PASSENGER CLASS ACTIONS AGAINST CRUISE LINES-
WHY COURTS DISFAVOR THEM
(Published January
1993)
More and more frequently plaintiffs' attorneys are bringing class action lawsuits against cruise lines in the hope of reaping enormous attorney's fees. Typical topics for class actions include claims for alleged food poisoning, canceled voyages, slipped ports,or inferior service or accommodations. Common causes of action in passenger class action cases include negligence, breach of contract, breach of implied warranty, misrepresentation, failure to provide adequate medical care, and strict liability. Hernandez v. M/V SKYWARD, 61 F.R.D. 558 (D.C. Fla., 1974); Barbachvm v. Costa Line. Inc., 713 F.2d 216 (6th Cir. 1983).
In most courts any plaintiff can file a class action simply by designating the complaint as a "class action" and alleging that the suit is brought on behalf of the named plaintiff as well as some other designated group (typically all passengers on a certain voyage). There are even attorneys who spend their careers looking for class action opportunities because of the potential for huge attorney's fees. For example, in one Los Angeles class action recently defended by K,R & M, discovery revealed that the plaintiffs' attorney, who had been a passenger on a canceled cruise, had also filed five other class actions, including a fraud claim against the rock group Milli-Vanilli!
While the filing of an alleged class action is a simple matter, most courts will not permit plaintiffs' counsel to conduct extensive class action discovery (ie., obtaining passenger or travel agent lists) unless the lawyer first files a formal motion for class certification and the motion is granted. Therefore, the goal of any class action case defense should be to defeat class certification in the early stages of the case.
Most state courts, as well as all Federal courts, require potential class action plaintiffs to prove that class certification is appropriate because (1) the class is so numerous that joining would be impossible; (2) common questions of law and fact predominate over questions affecting only individuals; (3) class action treatment of the case would be superior to other methods for adjudicating the dispute; (4) the class representative's claim is typical; and (5) the class attorney is experienced enough to fairly represent the class. F.R.C.P. Rule 23.
Typically, courts disfavor class actions in mass disaster or illness cases, such as food poisoning or accidents. La Mar v. H&B Novelty and Loan Co., 489 F.2d 461 (9th Cir. 1973); McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1093 (9th Cir. 1975). The rationale behind traditional resistance to class actions in disaster cases stems from "the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individual [plaintiffs] in different ways." Advisory Committee's Note to Proposed Federal Rule of Civil Procedure 23. 39 F.R.D.69, 103. The majority of published cruise line decisions discussing class actions have rejected plaintiffs' motions for class certification. However, there are two noteworthy exceptions.
Food Poisoning and Sanitary System Failures
In Hernandez v. M/V SKYWARD, 61 F.R.D. 558 (DC Fla. 1974), a Florida federal court certified a class action involving a claim for mass food poisoning. Plaintiffs' complaint alleged breach of contract, negligence and breach of implied warranty. Although Hernandez noted that mass tort cases involving questions of negligence, causation and damages were rarely suitable for class treatment, the court found that under the facts of the case, a class action was appropriate. However, the Hernandez court noted the substantial difficulties in certifying such a case as a class action and limited the class treatment to the issue of negligence alone. Thus, in Hernandez, even if negligence could be established, each passenger was still required to individually prove proximate cause, contract liability, adequacy of medical care, and individual damages.
Another published decision expressly authorizing possible class treatment is Koruber v. Carnival Cruise Lines, 741 F.2d 1332 (11th Cir. 1984). in which plaintiffs sued after the ship's sanitary system failed. The court reversed a lower court's decision to decertify the class, but remanded to the lower court for further consideration whether the class could meet the requirements of FRCP, Rule 23. Since there was no published decision after remand, this decision is of limited precedential value.
Likewise, a Pennsylvania federal court expressly chose to follow Hernandez, refusing to overturn a class certification in a case involving a group of passengers who fell ill from alleged food poisoning aboard RHMS ELLINIS. Bentkowski v. Marfuerza Campania Maritima. S.A., 70 F.R.D. 401 (1976). However, the Bentkowski court noted that the unique facts of that case made it a prime example of "the exception which proves the rule" against class certification in mass tort cases.
California courts have historically proven reluctant to utilize class actions in cruise line cases. D'Amica v. Sitmar Cruises, 109 Cal.App. 359 (1980), affirmed a Los Angeles Superior Court decision dismissing a class suit brought on behalf of all passengers allegedly plagued with contaminated food or water. Plaintiffs had filed suit alleging breach of contract, breach of warranty, strict liability and negligence. In rejecting the class, the court noted, "a class action cannot be maintained where each member's right to recover depends on facts peculiar to his case." The court found no commonality of facts where each plaintiff would have to present evidence to prove his or her damages and where liability to each class member could only be established though their individual testimony.
