F.2 Duty of care to passengers
519 In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [101]-[102], Allsop P summarised the development of the common law of Australia's rejection of any particular formula to determine the existence of a duty of care. The result, his Honour explained, was that if the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
520 Mrs Karpik pleads that the respondents owed her a duty to exercise due care and skill in supplying the services. That duty is said to arise out of the well-recognised relationship of occupier and entrant as it applies in the context of a ship operator and passenger. She says that the duty extends to passenger health and safety. She sites in that respect Cruise Group Pty Ltd v Fullard [2005] NSWCA 161 and Qantas Airways Ltd v Cameron [1996] FCA 349; 66 FCR 246. That the relationship between Mrs Karpik and the respondents falls within an accepted category of duty is, she says, the end of the inquiry. There is considerable further common law authority in support of the proposition that a carrier who has undertaken to carry a passenger for reward is under a duty to take reasonable care for the passenger's safety: Henderson v Stevenson (1875) LR 2 HL Sc 470 at 476 per Lord Chelmsford; Hood v Anchor Line (Henderson Bros) [1918] AC 837 at 844 per Viscount Haldane; Wong Mee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38 at 41-42 (PC). See Lewins K, International Carriage of Passengers by Sea (Sweet & Maxwell, 2016) (Lewins) at [4-006] and Lewins K, "Cruise Ship Operators, Their Passengers, Australian Consumer Law and State Civil Liability Acts - Part 1" (2015) 29(2) Australian and New Zealand Maritime Law Journal 93 at 94.
521 Although the respondents admit in their defence that "the second respondent owed a common law duty of care … to exercise due care and skill when providing services … during the Voyage", they submit that the duty that is admitted is not the duty on which Mrs Karpik sues. They say that the duty contended for by Mrs Karpik is a novel duty for which reference to the "salient features" or multifactorial approach of imputing such a duty is required. Putting to one side the distinction between the first and second respondents, they say the duty is novel because the relationship of occupier and entrant on which Mrs Karpik sues is a duty with respect only to the "condition of the premises": Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [22] per French CJ and Gummow J. In the context of cruise ships, that is a duty in relation to, for example, harm suffered by reason of tripping over a coaming: Fullard at [3]-[6].
522 More than 30 pages of the respondents' written submissions are dedicated to this issue. The approach appears to have been to identify passages written in judgments concerning wholly different issues (such as the liability for harm caused by third party criminal conduct and the liability of public authorities) and then apply those passages to the different factual context of the present case. As such, they failed to heed the warning of Windeyer J in Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 at 400 that "[w]e must always beware lest words used in one case become tyrants over the facts of another case."
523 As a preliminary point, it is beyond question that the respondents owed Mrs Karpik and other passengers a duty of care - the respondents accept that. However, that does not entail that the respondents were required to take reasonable care to avoid all risks of harm to her: Collins v Insurance Australia Ltd [2022] NSWCA 135; 109 NSWLR 240 at [10] per Kirk JA. Nonetheless, the respondents' various submissions that there is no such duty or that the duty sued upon is a different duty than the duty that is owed serves only to obfuscate the fact that the relevant inquiry is whether the scope of the duty owed by the respondents to Mrs Karpik extends to the kind of harm for which she claims in negligence.
524 The respondents accept that cruise ships are relevantly analogous to airlines. In that respect, the Full Court in Cameron held that an airline owes a duty to all its passengers to take reasonable care for their health and safety: at 250B per Davies J and 290F per Lindgren J (Lehane J agreeing). Cameron was a case in which a group of passengers claimed against Qantas for the discomfort and ill-health caused by inhalation of environmental tobacco smoke in circumstances where they had requested seats in the non-smoking section. It was found by Beaumont J at first instance that Qantas owed the passengers a duty of care: Cameron v Qantas Airways Ltd [1995] FCA 1304; 55 FCR 147 at 187-88. Although Qantas successfully appealed from Beaumont J's judgment on other grounds, there was no appeal from the finding of the existence or the scope of a duty of care and the Full Court did not express any doubt about that finding. To the contrary, Beaumont J's conclusions on the scope of the duty of care Qantas owed to its passengers were endorsed by Lindgren J at 290F (Lehane J agreeing).
