DRAM SHOP EXPOSURE
By Allen E. Graham

If you, as a vessel operator, provide alcoholic beverages to passengers and crew, you expose yourself to potential liability when alcohol is involved in an accident. If the consumption of alcohol by a crew member on duty results in injuries to a passenger, at least partial liability should be expected. However, when a passenger consumes alcohol and results in the passenger's injury are you exposed? Most state legislatures have adopted statutes which impose liability on providers of alcoholic beverages only under certain circumstances. In general, state "Dram Shop" laws prohibit a provider of intoxicating beverages from providing such beverages to a minor or to anyone visibly or obviously intoxicated and liability may be imposed for damages cause by a provider violating this prohibition. Liability in such a case would hinge on proof that injuries and damages complained of were proximately caused by the sale or disposition of the alcoholic beverage as opposed to other potential causes. There is no federal statute which can be uniformly applied to all vessel owners/operators on navigable waters. Because there is no federal statute, Maritime courts use a complicated legal analysis to determine whether the state law will govern a particular case, or whether a federal maritime rule on dram shop liability exists or will be adopted under common law. Courts have reached different conclusions on whether a Federal Maritime rule exists concerning dram shop liability.

Myers v. Carnival Cruise Lines is a case from the Federal District Court in San Francisco. An18-year-old girl fell over the midship stairway bannister on a cruise vessel resulting in serious injuries. The injury occurred when the girl and her boyfriend were sliding down the stairway railing. The vessel providing alcohol was a substantial factor in the accident. The District Court Judge found that no Federal Maritime Dram Shop Rule existed and the Court refused to fashion a Federal Maritime Dram Shop Rule to apply in the case. The Court adopted California's Dram Shop law and applied it to the vessel even though the cruise ship was registered in Liberia on high seas at the time of the injury. California's Dram Shop Law contains immunity from civil liability except when the seller provides alcohol to a minor, under the age of 21. The Court stated that the Liberian vessel may legally serve alcohol to persons between 18 and 21 years of age even though it could not do so within the State of California because Liberian law allows drinking at age 18 and up. However, if the vessel serves alcohol to an obviously intoxicated person between 18 and 21, it may be held liable for resulting injury.

A Fifth Circuit case reaches an opposite conclusion as to whether a Federal Maritime Dram Shop Rule exists. Reyes v. Vantage Steamship Company is a case of a seaman who drowned while swimming in the ocean after jumping overboard off the African Coast. The seaman was legally drunk at the time of his death, jumped approximately 35 feet off of the side of the ship and attempted to swim to a mooring buoy located several hundred feet away. Fellow crew members spotted him immediately and were aware from the time of his first siting that he was in mortal danger. Within a few moments, ship's officers were made aware of his peril, but by that time he was too far from the ship to be reached by a hand-thrown line or life ring. When Reyes got approximately 20 feet from the mooring buoy, he stopped swimming, became motionless in the water and died. In Reyes, the vessel argued that the Plaintiff was 100% contributorily negligent because he, for no apparent reason, voluntarily jumped overboard to swim to the mooring buoy. The Court refused to accept such a result, holding "in this case, however, the shipowner was largely responsible for Reyes' reckless act. The fact that a floating dram shop was operating on board, use of intoxicants obtained therefrom were not supervised and as a consequence the vessel must bear at least part of the fault ¼ for Reyes' "negligence." In Reyes, the vessel provided beer for sale to its crew, but prohibited drinking while on duty.

Another case from a Texas District Court follows the Reyes' decision. In Thier v. Lykes Brothers, Inc., the District Court cited the Reyes decision for the proposition that a Federal Maritime Dram Shop Rule exists under the General Maritime Law. In Thier, the Plaintiff was a cadet assigned to the Lykes' vessel and was involved in a one-car crash as a passenger in the vehicle when he and the chief officer of the vessel were driving to a restaurant for dinner while in port. The chief officer was legally intoxicated, lost control of the vehicle and crashed. The evidence showed that the Chief officer consumed alcohol while aboard the vessel for an approximate 4 hour period before the crash. The vessel owner had clearly posted policies and procedures which prohibited crew members, including officers, from bringing alcohol on board the vessel. But the owner's policies did not insulate the owner. The Court stated: