Is cruise line liable for catastrophe at Lover's Beach? No, says 9th Circuit

By Pat Murphy Dolan Media Newswires BOSTON, MA--A Holland American cruise line passenger must live the rest of his life as a quadriplegic after suffering catastrophic injuries at a popular beach on Mexico's Baja Peninsula. Tragic though that may be, should the cruise line bear any liability because it failed to warn the passenger of the dangers posed by the turbulent waves at the idyllic spot? Friday, the 9th Circuit answered that question in the negative. In November 2008, Gerald Samuels took his two teenage children on a seven-day cruise aboard a Holland American vessel. The first stop on the cruise was on the morning of November 24 at Cabo San Lucas, Mexico. Upon arrival, Samuels asked Holland American staff members regarding possible shore activities. According to Samuels, the staff told him he could hire a skiff in Cabo San Lucas that would take his family to Lover's Beach. The skiff would get them back to the ship in time for the scheduled departure time at 5:00 p.m. So Samuels made arrangements with a skiff-boat operator at the pier in Cabo San Lucas. Lover's Beach is at the very tip of the Baja Peninsula where the Pacific Ocean and the Sea of Cortez meet. It's a public beach with no lifeguards and, despite the potential for treacherous wave activity, there are no warning signs posted. After arriving at the beach with his children, Samuels waded in the Sea of Cortez for about five minutes. He then walked over to the Pacific Ocean side of Lover's Beach, where he noticed about 20 people swimming in the ocean. While wading chest-deep, Samuels was caught by a powerful wave that somersaulted him onto the ocean floor. Hitting head first, Samuels suffered severe neurological damage. Bystanders rescued Samuels, but he was later diagnosed with central-chord syndrome and is now classified as a high-functioning quadriplegic with significant pain and mobility limitations. Samuels sued Holland American, claiming that the cruise line's employees were negligent for failing to warn him of the dangers of Lover's Beach, particularly the treacherous wave activity on the Pacific Ocean side. A federal judge in Washington granted summary judgment in favor of Holland American. The 9th Circuit affirmed that decision on Friday, holding that the cruise line did not have a duty to warn Samuels because there was no evidence of particularly hazardous conditions or of prior accidents at that location. The court reached this conclusion even though Samuels protested that the dangers of Lover's Beach were well-known in the cruise line industry. The court explained that "Samuels's wading on the Pacific Ocean side of Lover's Beach was not uniquely associated with maritime travel. And the record does not include any evidence (particularly because the material portions of the declarations made by Samuels's experts were properly stricken) 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. ... "With the exception of Samuels, 96,000 Holland American passengers visited Cabo San Lucas in 2008 without a single report that any of those passengers who chose to visit Lover's Beach were injured while doing so." (Samuels v. Holland American) Entire contents copyrighted © 2011 by Dolan Media Company. Published: Mon, Sep 12, 2011