525 The reasoning in Cameron is instructive. The harm for which damages were claimed was discomfort and ill-health caused by the inhalation of tobacco smoke produced by other passengers. The duty of care was framed as a duty to take reasonable care for the health and safety of passengers. It was not Qantas that produced the tobacco smoke. The duty extended to the risk of harm caused by tobacco smoke produced by other passengers.
526 As against that, the respondents seek to cast the duty posited by Mrs Karpik as a duty to "prevent the spread of contagious diseases" or a duty to "protect patrons from one another", each characterisation of which they say is foreclosed by the authorities. In respect of a duty to prevent the spread of contagious disease, they say that Cameron is distinguishable because an airline can ban smoking on board thereby eliminating the risk of inhalation of tobacco smoke and that no court has ever found such a duty in relation to disease. In respect of contact between human beings, they rely on Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254.
527 Each of those characterisations is wrong as it is addressed at an inappropriate level of specificity. By characterising the relevant duty with such specificity, the determination of Mrs Karpik's case would be circumvented by having the issues decided at the duty stage in circumstances where the crux of the dispute in the negligence case is whether they failed to take reasonable care and whether that failure caused her harm.
528 The question of the existence or non-existence of a duty of care is to be considered at a higher level of abstraction, or generality, than questions of breach: Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639 per Glass JA; Graham Barclay Oysters at [106] per McHugh J; Harriton v Stephens [2006] HCA 15; 226 CLR 52 at [69]-[70] per Kirby J and [226] per Crennan J (with whom Gleeson CJ and Gummow and Heydon JJ agreed). That higher level of abstraction involves expressing the duty in terms of a want of reasonable care. As explained by McHugh J in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422:
25 … [T]he duty in negligence is generally described as a duty to take reasonable care… In negligence cases involving physical injury … the duty is always expressed in terms of reasonable care. As Prosser and Keeton have pointed out, "the duty is always the same - to conform to the legal standard of reasonable conduct in the light of the apparent risk."
26 As a result, the duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep a proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence. If they were, a trial judge would be bound to direct a jury in the circumstances of a particular case that the defendant had a duty to keep a proper lookout or sound his or her horn, as the case may be. Given such a direction, the only question for the jury would be whether or not a motorist had complied with the duty specified by the judge. But it is the jury, not the judge, that determines whether reasonable care required the motorist to keep a proper lookout or to sound the horn…
(Emphasis added.)
529 Justice McHugh also explained that the so-called "duty to warn", which is a "duty" which the respondents argue against, is not properly concerned with the existence or non-existence of a duty of care but rather the standard of care at the breach stage: Vairy at [29]. See also Collins at [9] per Kirk JA.
530 Although McHugh J was in dissent in Vairy, it cannot be disputed, as the respondents seem to do (SBM.020.005.0001 [181], T858:44), that those passages are an accurate summary of the law. They have been cited with approval in numerous High Court judgments, including most recently by a unanimous court in Electricity Networks Corporation t/as Western Power v Herridge Parties [2022] HCA 37; 406 ALR 1 at [20], as well as Roads and Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330 at [49] per Gummow J; Neindorf v Junkovic [2005] HCA 75; 222 ALR 631 at [56] per Kirby J; Harriton v Stephens [2006] HCA 15; 226 CLR 52 at [69] per Kirby J.
531 It is therefore incorrect to characterise the duty as one requiring the respondents to prevent the spread of contagious disease. Such a characterisation suffers from the "vice of retrospective over-specificity" in the way identified by Hayne J in CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [68].
532 Nor do I think is it correct to characterise the duty in terms of the protection of patrons from one another, at least in the way contended for by the respondents and in the circumstances of the present case. As mentioned, the submission that the duty contended for by Mrs Karpik is such a duty is founded upon the High Court's decision in Modbury Triangle. That case concerned an employee of a video shop business in a shopping centre who was attacked and injured whilst walking to his car in the car park late at night. He commenced proceedings against the occupier of the car park alleging a breach of its duty of care by failing to leave floodlights on in the car park. It was held that the duty of care owed by an occupier of a shopping centre with an adjacent car park did not extend to harm suffered by employees of its tenants at the hands of third party criminal conduct.
