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Coronavirus (COVID-19) … What did the Cruise Lines Know?  When?  And, Can Cruise Lines Be Held Accountable?  A Maritime Lawyer’s Analysis. 

April 20, 2020 Coronavirus COVID-19

Coronavirus (COVID-19) … What did the Cruise Lines Know?  When?  And, Can Cruise Lines Be Held Accountable?  A Maritime Lawyer’s Analysis. 

Of late, cruise ships have been referred to as “floating petri dishes” following numerous shipboard outbreaks of Coronavirus/ COVID-19.  This article will examine: to what extent the cruise industry contributed to the spread of the COVID-19 pandemic, what the cruise industry knew and when, and if certain cruise lines can be held liable to cruise passengers and crewmembers for serious illness and in certain instances death from contracting COVID-19 while traveling on a cruise ship.

First Shocking Fact: During February–March 2020, COVID-19 outbreaks associated with three cruise ship voyages accounted for more than 800 laboratory-confirmed cases among passengers and crew according to the US Centers for disease Control and Prevention’s (“CDC’s”) March 23, 2020 article.  Transmission occurred across multiple voyages from ship to ship by crew members, both crew and cruise passengers were affected and at least 10 deaths resulted involving crew and passengers who contracted COVID-19 while sailing or working aboard these cruise ships.  A more recent article in Bloomberg News  provides that after the outbreak on the Diamond Princess, “[a]t least seven more of [Carnival’s cruise ships or brand name lines] at sea have become virus hot spots, resulting in more than 1,500 positive infections and at least 39 fatalities.”

Below is a timeline of the more salient events leading up to these tragic events and present dire circumstances:

Approx. Dates

Chronology of Events

Dec. 2019 SARS-CoV-2, the virus that causes coronavirus disease (COVID-19) is first identified in Wuhan, China
Jan. 20, 2020

Diamond Princess

(Jan. 20 – Feb. 3, 2020)

The Diamond Princess cruise ship departs Yokohama, Japan, carrying approximately 3,700 passengers and crew.

Jan. 23, 2020 Chinese authorities take the unprecedented measure of isolating Wuhan, a city of over 11,000,000 people, in an effort to stop the spread of COVID-19.
Jan. 25, 2020

Diamond Princess

A symptomatic passenger departs the Diamond Princess in Hong Kong, where he is evaluated; testing confirms SARS-CoV-2 infection.

Jan. 30, 2020 CDC Confirms Person-to-Person Spread of New Coronavirus in the United States:  The CDC in a Press Release “Confirm[s] that the 2019 Novel Coronavirus (2019-nCoV) has spread between two people in the United States, representing the first instance of person-to-person spread with this new virus here [in the United States].
Jan. 30, 2020 The World Health Organization declares the coronavirus outbreak “a global public health emergency.” See, NBC News Article: New coronavirus outbreak: “WHO declares it a global public health emergency.”
Jan. 30, 2020 The U.S. Department of State issues a Level 4 (highest level) travel advisory as it related to U.S. citizens planning to travel to China.
Feb. 3, 2020

Diamond Princess

The Diamond Princess returns to Japan, after making six stops in three countries. Japanese authorities are notified of the COVID-19 diagnosis in the passenger who disembarked in Hong Kong, and the ship is quarantined. Information about social distancing and monitoring of symptoms is reportedly communicated to passengers.

Feb. 5, 2020

Diamond Princess

Passengers are quarantined in their cabins, but crew continue to work and, therefore, are not isolated in their cabins.

After

Feb. 5, 2020

Diamond Princess

Travelers with fever or respiratory symptoms and their close contacts are tested for SARS-CoV-2 by reverse transcription–polymerase chain reaction (RT-PCR).  All those with positive test results are disembarked and hospitalized.  Testing is later expanded to support a phased disembarkation of passengers, prioritizing testing of older persons, those with underlying medical conditions, and those in internal cabins with no access to the outdoors.

