Vultures of the Sea

29th October 2020 by Sarah Prager

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A preliminary decision has been taken in the American litigation against Princess Cruise Lines and its parent, Carnival Corporation, arising out of the outbreak of Covid 19 aboard the Grand Princess during her Hawaii cruise in February of this year. The claims centre around the allegation that Princess was aware that a number of passengers on the vessel’s previous cruise had contracted Covid 19, but did not do enough to protect holidaymakers on the Hawaii trip, allowing them to continue to gather in numbers even after some of them had begun to show symptoms of the virus.

Last month a Californian judge in a class action against both Princess and Carnival dismissed the claim against the latter on the basis that it had not been properly pleaded as the alter ego of the former; and also dismissed the claims in negligence and gross negligence for lack of causation (cf Archer v Carnival Corporation 2:20-cv-04203, USDC, CDCA). He allowed a claim for intentional infliction of emotional distress to go forward, however.


   Travel Insurance

Now the court has refused to allow the class action to go ahead as such, with the effect that each individual plaintiff will now need to bring proceedings in his or her own name. The judge refused certification as a class action on the basis that the Defendant’s standard terms and conditions contain a clause to this effect:

“This Passage Contract provides for the exclusive resolution of disputes through individual legal action on your behalf instead of through any class or representative action. Even if the applicable law provides otherwise, you agree that any arbitration or lawsuit whatsoever shall be litigated by you individually and not as a member of any class or as part of a class or representative action …”

The court held that this clause was not unfair or unconscionable, noting that it does not remove the passenger’s right to sue as an individual, but only as a member of a class of Claimants.

Would an English court uphold such a clause though? It might fall foul of the Consumer Rights Act 2015, Schedule 2, Part 1(20) of which expressly states that a term may be regarded as unfair if it:

“… has the object or effect of excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, in particular by—
(a) requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions,
(b) unduly restricting the evidence available to the consumer, or
(c) imposing on the consumer a burden of proof which, according to the applicable law, should lie with another party to the contract.”

The Californian court found that the clause did not exclude the passenger’s right to bring proceedings; but does it hinder that right, or does the inability to participate in a group action hinder the exercise of a legal remedy? And do the Regulations apply at all, where the claim is governed by the Athens Convention (the USA, it will be remembered, is not a signatory to the Convention and so its provisions were not relevant in the Grand Princess case)? The answers to these questions are far from clear, but they will no doubt be provided in due course when the English group actions against cruise operators get under way (parenthetically, it does seem that other countries’ civil justice systems are managing to deal with Covid 19 related claims with rather more expedition than our own system).

Sarah Prager is a Barrister with 1 Chancery Lane
She can be contacted at SPrager@1chancerylane.com>


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