533 The respondents seek to characterise a duty that extends to harm caused by a virus that transmits through human-to-human contact as a duty that extends to controlling third party conduct (albeit not criminal conduct) and thereby bring themselves within Modbury Triangle. They also rely on the following passage from the judgment of Dixon J in Smith v Leurs [1945] HCA 27; 70 CLR 256 at 262:
It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.
534 Critical to the reasoning in reaching the conclusion in Modbury Triangle that the occupier of a car park owed no duty of care to entrants upon the land in respect of third party criminal conduct was that the occupier had no control over the unpredictable and random behaviour of unknown thugs who attacked the employee and no knowledge or forewarning of what they planned to do: see at [19]-[29] per Gleeson CJ, Gaudron J and Hayne J agreeing, and at [108] per Hayne J. Thus, the case has been distinguished in subsequent decisions of intermediate appellate courts in circumstances where an occupier has knowledge (actual or constructive) of the real potential for third party criminal conduct in circumstances where the occupier controls access to the premises: see, eg, Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; 3 VR 447 at [34]-[36] per Brooking, Charles and Chernov JJA and Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 at [34] and [58]-[59] per Bell JA, Allsop P and Basten JA agreeing; cf Ashrafi Persian Trading Co v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Reports ¶81-636 at [70]-[81] per Heydon JA, Mason P and Handley JA agreeing.
535 Insofar as the posited duty can be characterised as one that involves controlling third party conduct, the present case is far removed from the circumstances of Modbury Triangle. Unlike the occupier of an unsecured car park that had no relevant control over the conduct of the thugs or knowledge of their actions, the respondents in the present case had direct control over at least the following: who they let on board the vessel and the conditions on which they did so; how many people they let on board; the cabins assigned to both the passengers and crew; the number of entertainment events being held and the conditions of entry to those venues; the systems and policies in place to reduce contact between people; cleaning regimes; conditions of service of food; provision of PPE and measures such as face masks and hand sanitiser; etc. Indeed, the respondents accept in their submissions that they had the power to create and implement policies on board directed at addressing the risk of coronavirus.
536 The submission that the respondents' duty does not extend to controlling the conduct of those on board the vessel sits awkwardly with their actual policies and conduct with regard to confining ill passengers to their cabins. It is contradicted by clause 32 of the applicable terms and conditions which provided that if a guest seriously affects the safety or well-being of any other person on board, the master had the right to confine, sedate or disembark the guest (see [457(5)] above). It also sits awkwardly with the power of the master of a ship at common law to detain and confine passengers or crew where the master has reasonable cause to believe, and does in fact believe, that the relevant detention or confinement is necessary for the preservation of order and discipline, or for the safety of the vessel or persons or property on board: Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4; 107 NSWLR 51 at [20]-[23] per Meagher JA, Bell P and Leeming JA agreeing. Although the present case was not presented on the basis of a master's common law power, it seems likely that the master could quarantine any individual reasonably suspected of being infected with coronavirus by confining them to their cabin, it being highly doubtful that the safety of passengers (and crew) does not extend to the risk of contracting communicable and potentially fatal diseases.
537 In any event, the risk of coronavirus infection on board does not come only from other passengers. It comes from the respondents' employees, the crew, and from surfaces contaminated by passengers or crew on a previous voyage. In that context, to say that the respondents cannot owe a duty to protect passengers from each other would be like saying that a supermarket owner owes no duty to protect customers from slipping and falling on food carelessly spilled by other customers. We know that to be wrong.
538 The quotation from Leurs (at 262) relied on by the respondents does not assist. The remarks of Dixon J were made in the context of his Honour's acceptance of the existence of a duty of care of parents (or those in loco parentis) owed to strangers with respect to harm caused by the actions of children under their care. Immediately preceding that quote, his Honour referred to circumstances where a person may be responsible for harm done to another the direct cause of which was the actions of a third party:
[H]e may be responsible on the ground that the act of the third person could not have taken place but for his own fault or breach of duty. There is more than one description of duty the breach of which may produce this consequence. For instance, it may be a duty of care in reference to things involving special danger. It may even be a duty of care with reference to the control of actions or conduct of the third person.
