P&O Australia is being sued by passengers over what they claim was a “cruise from hell” – sparking fears of an American-style litigation increase that could endanger the viability of some cruises.
Climate change and weather effects like El Nino mean the industry is particularly at the mercy of the elements, and without the protection from what lawyers call “Acts of God”, lines may find it difficult to obtain insurance or protect their earnings.
The industry, which is recovering from the pandemic and at the whim of the weather like few others, has always relied on terms and conditions that exclude litigation over cancellations involving severe weather events.
But a recent ruling in favour of passengers who couldn’t sail because of serious weather events on European waterways has led to the P&O Cruises case, which involves passengers affected by a cyclone.
The cruise from Brisbane to Noumea and then onto Vanuatu set sail on May 5, 2017, and it is alleged the Pacific Aria sailed into the path of a category 5 cyclone.
“On arrival at Noumea the ship was required to dock in the industrial port due to the high winds rather than at the cruise ship terminal,” said Peter Carter a director of Carter Capner Law.
“Nothing was open in the city as Noumea was in lockdown for the arrival of the cyclone, and several passengers left the ship in Noumea because of the terrible sea conditions they had experienced and flew back to Brisbane.”
Industry sources have said that this may lead to the tightening of terms and conditions for passengers.
The claim seeks to recover damages from P&O for “disappointment, frustration, discomfort and distress and a refund of the cruise fare paid by each passenger”, reads a release from Carter Capner Law.
Mr Carter told Cruise Passenger that the case relied on a ruling recently in favour of Australian river cruisers who sued after drought and floods meant they could not sail on schedule.
“We are not filing a personal injury claim, but we are filing for disappointment, frustration, discomfort and distress. When the Scenic case was filed, we had already started collecting cases from the P&O cruise. We had waited until the end of the six-year limitation period to file the class action,” he said.
The court of appeal has upheld Justice Peter Garling’s decision that Scenic had breached consumer guarantees and awarded passengers between $6,000 to $12,000 as well as compensation for airfares to Europe.
“Once the decision was handed down to uphold Justice Garling’s decision, we made the decision to file the class action,” said Mr Carter.
The cruise industry, like many others, has always relied on the Act of God defence, and lines may be forced to tighten exclusion clauses to avoid litigation.
Sailings in the Pacific, are particularly prone to cyclone events during the season.