Mechanical Breakdowns and Skipped Ports
Class actions based on alleged misrepresentation by cruise lines also seem to be disfavored. A Pennsylvania Federal court refused to certify a class action stemming from a mechanical breakdown aboard S/S QUEEN ELISABETH 11. In Casper v. Canard Line. Ltd., 560 F.Supp. 240 (17.D. Pa., 1983), plaintiffs alleged fraud relating to a mechanical breakdown which caused the ship to miss two of its six scheduled ports. The court conceded that the events aboard ship, the itinerary, and the cause and time at which the owner knew or had reason to know of the vessel's unseaworthiness were questions common to all passengers. However, the oral and written representations which each passenger received and the degree of reliance by each passenger were not common questions. Specifically, the court held "reliance upon the representations made to each passenger will vary from person to person . . . consequently . . . this cause of action is not considered appropriate for resolution by class action." Casper, at 243. The court also noted that damages would be unique to each passenger as some placed great value on the omitted ports while others did not.
Two other attempts to certify class actions based on aborted or abbreviated cruises have also failed. In Yollin v. Holland America Cruises. Inc., 97 A.D.2d 720 (1983), a New York state court refused to certify a class action brought on behalf of 904 passengers aboard S/S ROTTERDAM, which skipped an advertised Bermuda port-of-call due to a wildcat strike in that country. Plaintiffs also complained of "an absence of advertised shopping opportunities in St. Thomas" (the vessel arrived on 'Carnival Day' and many shops were closed). The complaint alleged fraud, breach of contract, negligence and false advertising. In denying plaintiffs' motion to certify the class, the court considered the merits of the case with an eye toward eliminating spurious and sham suits, the likelihood that each plaintiff would be required to testify to establish his or her individual damages, and the long-standing maritime rule that a ship's master has the right to exercise reasonable discretion to alter course or omit ports in the interests of the ship. The court also noted that the passenger contract specifically permitted the ship's master to alter itinerary for any reason.
In Anshul v. Sitmar Cruises. Inc., 67 F.R.D. 455 (1974), an Illinois Federal court refused to certify a class action stemming from a change of itinerary where passengers were given a choice of canceling their cruise or sailing on the altered itinerary. The court rejected plaintiffs' motion to certify the class, finding there was no showing that a class action was superior to other available methods for deciding the controversy. The court also noted that the class, even if certified, could not include those passengers who had accepted Sitmar's refund offer and elected not to sail. Two other published decisions which discuss, but do not decide, the issue of class certification in similar cases are Simon v. Canard Line Ltd., 75 A.D.2d 283 (NY 1980) and Bloom v. Canard Line. Ltd., 76 A.D.2d 237 (NY 1980). Simon involved a claim for alleged inferior service, lack of potable drinking water, and change of itinerary aboard a QUEEN ELIZABETH 1I Christmas/New Years cruise. The Bloom case involved an alleged inferior service and itinerary change aboard CUNARD PRINCESS.
Conclusion
It is often very difficult to determine when a court might grant class certification. As a general rule, the more frivolous the claim, the less likely plaintiffs will be able to convince a court to grant class certification. A strong argument can be made that class actions are inappropriate in typical cruise line cases as set forth in the D'Amico, Casper, Yollin and Anschul cases. While a cause of action for breach of contract may be the most likely to be certified for class treatment, cruise line passage contracts typically contain a variety of contractual defenses which can be used to defeat the claim. Most courts evaluate the broad merits of a claim, including any defenses available to the cruise line in their ticket contract, in determining whether a class action should be certified. Yollin, supra.
Class actions, while extremely attractive to plaintiffs attorneys because of the potential for substantial attorney's fees, have several significant disadvantages to passengers. Foremost among these is the difficulty in settling cases once they have been filed as a class action. Often cruise lines attempt to maintain passenger goodwill by settling minor claims quickly. The filing of a class action places substantial obstacles in the path of settling such claims. For example in Hernandez, the court required plaintiffs' attorneys to notify all passengers of the claim and to advise them that the cruise line was "prohibited" from communicating with them. Notwithstanding the above, courts have refused to grant class certification in cases where the bulk of potential plaintiffs accepted a settlement before the class action was filed. Accordingly, where appropriate, cruise lines should carefully consider reaching individual settlements quickly in cases where class action litigation can be anticipated, since all efforts at settlement will likely be barred once a class action suit is filed and served.
