Federal Court ruling re Ruby Princess

[Vader1111]

On 10/27/2023 at 8:39 PM, arxcards said:

Correct, but in making a decision whether to embark the cruise, they could have screened if they wanted to. IMO, they are not negligent for deciding not to screen, but it was an option. Had they chosen to temperature screen, nurses in PPE would have scared the beejeezus out of the passengers and it would have been a logistical nightmare. Head office wanted the ship to embark, and only government intervention would have stopped it.

 

Temperature testing only became a screening tool when government authorities decided when/where it needed to be undertaken.

"Head office wanted the ship to embark, and only government intervention would have stopped it."  This, in a nutshell, is exactly why Princess were found guilty.  They chose to board the passengers, knowing that there was a risk, and failing to do everything they could reasonably do to minimise the risks.

 

Temperature checks were in place around the world, at least a month before Ruby departed.  They had no excuses for not performing them, even if they weren't overly accurate - at least it provided a first level of checking, which could be confirmed by sidelining anyone found to be hot (for further checking by medical staff).

[BRANDEE]

6 hours ago, Vader1111 said:

"Head office wanted the ship to embark, and only government intervention would have stopped it."  This, in a nutshell, is exactly why Princess were found guilty.  They chose to board the passengers, knowing that there was a risk, and failing to do everything they could reasonably do to minimise the risks.

 

Temperature checks were in place around the world, at least a month before Ruby departed.  They had no excuses for not performing them, even if they weren't overly accurate - at least it provided a first level of checking, which could be confirmed by sidelining anyone found to be hot (for further checking by medical staff).

Why didn't the government stop the sailing? They were on board only a few hours prior checking passengers disembarking from the prior cruise. NSWHealth is to blame..their job is to protect and they did nothing.  All they had to do is say "no go".  They had the right and the legal responsibility..didn't you hear what the special commission findings said? 

In the end the Australian judges blamed Carnival/Princess and did nothing to their own government agency who did nothing.  Scapegoating and corruption is what I see.

And if temperature checks were placed around the world, why didn't I get a scan when entering your country at Sydney airport? (2/28)  Want to blame Carnival for that too .?  How about sitting at Quantas on March 19th for 8 hours waiting to go home and no one temperature checked us their either. What about Celebrity and RCCL? They were sailing too.

[arxcards]

There were lots of mistakes and poor judgement, and now proven negligence throughout this whole debacle. This case is not Covid v Princess, nor is it Australia v Princess, nor is it Covid v Cruising, nor is it NSW Health v Princess. I think it is arrogant for someone on the other side of the world to be alleging corruption within a court system they don't understand.

 

This case is simply KARPIK V CARNIVAL PLC. The Karpik's had a commercial arrangement with Princess via the passage contract that was in place for their voyage. The court judgment is simply that Carnival PLC was negligent to those obligations and that Mrs. Karpik was entitled to be compensated for out-of-pocket medical expenses. This was based on the judge's interpretation of the law. 

 

Any passengers similarly affected on Voyager/Ovation of the Seas and Celebrity Solstice can argue their case in court, but apart from precedence, that will be totally irrelevant to Karpik V Carnival PLC.

 

Yes, the case document is way too big to absorb. The case summary is much easier to comprehend

Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280 (fedcourt.gov.au).

 

[Aus Traveller]

Thanks for posting the case summary.

An interesting point is made by the Judge - I have found that under the consumer law, the respondents guaranteed that the cruise services would be reasonably fit for the purpose of having a safe, relaxing and pleasurable cruise holiday substantially in accordance with the advertised and booked itinerary, and that the services would be of such a nature and quality that they might reasonably be expected to achieve that desired result.

 

Other cruises (can I mention the Costa Concordia?) don't end up being safe, relaxing and pleasurable and often there are factors that result in a cruise not being relaxing and pleasurable.

 

It is obvious that those involved in the class action were expecting a big payout, but the lead complainant only gets $4,423.48 plus interest to cover her medical expenses. If she had to pay legal expenses, she would be out of pocket. BTW, I realize that usually a successful litigant gets an award of costs, but in my experience, there are often (or even usually) legal fees in addition to the costs awarded.

