Debi Chalik listened in horror as Vice President Mike Pence announced at a news conference that 21 passengers aboard the Grand Princess had tested positive for coronavirus.
It was Friday, March 6, and her parents were on the cruise. She knew that their ages, 74 and 69, would make them particularly susceptible to the virus.
“I was very angry, given that there was no doubt my parents’ lives were placed at imminent risk of serious harm,” Chalik said.
As an attorney, Chalik said she thought the cruise line had breached its duty to provide reasonable care for Ronald and Eva Weissberger and the rest of the ship’s 3,500-plus passengers and crew by failing to take precautions to stop the spread of the virus.
On March 9, five days after the cruise ship announced that a man on a previous voyage had died of the virus, Chalik sued on their behalf. The Weissbergers became the first cruise passengers to file suit related to coronavirus.
Experts and fellow attorneys said they face an uphill battle against restrictive terms of service buried in passengers’ paperwork and maritime laws that predate the sinking of the Titanic by half a century.
Nearly all legal cases are limited to losses related to physical injuries, not emotional or psychological damage. The Death on the High Seas Act, first passed in the 1920s and updated only once since, prevents survivors from suing for their emotional distress or pain and suffering even when a loved one dies on a ship at sea.
A law from 1850 still lets vessel owners limit their liability to the value of the ship. Class actions aren’t allowed. Statutes of limitations can be as short as a year.
Chalik has signed 34 clients, including two passengers from the Ruby Princess in Australia, which saw hundreds of COVID-19 cases.
Her parents did not get sick, but Chalik found a clause in Princess’ tickets that allowed claims to be filed in cases of immediate danger. The company was put on notice a few weeks before her parents’ cruise, she said, by the more than 700 people infected on the Diamond Princess, nine of whom have died.
She’s filed nine cases against Princess Cruises on behalf of Grand Princess, each seeking $1 million in damages. The lawsuits allege that Princess Cruises was grossly negligent for sailing when it knew the ship had been infected by the previous passenger. Since then, 103 passengers from the voyage in March have tested positive, and two have died.
In a statement, Princess Cruise Lines said it does not comment on pending litigation but “has been sensitive to the difficulties the COVID-19 outbreak has caused to our guests and crew.”
“Our response throughout this process has focused on the well-being of our guests and crew within the parameters dictated to us by the government agencies involved and the evolving medical understanding of this new illness,” the statement said.
The industry’s slow response to initial warnings facilitated the early global spread of the COVID-19 virus. The Cruise Lines International Association, the industry’s largest trade group, waited more than a month to suspend cruise travel after confirmed cases appeared on the Diamond Princess in Japan.
Cruise passengers remain in peril: According to Securities and Exchange Commission filings, approximately 6,000 Carnival passengers were still aboard the company’s cruise ships Monday. Four elderly passengers on Holland America’s MS Zaandam died last week, though the causes of death have not been disclosed. As of Wednesday, nine people on that ship had tested positive for COVID-19, and more than 200 passengers and crew members reported flu-like symptoms.
Even in cases of utter meltdown, experts said, cruise lines are protected by a shield of immunity that can be difficult for plaintiffs to break through.
They pointed to the ill-fated Carnival Triumph, which lost power and plumbing in the Gulf of Mexico in 2013, leaving passengers stewing in human feces for several days. Most lawsuits went nowhere, attorneys said, and the ones that did resulted in small financial awards.
They said the lack of legal recourse is concerning in an industry where other oversight measures are patchy at best.
Because most cruise lines and their ships are registered outside the USA, they do not have to comply with many domestic safety regulations. The few U.S. regulations they do have to follow – including inspections administered by the Centers for Disease Control and Prevention if they stop at U.S. ports while sailing internationally – mask how frequently ships are cited for health and sanitation violations, according to a USA TODAY investigation.
That undercuts the normal range of incentives for companies to improve conditions, experts said.
“It’s basically lawless; they can basically conduct themselves without being held accountable,” said Spencer Aronfeld, an attorney who specializes in cruise ship litigation. “They don’t have to comply with building codes. They don’t have to comply with the ADA (Americans with Disabilities Act): They can make the steps any way they want, they can make the handrails any way they want. They don’t have to have CT scans or MRIs on the ships.”
The list goes on and on, Aronfeld said, of things cruise lines “would never get away with if they had a hotel in Miami or Las Vegas.”
‘Cruise line tickets are legal works of art’
Like many industries, cruise lines are not insurers of passenger safety – meaning they’re not 100% responsible for keeping passengers in good health. They do have a duty to take reasonable steps to keep their passengers from harm.
Michael Karcher, a maritime lawyer and professor of admiralty at the University of Miami Law School, said the legal benchmark for cruise ships is “reasonable care under the circumstances.”
What is reasonable “may depend on where you are going, who are the passengers, what kind of things you are encountering,” Karcher said. “ ‘Under the circumstances’ leaves a lot of room for factual questions on both sides.”
