As the COVID-19 pandemic continues to sweep across the United States and the world, it affects every industry and sector of business, including the cruise ship industry. Earlier this year, television and print media were littered with stories and videos of cruise ships quarantined at sea with passengers and crew unable to dock at port and return home. As the full scope of the pandemic came into view, the cruise ship industry, including Carnival and Royal Caribbean, were forced to cancel upcoming voyages under guidelines promulgated by the Center for Disease Control (CDC) including its “No Sail Order for Cruise Ships.” See https://www.cdc.gov/quarantine/cruise/index.html.
On top of that, there have been reports that more than 1,500 people were diagnosed with COVID-19 following cruises, and allegedly 39 people have died from COVID-19 following their trips on cruises run by Carnival Corporation and its subsidiaries. Numerous lawsuits were filed on behalf of injured plaintiffs against cruise lines throughout the United States. For example, two different classes of cruise passengers filed lawsuits against Carnival Corporation.
In Robert Archer, et al., on behalf of themselves and all other similarly situated v. Carnival Corporation, et al., Case No. 2:20-cv-04203, filed in the United States District Court for the Central District of California, plaintiffs seek certification of a class action claim following a voyage on the Grand Princess vessel. According to the complaint, the Grand Princess began a round-trip voyage from San Francisco to Mexico beginning on February 11, 2020. Id. On February 19, a passenger began to show COVID-19 related symptoms. Id. The Grand Princess returned to port in San Francisco on February 21. Id. Ultimately, at least 100 passengers tested positive for the virus, with two individuals passing away from the virus. Id. When the Grand Princess arrived at port in San Francisco on February 21, 2020, new passengers boarded the vessel for a round-trip voyage to Hawaii and Mexico. Id. However, 62 passengers and over 1000 crew members from the previous trip remained on the vessel. Id. The complaint alleges Carnival failed to inform the passengers that any passengers displayed COVID-19 symptoms on the previous voyage or that passengers and crew members who may have been infected from the previous voyage remained on the Grand Princess. Id. The complaint alleges that prior to embarking on February 21, Carnival failed to take measures to properly disinfect or sanitize the ship, and neither new passengers nor existing passengers were properly screened to detect illness. Id. On February 25, Carnival sent notice to all passengers from the previous Mexico voyage about concerns related to contracting COVID-19 while on board the Grand Princess, but Carnival failed to convey this warning to the current passengers. Id. Moreover, plaintiffs claim that quarantine for the 62 passengers who had also been on the prior voyage did not begin until March 4, and general quarantine for the remaining passengers did not begin until March 5. Id. Plaintiffs request damages based upon principles of negligence, gross negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. Id. Two of the named plaintiffs were ultimately diagnosed with COVID-19. Judge Gary Klausner recently denied plaintiffs request to have the class certified. Carnival’s motion to dismiss is scheduled for hearing in November 2020.
Another class action lawsuit filed in the United States District Court for the Central District of California, James Heinzer, and Barbara Heinzer, individually and on behalf of all similarly situated, Class Plaintiffs, v. Princess Cruise Lines, LTD., Case No. 2:20-cv-04959, involves claims resulting from a cruise on the Ruby Princess, which embarked from Sydney, Australia for a New Zealand cruise on March 8, 2020. According to the complaint, prior to the cruise at issue, the Ruby Princess set sail on February 24, 2020 for another cruise. Id. On that earlier cruise, 158 passengers became sick, and 13 of those passengers registered high temperatures. Id. After the earlier cruise arrived in Sydney on March 8, nine passengers were tested for COVID-19 after disembarking, with two testing positive. Id. The complaint states that Carnival began the boarding process for the subsequent New Zealand cruise just a few hours after disembarking some of those prior passengers without adequately sanitizing the ship, nor instituting appropriate boarding procedures for new passengers such as temperature checks. Id. The complaint further alleges that Carnival failed to inform any of the new passengers that the passengers on the previous cruise experienced COVID-19 symptoms. Id. Numerous new passengers scheduled to board on March 8 communicated concerns about COVID-19 to Carnival, and were informed by Carnival that the Ruby Princess was not affected by the virus, the virus was not a travel-related concern, and the passengers would not be reimbursed if they cancelled their voyage. Id. In addition to failing to warn the March 8 passengers that prior passengers had experienced COVID-19-related symptoms, numerous passengers remained on board the Ruby Princess from that prior cruise and embarked with the new passengers on March 8. Id. By March 16, 128 passengers and/or crew members had COVID-19-related symptoms, but this information was not conveyed to the remaining passengers. Id. Despite knowledge of potential COVID-19 infections, the complaint states that passengers continued to have unfettered access to pools, gym, and buffets throughout the voyage. Id. Both of the named plaintiffs in this case, were diagnosed with COVID-19 following the cruise. Id. Plaintiffs make claims for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. Id. Plaintiffs recently filed a second amended complaint to address Carnival’s argument that plaintiffs do not have sufficient evidence of causation. Carnival’s motion to dismiss is scheduled for hearing this month.
