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Seabourn Cruise Passenger Alleges Drugged and Raped by Assistant Cruise Director Aboard the SOJOURN

April 15, 2020 Cruise Ship Sexual Assault / Rape

Seabourn Cruise Passenger Drugged and Raped by Assistant Cruise Director Aboard the SOJOURN Per Complaint filed in the United States District Court for the Western District of Washington in Seattle Seabourn Sojourn Cruise Ship

On March 30, 2019, Brais Law Firm on behalf of its client, a cruise ship passenger, filed suit in the United States District Court for the Western District of Washington in Seattle, Washington, against Holland America Line, Inc. (HAL Inc.), Holland America Line N.V.(HAL NV), and Seabourn Cruise Line Limited dba Seabourn Cruise Line (Seabourn), alleging that he was drugged and raped by a Ship’s Officer, the Assistant Cruise Director aboard the Seabourn SOJOURN.  See, attached Amended Complaint.  Per the Amended Complaint (“Complaint”), the sexual assault occurred late in the evening on March 28, 2019 or in the early morning hours of the following day aboard the Seabourn SOJOURN, the Vessel having just departed Colombo, Sri Lanka and sailing towards Hambantota, Sir Lanka.  At the time of the subject incident the Vessel was either still in or just outside Sri Lankan territorial waters.

Unless otherwise indicated, the more salient allegations of the Complaint provide:

  • That John Doe, a pseudonym used to protect the identity of the victim, was aboard the Seabourn SOJOURN as a cruise passenger;
  • That HAL Inc., a Washington corporation, was sued as operator of the SOJOURN;
  • That HAL NV, a Curacao corporation, was sued as either the charterer and/or operator of the SOJOURN;
  • That Seabourn, a Bermuda Corporation, was sued as the owner of the Vessel and employer of the Assistant Cruise Director;
  • That Carnival Corporation includes a portfolio of global cruise line brands, including: Carnival Cruise Line, Princess Cruises, Holland America Line, Seabourn, P&O Cruises (Australia), Costa Cruises, AIDA Cruises, P&O Cruises (UK) and Cunard [see, Carnival Website];
  • That on the evening of March 28, 2019, twenty-nine days after having embarked on the SOJOURN and while socializing on Deck 5 at The Club, John Doe “suddenly began feeling foggy”;
  • That what John Doe didn’t know at the time, but what was later proven via hair sample tests performed by a world-renowned toxicology expert, was that John Doe had been drugged with a type of “date rape” drug;
  • That Professor Pascal Kintz, the world’s leading expert regarding drug and alcohol testing and often referred to as the “Father of Hair Testing” concluded John Doe’s hair sample is “highly indicative of a single exposure to carbamazepine, an antiepileptic drug, with sedative and antidepressant properties” consistent with a date rape drug and within the time frame of the alleged rape;
  • That carbamazepine is an anticonvulsant:
    • That is principally used to treat seizures and nerve pain, such as trigeminal neuralgia, diabetic neuropathy, seizures or epilepsy;
    • That John Doe at no time before the sexual assault had ever been diagnosed with trigeminal neuralgia, diabetic neuropathy, seizures, epilepsy, or any other similar condition generally treated with carbamazepine;
    • That John Doe at no time before the subject incident had ever been prescribed or filled a prescription for carbamazepine; and
    • That John Doe at no time leading up to or on the date of the sexual assault had ever knowingly taken carbamazepine;
  • That while consuming the single drink ordered at The Club, John Doe was joined by the Assistant Cruise Director;
  • That despite after having been drugged and feeling its effects, John Doe remembers images of the Assistant Cruse Director walking him to his (John Doe’s) stateroom and at the entrance to his stateroom, after which John Doe’s memory and consciousness succumbed to the “date rape like” effects of the carbamazepine and he remembers nothing of the events that transpired inside his stateroom;
  • That the following morning John Doe awoke and knew right away from physical evidence and pain that he’d been raped;
  • That concerned for his physical wellbeing and that he might contract HIV, John Doe confronted the Assistant Cruise Director about what happened in his stateroom, to which the Assistant Cruise Director responded, John Doe had “nothing to worry about” because he (the Assistant Cruise Director) had supposedly only performed oral sex upon John Doe and left the stateroom after John Doe “feel asleep”; and
  • That John Doe underwent a shipboard rape test examination and that the Ship’s Doctor, in part based upon his examination and photos taken of John Doe that depicted bruising, concluded “probable” as to whether John Doe had been penetrated anally.

