Swift & Ors v Fred Olsen Cruise Lines

Under art 3.1 of the Athens Convention, a passenger claiming personal injury must prove that the injury occurred in the course of carriage and resulted from the carrier’s fault or neglect, unless a statutory presumption applies. A cruise operator’s duty is to take reasonable steps to implement a reasonable system for managing infection risk. The duty does not require a guarantee that illness will be prevented, or that every surface will always be clean. Material and repeated failures to implement the operator’s own reasonable system may constitute fault and cause, or materially contribute to, passengers’ illness. An appellate court should not interfere with a fact-sensitive first-instance assessment merely because it would have weighed the evidence differently.

Sixteen passengers recovered damages in the Birmingham County Court for norovirus contracted during cruises operated by Fred Olsen Cruise Lines. The trial judge held that the operator’s Norovirus Outbreak and Control Plan was reasonable and consistent with industry standards, but had not been adequately implemented. He found multiple failures in training, execution or supervision which caused or materially contributed to the passengers’ illnesses.

The operator appealed on four grounds: the decision was against the weight of the evidence; the standard of duty was set too high; insufficient weight was given to the biological nature of norovirus; and causation had not been established. The central issues were whether the implementation failures amounted to fault or neglect under art 3.1 of the Athens Convention and whether they caused the illnesses.

1. Appeal dismissed. The first-instance judge’s findings of fact were not challenged, and each ground of appeal failed.
2. The judge was entitled to infer from passenger complaints and outbreak-meeting minutes that the recorded matters were indicative or representative of material failures in implementing the operator’s Plan. The extensive checklist files did not compel a different conclusion because the issue was practical implementation, not merely paperwork. There was no proper basis for appellate intervention in the trial judge’s assessment of the evidence and witnesses.
3. The applicable duty was to take reasonable steps to implement a reasonable system for managing the risk of norovirus. The judge did not impose an unrealistically high standard or a counsel of perfection. The operator was not required to guarantee that no passenger would contract norovirus or that every surface would be clean at all times. The finding of fault rested on multiple material, rather than isolated, failures to implement the operator’s own reasonable Plan.
4. The causation finding was sufficient. The trial judge had found that each passenger acquired norovirus on board and not otherwise, and that the illness was acquired by reason of the operator’s failure properly to implement its procedures. Against the background of multiple failures, the judge was entitled to conclude that the breakdown of the Plan caused or materially contributed to the spread of norovirus and to the passengers’ illnesses. References to exposure and increased risk explained the mechanism of causation and did not reduce the finding to risk alone.
5. The court dismissed all four grounds and dismissed the appeal. Lord Justice Christopher Clarke and the Master of the Rolls agreed with Lord Justice Gross.

• Court of Appeal (Civil Division): [2016] EWCA Civ 785 dismissed the operator’s appeal from the Birmingham County Court judgment.
• Birmingham County Court: HHJ Robert Owen QC, judgment dated 22 January 2015, found for 16 passengers and awarded damages for norovirus contracted on the cruises.