 

As Brandee mentioned earlier, all passengers received a full refund of their cruise fare.

[BRANDEE]

53 minutes ago, arxcards said:

There were lots of mistakes and poor judgement, and now proven negligence throughout this whole debacle. This case is not Covid v Princess, nor is it Australia v Princess, nor is it Covid v Cruising, nor is it NSW Health v Princess. I think it is arrogant for someone on the other side of the world to be alleging corruption within a court system they don't understand.

 

This case is simply KARPIK V CARNIVAL PLC. The Karpik's had a commercial arrangement with Princess via the passage contract that was in place for their voyage. The court judgment is simply that Carnival PLC was negligent to those obligations and that Mrs. Karpik was entitled to be compensated for out-of-pocket medical expenses. This was based on the judge's interpretation of the law. 

 

Any passengers similarly affected on Voyager/Ovation of the Seas and Celebrity Solstice can argue their case in court, but apart from precedence, that will be totally irrelevant to Karpik V Carnival PLC.

 

Yes, the case document is way too big to absorb. The case summary is much  to comprehend

Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280 (fedcourt.gov.au).

 

Sorry you feel I am arrogant but I lived through it and also watched every minute of the Special Commission proceedings to understand who should have been responsible for protecting passengers as well as the citizens of Australia..  The Special Commission found NSWH to be negligent but did nothing. But Carnival was found to be negligent and has to pay.

[MicCanberra]

While I agree that there were many mistakes made by nearly everyone involved, this latest case was not about any of that. The previous special commission was a different beast.

Personally, I think that the federal dept DAFF made the mistakes well before any of them, as Bio Security was at risk, people coming from international locations should not have been allowed to come into Australia without testing, or quarantine in the first place.

[Aus Traveller]

9 hours ago, BRANDEE said:

Why didn't the government stop the sailing? They were on board only a few hours prior checking passengers disembarking from the prior cruise. NSWHealth is to blame..their job is to protect and they did nothing.  All they had to do is say "no go".  They had the right and the legal responsibility..didn't you hear what the special commission findings said? 

In the end the Australian judges blamed Carnival/Princess and did nothing to their own government agency who did nothing.  Scapegoating and corruption is what I see.

And if temperature checks were placed around the world, why didn't I get a scan when entering your country at Sydney airport? (2/28)  Want to blame Carnival for that too .?  How about sitting at Quantas on March 19th for 8 hours waiting to go home and no one temperature checked us their either. What about Celebrity and RCCL? They were sailing too.

I don't believe we have an issue of corruption with this Court finding.

 

Temperature checks weren't happening at the time and even if they were, they would not pick up cases of COVID in its early stages.

 

We were on the Sea Princess from 23rd Feb to 8th March and every day received printed information about COVID. Passengers were urged to go to the medical centre if they had symptoms and we were told this was free. At the time mask-wearing wasn't common and we had never heard the term 'social distancing'. Everything changed in the next couple of months.

[Aus Traveller]

We were on a NZ cruise on the Sea Princess, ending on 8th March in Brisbane. We were told that disembarkation would be slow because the Health Department would want to check everyone for COVID symptoms. IT DID NOT HAPPEN.

[arxcards]

1 minute ago, BRANDEE said:

Sorry you feel I am arrogant but I lived through it and also watched every minute of the Special Commission proceedings to understand who should have been responsible for protecting passengers as well as the citizens of Australia..  The Special Commission found NSWH to be negligent but did nothing. But Carnival was found to be negligent and has to pay.

We all went through this to some degree or another.

Carnival has to pay because they had a commercial arrangement. There was no commercial arrangement with NSW Health (a government instrument), so even though there were findings against them, it wasn't about compensation. The case is Karpik v Carnival PLC, not the Special Commission.

 

You alleged corruption, and I only call that out as arrogant. It is a court case, so there is always disagreement depending what side of the decision you are sitting. There is no corruption.