539 Such duties arise out of a "special relationship" of an exceptional kind. Such relationships exist between, for example, school principals and pupils (see, eg, Geyer v Downs [1977] HCA 64; 138 CLR 91), bailor and bailee (see, eg, Pitt Son & Badgery Ltd v Proulefco SA [1984] HCA 6; 153 CLR 644), and gaolers and prisoners (see, eg, New South Wales v Bujdoso [2005] HCA 76; 227 CLR 1) to name a few. In my view, the relationship between a ship's operator - being the party in possession or having the management and control of the ship - and its passengers is also such a special relationship.
540 Like passengers on an aircraft, passengers on a cruise ship are "captives": see Cameron at 290E per Lindgren J. As mentioned, the fact that aircraft are relevantly similar to cruise ships is accepted by the respondents. Indeed, in an internal memorandum drafted by the President of Princess and Carnival Australia, Ms Swartz, addressing the risk of coronavirus circulated on 25 February 2020, it is said that "[c]ruise ships, like aircraft, are semi-contained, population dense environments." [PCL.001.006.7127; PCL.001.006.7128 p 2]
541 However, unlike airline passengers, cruise passengers are generally "captives" for a much longer period of time. Certainly that is the case with voyages of the kind supplied as a service by the respondents in the present case. Once passengers have boarded, they are necessarily reliant on the ship's operator to provide all services, from basic shelter from the elements and necessities such as food and water, to medical assistance. They are also necessarily reliant on the ship operator to take them safely back to shore. Thus, as explained by the Full Court (Black CJ, Emmett and Allsop JJ) in ASP Ship Management Pty Ltd v Administrative Appeals Tribunal [2006] FCAFC 23; 149 FCR 261 at [98] (albeit in the context of an oil tanker), a ship is:
a working commercial enterprise, often both the home and workplace, for long periods, to the ship's complement. The ship is engaged in activity that has inherent danger to those on board, and is a potential source of environmental and other danger to her physical and human surroundings. For those reasons, those having the management and control of the ship have responsibilities concerning the commercial deployment of the ship, the technical safety and adequacy of the ship as a complex integrated working entity, and of the choice, supervision, care and discipline of the master and crew on board the ship.
542 In respect of a passenger vessel, one must add to that analysis the passengers who are on holiday in an environment from which they cannot readily escape and from which they cannot readily access any services, resources or support beyond what is provided by the ship's operator.
543 It is recognised that the peculiar nature of a ship influences the nature and content, including the scope, of a duty of care that is owed in a maritime context. That reflects the realities of maritime activities and commerce: CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; 261 ALR 441 at [64] per Allsop P, Basten JA and Handley AJA and the cases there cited. For example, in Kermarec v Compagnie Generale Transatlantique (1959) 358 US 625, the United States Supreme Court held that the distinction then drawn by the common law between a licensee and an invitee was not only inapt but "entirely alien" in a maritime context. The Court found that that a shipowner owed a higher standard of care to the invited guest of a crewmember than that owed to a gratuitous licensee of a land-based premises because a shipowner owes a duty of exercising reasonable case to all who are on board for purposes not inimical to the owner's legitimate interests (see 629-632). In a similar vein, in CSL Australia, the Court stressed that the general principle that an occupier need not give warnings of defects in the premises to invitees who are tradesmen or experts is qualified in a maritime context because stevedores coming aboard the ship carry out their work in the environment of, and with the equipment and machinery provided by, the ship and in circumstances where the master and officers of the ship retain a right to direct their work (see [63]-[74]).
544 The reliance by the passengers of the Ruby Princess on the respondents for their safety cannot be negated merely because the passengers voluntarily decided to board the vessel. The necessity of such reliance is what gives rise to the power of a master to arrest, detain and confine passengers and crew in certain circumstances (see Rawlings at [25]-[26] and the authorities there cited), as well as the scope of a ship operator's duty of care for the safety of its passengers extending to rescuing them from overboard - "the employee or passenger, who falls overboard from whatever cause, should be entitled to look for succour to the operators of the ship because of necessary dependency on them for return to shore": Horsley v Maclaren (The Ogopogo) [1972] SCR 441 at 461-462 per Laskin J (in dissent on whether there was negligence and hence the outcome, but all of the judges of the Supreme Court of Canada agreed on there being a duty on the operator of a cabin cruiser to rescue an invited guest), cited with approval in Frost v Warner [2002] HCA 1; 209 CLR 509 at [60] per Gaudron J. That duty is recognised in circumstances where the common law does not otherwise recognise a duty to rescue, save in cases of a "special relationship": Ibrahimi v Commonwealth of Australia [2018] NSWCA 321; 366 ALR 341.