The Complaint at paragraph 3.22, provides:

3.22        Assailant without permission or consent from Plaintiff, and with[out] warning forcibly engaged in one or more “sexual act[s]” as defined in 18 U.S.C. § 2246(2) as well as one or more “sexual contact[s]” as defined in 18 U.S.C. § 2246(3). Without limiting the foregoing, Assailant sexual assaulted and rape[d] Plaintiff:

  1. When Assailant forcibly and without permission or consent performed oral sex upon Plaintiff while Plaintiff was in an impaired and/or date rape drug induced state, and
  2. When Assailant forcibly and without permission or consent anally raped Plaintiff while Plaintiff was in an impaired and/or date rape drug induced state, i.e., unconscious and/or incapacitated.

The Complaint asserts sixteen (16) counts, to wit:

  1. Negligence, Gross Negligence and Willful/Intentional Misconduct Against Seabourn;
  2. Negligence, Gross Negligence and Willful/Intentional Misconduct Against HAL Inc. and HAL NV;
  3. Strict Liability for Physical Assault, Battery, Sexual Assault, Sexual Battery and Rape of a Passenger by a Crewmember against Seabourn;
  4. Sexual Battery and Rape of a Passenger by a Crewmember against HAL Inc. and HAL NV;
  5. Negligence for Failure to Warn against Seabourn;
  6. Negligence for Failure to Warn against HAL Inc. and HAL NV;
  7. Negligent Hiring or Retention against Seabourn;
  8. Negligent Hiring or Retention against HAL Inc. and HAL NV;
  9. Negligent Supervision against Seabourn;
  10. Negligent Supervision against HAL Inc. and HAL NV;
  11. Negligent Training against Seabourn;
  12. Negligent Training against HAL Inc. and HAL NV;
  13. Negligent Security against Seabourn;
  14. Negligent Security against HAL Inc. and HAL NV;
  15. Negligent Infliction of Emotional Distress against Seabourn; and
  16. Negligent Infliction of Emotional Distress against HAL Inc. and HAL NV;

Liability: As a common carrier, Seabourn and/or the Holland America entities are strictly liable and responsible for the intentional torts committed by their crew members and/or employees including that of their Assistant Cruise Director against their passengers, including John Doe. This is a “special non-delegable duty owed by the carrier to the passenger.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 907 (11th Cir. 2004); New Orleans & N.E.R. Co. v. Jopes, 142 U.S. 18 (1891); New Jersey Steam-Boat Co. v. Brockett, 121 U.S. 637 (1887); thus, the cruise line has an “unconditional responsibility” for its employees’ misconduct. Tullis v. Fid. & Cas. Co. of N.Y., 397 F.2d 22, 23 (5th Cir. 1968) as cited by the Eleventh Circuit Court of Appeals in Doe v. Celebrity Cruises Inc., 394 F.3d at 909. “It is a widely adopted rule that common carriers owe such an absolute duty to their passengers.” See Doe v. Celebrity Cruises Inc., 394 F.3d at 911.

Anticipated Defenses:  Given the controlling maritime law in cases involving a crew member sexual assault/ rape of a passenger, Seabourn and the Holland America entities’ predictable defenses will be one or more of the following: (a) the incident never occurred, (b) it occurred but it was consensual and, if neither (a) nor (b) work, resort to (c) limiting recoverable damages by one or more means, including (i) asserting the Athens Convention, or other cruise ticket contractual limitation, caps the damages available to John Doe and/or (ii) character assassination of John Doe, i.e., blame the victim.

