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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 Ships … U.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 canceled 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 theDiamond Princess, or maybe after theGrand 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, the 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)

 

DisneyWonder (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 may be 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.