One of the most frequently asserted defenses in cruise ship litigation, not only by Holland America, but also by regional cruise lines, sightseeing vessels and whale watching boats is the “rogue wave” defense.
Rogue or “sneaker” waves are a natural phenomenon. They are waves which are unexpected and, definitionally, at least three times bigger than other waves in the vessel’s vicinity.
There is significant debate whether a defendant can avoid liability because the vessel was struck by a rogue wave. Rogue waves have been acknowledged for hundreds if not thousands of years. They’re clearly foreseeable.
But even if defendants could legitimately defend on the unexpected nature of rogue waves (which can be caused by a variety of factors), any validity associated with this defense has been destroyed by its gross overuse by defendants.
The “rogue wave” defense has been contorted by defense attorneys to the point that it is no longer recognizable. In almost every case where passenger falls and is injured because of defendant’s operation of a vessel and/or the nonexistent safety precautions like railings and handholds, the defense invariably interposes the “rogue wave” defense.
In these situations defendants argue, essentially, that the rogue wave that caused the vessel to lurch, roll or yaw was an act of God and that they shouldn’t be held responsible.
Waves are foreseeable. Rogue waves are foreseeable. Vessel owners and operators need to anticipate rogue waves and safeguard their vessels.