said, failed to show that Holland American knew or should have known that the Pacific Ocean side of Lovers Beach was so dangerous that it needed to warn passengers not to swim there.

Judges Richard Clifton and N. Randy Smith concurred.

The case is Samuels v. Holland American LineUSA Inc., 10-35933.

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