Coronavirus mini-series: (8) cruises

Cruise ships – with their enclosed areas, increased exposure to new environments, and limited onboard medical resources – were always going to be susceptible to increased risk and rapid spread of SARS-CoV-2, the virus responsible for COVID-19.

In this blog, Alex Carington of 12 King’s Bench Walk considers the potential liability of cruise ship operators for coronavirus cases on cruises under the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the “Athens Convention”).

Since the beginning of the pandemic, over 40 cruise ships including one fifth of ocean cruisers have experienced SARS-CoV-2 infections, with at least 2,500 crew and passengers infected and 65 lives lost. The first major outbreak was on the British-registered Diamond Princess cruise ship which was quarantined at Yokohama, Japan, from 4 February 2020 for approximately one month. Over 700 people became infected, and 12 people died.

Criticism has been levelled at perceived delays in issuing no-sail orders as well as the measures taken onboard to contain the spread of infection.

With some cruise ship operators proposing to restart cruises as early as this month (May 2020), this raises questions over the possible liability of cruise operators for COVID-19 cases that have occurred as well as cases in the future.

While there are no precedents given the novel nature of SARS-CoV-2, useful assistance can be taken from the decision in Swift & Others v Fred Olsen Cruise Lines [2016] EWCA Civ 785 which concerned an outbreak of Norovirus. It was alleged that the cruise ship operator was liable under the Athens Convention in failing to take reasonable steps to manage the risk of Norovirus on the vessel and that this failure caused or materially contributed to their illnesses.

The relevant provision is art. 3.1 of the Athens Convention:

“The carrier shall be liable for the damage suffered as a result of the … personal injury to a passenger … if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. ”

In Swift, it was accepted by the court that the cruise operator had an appropriate plan for dealing with Norovirus outbreaks which was consistent with industry standards. However, the trial judge went on to find there was not sufficient evidence to show that the plan had been properly implemented and concluded that the lack of implementation materially caused or contributed to the spread of Norovirus on the ship.

The important aspects to the appeal judgment can be summarised as follows:

  • It was acknowledged that it was for each claimant to prove that s/he had contracted the virus on the vessel.
  • Liability was established as the judge was satisfied that there had been multiple failures in the implementation of the plan. The Court of Appeal noted that the trial judge had rejected the cruise operator’s argument that this was case of isolated instances of non compliance and, if that had been the case, that the causation argument stage would never have been reached.
  • It was noted that while the cruise operator had adduced significant evidence as to the plan in place, there was almost no evidence from those who had implemented it.
  • It had to be proved that the fault or neglect of the cruise operator caused or materially contributed to the the spread of Norovirus onboard and the claimants’ illnesses. On the facts, the trial judge was entitled to find that the breakdown of the plan caused this to occur.

It is important to note that Norovirus has been a known risk for some time. Since first being visualised by microscope in the 1970s, a wealth of information has been obtained about the nature of the virus leading to the development of industry standards to control outbreaks. Given the novel nature of SARS-CoV-2, there were no such industry standards beyond those dealing with outbreaks more generally (although guidance is currently being developed) and so the courts are likely to grant the cruise operators some leniency for their handling of any such outbreaks for active cruises at the time the virus started to spread globally.

However, it is likely that the court would expect the cruise operators to follow any of their control plans they had in place for diseases such as Norovirus as well as any guidance from relevant authorities and it is likely the failure to do so would be viewed critically. There has been some criticism about some cruise operators attempting to downplay the risk to passengers. Consideration would also need to be given as to what information was given to passengers about the risk of infection and precautions they could take to protect themselves and when such information was given, against the knowledge of the risk at the time.

Applying Swift by analogy, that the courts are likely to expect evidence from members of the ship’s crew responsible for implementing any control measures; otherwise, a cruise operator is likely to face an uphill battle in defending these claims.

As to any cruises that embarked once the spread of the virus was known, there is a good argument against any leniency for any significant deficiencies in handling cases of SARS-CoV-2 onboard. The novel nature of the virus resulting in a lack of tried-and-tested best practice for controlling any such outbreaks raises the question of whether reasonable precautions could be put in place to ensure the safety of passengers in the event of the virus infecting any passengers. If it was not possible to know what reasonable steps needed to be taken, then the argument follows that cruises should not have commenced in light of the risk.

Similar considerations will apply to cruises that take place once the “no sail” orders have been lifted. It is likely that the courts will expect high standards in terms of any outbreak prevention and control plans, as well as their implementation, given the infectivity of SARS-CoV-2 and our evolving knowledge of the virus in terms of its incubation period, lifespan on surfaces and the possibility of asymptomatic carriers being infectious. There will need to be consideration of any guidance that may have been published by this time and whether the cruise operator properly implemented it.

In conclusion, it is not anticipated that claims for COVID-19 against cruise operators will be straightforward. Consideration of the timeline of the cruise as well as evolving knowledge of the spread of SARS-CoV-2 will be crucial as well as a careful review of any measures implemented onboard to warn passengers and protect them against infection. There are likely to be difficulties in terms of proving whether or not any passenger was infected onboard given the current lack of knowledge of the incubation period of the virus which is currently estimated to be between 1-14 days (providing a wide window of possible infection). That said, it is clear from Swift that cruise operators will not be able to rest on their laurels and are likely to require evidence from crew as to the implementation of any general viral control measures onboard in order to successfully defend such claims.

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