Feb. 11, 2020

Grand Princess – Voyage A

(Feb. 11-21, 2020)

The Grand Princess cruise ship departs San Francisco, California, on a roundtrip voyage including four intended stops in Mexico.

Feb. 16, 2020

Diamond Princess

(Feb. 16-23, 2020)

Repatriation of nearly 1,000 persons begins by air to their home countries, including 329 persons who return to the United States and are reported to enter quarantine or isolation. These repatriation efforts end Feb. 23, 2020.

Last Updated

Feb. 18, 2020

The CDC issues: Centers for Disease Control and Prevention, Interim Guidance for Ships on Managing Suspected Coronavirus Disease 2019.  
Feb. 18, 2020

Diamond Princess

CDC Publishes a Media Statement, entitled: Update on the Diamond Princess Cruise Ship in Japan, which in pertinent part, provides:

·        CDC believes the rate of new reports of positives on board, especially among those without symptoms, highlights the high burden of infection on the ship and the potential for ongoing risk.

·        Currently, there are more than 100 U.S. citizens still onboard the Diamond Princess cruise ship or in hospitals in Japan.

Feb. 21, 2020

Grand Princess – Voyage A

The Grand Princess completes Voyage A and returns to San Francisco, California.

Feb. 21, 2020

Grand Princess – Voyage A Crew to Three Other Cruise Ships

Princess Cruise Lines transfers five (5) crewmembers from the Grand Princess – Voyage A to three other cruise ships with a combined 13,317 passengers on board.  No-sail orders are issued by the CDC for these ships until medical logs are reviewed and the crew members test negative for SARS-CoV-2.

Feb. 21, 2020

Grand Princess – Voyage B

Most of the 1,111 crew and 68 passengers from Voyage A remain on board for a second voyage and depart San Francisco, with a planned return on March 7 (Voyage B).

Feb. 21, 2020 The CDC recommends avoiding travel on cruise ships in Southeast Asia.

Feb. 24, 2020

 

Diamond Princess

(Feb. 24 – Mar. 9, 2020)

The remaining passengers with negative SARS-CoV-2 RT-PCR test results, no respiratory symptoms, and no close contact with a person with a confirmed case of COVID-19 begin a 14-day ship-based quarantine before being allowed to disembark. Those passengers with close contact with a person with a confirmed case complete land-based quarantine, with duration determined by date of last contact.

Mar. 4, 2020

Grand Princess – Voyage A & B

A clinician in California reports two passengers from former Voyage A are demonstrating COVID-19 symptoms, one of whom tests positive for SARS-CoV-2. The CDC notifies the Princess Cruise Line, which begins cancelling group activities on Voyage B. More than 20 additional cases of COVID-19 among persons who did not travel on Voyage B, are identified from Grand Princess Voyage A.  The majority are in California. One death is reported.

Mar. 5, 2020

Costa Luminosa

The Costa Luminosa arrives in Ft. Lauderdale and boards passengers knowing that on the previous voyage a 68-year-old Italian passenger had been evacuated (02/29/20) due to symptoms of Coronavirus and knowing that passengers were boarding the vessel having traveled from northern Italy, where at the time COVID-19 was reaching epidemic levels with portions of the country in “lock down.”  The Vessel’s itinerary and available ports for early disembarkation were:

·        Mar. 8, 2020 San Juan, PR (elderly couple disembark w/ COVID-19 symptoms)

·        Mar. 9, 2020 St. John’s (Antigua)(Vessel denied entry into port; during transatlantic voyage Costa is informed passenger who disembarked on 02/29/20 tested positive for COVID-19, and as well elderly couple who disembarked in San Juan; no self-isolation orders are issued by Costa’s Captain)

·        Mar. 15, 2020 Santa Cruz de Tenerife (Canary Islands)(three passengers w/ COVID-19 symptoms are disembarked, but all other passengers are not allowed off the vessel; passengers are advised to self-isolate)

·        Mar. 19, 2020 Marseille, FR (passengers are allowed off the vessel in large groups, but with little safety measures to prevent the spread of COVID-19).  See, Paul Turner v. Costa Crociere S.P.A., Case 1:20-cv-21481.