The cases described above are just two examples of the numerous lawsuits that have been filed over the past several months on behalf of passengers, crew, and shareholders.[1] A class action lawsuit filed on behalf of crew members against Celebrity Cruises is currently pending in the United States District Court for the Southern District of Florida. The complaint alleges that Celebrity Cruises was negligent in its failure to provide crew members with proper protective equipment, needlessly exposing them to COVID-19. Nevertheless, there are several common claims made by passengers and crewmembers in the lawsuits that have been filed. All such lawsuits claim a failure to warn and negligence claims involving boarding procedures, sanitation and disinfecting, social distancing guidelines, and quarantine requirements.
Despite the number of infections allegedly resulting from travel aboard cruise ships, plaintiffs and prospective plaintiffs face a number of hurdles in maintaining their claims against the cruise companies. Most tickets for cruises are comprised of voluminous documents that contain many litigation—related clauses. Moreover, most tickets restrict the right to file class action claims, require mediation, and specify the jurisdiction where cases may be filed. The issue of class action waivers contained in the fine print on tickets was recently litigated in the Archer matter, in which the judge ruled that ticket acceptance constituted waiver of class action claims. An additional complicating factor for plaintiffs and prospective plaintiffs is that many of the cruise companies are foreign corporations. Carnival is incorporated in Panama, and its subsidiary Princess Cruise Lines is incorporated in Bermuda. Foreign status allows cruise companies to avoid certain regulations imposed by the United States government, including those imposed by the Occupational Health & Safety Administration (OSHA). Lastly, maritime law may also restrict the recoveries of plaintiffs as the Death on the High Seas Act, 46 U.S.C. § 30302, limits damages to only financial losses resulting from the death of individuals “at sea.”
The difficulties faced by plaintiffs are evidenced by recent rulings in several cases. Recently, numerous lawsuits were dismissed by courts based on issues concerning plaintiffs’ alleged injuries and causation.[2] For example, District Court Judge Gary Klausner dismissed 13 lawsuits brought on behalf of passengers alleging emotional distress. The court found that instances of fear of contracting COVID-19 were insufficient damages to warrant suit. District Court Judge Dale Fischer dismissed 4 cases in which the Judge found plaintiffs had failed to establish a plausible link between the amount of time between the alleged exposures and the date they began experiencing COVID-19 symptoms or a positive test result. However, both judges afforded plaintiffs the opportunity to amend their complaints.
The COVID-19 pandemic has taken its toll on Americans. As many Americans cope with the loss of loved ones, or the pain and suffering associated with becoming ill with COVID-19, many will undoubtedly look to potentially responsible parties that may have had a role in such injuries. The cruise ship industry was uniquely placed at the forefront of the pandemic in its early stages. As a result, many new lawsuits were filed that challenge the actions or claimed omissions of cruise ship companies. The CDC extended its “Cruise Ship No Sail Order” through October 31, 2020, but now several companies have begun preparations to resume cruises. The CDC has promulgated new updated guidelines for cruise ship companies on preventative measures and suggested courses of action in the case of suspected infections. See https://www.cdc.gov/quarantine/maritime/recommendations-for-ships.html. These guidelines are likely to become the standard by which cruise lines are judged when it comes to ensuring the safety of their passengers. Failure to adhere to these guidelines may subject the cruise lines to liability for future COVID infections.
[1] City of Riviera Beach General Employees Retirement System, Individually and on behalf of all others similarly situated, v. Royal Caribbean Cruises LTD, Richard Fain, Jason Liberty, and Michael Bayley, U.S. District Court for the Southern District of Florida, 1:20-cv-24111; Nedeltcheva v. Celebrity Cruises Inc., U.S. District Court for Southern District of Florida, 2:20-cv-21569.
[2] ‘New Waters for the Law: Dismissal of Cruise Passengers’ COVID-19 Lawsuits Stresses Hurdles for Proving Causation, Damages, by Amanda Bronstad, Law.Com, dated September 8, 2020.