545 There is also the fact of the respondents' peculiar knowledge (as compared with ordinary passengers such as the Karpiks) of facts relevant to: the nature of the virus, its transmissibility and consequences of infection by it; the absence of a vaccine and limited treatment options; the risk of the spread of coronavirus on cruise ships, and on the Ruby Princess voyage RU2007 in particular; the precautions actually being taken by the respondents; the developing situation worldwide, including relevant protocols, guidance and advice. Those matters have been canvassed at length in sections B.4 and B.5 above. That knowledge means that the respondents were in a special position to appreciate the risks facing their passengers, and the facts underlying the knowledge establish that it was reasonably foreseeable that passengers might contract COVID-19 on board from other passengers or crew.
546 Each of the foregoing matters strongly supports the conclusion that the respondents owed Mrs Karpik a duty to take reasonable care for her health and safety, including with regard to the risk of harm caused by coronavirus infection. I shall deal briefly with the respondents' remaining arguments contending against the existence of such a duty.
547 The respondents submit that the fact that governments had the legislative power, or pursuant to legislation had the executive power to make instruments, to regulate the risk caused by coronavirus, which they later exercised to impose draconian restrictions on basic liberties, tends strongly, if not decisively, against a duty that extends to the risk of harm caused by coronavirus. They say that the absence of the exercise of that public power as at 8 March 2020 in Australia is a strong reason not to overlay common law obligations in negligence with additional and inconsistent obligations. They say that the point was made by the High Court in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [60], where the following was said:
The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.
(Respondents' emphasis.)
548 The submission must be rejected.
549 First, there is no authority cited for the proposition that government involvement in legislating or regulating certain activities tends against the existence of a duty. Indeed, the quoted passage itself says that "[p]eople may be subject to a number of duties, at least provided they are not irreconcilable."
550 Secondly, the fact that the law of negligence might require a duty of reasonable care that is more onerous than any statute or legislative instrument does not thereby make those duties irreconcilable or inconsistent. The apparent inconsistency in the present case concerns the fact that no Australian government had yet imposed any restrictions with respect to cruise ships and indoor gatherings. Acceptance of the respondents' submission would entail accepting that the law of negligence imposes no obligations in addition to those imposed by statute or legislative instrument. That would make the entire body of law otiose.
551 Thirdly, it is difficult to identify the relevance, if any, of the remark emphasised by the respondents. Sullivan v Moody was a case about the existence of a duty of care of employees of a public authority. It was held that the existence of a duty that was contended for in that case would be inconsistent with the proper and effective discharge of the statutory responsibilities of those employees. The respondents are not public authorities or employees of public authorities. Nor do they conduct their voyages in the exercise of a statutory obligation or power.
552 The respondents also raise a number of "floodgates" arguments. First, they say that the duty would not be limited to coronavirus. Secondly, they say that the duty would exist in perpetuity - ie, that even on cruises departing today and into the future, cruise operators would owe duties of care to passengers extending to the risk of COVID-19 infection. Thirdly, they say that the duty would not be limited to cruise ships - it would apply to other providers of mass transit and other businesses such as hotels, gyms, offices, etc. I apprehend that these arguments seek to rely upon "the law's concern to avoid the imposition of liability 'in an indeterminate amount for an indeterminate time to an indeterminate class'": Bryan v Maloney [1995] HCA 17; 182 CLR 609 at 618 per Mason CJ, Deane and Gaudron JJ, citing Ultramares Corporation v Touche (1931) 225 NY 170 (NY Ct App) at 179 per Cardozo CJ.
553 However, none of the arguments is addressed to the issue of indeterminacy. In Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180, McHugh J explained:
106 … Concern about indeterminacy most frequently arises where the defendant could not determine how many claims might be brought against it or what the general nature of them might be…
107 However, it is not the size or number of claims that is decisive in determining whether potential liability is so indeterminate that no duty of care is owed. Liability is indeterminate only when it cannot be realistically calculated. If both the likely number of claims and the nature of them can be reasonably calculated, it cannot be said that imposing a duty on the defendant will render that person liable "in an indeterminate amount for an indeterminate time to an indeterminate class".