[lyndarra]

26 minutes ago, Aus Traveller said:

I don't believe we have an issue of corruption with this Court finding.

 

Temperature checks weren't happening at the time and even if they were, they would not pick up cases of COVID in its early stages.

 

We were on the Sea Princess from 23rd Feb to 8th March and every day received printed information about COVID. Passengers were urged to go to the medical centre if they had symptoms and we were told this was free. At the time mask-wearing wasn't common and we had never heard the term 'social distancing'. Everything changed in the next couple of months.

I recall some mask wearing happening as early as Feb 1 which is when we checked into a hotel in Auckland prior to our HAL cruise to SYD.

We were at the check in counter when some people of Chinese appearance arrived in the lobby to check in. The girl on the desk immediately grabbed a mask from under the desk and put it on. When they left the lobby the girl took her mask off and replaced it under the desk. As it turned out these guests were American Chinese with USA passports. Their accents were totally American. People were nervous, cruise corporations not so much.

Edited October 30, 2023 by lyndarra
typo

[Aus Traveller]

10 minutes ago, lyndarra said:

I recall some mask wearing happening as early as Feb 1 which is when we checked into a hotel in Auckland prior to our HAL cruise to SYD.

We were at the check in counter when some people of Chinese appearance arrived in the lobby to check in. The girl on the desk immediately grabbed a mask from under the desk and put it on. When they left the lobby the girl took her mask off and replaced it under the desk. As it turned out these guests were American Chinese with USA passports. Their accents were totally American. People were nervous, cruise corporations not so much.

When we boarded the Sea Princess on 23rd February, people who had been in China and (I think) Singapore in the previous 14 days were not allowed to board. There was concern about the virus that was prevalent in China.

 

It has always been common for Asian people to wear masks in public.

[lyndarra]

13 minutes ago, Aus Traveller said:

It has always been common for Asian people to wear masks in public.

In China mask wearing was common. In China and other Asian cities mask wearing was mainly due to pollution. At that time the pollution was so bad in Xian we chose to stay in our hotel instead of going out. We did not see blue skies for the 10 or so days we were there. I was in China during the SARS outbreak and we were given masks to wear on the plane home and were temperature checked on arrival.

 

[arxcards]

1 hour ago, Aus Traveller said:

Thanks for posting the case summary.

An interesting point is made by the Judge - I have found that under the consumer law, the respondents guaranteed that the cruise services would be reasonably fit for the purpose of having a safe, relaxing and pleasurable cruise holiday substantially in accordance with the advertised and booked itinerary, and that the services would be of such a nature and quality that they might reasonably be expected to achieve that desired result.

 

Other cruises (can I mention the Costa Concordia?) don't end up being safe, relaxing and pleasurable and often there are factors that result in a cruise not being relaxing and pleasurable.

 

It is obvious that those involved in the class action were expecting a big payout, but the lead complainant only gets $4,423.48 plus interest to cover her medical expenses. If she had to pay legal expenses, she would be out of pocket. BTW, I realize that usually a successful litigant gets an award of costs, but in my experience, there are often (or even usually) legal fees in addition to the costs awarded.

 

As Brandee mentioned earlier, all passengers received a full refund of their cruise fare.

As Princess refunded the fare, that went a long way towards not compensating the cost of the lack of enjoyment. The judgement maxxed out that claim to be the cost of the fare, which had already been repaid. 

 

The hope of a big payout is why it wasn't coing to be settled out of court. That was a win for Carnival.

 

Concordia? That would be based on Italian consumer law. I can't recall if/what level of compensation was around. I don't think the judge would have considered any legal precedence from Concordia.

[Aus Traveller]

2 hours ago, arxcards said:

As Princess refunded the fare, that went a long way towards not compensating the cost of the lack of enjoyment. The judgement maxxed out that claim to be the cost of the fare, which had already been repaid. 

 

The hope of a big payout is why it wasn't coing to be settled out of court. That was a win for Carnival.