Mar. 5, 2020

Grand Princess– Voyage B

A response team is transported by helicopter to the Grand Princess to collect specimens from 45 passengers and crew with respiratory symptoms for SARS-CoV-2 testing; 21 (46.7%), including two passengers and 19 crew, ultimately test positive.

Mar. 6, 2020

Grand Princess– Voyage B

Cases of COVID-19 are identified in persons (passengers and crew) on the Grand Princess cruise ship off the coast of California.  Passengers and symptomatic crew members are asked to self-quarantine in their cabins, and room service replaces public dining until disembarkation.

Mar. 7, 2020

Carnival (Holland America’s) Zaandam

(Mar. 7 – April 3, 2020)

The Zaandam departs Buenos Aires, with the following itinerary and possible early disembarkation ports):

·        Mar. 9, 2020 Montevideo, Uruguay

·        Mar. 12, 2020 Port Stanley, Falkland Islands (Per CLIA, Carnival/ Holland America announces a 30-day voluntary suspension of cruise operations in the United States on 3/14/20).

·        Mar. 14, 2020 Punta Arenas, Chile (generally passengers not allowed off, but it seems certain passengers reporting COVID-19 symptoms are allowed off).

·        Mar. 15, 2020 Ushuaia (Ushuaya), Tierra del Fuego, Argentina (passengers not allowed off).

·        Mar. 16, 2020 Planned Disembarkation Port – Chilean Govt. refuses to allow passengers off vessel.

·        Mar. 22, 2020 The Washington Post reports the ship is afflicted with 42 COVID-19 symptoms like cases (13 pass. & 29 crew); vessel attempting to obtain permission to transit the Panama Canal to disembark passengers in Ft. Lauderdale by March 30th.

·        Holland America Rotterdam meets Zaandam and accepts “healthy” passengers, leaving passengers with COID-19 symptoms aboard the Zaandam.

·        April 3, 2020 Passengers finally allowed to disembark in Ft. Lauderdale; 14 critically ill people are wheeled off to local Florida hospitals

Mar. 8, 2020 The CDC’s recommendation is broadened to include deferring all cruise ship travel worldwide for those with underlying health conditions and for persons aged ≥70 years.

Mar. 8, 2020

“Last Updated”

The U.S. Department of State – Bureau of Consular Affairs issues a travel advisory, providing: “Passengers on Cruise ShipsU.S. citizens, particularly travelers with underlying health conditions, should not travel by cruise ship.  CDC notes increased risk of infection of COVID-19 in a cruise ship environment. In order to curb the spread of COVID-19, many countries have implemented strict screening procedures that have denied port entry rights to ships and prevented passengers from disembarking.  In some cases, local authorities have permitted disembarkation but subjected passengers to local quarantine procedures.  While the U.S. government has evacuated some cruise ship passengers in recent weeks, repatriation flights should not be relied upon as an option for U.S. citizens under the potential risk of quarantine by local authorities.

This is a fluid situation.  CDC notes that older adults and travelers with underlying health issues should avoid situations that put them at increased risk for more severe disease.  This entails avoiding crowded places, avoiding non-essential travel such as long plane trips, and especially avoiding embarking on cruise ships.  Passengers with plans to travel by cruise ship should contact their cruise line companies directly for further information and continue to monitor the Travel.state.gov website …”.

Mar. 7, 2020

Royal Caribbean “Unknown Ship

The Miami Herald reports, “During a March 7 cruise, Royal Caribbean notified the U.S. Centers for Disease Control and Prevention that someone on the ship had COVID-19 symptoms. The ship offloaded all of its passengers at Port Miami on March 15, after canceling new cruises due to the pandemic, and kept crew on board. The company waited until March 27 to isolate crew members in individual cabins.”

