An Australian class action lawsuit over a deadly coronavirus outbreak aboard the Ruby Princess cruise ship cannot include passengers from the United States, an appeal court has ruled.
In a majority decision on Friday, the Federal Court ruled that the claim of Patrick Ho – one of 696 passengers whose contracts were deemed to be subject to US terms and conditions – should be stayed.
Chief Justice James Allsop and Justice Sarah Derrington – with Justice Steven Rares dissenting – allowed the appeal of Carnival plc, the ship’s time charterer, and Princess Cruise Lines Ltd, the owner and operator of the ship.
They had challenged a 2021 judge’s decision to dismiss a preliminary request to bar a “subgroup” of foreign passengers from being part of the action.
Scores of passengers have contracted coronavirus and 28 have died after the outbreak on the Ruby Princess, which left Sydney on March 8 and returned on March 19, 2020, after sailing through ports in New Zealand.
Susan Karpik has brought representative proceedings against Carnival and Princess, with the class made up of passengers, executors and close family members.
She alleges that the Respondents negligently and in breach of their duty of care allowed the voyage to proceed and failed to take adequate steps to protect passengers from the risk of COVID.
They also allegedly failed to warn passengers of the risk of contracting the disease.
Further, they allegedly engaged in misleading or misleading behavior and breached their consumer warranties under the Australian Consumer Law.
Of the 2,651 paying passengers on board, the respondents alleged that 696 had contracted their cruise on American terms and 159 on British terms.
The remainder would have been contracted under Australian terms and conditions.
The different terms include a class action waiver in the US terms.
Judge Angus Stewart had ruled that it was neither necessary nor appropriate at this early stage in the proceedings to determine the law applicable to the negligence claims of the US and UK subgroups.
He noted that a stay on the U.S. passengers would result in a fracturing of the litigation with essentially identical claims brought in federal court and all stayed claims filed in the United States.
But the Court of Appeal ruled that the terms of carriage between Carnival/Princess and one of the litigants were governed by the US Terms and Conditions incorporating the Exclusive Jurisdiction Clause and the Class Action Waiver.
He concluded that these clauses should be applied and that the passenger’s claim should be suspended.
The court ordered that the case be sent back to Judge Stewart to determine how his reasons affect the claims of the other class members.