Old maritime rules pose obstacles to lawsuits from Princess Cruise passengers

Those upset by the company's coronavirus response may be stymied by high-seas regulations passed more than 100 years ago.

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By Doha Madani

When Susan Dorety's husband, Michael, began developing coronavirus symptoms on the Grand Princess cruise ship in February, she immediately called the vessel's emergency number, but it took multiple calls until a doctor finally came to see him, according to a federal lawsuit seeking more than $1 million.

Princess Cruise Lines operated two ill-fated cruise ships that sparked international headlines as more than 800 passengers were infected with the coronavirus, resulting in at least 10 deaths.

Some passengers of the company's Diamond Princess and Grand Princess are now taking the cruise line to court, although experts warn that complex and longstanding maritime laws create unique obstacles.

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Michael Dorety's condition worsened and he became unresponsive, even after a ship's doctor gave him doses of Tylenol and Tamiflu, according to the lawsuit, filed Tuesday in U.S. District Court in Los Angeles. His wife spent two days trying to persuade the cruise line to let him off the ship to get better care, it says.

"When she finally got Michael Dorety off the ship, almost three days after his symptoms developed, the CDC looked at him alarmed and asked why she did not bring him sooner," the lawsuit said.

He was eventually taken to a hospital, where he tested positive for COVID-19, the disease associated with the coronavirus, and he died days later with his wife and children listening on the other end of a phone line.

Michael and Susan Dorety.Family photo

Susan Dorety claims Princess Cruise Lines was negligent in its response to the outbreak and did not test more than 60 passengers from the previous Diamond Princess voyage who were exposed to the coronavirus and had stayed on board. Nor did it alert the Doretys of the previous passengers' conditions before the cruise began on Feb. 12, the suit alleges.

Susan Dorety is not alone.

Ronald and Eva Weissberger sued the cruise line last month, claiming it potentially exposed them to the disease, which can be fatal. At least nine Northern California passengers filed similar suits last week in federal court in San Francisco, according to NBC Bay Area.

Princess Cruise Lines said that it does not comment on ongoing litigation but that it was sensitive to the difficulties experienced by passengers and crew members because of the outbreak.

"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 company said in a statement.

Passengers who are seeking damages from cruise lines may have a difficult time proving companies failed to meet the "reasonable care" standard the Supreme Court set forth in Kermarec v. Compagnie General Transatlantique, said Martin Davies, director of Tulane University School of Law's Maritime Law Center.

"What 'reasonable care' means is what a reasonable person in that position would do in light of what they knew at the time," Davies said Thursday. "So hindsight, things that they discovered after the event, should not be relevant to what constitutes reasonable care at the time of the alleged negligence."

At the time of the Grand Princess' departure, U.S. authorities were still assuring Americans the coronavirus was under control and that domestic travel should continue as usual. It wasn't until March that the U.S. Centers for Disease Control and Prevention began issuing social distancing guidelines and states began stay-at-home orders.

It will be hard to prove that a cruise line failed to take reasonable care until more is known about how the virus is spreading, Davies said. There's also the issue of asymptomatic carriers of the virus, compounded by a lack of available testing.

"If it is passengers breathing on each other that is the problem, there's not much you can do about that other than not have a cruise at all, which, of course, is the position they're now in," Davies said.

Even if attorneys for the passengers were able to prove negligence, cruise lines could use laws from the 1800s and the 1920s to downsize how much they would have to pay in damages.

The Limitation of Liability Act, passed in 1851, for instance, allows a cruise line to limit its liability to the total cost of the vessel and forces all claims to be fought in the same federal court.

"It's an advantage to the ship owner, because it means it gets to fight the case once, where it chooses to be, rather than lots of times wherever the plaintiffs choose to be," Davies said.

Another hurdle is the 1920 Death on the High Seas Act, which limits financial damages to families if a loved one dies because of an injury on a ship. The 100-year-old law was passed to allow widows of seamen to recover wages, maritime lawyer Jim Walker of Miami said Thursday.

"That law is still in the books. You can't file pursuant to a state wrongful death statute, which allows recovery for pain and suffering and grief and so forth and so on," Walker said. "You're entitled only to recover these limited pecuniary damages."

But Walker said the lawsuits should be filed despite the obstacles. An easier case to make would be that cruise lines were being unreasonably negligent in not allowing passengers to cancel their trips or that companies failed to notify them of the possible danger, Walker said.

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Despite President Donald Trump's reassurances that Americans were at low risk from the coronavirus earlier this year, the World Health Organization had issued a warning in January about the global risk, Walker said. His office fielded a number of complaints from passengers who were unable to get refunds for their cruises, he said.

"On the one hand, they weren't letting people make their own decisions about what was best for their safety and health and forcing these people to go on these cruises," he said. "And then they clearly were behind the ball. They were very, very slow in reacting."

Charles Naylor, a maritime lawyer in Long Beach, California, who has practiced for more than 40 years, said he has turned down the opportunity to represent passengers because of the limitations.

Conditions on the tickets restrict class-action lawsuits, forcing each person to prove that he or she contracted the virus on the cruise, Naylor said.

"When you think of what it might cost to prove that, what does your case have to be worth to justify the time and expense involved?" Naylor said.

Naylor said such lawsuits are not easy on people, requiring plaintiffs to invest large amounts of time, energy and money in court battles that could result in little reward because of 100-year-old laws.

"This happens all the time in maritime law and in maritime cases," Naylor said. "Maybe it creates an opportunity for Congress to set right what should have been set right a long time ago."