Mar. 8, 2020

Carnival (Princess) Ruby Princess

(Mar. 8 – 19, 2020)

The Ruby Princess arrives in Sydney, having sailed from Port Chalmers, NZ on a previous cruise.  The vessel arrives with 158 sick passengers, with 13 registering high temperatures.  All 2,700 passengers are allowed to disembark at Sydney’s Circular Quay.  As of March 23rd, 133 people have been diagnosed with COVID-19, and one person, a woman in her 70s, has died.  Hours later 2,700 new passengers boarded the vessel. The vessel’s itinerary and possible ports of early disembarkation seem to have been:

·        Mar. 11, 2020 Fjordland Nat. Park, NZ

·        Mar. 12, 2020 Dunedin, Port Chalmers, NZ

·        Mar. 13, 2020 Akaroa, NZ

·        Mar. 14, 2020 Wellington, NZ

·        Mar. 15, 2020 Napier, NZ (after leaving port, cruise passengers were asked to complete a form “if they had a cough or fever,” but the passengers were not informed of any suspicion of coronavirus on board).

·        Mar. 16, 2020 Tauranga, NZ

·        Mar. 17, 2020 Auckland, NZ

·        Mar. 18, 2020 Bay of Island (Paihia), NZ

·        Mar. 19, 2020 Sydney, AU (upon arrival in port, four people were eventually tested and deemed positive for COVID-19, with one, a woman taken directly to the hospital, later dying.  No temperature scanning was a part of the disembarkation process, but passengers were told to self-isolate for 14 days either at home or in a hotel).

·        Mar. 24, 2020 The number of confirmed cases from the vessel rises to 133 in total.  Carnival (Princess) was made aware of the escalating number of cases from 26 (03/22/20), to 48 (03/23/20) and eventually to 133 (03/24/20).

Mar. 9, 2020

Grand Princess – Voyage B

The Grand Princess completes Voyage B and returns to Oakland, California; the ship is subsequently quarantined.

Mar. 9, 2020

Grand Princess – Voyage B

(Mar. 8 – 22, 2020)

Passengers and crew are transferred to land-based sites for a 14-day quarantine period or isolation. Persons requiring medical attention for other conditions or for symptoms consistent with COVID-19 are evaluated, tested for SARS-CoV-2 infection, and hospitalized if indicated. During land-based quarantine in the United States, all persons are offered SARS-CoV-2 testing. As of March 21, of 469 persons with available test results, 78 (16.6%) test positive for SARS-CoV-2.

After

Mar. 9, 2020

Diamond Princess

Overall, 111 (25.9%) of 428 U.S. citizens and legal residents did not join repatriation flights either because they had been hospitalized in Japan or for other reasons.  Among 3,711 Diamond Princess passengers and crew, 712 (19.2%) had positive test results for SARS-CoV-2. Of these, 331 (46.5%) were asymptomatic at the time of testing. Among 381 symptomatic patients, 37 (9.7%) required intensive care, and nine (1.3%) died. Infections also occurred among three Japanese responders, including one nurse, one quarantine officer, and one administrative officer. As of March 13, among 428 U.S. passengers and crew, 107 (25.0%) had positive test results for COVID-19; 11 U.S. passengers remain hospitalized (as of March 23, 2020) in Japan (median age = 75 years), including seven in serious condition (median age = 76 years).

Mar. 10, 2020

Diamond Princess

(Mar. 10 – 24, 2020)

After disembarkation of all passengers, crew members either begin a 14-day ship-based quarantine, are repatriated to and manage their condition in their home country or complete a 14-day land-based quarantine in Japan ending about Mar. 24, 2020.

Mar. 11, 2020 WHO Declares COVID-19 a Pandemic
Note:

Diamond Princess & Grand Princess

Per a Bloomberg article dated April 17th entitled, Carnival Executives Knew They Had a Virus Problem, But Kept the Party Going, “Between the Diamond Princess and Grand Princess, 850 people tested positive for Covid-19 and 14 have died.”

