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Five years after boy's death, parents still battle cruise line

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By ROBERT TRIGAUX, Times Business Columnist

© St. Petersburg Times
published February 3, 2003


Noah Benson was a tall eighth-grader at Bay Point Middle School in St. Petersburg, a saxophone-playing jazz enthusiast who jumped at the idea of taking a weeklong cruise out of Miami.

What hungry 13-year-old wouldn't?

But soon after leaving Miami's port on Norwegian Cruise Line's M/S Leeward, Noah sampled a buffet of cheese fondue and escargot. He suffered an allergic reaction, had trouble breathing and collapsed.

The ship's 27-year-old doctor tried for half an hour to insert a breathing tube into his swollen airway but failed. She never administered a common antidote to allergic swelling, nor did she perform a routine tracheotomy to open a breathing hole. Noah died of anaphylactic shock.

That was in 1998. Five years later and a few weeks shy of what would have been Noah's 19th birthday, his father and mother still struggle over the senseless loss of their only child. Roger Benson and Patricia Hardy-Smith divorced when Noah was 2, but both were close to their son. Now the two are united in their resolve not to settle this case.

"We do want to grab the stupid money and run," says Hardy-Smith, 43, who helplessly watched Noah's collapse as the cruise ship's staff ignored her pleas for a Coast Guard helicopter rescue and paid no attention to advice available from an onshore doctor in a Florida hospital. "We want to make sure these people can't do this any more. It is frustrating to step on board a cruise ship and lose your rights the minute you enter international waters. I don't think Joe Public knows that."

Suing rich Norwegian Cruise Line, with its entanglements of foreign registry and its distant ownership by Malaysia's Star Cruises PLC, was daunting enough. Suing Carla von Benecke, the Leeward's doctor from South Africa and little more than the ship's contract employee, for medical malpractice was another uphill battle.

Suing both the cruise line and doctor for an offshore death, an incident colored by dated maritime laws that prohibit punitive damages and payments for pain and suffering, seemed almost futile.

Until now. Last month, after four years of litigation, a state appellate panel ruled in Noah's case that Florida's offshore jurisdiction should be extended from 3 to 12 miles into the Atlantic. Noah died aboard ship 11.7 miles off Florida's east coast. Not in international waters, but just within the Third District Court of Appeal's new definition of Florida's territorial waters.

If upheld, that ruling allows the case to proceed against Norwegian Cruise Line. The decision also reverses a lower court ruling to dismiss the wrongful death suit against von Benecke. Now the ship's doctor may face a medical malpractice trial on Florida turf. That would allow Noah's parents to claim damages under the Florida Wrongful Death Act, which does allow jury trials and awards for pain and suffering.

The case again may be appealed by Norwegian Cruise attorneys, even possibly bumped up to the Florida Supreme Court. Or it could be retried with the lower court judge.

Extending Florida's legal reach 9 extra miles into the Atlantic could affect a wide range of business activity, from offshore gambling to fishing. Casino cruise ships on Florida's east coast that invite passengers to sail beyond Florida-controlled waters to international waters, where gambling is permitted, would find their trips greatly lengthened. (Different rules govern the waters off Florida's gulf coast.) Casino cruise lawyers are considering whether to challenge the state appeals court ruling.

* * *

Roger Benson, 54, is a trim and soft-spoken man who was obviously close to his son. They lived together in the Pink Streets neighborhood of south St. Petersburg.

Benson says he spends "as little time as possible" fighting for Noah's cause. What Benson really means is that he is pacing himself. Trying to avoid burnout. He has little control over the agonizingly slow pace of the courts. He tells himself to be patient. He says he works hard to avoid becoming cynical.

How about skeptical? That's just fine.

"It's hard not to see this (lack of cruise industry accountability) as a corrupt alliance between business interests and the government," Benson says. "The case has taken four years, we have had no trial, and there are possibly several more years of appeal."

To Benson, success means making it to a trial. "Maybe that will happen seven years after Noah died," he says.

Noah's tale -- as a kind, 6-foot teen with size 13 shoes and a taste for Dunkin' Donuts he called "double Ds" -- was told two years ago by St. Petersburg Times writer Jeanne Malmgren. Since then, the legal battle just continues to grind along.

Benson graduated from law school 30 years ago. He stopped practicing traditional law in the late 1990s to run a legal mediation business. "It's a better fit -- constitutionally," he says.

Talking about Noah is not easy. Benson can keep it pretty together in conversation. But he admits he still goes out of his way to avoid places and events where he would see acquaintances who are not close enough to know what happened.

He hates being casually asked, "So how are you and Noah doing?"

Benson does value a close core of friends who knew Noah. He still winces inside when he sees a neighborhood teen, a year younger than Noah would have been, heading off to college.

* * *

Noah Benson's end at so young an age is tragic because it probably could have been prevented so easily. But his experience is hardly the only one like it on cruise ships, which may be staffed by less-than-qualified physicians. Among other incidents:

-- In the summer of 1986, 40-year-old Harvey Meadows of Long Island, N.Y., died of a heart attack aboard the Carnivale during a four-day Bahamian cruise. Carnival Cruise Lines agreed to pay $375,000 to his widow, who charged that Meadows died because a ship's doctor was slow in coming to his aid.

-- In February 1999, 59-year-old James Curtis of Maryland was found unconscious aboard Carnival Cruise Lines' Sensation and taken to the infirmary. In and out of consciousness and complaining of stomach pains, Curtis died about six hours later. A nurse and doctor failed to see that an abdominal rupture was causing him to bleed to death.

-- In December 2000 aboard Norwegian Cruise line's Sky, June Stern of Sunrise woke up on her 74th birthday with stomach pains. At the ship's infirmary, her husband said, equipment failed to work. After the patient passed out, she was airlifted off the ship but never regained consciousness. She died 10 days later.

In the late 1990s, the American Medical Association brought pressure on the cruise line industry to improve care after a study by two Florida physicians found major inadequacies in staff qualifications and equipment on ships.

In fairness, the cruise industry is slowly improving its medical standards. But the pace is uneven among cruise lines, and any legal complaints by passengers are met with stiff resistance backed by deep pockets.

Just ask Noah's mom and dad.

Their goal: Put pressure on Norwegian Cruise Line to make positive changes. To make the industry adopt higher standards of medical service. To acknowledge Noah's death.

"I know s-- happens," Benson says. "I know people get sick and die. But if that could be Noah's legacy, that would be wonderful."

-- Robert Trigaux can be reached at trigaux@sptimes.com or (727) 893-8405.

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