Royal Caribbean liability for volcano deaths may turn on ‘act of God’ defense

By Tom Hals

(Reuters) – Royal Caribbean Cruises Ltd’s potential liability for a deadly excursion to a volcanic island in New Zealand could hinge on whether the eruption was an unforeseeable “act of God,” according to maritime lawyers.

Cruise ship passengers were among the tourists on White Island on Monday when it erupted. While no lawsuits have yet been filed, legal experts said they expected action in U.S courts by injured passengers and families of those who died.

There were 47 people on the island at the time. Eight have been officially declared dead and more than 20 are being treated for severe burns. The New Zealand military was carrying out an operation to recover eight other bodies still on the island.

Royal Caribbean ticket terms posted on its website spell out that the company is not liable for any injury, death or loss of property caused by an act of God, as well as war, terrorism or other events beyond the company’s control.

Royal Caribbean will likely argue the disaster was an extraordinary event no one could reasonably foresee, said Robert Kritzman, an attorney with Baker Donelson in Miami.

“If a volcano were to erupt, clearly that isn’t negligence on anyone’s part, that’s nature,” said Kritzman, a former general counsel with Norwegian Cruise Line.

Royal Caribbean did not respond to questions about missing passengers or whether it told passengers of the risks of visiting the island.

“We grieve this tragic loss. We will to continue to offer our support and services to the families during this difficult time,” the company said in an email.

Part of the case will turn on what the cruise line knew or should have known and what they told passengers about indications of increased volcanic activity.

“There are tremors, there are earthquakes and people monitor that,” said Carlos LlinĂ¡s Negret, an attorney with Nelson & Fraenkel who represents passengers. “It all depends on what the cruise knew, and when they knew it.”

Geological hazard tracker GeoNet raised the alert level for the White Island volcano in November and said on Dec. 3 that “the volcano may be entering a period where eruptive activity is more likely than normal.”

The cruise line described White Island as “one of the most active volcanoes in the world,” according to a cached version of its website. “Get close to the drama: Gas masks help you get near roaring steam vents, bubbling pits of mud, hot volcanic streams and the amazing lake of steaming acid,” it promised.

Virginia parents of one woman who was severely burned told a TV station that her daughter said she believed Royal Caribbean would not have let her visit the island if it were not safe.

The experts said in a typical shore excursion accident the cruise line tries to put blame on the third party that is hired to run the tour. On its website, Royal Caribbean does not identify the company that ran the White Island excursion.

Passengers would have to show Royal Caribbean did not take proper care to vet the operator, lawyers said.

But lawsuits face the added challenge of overcoming the argument the eruption was unforeseeable.

Norwegian Cruise Line was able to fend off a class action lawsuit about a large “freak wave” hitting one of its ships in 2005 by arguing it was an unforeseeable event. Regulators had concluded there was no wrongdoing by Norwegian.

Royal Caribbean is using the act of God defense against a class action about a powerful storm in 2016 that hit the ship Anthem of the Seas off the eastern United States. Passengers said the company knew of the risks of the storm, but tried to outrun it.

The dramatic description of the White Island tour on Royal Caribbean’s website will likely be a focus of any lawsuit, with lawyers seizing on it to show the company knew a disaster was possible, legal experts said. The company could argue passengers were fully informed of the dangers and received proper safety equipment.

“If they hand out gas masks that says automatically you know you have a risk,” said Bob Parks, a Miami attorney who represents passengers.

(Reporting by Tom Hals in Wilmington, Delaware; editing by Noeleen Walder and Grant McCool)

TSA screeners win immunity from flier abuse claims: U.S. appeals court

FILE PHOTO: A Transportation Security Administration (TSA) official's wears a TSA badge at Terminal 4 of JFK airport in New York City, U.S., May 17, 2017. REUTERS/Joe Penney/File Photo

By Jonathan Stempel

(Reuters) – Fliers may have a tough time recovering damages for invasive screenings at U.S. airport security checkpoints, after a federal appeals court on Wednesday said screeners are immune from claims under a federal law governing assaults, false arrests and other abuses.

In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners are shielded by government sovereign immunity from liability under the Federal Tort Claims Act because they do not function as “investigative or law enforcement officers.”

The majority said it was “sympathetic” to concerns that its decision would leave fliers with “very limited legal redress” for alleged mistreatment by aggressive or overzealous screeners, which add to the ordinary stresses of air travel.

“For most people, TSA screenings are an unavoidable feature of flying,” but it is “squarely in the realm” of Congress to expand liability for abuses, Circuit Judge Cheryl Ann Krause wrote.

The decision, the first on the issue by a federal appeals court, was a defeat for Nadine Pellegrino, a business consultant from Boca Raton, Florida.

She and her husband had sued for false arrest, false imprisonment and malicious prosecution over a July 2006 altercation at Philadelphia International Airport.

Pellegrino on Wednesday said she was reviewing the decision. A lawyer who helped with her appeal did not immediately respond to requests for comment.

According to court papers, Pellegrino had been randomly selected for additional screening at the Philadelphia airport before boarding a US Airways flight to Fort Lauderdale, Florida.

Pellegrino, then 57, objected to the invasiveness of the search, but conditions deteriorated and she was later jailed for about 18 hours, the papers show. Criminal charges were filed, and Pellegrino was acquitted at a March 2008 trial.

Circuit Judge Thomas Ambro dissented from Wednesday’s decision.

“By analogizing TSA searches to routine administrative inspections, my colleagues preclude victims of TSA abuses from obtaining any meaningful remedy for a variety of intentional tort claims,” he wrote.

Torts are civil wrongs that can result in damages.

A spokesman for U.S. Attorney William McSwain in Philadelphia, whose office represented TSA officials, had no immediate comment.

The appeals court ruled 11 months after throwing out a First Amendment claim by an architect, Roger Vanderklok, who said he was arrested in retaliation for asking to file a complaint against an ill-tempered TSA supervisor.

The case is Pellegrino et al v U.S. Transportation Security Administration et al, 3rd U.S. Circuit Court of Appeals, No. 15-3047.

(Reporting by Jonathan Stempel in New York; Editing by David Gregorio)