Mar. 13, 2020 The Cruise Lines International Association (“CLIA”) announces a 30-day voluntary suspension of cruise operations in the United States.
Mar. 15, 2018

MSC Meraviglia

The Business Insider and Miami Herald report 3,800 passengers are allowed to disembark the MSC Meraviglia in Miami without any type of screening for illness or potential coronavirus infections.  A previous passenger on the same ship, the MSC Meraviglia, disembarked on March 8 and subsequently tested positive for COVID-19.

Mar. 17, 2020

The CDC issues a Level 3 Travel Health Notice/ Warning and:

·        Recommends that all [cruise passenger] travelers defer all cruise travel worldwide.

·        Widespread ongoing spread of coronavirus disease (COVID-19) has been reported in some countries. Other countries have reported sustained community spread.

·        Cruise passengers are at increased risk of person-to-person spread of infectious diseases, including COVID-19, and outbreaks of COVID-19 have been reported on several cruise ships.

·        Cruise travelers should stay home for 14 days after returning from travel, monitor their health, and practice social distancing.

Mar. 17, 2020 Cases of COVID-19 are associated with at least 25 additional cruise ship voyages.

After

Mar. 22, 2020

Grand Princess – Voyage B

(Mar. 8 – 22, 2020)

Repatriation flights for foreign nationals are organized by several governments in coordination with U.S. federal and California state government agencies. The Grand Princess is reportedly disinfected according to guidance from CDC’s Vessel Sanitation Program. Remaining foreign nationals are required to complete quarantine on board. The quarantine is being managed by the cruise company, with technical assistance provided by public health experts.

April 2, 2020

Celebrity Infinity & Royal Caribbean Oasis of the Seas

The Miami Herald reports one crew member died on the Royal Caribbean-owned Celebrity Infinity cruise ship and that two additional crew members were evacuated “for medical reasons” off the Oasis of the Seas, also owned by Miami-based Royal Caribbean Cruise Line.

April 3, 2020

Carnival (Holland America’s) Zaandam

After 27 days aboard the ill-fated ship, passengers are finally allowed to disembark in Ft. Lauderdale; 14 critically ill people are wheeled off to local Florida hospitals

April 4, 2020

Carnival-Coral Princess

The process begins to disembark passengers from the sick ship in Miami, Florida.  Per The Guardian 1,000 passengers have been isolating onboard the vessel, including 12 confirmed cases of COVID-19.  USATODAY.com reports, “Three passengers from the cruise died, including a 71-year-old man who died in a Miami hospital after waiting four hours to be transferred off the ship.”

April 12, 2020

Royal Caribbean Symphony of the Seas

The Miami Herald reports Indonesian crew member Pujiyoko, only 27 years old at the time, “became the youngest person in South Florida to die from COVID-19, one of at least three crew members who have died in South Florida after being evacuated from coronavirus-infected cruise ships weeks after the industry shut down in mid-March.”

April 14, 2020 CDC issues an additional no-sail order continuing the suspension of cruise operations for another 100 days until July 25, 2020.

The Diamond Princess and Grand Princess had more than 800 total COVID-19 cases, including 10 deaths. During February 3–March 13, in the United States, approximately 200 cases of COVID-19 were confirmed among returning cruise travelers from multiple ship voyages, including the Diamond Princess and Grand Princess, accounting for approximately 17% of total reported U.S. cases at the time. Cases linked with cruise travel have been reported to the CDC in at least 15 states. Since February, multiple international and domestic cruises have been implicated in reports of COVID-19 cases, including at least 60 cases in the United States from Nile River cruises in Egypt (Figure 1, below). These additional cruise ship outbreaks include: The Costa Favalosa, Celebrity Eclipse, Disney Wonder, HAL’s Zaandam and Princess’s Coral Princess.  Secondary community-acquired cases linked to returned passengers on cruises have also been reported (CDC, unpublished data, 2020).

