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December 28, 2021

Cruise Ship Injuries: Making Way Through Uncharted Waters

By David McNeal, Davis Law Group

If you spent anytime overseas in the military during the 1980’s, you’ll recall that there was only one TV channel – the Armed Forces Network.  I can still recall walking through our living room on Clark Air Force Base in the Philippines and being drawn to and enchanted by overhead helicopter footage of a magnificent maritime masterpiece – a pearly white alabaster cruise ship, the Pacific Princess, effortlessly piercing its way through the deep blue sea.  There’s not much else I remember about “The Love Boat” (other than the theme song), but it remains my first introduction to the mystical charm of a pleasure cruise. 

In the time since, I’ve worked aboard merchant fleets ranging from the Staten Island Ferry in New York Harbor to Offshore Supply Vessels (OSV) and Offshore Drilling Rigs in the Gulf of Mexico.  For that reason, ships have become an environment commanding a heightened sense of awareness rather than one for leisure and loosening of inhibitions. In terms of vacation options, what was once child-like fascination has become adult-like trepidation of onboard emergency scenarios. 

In the last decade we have witnessed notable calamities in which pleasure cruises have turned from dream to nightmare.  In 2012 the Costa Concordia ran aground off the coast of Tuscany, causing the vessel to rollover or “list” flat on its starboard side, injuring 64 passengers and sending 32 to an early demise.  A year later, the Carnival Triumph suffered an engine fire that killed the power onboard, taking the air conditioning and septic systems down with it and giving an entirely new connotation to the nautical term “poop deck”.

There are numerous other newsworthy incidents that have birthed litigation, but the most riveting, relevant and recent among them are the wave of lawsuits filed against cruise operators for deaths and illness from COVID-19.  In April of 2020, Juishan Hsu, individually and on behalf of her husband Chung Chen, filed a lawsuit against Princess Cruise lines for gross negligence in the Central District of U.S. US District Court of California, Juishan Hsu et al v. Princess Cruise Lines Ltd., 2:20CV03488.  The lawsuit alleges that despite three major outbreaks on their ships in February, Princess Cruises continued sailing at various ports of call.  One of those ships was the Ruby Princess, which had experienced an outbreak on the sailing just prior to the voyage on which the Plaintiffs sailed in March.

On the same day that case was filed, Susan Dorety filed a similar lawsuit against Princess Cruise lines related to the second of two February voyages on the Grand Princess where outbreaks occurred, Susan Dorety v. Princess Cruise Lines Ltd., 2:20CV03507.

In that case it is alleged that Susan and Michael, her retired firefighter husband from Crowley, Texas, boarded the vessel to celebrate their 40th anniversary after the California-based cruise operator had just disembarked symptomatic passengers from the previous sailing and left another 60 exposed passengers on board.  The lawsuit further alleges that while the company emailed the passengers who had already disembarked to alert them of their exposure, they did not alert the new passengers - even after a symptomatic crew member departed the vessel mid-voyage. Chung Chen and Michael Dorety each eventually succumbed to COVID-19 and passed away shortly after disembarking their cruises.

Since then, Carnival, parent company of Princess Cruise Lines, has been hit with a proposed class action for negligence and negligent infliction of emotional distress and has joined Norwegian Cruise Lines in being sued by their individual investors for concealing infections, downplaying the gravity of the pandemic, and spreading the virus at various ports around the world - all while various individual personal injury lawsuits around the country have trickled in.  The legal challenges the personal injury cases will have to overcome are significant.

The “reasonable care” standard for all who are on board for purposes not adverse to the shipowner’s legitimate interests was set forth by the Supreme Court in Kermarec v. Compagnie Gen. Transatlantique., 355 U.S. 902, 78 S. Ct. 335, 2 L. Ed. 2d 259 (1957)

Beyond that are the ancient Limitation of Liability Act of 1851, Mar. 3, 1851, ch. 43, 9 Stat. 635,  and the Death on the High Seas Act, Pub.L. 109–304, § 6(c), Oct. 6, 2006, 120 Stat. 1511which, interestingly enough, was promulgated the same year of the Jones Act, June 5, 1920, ch. 250, 41 Stat. 988,  and precisely 100 years before the 2020 pandemic.

While being permitted to refile in September of 2021, three lawsuits stemming from the Ruby Princess incident were thrown out this past August  for 1) failing to allege the amount of time between the alleged exposure and the date their COVID-19 symptoms began or received a positive test result, 2) failing to show that Plaintiffs had actually contracted the virus onboard, and 3) in the Cheng case, failure to show that the spouse had been appointed the personal representative of the estate of her late husband. 

The unprecedented public health challenge the pandemic presents has leaked into nearly every crevice of the global economy and could potentially alter seascape of the general maritime law as it relates to passenger safety aboard cruise vessels.  The three major North American brands, Carnival, Princess, and Holland America Line, plan to have at least 50% of their fleets sailing in October, increasing through the end of the year.  Following close behind will be Europe and Asia.  Notwithstanding the CDC’s admonishment that high-risk travelers should avoid cruise ship travel whether unvaccinated or not, passengers and cruise operators alike, “soon will be making another run”.

About the Author

David McNeal graduated from the U.S. Merchant Marine Academy, earned a certificate of specialization in Maritime Law from Tulane University, and is an offshore/maritime injury attorney practicing Of Counsel at the Davis Law Group in Houston, Texas. He may be reached at [email protected] or 832.819.3281.