Norovirus is not caused by the ship

October 2015

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In a recent first instance decision Nolan v TUI Ltd (2015), the London County Court has held that an outbreak of Norovirus is not considered to be a defect in the ship and the carrier is not negligent if the response to the outbreak was prompt and effective.

This outbreak of gastroenteritis occurred on board the “Thomson Spirit” in 2009 and affected over 211 of the 1,700 guests who were on-board at the time, resulting in claims for damages and loss of enjoyment being pursued.

The Claimants initially alleged the outbreak was caused by a bacterial infection which was as a result of contaminated food, drink and bad hygiene. The lab reports isolated Norovirus which is a viral infection, transmitted by various methods, including person to person or from contaminated surfaces but not generally from food or drink. The Claimants amended their claim to argue there were two infections, Norovirus and Campylobacter, and that most passengers had been infected with both.

The judge heard evidence from expert witnesses and concluded that the illness was Norovirus and that the allegations of Campylobacter were not credible. The court concluded that the infection was most likely carried on to the ship by a guest, with one person having reported symptoms only a few hours after boarding; the incubation period for norovirus is usually 24 to 48 hours but cases can occur within 10 or 72 hours.

So having established this was a Norovirus outbreak, and not a foodborne bacterial infection, the principal issues were whether the vessel Owner had an adequate outbreak response plan in place and, if so, whether it was implemented correctly. On the facts of the case, the court concluded that the on-board systems and response plan were properly implemented and there was no “fault or neglect” (as required by the Athens Convention 1974) by the Owner or Charterer.

It had also been alleged by the claimants that an outbreak of the virus on the previous voyage constituted notice of a defect in the ship which should have been relayed to guests prior to boarding. The court rejected their contentions that illnesses during the previous cruise had affected the subsequent cruise and concluded that the small number of illnesses on the previous cruise (18 cases) had been effectively controlled.

The court also rejected as a matter of law the claimants’ contention that there is a ‘duty to warn’, holding that the Athens Convention was the applicable framework and that, in line with the Supreme Court Case of Sidhu v British Airways, 1997 AC p 430 (which concerned carriage by air), the fault or neglect must occur during the carriage by sea. The court also rejected the argument that if the ship had been contaminated from the previous cruise (which it was not) that this could be a ‘defect in the ship’ in accordance with article 3.3 which transferred the burden of proof onto the Defendants. The court held that this article is limited very much to navigational and marine perils and not hotel services on a ship.

This is an extremely important decision for the cruise industry because it formally recognises that Norovirus is not caused by the ship and even with best practices employed outbreaks will still occur. The decision highlights the importance of having a suitable outbreak response plan in place and in making sure that the crew on-board are adept at putting the plan into action.

Article by Paul Brewer, Syndicate Manager, and Maria Pittordis of Hill Dickinson