One clear cut example is a slip-and-fall case in which the passenger can prove that a design flaw on the ship or a wet, unmarked surface left by a crew member directly led to their injury.
Big cruise lines such as Carnival, the owner of Princess Cruises and more than half of the cruise market share, limit those circumstances and what is reasonable before passengers board the ship.
Buried in the terms of service in most passengers’ tickets are limitations on the cruise line’s liability for everything from the actions of third-party contractors – such as masseuses, nail technicians, excursion companies, even onboard doctors – to unforeseen delays in travel time.
The Grand Princess was held off the coast of California for five days waiting for authorities to allow it to dock on its return from what was supposed to have been a round trip from San Francisco to Hawaii. After docking in Oakland, California, it took a week to get everyone off the ship.
Martin Davies, director of the Maritime Law Center at Tulane University said he would be “very surprised” if the cruise lines “were liable for any delay … for being held offshore” because of terms of service in passengers’ tickets.
“The cruise line tickets are legal works of art,” Davies said.
Included in the ticket contract of most cruise lines, including Princess Cruise Lines, is a waiver of class-action lawsuits. Passengers on the Grand Princess or Diamond Princess exposed to or infected with coronavirus gave up their rights to sue as a group before they even boarded.
Other stipulations allow the cruise line to choose the U.S. court where claims can be filed and impose a one-year statute of limitations for filing claims – much shorter than most states’ cutoff for similar claims.
Emotional distress is not considered an injury
Deep in Carnival’s ticket contract, the company says it is not liable for damages for emotional distress or mental suffering. The only exception is when those damages were caused by Carnival’s negligence and resulted in a passenger “sustaining actual physical injury, or having been at risk of actual physical injury.”
Attorneys said Princess Cruise Lines may have breached its duty of care for passengers on the Grand Princess and Diamond Princess, given recent reports.
An investigation by USA TODAY found that Princess Cruise Lines had a problem with health long before the coronavirus outbreaks. Nearly 5,000 people aboard Princess ships in the past decade have suffered from bouts of vomiting, diarrhea – or both – in numbers widespread enough that government health officials issued alerts on 26 outbreaks.
Holding the company liable, especially for passengers who did not contract the virus, may be a Sisyphean task.
Aronfeld blames maritime law, which allows only for cases involving physical injuries, saying they “really are designed to protect the coffers of the cruise line at the expense of injured passengers.”
That restriction is codified in U.S. Code 46, called the Shipping Act.
“Just because you see a lot of people getting sick on board and you’re freaked out by that, it doesn’t necessarily mean you can sue for mental anguish or pain and suffering,” said John Hickey, a maritime trial attorney in Miami.
Hickey said his firm decided not to take such cases. Instead, they are exploring the case of a 70-year-old woman who is in a hospital and faces permanent lung damage from pneumonia Hickey said was caused by the coronavirus she contracted onboard.
“That is actual and permanent and severe injury,” Hickey said.
Aronfeld has fielded calls from Grand Princess passengers, some while they were still quarantined onboard. He declined to take them on.
Carnival denies the allegations of negligence, saying in a statement that at the time of the sailing of the Grand Princess, “the only cruise ship with guests who had tested positive for coronavirus was the Diamond Princess in Japan (that was connected to a passenger from Hong Kong who tested positive several days later after disembarking from the ship).”
“At the time, the outbreak was generally believed to be secluded to China, and later, parts of Asia. There was no WHO restriction on global travel other than China,” the statement said.
Aronfeld sees similarities to another high-profile case that was among the largest and most challenging of his career: the Carnival Triumph disaster.
In 2013, a fire caused power and plumbing outages as the Triumph returned to Galveston, Texas, from Cozumel, Mexico. Its route back to the USA via tow took nearly a week. Passengers reported raw sewage left in hazmat bags in hallways and leaking into their rooms from backed-up pipes, earning the Triumph the nickname “poop cruise.”
Despite evidence of Carnival’s negligence, including documents indicating the crew knew of generator fire hazards across the fleet before it set sail, Aronfeld said the only clients who saw any money were those who suffered from injuries such as dehydration or a fall due to the blackout onboard. Most were small rewards.
Emotional injury claims did not make the cut, and Aronfeld envisions the same playing out for Princess cruise passengers.
“I can just give you an example of how draconian that law is: We saw a case where a mother had a small child drown in a pool on Royal Caribbean,” he said. “As they were trying to resuscitate, they were unsuccessful, and the child died.”
According to court records, the mother sued for emotional distress, among other things, over the traumatic experience of watching her son die. The court ruled in favor of Royal Caribbean, dismissing the claim because she did not sustain an injury and the cruise line’s conduct did not rise “to the level of outrageousness” required by the law.
“If that’s not enough,” Aronfeld said, “I don’t how being confined to a luxury cabin on a Princess trip is going to be enough to survive a motion to dismiss.”
Death on the High Seas
One of the most controversial pieces of maritime law is the Death on the High Seas Act.
