While the measures available to prevent the spread of norovirus are well understood by the cruise industry, these are less well understood or accepted by passengers. After all, if you have paid a few thousand pounds/dollars for a cruise, and are then confined to your cabin feeling unwell for two days of a seven day cruise, you are unlikely to have had a “positive” experience.
Unfortunately, for the cruise industry there is no magic cure to norovirus. Indeed in the first five months of 2016 according to the US Centre for Disease Control and Prevention nine cruise vessels reported incidences of Norovirus onboard1.
However a case in the Central London County Court in 2015, reported in 20162, may have shifted the balance in the cruise industry’s favour.
The claimants were 43 passengers on the cruise ship THOMSON SPIRIT who embarked on 2 May 2009 for a cruise from Ibiza to Newcastle. During the voyage 217 people, including crew members, were affected by gastroenteritis.
The claimants initially alleged that their illness was as a result of food and drink being improperly prepared and served on board. However, they subsequently applied to amend their pleadings to allege that the infection was in the alternative caused by norovirus. The defendants appealed this change, but were unsuccessful3.
The substantive case was then heard and the claimants alleged in relation to the personal injury claims the fault or neglect of the defendant within the meaning of article 3.1 of the Athens Convention 1974 (the Convention). The Convention states that:
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 … occurred in the course of the carriage and was due to the act or neglect of the carrier….
It was alleged that the defendant:
- Failed to warn that there had been an incidence of norovirus on the immediately prior cruise.
- Failed to carry out a deep clean prior to allowing claimants to embark.
- Failed to allocate a ship that had not experienced an outbreak of gastric illness.
As the judge had to decide what the cause of the illness was, a detailed review of the symptoms of norovirus and food poisoning (campylobacter) was undertaken. Having heard from the experts and considered their reports the judge found that the passengers had suffered norovirus.
Looking at the three arguments raised by the claimants the judge found:
- Under the Convention the act that was complained off, in this case the failure to warn, had to have arisen in the course of carriage (while the passengers were on board). However, for a warning to be effective it had to have been given before the passengers boarded. As the warning was not given prior to boarding the failure to give it also occurred prior to the boarding and therefore was not in the course of carriage. As a result the claimants were not entitled to rely on the Convention to bring this aspect of the claim.
- The claimants argued that the cleaning of the vessel was defective both prior to boarding and once on board. As a result it was argued that this failure was a “defect in the ship” within the meaning of Article 3.3 of the Convention. The judge rejected this argument finding that “defect in the ship” means a failure in equipment, hull, machinery, structure etc. rather than a “defect” in the hotel management side of a cruise vessel, which was not found.
- The outbreak on the previous cruise was barely above background level and had been contained. Given the numbers involved and the measures in place when the previous cruise came to an end there was no need to warn passengers or to provide another vessel.
This case emphasises the importance for cruise owners and operators to have clear and well documented instructions as to what steps should be taken by the crew should an outbreak of norovirus (or other infectious disease) occur. It also emphasises how important it is to be able to evidence that the necessary steps have been undertaken.
While having documented systems in place that are used to deal with infectious diseases will not guarantee that no claim will be brought, it is likely that they will make it more difficult for a claim to succeed.