The hantavirus-hit MV Hondius incident is a reminder that serious medical incidents on cruises can quickly escalate from a public health event into a complex, high-value, multi-jurisdictional claims scenario, says global law firm Clyde & Co.
In an insight article on its website, Clyde & Co says that for operators, insurers and their defence teams, the issue is not whether a shipboard medical emergency can occur despite proper systems but whether the operator can demonstrate that it had appropriate systems in place and that they were implemented promptly and effectively.
Causation is always the most difficult position for defendants as rare infectious diseases seldom follow neat factual narratives. Exposure may have occurred before embarkation, during an excursion, through an environmental source on board, or, in some cases, by person-to-person transmission.
Data
Clyde & Co says that a defence can live or die on data. Having the right records in place is crucial, such as timestamped medical records, symptom-onset records, cleaning and isolation records, food and water checks, vector control documentation, cabin movements, and any laboratory sequencing or epidemiological analysis. It is not sufficient to prove that a protocol existed in the manual. A strong defence needs an evidence-led chronology capable of testing alternative exposure routes and challenging the simplistic assertion that the infection was acquired on board.
Operators may review this incident to inform future pre-boarding checks, ensuring guest safety and minimising the risk of a repeat incident. Given that hantavirus is present and endemic in Argentina, and the growth of expedition cruises departing from the region, enhanced procedures may both reduce risk and strengthen evidential tracing if issues arise.
There is then the separate issue of the legal framework. Claims arising from international carriage by sea may fall within the scope of the Athens Convention. Athens was designed to provide a structured regime for passenger death and personal injury claims arising “in the course of carriage”, including jurisdictional rules and, in some circumstances, liability limits and compulsory insurance architecture. It distinguishes between “shipping incidents” and other incidents.
Cross-border complexity increases the exposure. In a case such as this, the ship’s flag, the nationality of passengers and crew, the ticket contract, the ports involved, and the place of treatment or death may all point in different directions. The publicly available facts already indicate a voyage beginning in Argentina, a ship positioned off Cape Verde, one medically evacuated patient in South Africa, others to Germany and the Netherlands and onward consideration of disembarkation in the Canary Islands. The passengers have now all been disembarked and repatriated to their home countries. There were 149 people on board from 23 nationalities. The hantavirus has caused three fatalities as of 18 May.
Considerations for insurers
Clyde & Co says that insurers need to assess jurisdictional exposure, the likely application of the Athens framework, potential aggregation issues, and whether a coordinated approach is needed for multiple claimants in different jurisdictions.
The current situation regarding Hondius is still developing, and it would be wrong to jump to conclusions on liability. What it does show, however, is why rare pathogen claims at sea are so difficult. They sit at the intersection of public health, maritime regulation, contract law, insurance law, and private international law. They are heavily fact-sensitive. They are won or lost on the quality of the operator’s systems and the quality of the records showing those systems in action. For insurers, cruise lines and their defence teams, that is where the real contest lies. M