There are no facts to support the notion the subject sexual assault did not occur.  In fact, all available evidence, including the ship’s medical records, photos taken during the shipboard Rape Test Examination and an admission, at least to certain sexual acts,  by the Assistant Cruise Director, provide strong evidence the sexual assault occurred; for this reason, “consent” is typically raised as a defense when overwhelming evidence exists of the assault.  In addition, Professor Kintz’ hair sample test is conclusive that John Doe was drugged with a “date rape like drug” that John Doe had never taken and for a condition with which he had never been diagnosed.  Importantly, Professor Kintz’ report is conclusive that the Carbamazepine indicator is consistent with a single exposure event, and not a medication taken on a therapeutic or daily basis.

Additional Anticipated Defense – The Devil is in the Fine Print: Before any sailing, Cruise Lines deliver to any would be cruise passenger a Cruise Ticket Contract containing the cruise line’s “Terms and Conditions.”  Absent a cruise passenger cancelling the cruise and assuming other criteria are satisfied, cruise passengers unwittingly accept the terms and conditions of a Cruise Line’s Ticket Contract as soon as they walk aboard the cruise ship.  By accepting the cruise ticket contract, passengers waive many of their rights, restrict their ability to bring suit, and in some instances limit their recoverable damages.  Seabourn’s ticket contract contains no less than 20 clauses that waive or limit cruise passengers’ rights and/or damages after illness, injury or death while traveling aboard a Seabourn Cruise ship.  It’s worth noting that Seabourn’s cruise ticket contract contains 10,367 words, at least its “Rev. February 2019” version.  A post will follow discussing all 20 clauses, but for purposes of John Doe’s suit most relevant are clauses 1, 14 and 15, each of which are discussed below:

  1. Clause 1: Didn’t Read the Contract – Too Bad: “Any Guest booking or purchasing the Cruise, Land Trip(s) and/or Air Package represents that he or she is authorized by all accompanying Guests to accept and agree to all the terms and conditions set forth herein.”
  2. Clause 1: All of the Ticket Contract Waivers and Defenses available to the Cruise Line are available to Anyone of the Cruise Line’s Choosing: “You and Carrier agree and intend that certain third party beneficiaries derive rights and exemptions from liability as a result of this Cruise Contract.  Specifically, all of Carrier’s rights, exemptions from liability, defenses and immunities under this Cruise Contract (including, but not limited to, those described in Sections 4, 6, 7, 12, 13, 14, 15, and 17) will also inure to the benefit of the following persons and entities who shall be considered “Carrier” only for purposes of such rights, exemptions from liability, defenses and immunities: Carrier’s employees, agents, Alaska Railroad Corporation, the ship named on the booking confirmation/statement and/or boarding pass (or any substituted ship),  the ship’s tenders, the ship’s owners, operators, managers, charterers, and agents, any affiliated or related companies thereof and their officers, crew, pilots, agents or employees, and all concessionaires, independent contractors, physician and medical personnel, retail shop personnel, health and beauty staff, fitness staff, shore excursion providers, tour operators, shipbuilders and manufacturers of all component parts, launches, appurtenances, craft or facilities, whether provided at sea or on shore, belonging to any such ship or owned or operated by its owners, operators, managers, agents, charterers, contractors or concessionaires.”
  3. Clauses 14(A) & (E): Athens Convention (Cruises To/From or Within the EU) – Cap on Damages equals $564,000: (A) General: Nothing contained in this Cruise Contract shall limit or deprive Carrier of the benefit of the applicable statutes or laws of the United States of America or any other country; or any international convention providing for release from, or limitation of, liability. (E) “Cruises To/From or Within the EU: On international cruises which neither embark, disembark nor call at any U.S. port and [emphasis added] where You commence the cruise by embarking or disembarking in a port of a European Member State, Carrier shall be entitled to any and all liability limitations and immunities for loss of or damage to luggage, death and/or personal injury as provided under EU Regulation 392/2009 on the liability of carriers to passengers in the event of accidents … Carrier’s liability is limited to no more than 400,000 Special Drawing Rights (“SDR”) per passenger, (approximately U.S. $564,000) … if the passenger proves that the incident was a result of Carrier’s fault or neglect.”
  4. Clause 15 (A)(i): Provide “Notice” within 6 months, Sue within 1 year & Serve the Complaint within 90 days, or the Cruise Line will move to dismiss your suit: Claims for Injury, Illness or Death: In cases involving claims for Emotional Harm, bodily injury, illness to or death of any Guest, no lawsuit may be brought against Carrier unless (1) written notice giving full particulars of the claim is delivered to Carrier within 6 months from the date of the Emotional Harm, bodily injury, illness or death, (2) a lawsuit on such a claim is filed within 1 year from the date of the injury, illness or death, and (3) valid service of the lawsuit is made within 90 days of filing the complaint.”
  5. Clause 15 (B)(i): Sue the Cruise Line in its selected Forum (Court) no matter where you live or where you boarded the Cruise Ship, or the Cruise Line will move to dismiss your suit: Claims for Injury, Illness or Death: All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever including without limitation those arising out of or relating to this Cruise Contract or Your Cruise, Land Trip(s), or Air Package shall be litigated in and before the United States District Court for the Western District of Washington at Seattle, or as to those lawsuits over which the Federal Courts of the United States lack subject matter jurisdiction, before a court located King County, State of Washington,  U.S.A., to the exclusion of the courts of any other country, state, city, municipality, county or locale.”