FIGURE 1Cruise ships with coronavirus disease 2019 (COVID-19) cases requiring public health responses — worldwide, January–March 2020

cruise ships with coronavirus

The internet is replete with articles discussing the difficulty with bringing a lawsuit against a Cruise Line if you or a loved one contracted the Coronavirus/ COVID-19 while traveling as a cruise passenger aboard a cruise ship or working as a crewmember.  While perhaps not an easy claim, this author disagrees with some of these opinions.  Various facets of such a claim are discussed below.

Duty & Notice:  The first hurdle to successfully brining a suit against one or more of these cruise lines is proving there was negligence.  Maritime law provides that absent an intentional tort or crime, a plaintiff must prove a cruise line breached the applicable duty of care.  Under maritime law the duty of care is “reasonable care under the circumstances.”  Proving a cruise line breached this duty generally rises and falls on proving “notice,” meaning proving the cruise line either knew or should have known of the existence of an unsafe or dangerous condition or practice.  The “should have known” portion of the test generally refers to the existence of such a condition for a sufficient period of time such that by the exercise of reasonable care the cruise line should have become aware of it and minimally warned against it and ultimately remedied the condition. The claims against various cruise lines would be framed as follows: the cruise lines’ decisions to set sail in the face of the pandemic, the misinformation provided by certain cruise lines in advance of sailing to lure passengers aboard, the lack of precautions taken to protect passengers on the cruises, the lack of information provided to passengers on the emerging threat, as well as information regarding outbreaks on the ships. In short, did certain cruise lines place profit ahead of passenger and crew safety.

The above table overwhelmingly establishes that Carnival and its many cruise brands not only reacted slowly, but outright ignored the safety of its cruise passengers and shipboard employees for the sake of continued bookings. Multiple events widely publicized in the news and followed by the world had to have alerted Carnival of the serious risk to its shipboard employees and cruise passengers, to wit: (1) the COVID-19 outbreak following the Diamond Princess, Jan. 20 – Feb. 3, 2020 sailing, (2) the Jan. 30, 2020 World Health Organization (WHO’s) declaration the coronavirus outbreak was “a global public health emergency,” (3) the COVID-19 outbreak during and following the Grand Princess – Voyage A, Feb. 11-21, 2020 sailing, the three CDC recommendation and warnings dated Feb. 21, 2020, Mar. 8, 2020 and Mar. 17, 2020, and (4) the Mar. 8, 2020, U.S. Department of State’s travel advisory, providing: “Passengers on Cruise ShipsU.S. citizens, particularly travelers with underlying health conditions, should not travel by cruise ship.”  Certainly, as early as January 30th or at the very latest mid to late February 2020 Carnival and all other major Cruise Lines should have cancelled all new sailings and suspended all sailings, meaning disembarked all then sailing passengers at the first available and suitable port of call, out of safety concerns for their cruising passengers and shipboard employees.

Carnival’s CEO Arnold Donald believes Carnival has done no worse than many others, including New York, Italy, China, South Korea and Japan.  The defense of “well we did as badly as others” is addressed in the Bloomberg April 17th article, which in pertinent part, provides:

In the view of the CDC, however, Carnival helped fuel the crisis. “Maybe that excuse flies after the Diamond Princess, or maybe after the Grand Princess,” says Cindy Friedman, the experienced epidemiologist who leads the CDC’s cruise ship task force. “I have a hard time believing they’re just a victim of happenstance.” While it would have been tough to get everyone aboard the ships back to their home ports without infecting more people, Friedman says several of the plagued Carnival ships didn’t even begin their voyages until well after the company knew it was risky to do so. She says its actions created a “huge strain” on the country. “Nobody should be going on cruise ships during this pandemic, full stop,” she says.