109 … If the defendant knows or has the means to know who are the members of an ascertainable class affected by its conduct and the nature of the likely losses to members of that class, its liability is not indeterminate.
(Emphasis added; footnotes omitted.)
554 The duty owed by the respondents is to take reasonable care for the health and safety of their passengers. Although the risk to the health and safety of passengers will take myriad forms, there is nothing indeterminate about the nature of the harm that might befall them. The respondents complain that there are numerous other diseases that collectively infect and kill millions of people each year. It may be asked: so what? Insofar as the complaint is that they might be held liable for unforeseeable risks, it is necessary (but not sufficient) for a risk of harm to be reasonably foreseeable in order for a duty to arise: Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51. Suppose that a cruise operator became aware that a passenger on board was infected with the Ebola virus. On the respondents' case, they would have no duty of care extending to the risk of harm that that deadly disease would spread throughout the ship. They would, on their case, be entitled to stand by and do nothing, notwithstanding knowledge of the infection and their admitted control in the power to create and implement policies on board directed at addressing the risk. That could not possibly be the law.
555 In respect of the complaint that the duty would exist in perpetuity, that characterisation ignores the fact that each of the passengers to which the duty is owed are all paying customers of the respondents that they have invited on board their vessels. Large though that class may be, it is clearly ascertainable and, therefore, not indeterminate in number or time.
556 The respondents' arguments with regard to the novelty, floodgates and burden of the duty are somewhat undermined by the fact that a significant number of countries have ratified or acceded to, or otherwise made applicable (eg, Bermuda, Canada and China - Lewins [3-017]), the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 (Athens 1974) or the Protocol to that Convention, 2002 (Athens 2002). As at the time of writing, Athens 1974 has about 28 ratifications or accessions and Athens 2002 has 30. These countries include countries with substantial passenger fleet tonnage. Article 3(1) of Athens 1974 provides that the carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger if the incident which caused the damage so suffered occurred in the course of the carriage and "was due to the fault or neglect of the carrier." That is to say, it imposes a duty on the carrier to act reasonably in preventing injury to passengers. Athens 2002 alters that regime by imposing strict liability for injuries and death up to a certain amount (250,000 SDRs) and imposing liability up to a higher amount (400,000 SDRs) unless the carrier can disprove negligence - SDRs being Special Drawing Rights of the International Monetary Fund. These matters are explained in Lewins, Ch 3.
557 The point is that in substantial parts of the world, including in Bermuda where the Ruby Princess is flagged, a duty such as that disputed by the respondents in the present case on the basis that it would be novel and burdensome is imposed either by Convention or domestic law. There is no suggestion that that has imposed intolerable burden on cruise lines. What it means is that the focus of any claim is on the conduct of the cruise line and whether it was negligent, which is where the focus of attention should be in the present case. An example is Nolan v TUI (UK) Ltd [2016] 1 Lloyd's Rep 211 (Central London County Court) where the claims arising from a norovirus outbreak on board were dismissed on the basis that the defendant had discharged its duty of care to the claimants - the ship had correctly followed its own policy, which included detailed provisions as to cleaning and food handling (at [91]). Another example is Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785. There, the cruise line was held liable for the claims arising from a norovirus outbreak on the basis that it had not adequately implemented its own norovirus outbreak plan.
558 The third argument with respect to other providers of mass transit and other businesses is incorrect. In respect of other businesses, different considerations apply. Without purporting to decide the scope of any duty owed by the other types of businesses referred to by the respondents, there are different levels of control, knowledge, reliance and dependence in respect of patrons of those other businesses. In particular, save for passengers of airlines, none of them can be said to be captives in the same way as passengers of a cruise ship, or to have the same level of dependence.
559 In the result, I find that the respondents owed Mrs Karpik a duty to take reasonable care for her health and safety. By reference to the authorities cited at [528] above as well as Cameron, I consider that to be a sufficient description of the duty. However, for the avoidance of doubt, that duty extends to the risk of harm caused by COVID-19 infection. It also extends to Mr Karpik as another passenger on the cruise.