Regulatory/Law
Cruise Lines And COVID

• Christopher B. Kende
• December 2020
• 

Since the publicized incidents earlier this year involving the quarantine and claimed infection of passengers with COVID-19 on the Grand Princess and Diamond Princess cruise ships, there has been a tsunami of lawsuits, mostly against Carnival Corp. and its subsidiary Princess Cruise Lines. The lawsuits' claims, many of which are putative class actions, include wrongful death, physical injury and emotional distress as a result of alleged exposure to the virus on board the vessels.

Most of the lawsuits contend that passengers were recklessly exposed to the virus, in that the cruise line knew or should have known of the danger of exposure and as a result, passengers suffered injury, death and/or emotional distress. Legal theories in most of the lawsuits include simple negligence, gross negligence, failure to warn, improper or inadequate procedures for screening passengers for the disease, poor hygienic training of crew, substandard disinfecting procedures, medical malpractice and negligent infliction of emotional distress due to fear of contracting the virus.

The general maritime law of the United States should apply to these cases, as they are maritime in nature. The claims involve “maritime torts,” i.e. torts which occurred on “navigable waters,” bear a “significant relationship to traditional maritime activity,” and have an impact on maritime commerce.

Numerous defenses are available to the cruise industry. These include forum selection clauses, requiring that any claim be brought in a particular forum, which clauses have been held enforceable; causation issues, given the up-to-14-day incubation period of the virus; and waiver issues with respect to the ability to bring a class-action claim. A number of court rulings have favored the cruise industry. In July, a Florida federal court dismissed a claim for pure emotional distress, where the claimants never contracted the virus but claimed emotional harm due to being quarantined on the vessel. The court applied the “zone of danger” test and found that mere proximity to infected individuals was not tantamount to “immediate risk of physical harm” as required by that test.

In California, several cases have been dismissed (without prejudice) due to failure to adequately allege a claim, i.e. the complaints did not establish a causal relationship between contracting the virus and exposure on board the vessel. A California judge also ruled that Princess Cruise Line's parent, Carnival, should be dismissed in an action in which the vessel involved was operated by Princess, based on plaintiff's failure to establish that Carnival was the “alter ego” of Princess. In that same case, on Oct. 20 the same judge enforced a waiver of class action clause in the passenger ticket, and refused to certify a class of infected passengers.

The Death on the High Seas Act (DOHSA), a little known statute which allows for recovery for wrongful death if incurred on the high seas outside a three-mile limit, also may apply to many of these claims. However, if held to apply, DOHSA precludes any recovery for so-called nonpecuniary damages such as pain and suffering, emotional distress and loss of consortium.

There also may be significant impediments to class-action certification given the lack of commonality as to when and how class members were exposed to the virus, assuming no waiver of class action in the general conditions of travel.

In sum, significant obstacles to recovery for virus exposure on board passenger vessels exist, although litigation against the industry is expected to continue for some time.

Best’s Review contributor Christopher B. Kende, a member of Cozen O’Connor’s Global Insurance Department (New York City office), concentrates his practice in the areas of international insurance, admiralty and maritime disputes, aviation and reinsurance. He is an adjunct professor of transportation and maritime law at Brooklyn Law School and can be reached at ckende@cozen.com.