Passed in 1920, the law initially was intended to prevent seafarers’ wives from becoming destitute if their husbands died on the water. The law covers deaths due to negligence or wrongful acts occurring 12 miles off the coast of the USA.
The rub, experts said, is it covers only “pecuniary loss,” meaning financial loss such as wages, medical and funeral costs.
If the person who dies is a retiree, a child, or unemployed, lawsuits filed by their survivors would be extremely limited.
“So grandma and grandpa go on this cruise and they get sick and they both die at sea,” said New Orleans attorney and maritime law expert Paul Sterbcow. “Their claim against the boat – to the extent to which they have one for failure to take reasonable care – is grounded in the Death of the High Seas Act, and the kids recover funeral and burial expenses, and that’s it.”
This may come into play for passengers on the Zaandam and sister ship MS Rotterdam, which were turned away from docking in several counties. Four passengers have died.
Andrea Bergmann Anderson, a passenger on the Zaandam, told USA TODAY that on Monday, the ship was scheduled to anchor near San Andres Island but instead carried on. A plane was to bring in medical supplies and medically evacuate two passengers but was denied permission to land by the Colombian government, she said.
The ships, carrying a total of 1,200 passengers, including 304 Americans, seek to dock in Florida. Gov. Ron DeSantis said at a news conference Wednesday that his state was willing to accept Floridians on board. He said officials are “working on a solution” to disembark other passengers, including foreign nationals, in a way that does not drain resources in South Florida, the state’s epicenter of COVID-19 cases.
Aronfeld said the morbid truth is that the cases of family members of those who died on the ship while at sea probably will be worth substantially less than a case of someone who died on land.
“Most of the people that are dying are probably retirees with no lost wage claims,” Aronfeld said, noting the high average age of cruise passengers. “So what’s a funeral cost? $10,000? $20,000? That’s like me asking you for a penny. Carnival could pay that without missing a beat.”
Congress has made several attempts to amend or overturn the high seas law in recent years, though none has been successful.
Sen. Jay Rockefeller, D-W.Va., co-sponsored a bill in 2013 that died in committee a year later. Carnival and Royal Caribbean spent hundreds of thousands on lobbying that year, according to reports from Open Secrets.
In April, Sen. Deb Fischer, R-Neb., introduced legislation that would allow a broader range of damages to be covered. Titled “Hammer’s Law,” the bill is named after Fischer’s constituents Larry and Christy Hammer, who died after a fire broke out on a Peruvian river cruise in 2016. The Peruvian navy found numerous safety issues on the ship that led to the fatal fire, but the Hammers’ survivors were unable to recover anything for their emotional damages.
The bill has yet to make it out of committee.
Limitation of Liability Act of 1851
Another piece of maritime law that caught the attention of lawmakers last year is the Limitation of Liability Act of 1851, most notably used after the sinking of the Titanic in 1912. It exonerates owners of ships from the liability of loss or damages due to fire or other accidents.
Updated in 1935, it includes any loss, damage or injury events outside negligence or unseaworthiness that were known or should have been known by the boat owner.
In testimony to the House Committee on Transportation and Infrastructure in November, Sterbcow explained the law’s history, noting it was intended to protect the burgeoning shipping industry back when boats were made of wood and had no way of communicating from the high seas to their owners.
In modern-day shipping, marine insurance is readily available and technology has vastly improved – down to real-time tracking in international waters – so the law can no longer be justified, Sterbcow argued.
The hearing was called by the Coast Guard and Maritime Transportation Subcommittee after a fire in September on the Conception in California left 34 people dead.
Three days after the passengers’ deaths, the owner of the boat, Truth Aquatics, filed for protection under the Limitation of Liability Act. The owners asked the judge to limit their liability to the value of the boat after it sank, or $0.
A lawsuit on behalf of families of three passengers and one crew member who died claims the owners knew about the dangers of the lithium-ion batteries suspected as the source of the fire. According to a report by the Los Angeles Times, a boat owned by the same company experienced a fire while charging phones and underwater cameras a year prior.
Survivors have been given a window to file claims, after which a judge will determine if the liability limitation applies.
For attorneys such as Hickey, the move by Truth Aquatics to apply for limitation before efforts to recover bodies was even complete illustrates how the law, and maritime law more broadly, is exploited by companies.
“Talk about aggressively protecting their insurance policies and their money,” Hickey said.
In his congressional testimony, Sterbcow outlined the fallout of that problem.
“If vessel owners know they can walk away without any liability, they have no incentive to make their vessel fit,” Sterbcow said. “You need to limit the ability to limit liability.”
Despite the long odds, Sterbcow hopes that judges overseeing coronavirus cases will set legal precedents – and the outbreaks will again catch the attention of Washington.
“I personally have been fighting this for 25 years and just can’t get anywhere,” he said. “I’m hopeful now despite craziness in D.C. that … maybe we’re going to gain a little traction.”
Contributing: Morgan Hines, David Oliver, Letitia Stein and Marco della Cava