One thing is abundantly clear.  The cruise industry has at least three main sources of legal protection:  (1) antiquated maritime laws dating back over 100 years which were designed to insulate shipping companies from legitimate liability claims and which fail to recognize modern concepts of economic burden shifting, through insurance and protection provided by indemnity clubs, (2)  contractual limitation buried in the fine print of a cruise ticket contract and (3) laws that our Congress has in some instances allowed to stay on the books or, perhaps more sinisterly, has enacted after a good deal of pressure from cruise industry lobbyists.

In John Doe’s case, Seabourn will likely advance the argument that his claim is governed by the Athens Convention cleverly referred to as “EU Regulation 392/2009”.   For several reasons, the Athens Convention should not provide Seabourn with a contractual limitation to the damages owed to John Doe.

As an initial matter, clauses 14(A) and 14(E) are at odds with each other, to wit:  Clause 14(A) purports to avail Seabourn of every conceivable benefit of applicable “statutes or laws of the United States of America or any other country; or any international convention providing for release from, or limitation of, Liability, whereas Clause 14(E) limits Seabourn’s damages under the Athens Convention only in cases involving “International cruises which neither embark, disembark nor call at any U.S. port and where You commence the cruise by embarking or disembarking in a port of a European Member State …”

The Athens Convention and its cap on personal injury damages should not be available to Seabourn since the subject cruise did not commence by embarking or disembarking “in a port of a European Member State[1].”  Below is a list of the embarking and disembarking ports during the legs of the voyage during which John Doe alleges he was drugged and raped aboard the SOJOURN.  Notably, none of the ports are within European Member States, to wit:

Date Embarking / Disembarking Port / Country
March 5, 2019 Embarking Port Cape Town
March 25, 2019 Disembarking & Embarking Male Maldives, Singapore
April 02, 2019 Disembarking Thilawa (Ragoon), Myanmar

Undaunted by its inability to satisfy the criteria of its own ticket contract language, i.e., “embarking or disembarking in a port of a European Member State,” Seabourn will likely advance another argument in an effort to limit John Doe’s damages.  Seabourn will likely argue that the subject voyage was an “international carriage” and that by its own terms the Athens Convention at Article 2 entitled “Application” provides: “This Convention shall apply to any international carriage if (a) the ship is flying the flag of or is registered in a State Party to this Convention, or …”.  Not surprisingly, the Seabourn SOJOURN is registered in the Bahamas and The Bahamas Maritime Authority pursuant to Information Bulletin No. 101 issued February 24, 2017, Ratified the Athens Convention, 1974 and 1976 Protocol.  This all begs the question, “How in the world would a cruise passenger even assuming they read the 10,367 words of Seabourn’s Cruise Ticket Contract know the Athens Convention and its limitations on damages would apply to a non-European Member State cruise because of the vessel’s flag state?”  The answer is obviously, “The passenger wouldn’t know.”