 

Concordia? That would be based on Italian consumer law. I can't recall if/what level of compensation was around. I don't think the judge would have considered any legal precedence from Concordia.

I agree - I don't expect that the Judge would have considered the Costa Concordia event to grant any legal precedence. I used this as an extreme example of a cruise where the passengers didn't have a safe, relaxing and pleasurable holiday. I am sure there are many cruises where passengers don't get the experience that they booked for. We didn't on our last cruise that was supposed to go to Vanuatu but ended up going to Cairns. Another issue for us was air-conditioning in our cabin that operated at an estimated 5% capacity. We were given a fan in the first day and we slept with the balcony door open to get some air. Yes - I know - this does not equate with people becoming ill and with the number who died as result of contracting COVID on the Ruby.

 

The only people who won out of this Court case would be Shine Lawyers. A proportion of the amount awarded to the Plaintiffs (including Mrs Karpik) goes to the Litigation Funders, but I don't expect that this will be enough to cover their costs. They were obviously gambling on a big pay-out by Carnival, possibly a settlement of millions of dollars of which they get a fair bit.

[Relaxing Robbies]

One of the things that interested me when I read the judgement was the judge talking about what was required in this case. Facts about covid that were certainly not known at the time, but were known at the time of the hearing of the case were relevant and able to be considered in determining whether the cruise was fit for purpose.  Apparently that is how the relevant law works.  

[christodan]

On 10/28/2023 at 3:46 PM, valantine80 said:

We were on Majestic Princess which left Sydney about 11th February on 10night cruise to Perth via Melbourne and Adelaide and then continuing on to Singapore. Before we even got to Adelaide they had cancelled the remainder of the voyage from Perth so that was well before the Ruby Princess embarked in Sydney.

I could understand that as the time COVID was thought to only be in Asia. But a New Zealand cruise would have been considered safe. 

[Aus Traveller]

24 minutes ago, christodan said:

I could understand that as the time COVID was thought to only be in Asia. But a New Zealand cruise would have been considered safe. 

We also thought a NZ cruise was safe. Our cruise was on the Sea Princess just before the Ruby Princess went to NZ. A couple of family members who haven't travelled overseas were concerned about COVID, but we assured them that it wasn't running wild in Australia and it wasn't an issue in NZ. We were very lucky that the European and American passengers on our cruise didn't bring COVID on board, unlike with the Ruby Princess. BTW, genomic testing of the strain of COVID on the Ruby showed that it was not present in Australia before the ship returned to Australia on 13th March (I think it was the 13th). It was brought onto the ship by someone who boarded the day it left Sydney. They might not have felt ill so wouldn't have been picked up by temperature testing.

[OzKiwiJJ]

15 hours ago, Relaxing Robbies said:

One of the things that interested me when I read the judgement was the judge talking about what was required in this case. Facts about covid that were certainly not known at the time, but were known at the time of the hearing of the case were relevant and able to be considered in determining whether the cruise was fit for purpose.  Apparently that is how the relevant law works.  

That's unfair. It should have been judged only on facts that were available at the time that cruise embarked! 

[Relaxing Robbies]

49 minutes ago, OzKiwiJJ said:

That's unfair. It should have been judged only on facts that were available at the time that cruise embarked! 

I guess it’s like companies that made products including things like asbestos. They may not have known they were harmful at the time, but they are still responsible for the harm caused.

[arxcards]

45 minutes ago, Relaxing Robbies said:

I guess it’s like companies that made products including things like asbestos. They may not have known they were harmful at the time, but they are still responsible for the harm caused.

Different interpretation I believe.

 

The basis of findings was on what the cruise operator knew or ought to have known at the time the cruise was embarked.

 

An example of facts that are now known would apply to whether Mr Karpik boarded with the virus or caught it aboard. At the time of the infection, little would have been known about the incubation period. A judgement was made on that based on what they now know about the incubation period and the contact tracing trail.

