Mark PestronkQ: Our agency had clients on the ill-fated voyage of the Carnival Triumph. Do you think that they have a chance of successfully suing Carnival for damages? While several suits have been filed, at least one litigator wrote that the passengers suing "face an uphill climb," and another said that the passengers have absolutely no chance of recovering more than what Carnival has offered, which was $500, a free flight home and a full refund for the trip and for most expenses onboard as well as a credit for another cruise. What, exactly, are the problems with suing for more?

A: I see three major obstacles to recovery. Unless Carnival settles with the plaintiffs, it will probably be years before an appeals court decides whether the plaintiffs can overcome these obstacles.

Carnival's Ticket Contract, which the courts have upheld regardless of whether the passenger read it or was even aware of it, is the source of these obstacles. The contract limits where you can sue, how you can sue and what you can sue for. You can find the contract here: www.carnival.com/CMS/Static_Templates/ticket_contract.aspx.  

First, under Section 12(c), all suits for personal injuries have to be brought in courts in Miami-Dade County, Fla. So the suits already filed in other courts will probably either be dismissed or transferred to Miami after weeks or months of needless litigation about the proper forum.

If a plaintiff cannot allege any personal injury, then the plaintiff cannot even get to any court, as all noninjury claims must go to arbitration in Miami, except for suits in small-claims courts, which Carnival no doubt would oppose if not brought in Miami. Therefore, any small-claims suit not filed in Miami is probably a waste of time.

Second, no individual passenger can afford the expenses of litigating a big case against Carnival, even if it is on a contingency basis, since a plaintiff must advance the suit's out-of-pocket expenses. However, Section 13 of the contract contains a waiver of the right to file class-action lawsuits, so it is likely that the pending class action will run into big trouble.

Third, and most importantly, you cannot sue Carnival if your only damages are for mental anguish and the like from being disgusted, delayed and inconvenienced. Section 11(d), which will be at the heart of any litigation, states: "Carnival shall not be liable to the passenger for damages for emotional distress, mental suffering/anguish or psychological injury of any kind under any circumstances, except when such damages were caused by the negligence of Carnival and resulted from the same passenger sustaining actual physical injury, or having been at risk of actual physical injury, or when such damages are held to be intentionally inflicted by Carnival."

So to win a suit, you would have to first prove negligence, as there is no no-fault law like there is in international aviation. Then you would also have to prove that you suffered "actual physical injury" or were "at risk of actual physical injury." The latter may be especially hard to prove.

Alternatively, under Section 11(d), you can successfully sue just for mental anguish if you can prove that your anguish was "intentionally inflicted by Carnival." You would still have the forum and class action problems, though.

Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].

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