Analysis

Cruise Ship Industry's COVID-19 Liability Likely Limited

By Y. Peter Kang
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Law360 (March 16, 2020, 10:03 PM EDT) -- Cruise ship passengers who contracted or were exposed to the novel coronavirus face an uphill battle in potential suits against cruise lines due to passenger contract restrictions and established ship cleaning protocols, maritime law experts said.

In what may be the first of such cases, a South Florida couple quarantined on a Princess Cruise Lines Ltd. ship off the coast of California sued the cruise company March 9 for what they describe as a failure to take precautions to prevent a coronavirus outbreak on the ship after two passengers on the previous sailing disembarked with symptoms.

Broward County residents Ronald and Eva Weissberger, who were on the Grand Princess cruise ship that docked in Oakland, California, following four days of quarantine, say Princess knew that at least two passengers who disembarked on Feb. 21 had symptoms of COVID-19, the respiratory disease caused by the virus, but didn't tell passengers who were boarding that day.

The elderly couple claim the company's negligence put them at risk of immediate physical injury and caused emotional distress, according to the suit, which was filed in California federal court.

But Grady Hurley, chair of the maritime litigation group at Jones Walker LLP in New Orleans, told Law360 that the couple and people in similar situations face a number of hurdles in bringing such claims. In the Weissbergers' case, Hurley said, the company will likely invoke a forum selection clause right off the bat.

"The first issue is to look at the contract that existed between the passengers and cruise line to see where it could be filed and whether there is any limitation on what can be recovered by the particular passengers," he said. "I would seriously doubt the agreement between the passenger and cruise line would've stipulated that California or the Ninth Circuit would be the proper venue."

Cruise ship passenger injury case law mostly comes out of the Eleventh Circuit, which encompasses Florida, home of the major cruise lines, and tends to be more favorable to those companies than the Ninth Circuit, Hurley said.

"I would not be surprised if that case was transferred to Florida," he said. "Most defendants would prefer not to be in the Ninth Circuit."

Another issue for the Weissbergers, Hurley said, is being able to prove that a cruise company did not take proper precautions given the information available and what warnings may have been given to passengers.

"What they are basically alleging is that the Princess Cruise Lines breached its duty of reasonable care because it had knowledge and was negligent in allowing the new passengers on board," he said. "That's a factual situation that will have to go through the courts where it ultimately will be decided."

Forrest Booth, a San Francisco-based partner at Hinshaw & Culbertson LLP who specializes in maritime law, said that yet another issue facing cruise ship passengers is that of comparative fault, or whether a passenger chose to go on a cruise despite knowing of the risk of contracting COVID-19.

"When coronavirus became a known thing in early February and people chose to go on a cruise anyway, there's the assumption-of-risk argument," he said. "If someone chooses to go on a cruise from that point on, the cruise line could say, 'You knew you were going on a cruise where coronavirus exists and you assumed the risk.'"

Hurley agreed that a passenger's knowledge of coronavirus risk and the precautions he or she took in the face of that risk will also be considered.

"You sort of weigh those issues of what was known and what was reasonable at the time and under the circumstances," he said.

In addition, the cruise line industry is no stranger to outbreaks given previous bouts of norovirus, which can be spread through food, and a type of bacterial pneumonia called Legionnaires' disease that have hit a number of ships in recent years, Booth said. This has prompted the companies to implement cleaning protocols mandated by the Centers for Disease Control and Prevention that can be drawn upon in defense of coronavirus suits, he said.

"The cruise industry is pretty well set up to deal with this issue," he said. "They have all sorts of protocols of what cleaning solutions to use so they know about wiping down doorknobs and railings and anything that people touch, and cleaning bathrooms and so forth."

He added, "A cruise ship owes a passenger a duty of ordinary care, and if they are following all the protocols of using cleaning solutions and wiping everything down and washing everything, then they usually have met that standard."

Adam Brum, a Morgan & Morgan personal injury plaintiffs attorney who specializes in boating accidents, acknowledged the difficulties surrounding COVID-19 cases and said any potential lawsuits would be evaluated case by case.

"If someone calls me, I'm going to have to look at the very specific facts of the case," he said. "The virus is so new and spreading in so many different ways, to have the precautions in place would have been pretty difficult in the last two months. But going forward, now that they know this is out there, they need to step up their precautions."

--Additional reporting by Carolina Bolado. Editing by Aaron Pelc and Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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