Rough Seas for the Cruise Industry 

March 12, 2020
In what is no doubt the beginning of a tsunami of lawsuits (pun intended) against the cruise industry arising from the coronavirus pandemic what we understand to be the first lawsuit against Princess Cruise Lines has recently been filed in the U.S. District Court for the Central District of California, Los Angeles.1  
The complaint alleges that the plaintiff and his wife boarded the Grand Princess on February 21, 2020, immediately following what is alleged to have been the disembarking of at least two passengers on the same day in San Francisco, who had symptoms of the coronavirus. Notwithstanding this fact, it is alleged that defendant Princess Cruise Lines was negligent in failing to properly screen passengers who were boarding on February 21 in that they were simply asked to fill out a piece of paper confirming they were not sick. It is contended that no passengers were questioned, let alone examined in any capacity. Further, it is alleged that at least 62 passengers or crew members had mixed and mingled with the infected passengers on the prior cruise and were never examined during the voyage in question until being tested for the virus on March 5, 2020, two weeks after the ship sailed. As a result of the test results, of course, the vessel was quarantined and remained anchored off the coast of San Francisco between Wednesday, March 4, and Monday, March 9, 2020, when it docked in Oakland, as a result of an outbreak of the virus. 
It is further contended that the defendant negligently failed to warn the plaintiffs about a potential exposure to the virus prior to boarding the ship and again during the sailing of the cruise. It is alleged that the defendant had actual knowledge of at least the two passengers who had sailed the previous week being infected with the virus and that it was aware that some 62 passengers and crew who were onboard that same sailing had co-mingled with the infected passengers. The damages claimed are $1,000,000. The interesting part of this case is that the plaintiffs do not allege that they have been infected with the virus or have suffered any physical injury. Instead, the claim is limited to one for emotional distress, trauma from the fear of developing the virus, and emotional harm, which is continuing during the course of the quarantine. 
U.S. Code, § 46 U.S. 30509 prohibits the owner, master, manager, or agent of a vessel transporting passengers between ports in the United States or between a port in the United States and a port in a foreign country from limiting liability for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents. However, the same statute allows a provision in a contract or ticket of carriage with a passenger that relieves an owner, master, manager, agent, operator, or crew member from liability for the infliction of emotional distress, mental suffering, or psychological injury. Not surprisingly, Princess Cruise Lines’ Passage Contract specifically includes a provision that relieves the owners and operators of the vessel from liability for emotional distress.2 However, and it is a big however, there is an exception to this ability to limit liability for emotional distress in case of physical injury to the claimant, or, more relevant to this lawsuit, if the emotional distress is “the result of the claimant having been at actual risk of physical injury” and the risk was caused by the negligence or fault of a crew member or the owner, master, manager, agent, or operator.
In this case, plaintiffs have cleverly alleged this exact provision, contending that the exposure to the virus and quarantine created an “actual risk of physical injury.” Moreover, it is expected that plaintiffs will argue that, in the case of negligent infliction of emotional distress, the seminal case of Consolidated Rail Corp. v. Gotshall, 512 U.S. 532 (1994) would apply. There, the Supreme Court held that, that in FELA cases (analogous to the Jones Act), “the zone of danger test” would apply to any claim for infliction of emotional distress, in which case, it is certainly expected that plaintiffs would argue that the entire vessel was the “zone of danger” considering the exposure to the coronavirus to the passengers on board.3
It remains to be seen whether this complaint will survive a motion to dismiss. However, it will probably eventually be up to a jury to determine whether the plaintiffs have established a fear of an actual risk of physical injury4 in order to circumvent the limitation on the ability to claim for pure emotional distress, and whether, in fact, the entire vessel could be considered “the zone of danger” under the Consolidated Rail case.
No doubt many additional suits will follow and we will continue to closely monitor the impact of this epidemic on the cruise industry, which will certainly be significant. 
1 Ronald Weissberger et al. v. Princess Cruise Lines LTD, Case No. 2:20-cv-02267 (U.S.D.C. C.D.C.A.)
2 Paragraph 14 (C) of the Passage Contract provides as follows: “(C) Claims for Emotional Distress: Carrier shall not be liable to the Guest for damages for emotional distress, mental suffering or psychological injury of any kind, under any circumstances, except for such damages proven in a court of competent jurisdiction arising from and attributable to Guest's physical injury or as the result of Guest having been at actual risk of immediate physical injury proximately caused by Carrier's negligence (“Emotional Harm”).” See,
3 As the Court determined in Consolidated Rail, “[T]he zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by the conduct. That is ‘those within the zone of danger of physical impact can recover for fright, and those outside cannot.’”
4 There may well also be an issue as whether contracting the coronavirus actually constitutes a “physical injury.”