The March 27, 2020, CDC advisory, entitled: Public Health Responses to COVID-19 Outbreaks on Cruise Ships – Worldwide, February – March 2020, provides:  By March 17, confirmed cases of COVID-19 had been associated with at least 25 additional cruise ship voyages.  The CDC recently published a list of 21 ships have had confirmed COVID-19 from passengers. Of note the following list includes ONLY cruises that made port calls or disembarked in the U.S. The international voyages that did not make any stops in American Ports are not included in the CDC reporting.  See, table below:

Cruise Ships – Passengers Symptomatic Onboard

Cruise Ships Sailings – Passengers Symptomatic or Tested Positive af/ Disembarkation

Celebrity Eclipse (March 2-30) Carnival Imagination (Mar. 5-8)
Disney Wonder (March 6-20)

Carnival Valor (Feb. 29-Mar. 5)

Carnival Valor (March 5-9)

Carnival Valor (March 9-14)

Grand Princess (Feb. 21-March 7)

Carnival Vista (Feb. 15-22)

Carnival Vista (Feb. 22-29)

Carnival Vista (29-March 7)

Norwegian Bliss (March 1-8)

Norwegian Breakaway (March 7-14)

Norwegian Pride of America (Feb. 29-Mar. 7)

Celebrity Infinity (March 5-9)

Celebrity Reflection (March 13-17)

Oceania Riviera (Feb. 26-March 11) Celebrity Summit (Feb. 29-March 7)

Royal Caribbean Liberty of the Seas (Mar. 15-29)

Royal Caribbean Oasis of the Seas (Mar. 8-15)

Royal Caribbean Symphony of the Seas (Mar. 7-14)

Crown Princess (March 6-16)
  Disney Wonder (Feb. 28-March 2)
  Grand Celebration (Feb. 22-24)
  Grand Princess (Feb. 11-21)
  MSC Meraviglia (March 1-8)
 

Norwegian Bliss (March 8-15)

Norwegian Breakaway (Feb. 29-March 7)

  Royal Caribbean Explorer of the Seas (March 8-15)

Defenses: Numerous articles are strewn about the internet discussing the difficulty with successfully bringing a claim against the cruise lines for injury or death due to the COVID-19 outbreak across more than 25 Cruise Ships and other types of vessels, due to several anticipated defenses.  A majority of these defenses are discussed below.

Negligence and Causation:  In every gastrointestinal illness or viral infection aboard cruise ships, i.e., norovirus, rotavirus, enterotoxigenic E. Coli (ETEC), and others classified as “unknown,” plaintiffs must establish they didn’t walk onboard the ship with the illness, or contract the illness while traveling on a train, plane or bus commuting to the ship or while shoreside in a port of call.  COVID-19 presents some challenges in this regard.  Most experts believe a person can be exposed and remain asymptomatic anywhere from two to fourteen days. That means for upwards to two weeks all other sources must be eliminated as a possible origin of the disease.  On the other hand, if there is an outbreak and many people come down with the virus this causation difficulty should be easily overcome.

The Limitation of Liability Act (‘LOL”), enaction by Congress in 1851, can under certain circumstances enable a shipowner to exonerate or, alternatively, limit their liability for passenger claims, injury or death, to the post-casualty value of the vessel.  Except for statutory minimal amounts, this is true even if the vessel sinks or is destroyed by collision or fire, in which case the post-casualty value of the vessel maybe near zero.  In an exoneration/ limitation proceeding a court conducts a two-step analysis. First, the court must establish what acts of negligence or conditions of unseaworthiness, if any, caused the marine casualty. Second, the court must establish whether the shipowner, here various cruise lines, had knowledge of, or privity of knowledge of, the negligence or unseaworthiness of the vessel that gave rise to the marine causality or accident.  The decision by corporate executives to allow any of these cruise ships to depart with unsuspecting, uninformed and in some instances misinformed passengers (and crew) beginning as early as mid to late February or, at the latest, within the first several days of March 2020, seemingly satisfies the negligence, unseaworthiness and knowledge tests of the LOLA set forth above.  Additionally, given the casualty being discussed is injury or death resulting from COVID-19 and the value of these vessels (i.e., Cruise Ships) is undiminished by collision or fire, this defense seems of little benefit to the Cruise Lines. See, Limitation Of Liability Paper.

