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Law360 (June 30, 2021, 10:52 PM EDT ) A Washington federal judge on Wednesday declined to certify a proposed class of passengers who claim they were exposed to COVID-19 while aboard a ship operated by Holland America and parent company Carnival, finding that certification is barred by a class action waiver within the cruise contract they agreed to.
Though the passengers argued that the class action waiver cannot be upheld since the cruise contract was not mentioned in an e-mail instructing them to fill out their online check-in, U.S. District Judge Thomas Zilly determined that they could have reasonably encountered the contract.
"The Booking Confirmation, however, which was sent to their travel agent on the day they booked the cruise, informed them of the Cruise Contract, where to find it, and that it affected their legal rights," the judge said.
The initial complaint was filed in June 2020, with passengers Leonard C. Lindsay and Carl E.W. Zehner accusing Holland America and Carnival of exposing more than 1,000 cruise ship passengers to COVID-19 on the vessel that sailed out of Argentina in March 2020.
Holland's passengers aboard the MS Zaandam were not subject to proper screening or other precautionary measures prior to boarding the ship, although Holland was aware that some crew and passengers were exhibiting COVID-19 symptoms, according to the suit.
Due to the companies' alleged negligence, Zehner contracted the novel coronavirus and was later hospitalized and put on a ventilator, while Lindsay was forced to remain aboard the ship for a month, according to the suit. Four passengers died during the trip, and two of those were confirmed by Holland to have died due to COVID-19, the suit said.
The cruise companies asked Judge Zilly last October to toss the suit, saying their contract contains a class action waiver. Both Lindsay and Zehner had agreed to the cruise contract that they referenced throughout their September amended complaint, the companies said.
The cruise company opposed the passengers' certification bid, citing the waiver found within the cruise contract. But the passengers claim that the waiver cannot be enforced since it was not "reasonably communicated" to them.
The judge turned to the "reasonable communicative test" in his assessment, which determines when passengers are contractually bound to the fine print of their tickets. The two-prong test examines the ticket's physical characteristics and the circumstances around a passenger's ticket purchase.
The plaintiffs in suit argued that the waiver does not meet the first prong of the test since it failed to reference the cruise contract or the class action waiver.
"But courts have held that a contract provision satisfies the first prong even where the face of the ticket did not notify passengers of the contract," the judge wrote.
The passengers also tried to argue that the cruise contract does not meet the second prong since they could not say no to the terms without facing hefty costs by the time they examined the contract.
The judge, however, took note that the passengers could have accessed the contract over an 11-month period beginning when they booked the cruise.
"The court's analysis focuses on when the contract terms were reasonably communicated, not when a passenger actually reviewed them," the judge wrote.
Elizabeth Cabraser, an attorney representing the passengers, expressed disappointment with the ruling.
"It's both unfortunate and ironic that cruise ship passengers can be shipmates, exposed to the same dangers at sea, but, because of the legalese buried in the fine print, deprived of the right to be casemates- and left without the ability to seek effective redress for harms they suffered together," she said.
Despite the failed certification bid, a March 2022 trial date remains on the horizon.
Counsel for Holland America and Carnival did not immediately respond to Law360's requests for comment on Wednesday.
The passengers are represented by Tousley Brain Stephens PLLC and Lieff Cabraser Heimann & Bernstein LLP.
Holland America and Carnival are represented by Flynn Delich & Wise LLP and Arnold & Porter.
The case is Lindsay et al. v. Carnival Corp. et al., case number 2:20-cv-00982, in the U.S. District Court for the Western District of Washington.
--Additional reporting by Joyce Hanson. Editing by Michael Watanabe.
Update: This story has been updated with comment from the passengers' counsel.
For a reprint of this article, please contact reprints@law360.com.
