The Ruby Princess has been pretty close to home, that is, docked in Wollongong's back yard. It has also been responsible for almost 700 of COVID-19 case transmissions and more than 20 deaths. In fact, the coronavirus pandemic would look quite different in Australia if the ship had never docked.
There is a flurry of legal activity in relation to how on earth the Ruby Princess was allowed to set sail, return, and disembark passengers with knowledge of possible COVID-19 cases. In addition, there is also an ongoing blame-game between various state and federal government departments, Carnival, those on board, their family members, and media outlets. And just about everyone has their opinion on who is to blame, from the Australian Border Force's Commissioner Michael Outram, to your neighbour's brother's dog. We all have an opinion as to who might be responsible and the blame-game is heating up.
Lawyers love a blame game. And we also like to talk about law stuff. And so with that disclaimer, let me introduce the purpose of this article: to put this blame game into a consideration of the relevant law stuff.
The Ruby Princess Cruise Ship Fiasco
For those of you who may have elected to be live under a rock in recent times (not unreasonable in the circumstances) here is a brief background in relation to The Ruby Princess Cruise Ship Fiasco.
The Ruby Princess cruise ship operated by Carnival Corporation arrived in Sydney on 8 March 2020. It debarked a load of passengers some of whom had already reported illness with 158 sick passengers on board (reported to the Department of Agriculture on 8 March) but was given the all clear, according to a leaked email of the Port Authority. The Ruby Princess then loaded back up with a further 2,647 passengers (in addition to over 1,100 crew) and again left Sydney on the evening of 8 March 2020 to return 11 days later with some more sick passengers to create what can be simply described as quite a calamity.
Upon the ship's return there was correspondence with NSW Health, NSW Ports Authority, NSW Ambulance, The Australian Border Force and the Federal Department of Agriculture, responsible for biosecurity... What's that saying about too many cooks?... I digress. There is reporting the ship was initially denied permission to dock, but as we are all very aware, eventually a decision was made for the boat to dock and that passengers may alight without temperature checks and before COVID-19 test results had returned from fresh swabs taken on board. Accordingly, an unknown number of passengers carrying the virus spilled into Sydney and across the country.
Now how much each department (and the Captain) actually knew at the time of making various decisions is relatively unknown and not the subject of this article. As noted, there is already a splendid blame-game which has kicked off with much wiser lawyers on the field who have more information.
The Sea of Governing Laws
The law governing cruise ships is difficult. And in the current case it is an overlap of Public Law, Laws concerning Private Rights, and International Laws.
Cruise ships operate under the Law of Sea. It's not King Triton's Law but it is as unique, and allows these ships right of passage irrespective of whether the ship is sailing in home waters or flagged to registries elsewhere. With all of that aside, there is one important legal concept: Pratique. Pratique is permission granted to a ship to enter a port on assurance that it (or rather she) is free from contagious disease and has a clean bill of health. The clearance is referred to often as Free Practique. In Australia we have the BioSecurity Act 2015 which incorporates pratique, as does the obligations upon any arriving ships to provide details of any biosecurity threats in the Maritime Arrival Reporting System.
The manner in which pratique was granted to the Ruby Princess on 19 March, and the decision to disembark passengers subsequently to be established as being infected with COVID-19 is – well – a bit of a thing.
It is under review and at least three investigations have been formally commenced:
- There is a NSW Criminal Investigation (and we have heard from the Commissioner of Police on this issue)
- There is a formal NSW Coronial Inquiry as a result of the deaths of a number of passengers
- There is a NSW Government Special Commission of Inquiry, as requested by the Premier who appointed legal brain Brett Walker SC to head that inquiry into the processes and practices that were followed.
This is kind of important. We know the cruise ship industry is not alive and cooking at the moment (for good reason), however, the law of the sea also covers commercial shipping operators and merchant vessels who likewise require free pratique. If we didn't get the pratique process right with the Ruby Princess, we better work on sorting it out.
Getting back to business and a focus on patching up the economy will mean trade and commerce has to continue, and here we have a balance: the importance of goods being delivered and sold, and those jobs supported as against the need to be guarded and cautious about the spread of COVID-19.
The Sea of Private Claims to Follow
There are also investigations being made by journalists and lawyers alike in relation to the experiences of private individuals whilst on board. These individuals have their own private rights in relation to not just what the heck went on when the Ruby Princess was allowed to take them on board and let them off – but in addition, what warnings, procedures, and precautionary measures were taken for protection.
Here are a few legal options available to them:
- a claim in Negligence
- a claim in Breach of Contract
- a claim under Australian Consumer Law.
In choosing to commence legal proceedings, individuals do not necessarily have to choose whether or not Carnival or each of the various Government Departments is wholly to blame.
Lawyers have a knack at incorporating various parties involved in order to have the court determine who ought to pay, and what proportion. Like I said, we love a blame-game.
On the question of what it's worth – well that all depends on what each individual has lost.
After it all the answer for some might very well be: not a lot. Some individuals may be able to claim a refund on their ticket and some damages for loss of enjoyment (a special legal entitlement afforded for those who sustain loss or injury in circumstances where they ought to have otherwise sustained relaxation and enjoyment). However, those who contracted the virus and who have suffered significant a significant health problem as a result (or died) will have a much more serious case to be argued.
The cruise ship industry has been known to particularly appeal to Baby Boomers, knowing those on board may be older passengers who may have underlying health problems raises standing for cruise ships as a trajectory for the spread of disease to potentially particularly vulnerable people in close quarters, not unlike say the spread of the disease in aged care facilities.
Accordingly, the spotlight on cruise ships may be warranted.
And the blame-game amongst the relevant decision makers may well be too. As it is inevitable that the result of criminal proceedings and the inquiry will inform any subsequent legal action to be brought by individuals.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.