In addition to the foregoing, Seabourn’s own ticket contract on its face precludes the application of the limitations under the Athens Convention, since John Doe’s claim involves an intentional tort.  Again, clause 14(E) provides:

Cruises To/From or Within the EU:  On international cruises which neither embark, disembark or call at any U.S. port and where You commence the cruise by embarking or disembarking in a port of a European Member State, Carrier shall be entitled to any and all liability limitation and immunities for loss of … personal injury as provided under EU Regulation 392/2009 on the liability of carriers to passengers in the event of accidents.”

As mentioned above, a sexual assault is an intentional tort and, most certainly not an “accident” nor a claim sounding in neglect or negligence.

Setting aside the wording of Seabourn’s ticket contract, the wording of the Athens Convention itself precludes Seabourn’s reliance upon the caps of the Athens Convention in cases involving injury or harm resulting from intentional acts or omissions.  Article 13(1) & (2) of the Athens Convention, in pertinent part, provide:

Article 13

  1. The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8 and Article 1091), if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with the knowledge that such damage would probably result.
  2. The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

Finally, setting aside the language of Seabourn’s own ticket contract and the Athens Convention itself which seemingly preclude Seabourn’s ability to invoke the Athens Convention and its cap on damages, an opinion from Judge James Lawrence King a United States District Judge for the Southern District of Florida seals Seabourn’s fate in its efforts to limit John Doe’s damages.  See also, Farraway v. Oceania Cruises, 10-cv-24312-JLK (S.D. Fla., June 10, 2011)(“The Athens Convention on its face does not provide any limit on liability for a carrier’s liability for intentional torts. The only substantive claims for relief in Plaintiff’s Complaint are sexual assault/rape and false imprisonment.  Because these are both intentional torts, the limits of liability contained in the Athens Convention do not apply.”).

John Doe’s case points out that Cruise Lines are not voluntarily reporting all crimes and sexual assaults aboard their vessels.   The Cruise Vessel Security and Safety Act (CVSSA) of 2010 prescribes security and safety requirements for most cruise ships that embark and disembark in the United States.  See, https://www.transportation.gov.  The below table, reflects each and every “Alleged Sexual Assault” aboard twelve of the major cruise lines, including Seabourn from January 1, 2019 through March 31, 2019:

Cruse Vessel Security and Safety Act (CVSSA) Statistical Compilation of “Sexual Assaults” by Victim

January 1, 2019 – March 31, 2019

Cruise Line Passenger Crew Other Grand Total
Bahamas Paradise Cruise Line 0 0 0 0
Carnival Cruise Lines[2] 4 0 0 4
Crystal Cruise Line 0 0 0 0
Celebrity Cruise Lines 0 0 1 1
Disney Cruise Line 0 0 0 0
Holland America Cruise Lines 0 0 0 0
MSC 0 0 0 0
Norwegian Cruise Lines 2 0 0 2
Oceania Cruise Line 0 0 0 0
Princess Cruises 1 2 0 3
Royal Caribbean 6 2 0 8
Seabourn 0 0 0 0
Total 12 4 1 17

See, www.transportation.gov

The sexual assault of John Doe was reported aboard the Vessel during the subject cruise and yet it is not reflected in the attached DOT table.  Additionally, the assault was reported to the FBI.  If the above table proves anything, it certainly proves that some, if not all of the above Cruise Lines, most certainly Seabourn, are exploiting an apparent “loophole” in the CVSSA by not reporting “Alleged Criminal Activity” including sexual assaults aboard cruise ships when a voyage does not “embark or disembark in the United States.”  No matter the defenses Seabourn intends to raise to John Doe’s lawsuit that he was sexually assaulted and raped aboard the Seabourn SOJOURN on March 28, 2019, Seabourn and/or Holland America did not ensure the incident was reported to the general public via the www.transportation.gov website the existence of which is to inform the general public and, in particular, cruise passengers of the risk of crimes aboard cruise ships, in particular, sexual assaults and/or rapes. An accurate reporting of serious crimes, including sexual assault and rape, aboard cruise ships is essential so that the public can assess the risk before deciding to take a cruise.

