COVID-19 and the cruise ship industry

COVID-19 has effectively crippled the cruise industry with no immediate prospect of a return to normality on the horizon.

Virus outbreaks are of course no stranger to the cruise industry. For example, Norovirus and COVID-19 share similar modes of transmission:

• Close physical contact
• Touching of contaminated surfaces
• Repeated gripping of contaminated doorknobs
• Pushing lift buttons,
• Passing around serving utensils
• Close contact at the bar or buffet.

Where COVID-19 differs is the way in which it disproportionately affects those in the 60 plus age category. This creates an almost perfect storm of risk factors aboard cruise liners and the industry will need to work closely with medical advisors in order to develop a strategy that can deal with the current risk and proactively reduce the risk and effects of future outbreaks.

Passengers often fly long haul in order to join a cruise and there will be a responsibility on cruise operators to interrogate every leg of those journeys that bring their passengers to the vessel. There is also likely to be an increase in passengers booking no fly cruises that depart from their domestic ports.

In order to practice social distancing aboard large cruise ships there would need to be a reduced number of passengers aboard. This will have a direct effect on the profitability and carbon footprint per passenger at a time when the cruise industry is coming under close scrutiny for their environmental impact. There could also be an increase in the number of cabins required to be designated as isolation units with provisions made for those cabins to effectively be self-sufficient in terms of food and water. Other practical measures will include an increase in hand sanitising stations and automatic screening for high temperatures before boarding. Other virus prevention methods could include:

• Crew training to increase awareness of symptoms so they can report any warning signs;
• Ships to be subject to sanitisation and regular extreme cleaning;
• Passengers being allowed onto the outdoor decks at certain times only;
• Guests and embarking crew to complete pre-boarding health questionnaires and medical staff to be available to conduct additional screening of guests, crew and visitors. The effectiveness of this could be boosted by a health passport system.

In the UK and US, the latest government travel advice states that people over 70 and people with pre-existing health conditions should avoid cruises. Saga, the UK-based travel and insurance company for the over-50s, has cancelled all cruises until 1 July 2020. On current evidence it seems likely that time-frame will need to be extended pending a dramatic decrease in new infections and potentially a vaccine.

The UK Government has issued Guidance for Shipping and Sea Ports on Coronavirus Covid-19:

• Before boarding a ship, crew and passengers should be asked if they have a new, continuous cough or high temperature;
• If someone becomes unwell with a new, continuous cough or a high temperature, they should be sent home or to their cabin;
• Everyone should be reminded to wash their hands for 20 seconds more frequently than normal;
• Crew and passengers should be given clear instructions on what to do if they develop symptoms and how and to whom they should report this;
• The Master of the Ship should notify the Port Health Authority about any suspected cases of COVID-19 as soon as possible, who will then inform the local Health Protection Team.

Litigation

There are currently no UK case authorities as to COVID-19 related outbreaks aboard cruise ships.  Keoghs’ Joanna Mansel looks at the litigation framework for claims following previous outbreaks of norovirus.

The case of Nolan v. TUI UK Ltd. [2016] 1 Lloyd’s Rep. 211 concerned a norovirus outbreak on the m/v Thomson Spirit. This affected some 217 people of the 1,700 passengers who were on board at the time. 43 of those passengers sued the carrier for personal injury and breach of contract, and alleged the outbreak was caused by a lack of proper hygiene on the vessel.

The passengers argued that it was an implied term of the contract of carriage that the ship owner had to warn the passengers in advance of the cruise that there was illness on the previous cruise and also give them an opportunity to either cancel or postpone their holidays to a later date. It was further argued that the presence of the virus on the ship prior to their cruise was a “defect” in the ship as per the Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 1974 (the “Athens Convention”).

• The Judge found that the cruise ship had implemented systems for controlling the outbreak which were beyond the required levels for the reported illness.
• The Judge also held that there was no duty to warn that passengers had fallen ill on the previous cruise as there was no criticism of the ship’s handling of the illness in light of the successful implementation of the response plan.
• The Judge stated that the presence of norovirus was not a “defect in the ship”, as that term is limited to the structure of the ship, and to extend that language of the Convention to such claims would be “distorting the language of the phrase defect in the ship”.

The decision in Nolan provides insight on how a claim for contracting a disease such as COVID -19 on a cruise ship may be judicially treated in a subsequent case. At face value, Nolan implies that a ship owner will not be held liable if they are meeting, or perhaps exceeding, the requisite industry standard of care.

Those principles were revisited and upheld in the more recent Court of Appeal case of Swift & Others -v- Fred Olsen Cruise Lines [2016]. This followed an appeal by Fred Olsen Cruise Lines after a first instance decision fell in favour of 16 claimants seeking damages after a norovirus outbreaks aboard “MS BOUDICCA” in March and April 2011.

The standard of care owed may change depending on the communicability of the disease, the speed at which the disease spreads and/or the ultimate number of those infected. How the Nolan standard of care is reconciled with the current handling of COVID-19 on cruise ships (quarantine measures and being turned away from foreign ports, for example) is yet to be determined, but the difference between an isolated case of norovirus on a ship compared to the global pandemic that is coronavirus may certainly distinguish Nolan in the future.

 For more information, please contact Alex Penberthy or Joanna Mansel.