Death on the High Seas Act (“DOHSA”), enacted 100 years ago in 1920, is another piece of congressional legislation designed to both protect the shipping industry by limiting a survivor’s recovery to pecuniary damages only and to create a wrongful death remedy where one did not previously exist for deaths occurring on the high seas and beyond state court remedies.  If the decedent was a wage earner there will be pecuniary damages. However, if the decedent was not a wage earner, for example a child or retiree, the decedents will recover little more than funeral expenses and specifically not recover for grief, bereavement, mental anguish, loss of society or consortium for the loss of a loved one.  See, Brais Law DOHSA discussion.

DOHSA provides that when the death of an individual is caused by wrongful act, neglect, or unsafe condition or procedure (default) occurs on the high seas beyond three nautical miles from the shore of the United States, the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.  The action is brought for the exclusive benefit of the decedent’s spouse, parent, child, or dependent relative.  The acronym DOHSA is a bit of a misnomer, since the resulting death need not occur while the vessel is on the high seas. The cases are legion where the negligence giving rise to an injury occurred while a vessel was on the high seas, but the resulting death occurred days later after the person had been evacuated to a shoreside medical facility.  Therefore, it is negligence on the high seas ( more appropriate acronym “NOHS”) that gives rise to a later shipboard or shoreside death that triggers the application of DOHSA.  If the negligence that results in a later death is a consequence of acts not committed on the high seas, then DOHSA should not apply. It is axiomatic that following the tragic consequences involving the Diamond Princess and Grand Princess (more than 800 COVID-19 cases, including 10 deaths), corporate executives sitting in their shoreside offices mostly located in the United States decided, negligently decided, to let passengers board their cruise ships and set sail.  Under these circumstances DOHSA should not apply to a majority of the COVID-19 cases following the Diamond Princess and Grand Princess outbreaks.

General Maritime Law & 46 U.S.C. § 30509(b)(1): In 1996, the cruise industry was able to convince the United States Congress to enact statutory permission for cruise lines to include “provision[s] in a contract or in ticket conditions of carriage with a passenger that relieves an . . . operator of a vessel from liability for infliction of emotional distress, mental suffering, or psychological injury.” Such a disclaimer does not apply when physical injuries accompany the incident or to those arising from being “at actual risk of physical injury” caused by the negligence or intentional misconduct of the cruise line or crew. Nor does such a disclaimer limit liability arising from “sexual harassment, sexual assault, or rape.”  The COVID-19 cases generally breakdown into two categories: (a) “No physical manifestation” claimants who have suffered tremendous emotional distress, mental suffering or psychological injury, but without physical impact and without manifestation of physical injury and (b) “physical manifestation” claimants who have suffered all of the aforementioned injuries and/or damages, but with the physical manifestation (i.e., physical consequences) caused by mental and/or emotional stress from the negligence of a defendant injury, e.g., (resulting heart attack of mother upon arriving at auto accident scene involving death of daughter).  Therefore, there are two classes of individuals, i.e., cruise ship passengers or crewmembers, who appear to possess valid claims against cruise lines as a result of the  COVID-19 outbreaks: (a) those who suffered physical injury, for example, hospitalization and perhaps even had to be intubated or (b) those who suffered physical manifestation (physical consequences) caused by mental and/or emotional stress.  These individuals should seek the help of a competent maritime practitioner.

Class Action Status:  Nearly every, if not all, cruise ticket contract includes a provision purporting to waive the right of cruise passengers to assert a class action lawsuit.  Novel arguments exist and have been advanced in recent suits to challenge the ability of various Cruise Lines to enforce the “no class action” clause.  Time will tell, but even if the Class is not certified, each claim should be allowed to proceed forward on its own merits.

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 personal injury/wrongful death 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.

Credits: The author credits the following articles and sources for a good deal of the factual information, citations referenced above and issues framed above: CDC’s MMWR Report Dated March 27, 2020: Public Health Responses to COVID-19 Outbreaks on Cruise Ships — Worldwide, February–March 2020,The Cruise Passenger’s Rights and Remedies 2014, Author: Justice Thomas A. Dickerson and the report on Gomez, Newsome and Holzberg Law Firms.