The Cruise Lines have plenty of reason to shield from the public eye whenever possible the actual number of sexual assaults aboard their vessels.  As evidenced by the below table, sexual assaults have become an epidemic aboard cruise ships for a variety of reasons, including but not limited to: the complete lack of law enforcement; the nearly complete absence of security; the limited numbers of CCTV cameras creating little to no deterrence or fear of being held criminally responsible; shipboard programs and sponsored games promoting the over consumption of alcohol; post-incident investigations undertaken by shipboard employees whose relationship with the victim is adverse and who are often investigating a co-worker’s wrongdoing; a Rubrik’s cube of laws with no clear delineation of which Country has jurisdiction to either investigate or prosecute shipboard crimes committed sometimes within and other times outside a country’s territorial waters; and the nearly complete lack of criminal prosecution by law enforcement, in the case of the United States the Department of Justice (DOJ) on jurisdictional or other grounds.

Cruse Vessel Security and Safety Act (CVSSA) Statistical Compilation of “Sexual Assaults” by Victim

January 1, 2010 – September 30, 2019

Cruise Line Passenger Crew Other Grand Total
Bahamas Paradise Cruise Line 0 0 2 2
Carnival Cruise Lines 156 21 3 180
Crystal Cruise Line 0 0 0 0
Celebrity Cruise Lines 2 4 1 7
Disney Cruise Line 5 7 1 13
Holland America Cruise Lines 4 6 1 11
MSC 4 2 0 6
Norwegian Cruise Lines 40 13 3 56
Oceania Cruise Line 0 2 0 2
Princess Cruises 3 9 1 13
Royal Caribbean 76 25 2 103
Seabourn 0 0 0 0
Total 290 89 14 393

See, www.transportation.gov

John Doe’s Complaint was only recently served and, therefore, this cause is in its beginning stages with little to no discovery having been exchanged between the Parties.  John Doe, however, is asking for help from the general public with regard to information and/or witnesses who may have knowledge helpful in this cause.   The subject Assistant Cruise Director is alleged to have admitted in a conversation with John Doe that he (the Assistant Cruise Director) engaged in previous similar sexual misconduct while employed aboard one or more of the following Cruise Lines: Royal Cruise Line, Sitmar Cruise Line, Cunard, American Hawaii, Radisson Seas and Paul Guaguin Cruises.  See, ¶ 3.12 of the Amended Complaint.  If anyone has information about an Assistant Cruse Director or Cruise Director aboard any of these Cruise Lines acting in a sexually inappropriate manner, they are urged to contact the Brais Law Firm.

The Brais Law Firm is dedicated to helping cruise ship passengers and crew members who as a consequence of negligence or criminal act suffer serious personal injury or death.   At the Brais Law Firm our cruise ship sexual assault/ rape attorneys have decades of experience, proven Results and strong professional Credentials to protect your rights and obtain the compensation you deserve.  Keith Brais, the founding partner of the firm, is “AV” Preeminent Rating with Martindale Hubbell and a Board Certification Maritime Law with the Florida Bar. Call us at 800-499-0551 or click Contact Us to complete a confidential free online consultation form.

[1] A list of the Countries who are members of the European Union can be found at https://europa.eu/european-union/about-eu/countries_en.

[2] Carnival Corporation includes a portfolio of global cruise line brands, that includes: Carnival Cruise Line, Princess Cruises, Holland America Line, Seabourn, P&O Cruises (Australia), Costa Cruises, AIDA Cruises, P&O Cruises (UK) and Cunard [See, https://www.carnivalcorp.com/corporate-information/worlds-leading-cruise-lines].