Another "Ugly American" story

"Unlike some countries, our nation demands that passenger and cargo carriers be held accountable for their negligence."

By -- Logistics Management, 4/1/2000

On a recent cruise through the Panama Canal to celebrate our 50th wedding anniversary, my wife and I witnessed an unpleasant reaction to American nationals. I wish to share it with our readers because it relates to liability issues.

Shortly after pulling away from the dock in Acapulco on the initial leg of our cruise, the captain received an urgent request for permission to bring four more guests aboard by tender, as they had just arrived at the dock due to a delayed flight. The captain, who was European, asked, "Are they Americans or Europeans?" After a pause, the answer came back that they were Europeans. Permission to bring them aboard was immediately granted, and the ship stopped long enough for the tender to deliver the travelers.

The next morning at breakfast, we heard the whole story. It seems that the only way to board the ship from the tender was via a rope ladder, and the captain reportedly was concerned about the probability of a lawsuit if one of the passengers should be injured, or worse, during the ascent to the ship. The captain was concerned that if an American passenger should be injured, the ship owners would be sued but had no such worry about European passengers. He would not have stopped the ship for Americans.

Later, after we had traded the usual attorney jokes and enjoyed the humor of this scenario, I realized that I felt angered by the captain's discriminatory attitude. I had to wonder what would have happened if this situation had arisen in a U.S. port or if there had been two Americans and two Europeans involved. I also wondered whether there might be any similarity between the laws governing passenger travel and the antiquated laws that govern the carriage of goods by sea. Under those cargo laws, a ship owner enjoys a complete defense against a cargo claim if it can prove that its negligence in navigating or managing the ship caused the loss!

Apparently this "nautical fault" defense is widely accepted in nations with strong maritime interests, but that is not the case in the United States, where legislators are expected to introduce a bill that would prohibit its application to U.S. cargo shipments. There are several reasons for our nation's historical and continuing demand that passenger and cargo carriers be held strictly accountable for their negligence. It matters not whether those carriers are transporting goods, human beings, or animals. Strict liability standards provide a strong inducement to carriers to devote sufficient resources for training, equipment, and supervision to protect passengers and goods in transit, even during periods of intense competition and declining profits. These standards must be protected lest we experience a gradual decline in preventive-maintenance programs, security, and training, particularly as we move so rapidly into the electronic age.

Foreign shipowners may like the American tourist trade, but not our penchant for accountability. The cruise ship incident should remind Americans of the reasons we have high standards of liability for carriers and of the need for continued vigilance against wasteful acts of negligence and omission. Our lives are at stake! It also should serve as a warning to all shipper interests and their insurers not to overlook fundamentals like liability issues in our rush to facilitate e-commerce.

William J. Augello Esq. has practiced transportation law for 47 years. He also is the executive director of the Transportation Consumer Protection Council, an organization that is devoted to protecting shippers and receivers in transportation matters, such as freight loss and damage, undercharges, and contracts. He can be reached in Tucson, Ariz., at (520) 531-0203 or via e-mail at williamaugello@worldnet.att.net.