The News Courier in Athens, Alabama

State and Nation

February 22, 2013

Cruise lawsuits are in, but Carnival has advantage

(Continued)

The lawsuit filed by passengers Matt and Melissa Crusan of Oklahoma says they "were fearful for their lives" aboard the 14-story ship. They said they and other passengers suffered nausea, headaches, insomnia and nightmares, made worse by Carnival's decision to tow the Triumph to Mobile rather than to a closer port in Mexico.

"This decision was motivated solely by financial gain and Carnival's convenience," says the lawsuit, filed by Miami attorney Michael Winkleman.

The Carnival tickets for the Triumph cruise include a clause stating that class-action lawsuits cannot be filed against the company. But the Crusans' lawsuit argues that the clause should be ignored because Carnival was negligent in letting the ship sail despite incidents in January that affected Triumph's engines and propulsion.

The other two lawsuits filed so far make similar claims but seek to represent individual passengers, both from Texas.

Carnival spokeswoman Joyce Oliva said Thursday in an email that the company does not comment on pending litigation. But she confirmed that Carnival did not require Triumph passengers to sign lawsuit waivers once in Mobile in exchange for refunds, a future cruise credit, reimbursement for some shipboard expenses and $500 per person.

Those benefits would likely be deducted from any damages an individual passenger wins in a lawsuit.

Maritime lawyers said there are three main legal hurdles passengers in a class-action case would have to clear:

—A judge must decide the validity of Carnival's class action waiver on its tickets. Courts typically uphold the terms of cruise line tickets, but not always.

— Whether a class action is proper at all, given that injuries or illnesses are not the same for each person.

— Whether, under maritime law, the passengers were legitimately concerned about being physically harmed and whether they had some physical signs of emotional distress. An extreme example would be a stress-related heart attack, but also could include psychological counseling.

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