[Relaxing Robbies]

From the case ruling

 

506    To the extent that any hindsight reasoning applies here, it is permissible given that information known at the time of trial is to be taken into account in considering whether services were fit for purpose at the time they were supplied. In the weeks and months following the cruise, a lot more was learnt about the virus, its modes of transmission, steps that should be taken to guard against its transmission (eg, far more rigorous screening, physical distancing and masks), and the drastic measures of social control that would be implemented. The legislator put the risk of such matters becoming known only after the relevant services were provided at the door of the service provider, not the consumer. In that sense, the purpose and result guarantees are a little like statutory warrantees of merchantable quality allocating the risk of latent defects to the vendor – to the extent that it could not have been known at the time of the cruise that the services were inadequate to keep the passengers safe from coronavirus, the services were latently defective for which the supplier is liable under the statutory guarantees. Thus, even if there was no negligence by the respondents in their provision of the services, by the statutory provisions they bore the risk of the services not being reasonably fit or not being of the requisite nature and quality.

[Aus Traveller]

1 hour ago, arxcards said:

Different interpretation I believe.

 

The basis of findings was on what the cruise operator knew or ought to have known at the time the cruise was embarked.

 

An example of facts that are now known would apply to whether Mr Karpik boarded with the virus or caught it aboard. At the time of the infection, little would have been known about the incubation period. A judgement was made on that based on what they now know about the incubation period and the contact tracing trail.

It is very unlikely that Mr Karpik boarded with the virus. He would have caught it on board. I have read that genomic testing of the virus that circulated on the Ruby Princess showed that the strain was NOT present in Australia before the ship returned from the ill-fated cruise.

 

By the way, this was known fairly early on, even well before there were claims that COVID was on board the Ruby during the previous cruise. If it was, it would have been spread in the Australian community from those passengers. It has been stated many times that there was no COVID on the previous cruise, but there was a respiratory infection.

Edited November 1, 2023 by Aus Traveller

[arxcards]

Also from the case ruling, these two paragraphs align the decision that it was safe to embark on 8th March with contrary actions on 9th March and a decision to pause all operations being made on 13th March.

I have found that before the embarkation of passengers on the Ruby Princess for the cruise in question, the respondents knew or ought to have known about the heightened risk of coronavirus infection on the vessel, and its potentially lethal consequences, and that their procedures for screening passengers and crew members for the virus were unlikely to screen-out all infectious individuals. That knowledge arises from the respondents’ experience in February 2020 of coronavirus outbreaks on other vessels owned and operated by them, namely the Diamond Princess off Japan and the Grand Princess off California, their knowledge of the characteristics of the virus and in particular that asymptomatic and pre-symptomatic people could be infectious, and the respiratory illness outbreak on the Ruby Princess’s immediate past voyage. To the respondents’ knowledge, to proceed with the cruise carried a significant risk of a coronavirus outbreak with possible disastrous consequences, yet they proceeded regardless.

There are a number of considerations that have led me to conclude that cancellation of the cruise would not have been so burdensome that a reasonable person in the respondents’ position would not have cancelled the cruise. They include the respondents’ failure to adduce any evidence of how burdensome it would have been to cancel the cruise, or any explanation of their decisions to offer free cancellation for all cruises worldwide leaving from the very next day (9 March) and to suspend all cruising worldwide a few days later (13 March). The respondents were also apparently prepared to cancel the cruise if one of only nine PCR tests from the immediately preceding cruise had returned a positive result. Those matters suggest that to cancel the cruise would not have been unduly burdensome. On that basis, a reasonable person in the respondents’ position would have cancelled the cruise. The respondents were therefore negligent and in breach of their duty of care.

[Aus Traveller]

I loved this bit -

The respondents were also apparently prepared to cancel the cruise if one of only nine PCR tests from the immediately preceding cruise had returned a positive result. Those matters suggest that to cancel the cruise would not have been unduly burdensome. 

 

Because Princess was prepared to cancel the cruise if COVID was detected on the previous cruise, it wasn't 'unduly burdensome' and therefore they should have cancelled the cruise. I think that it amazing reasoning.