The recent experience of the passengers the Carnival Triumph debacle once again raises the question of remedies sought and available for cruise passengers who suffer harms while at sea. As with the Costa Concordia shipwreck a year ago, and with most hospitality-related providers, there are limitations on how and what guests can recover. Forum selection clauses, of a similar type to what most of our clients use, frequently limit where suits can be brought. For cruise passengers, who frequently travel from another location to the port city, the limitation on permissible fora can be an insurmountable hurdle to bringing suit. For the passengers on the Triumph, any claims face the additional obstacle that recoveries are likely limited to only those individuals who suffered some physical harm as a result of the incident.
These limitations are once again causing outrage among some who believe that the recourse of cruise passengers is too limited. But before jumping on that bandwagon, it is important to consider the consequences of opening the floodgates to more claims. For example, invalidating the forum selection clauses on cruise ship agreements could also open up hospitality providers like ski resorts or amusement parks, to claims far outside their operating jurisdictions.
Extending the ability of a party to recover damages for emotional “injuries” without any physical harm could also dramatically change the legal landscape. Would that allow individuals who claim to receive a “bad” dinner or view an “offensive” show the ability to recover damages for their claimed emotional injuries even without a physical harm? Even with limitations for only egregious conduct, the implications could be far-reaching for those throughout the hospitality industry and beyond.
It seems as though Carnival is attempting to thwart the legal onslaught, and possibly the push for legal changes, by offering full refunds to passengers plus cash and a voucher for future travel. We will see if it is enough. In the meantime, I wonder if those vouchers are transferrable?
Cynthia P. Arends, carends@nilanjohnson.com
