US tourists fight to take on Ruby Princess

American tourists who caught COVID-19 on board the Ruby Princess could be forced out of a class action in Australia over a disputed ‘jurisdiction clause’ in their contract.

Passengers leaving the Ruby Princess in March last year. Picture: AAP

American tourists who caught COVID-19 on board the Ruby Princess could be forced out of a class action in Australia over a disputed “jurisdiction clause” contained in their contract with Carnival cruises, which barred foreign passengers from filing “illness” lawsuits against the company outside of the United States.

Shine Lawyers, who are leading the class action, allege Bermuda-based Carnival and its subsidiary Princess Cruise Lines, breached consumer laws, engaged in misleading or deceptive conduct, and was negligent in the way it handled the pandemic. About 900 people have registered their interest in the class action.

David McClure SC, for Carnival, told the Federal Court on Thursday that Justice John Halley should temporarily pause claims filed as part of the class action by American passengers because their contracts contained a clause that “favoured” US and Californian courts for claims of injury, illness or death.

“People who are bound by those terms, their proceedings should be stayed,” Mr McClure said.

He pointed to a landmark decision last month by the Federal Court that found a legal challenge filed in Australia by games developer Epic against tech giant Apple should be temporarily suspended because the warring parties are also engaged in a contract dispute over similar issues in California.

“If a court in April said US courts can entertain a claim under the consumer law and then your honour’s judgment comes out saying the opposite, that would be quite strange,” Mr McClure said.

“This is the first judgment of an Australian superior court, which has dealt with a stay application based on an exclusive law and choice of law clause favouring the United States.”

Carnival is being sued in Los Angeles by passengers who caught COVID-19 on board the Grand Princess vessel.

They allege the company failed to adequately protect them from the virus.

Ian Pike, SC, for the Ruby Princess passengers, urged the court to avoid “indulging” Carnival’s application to stay the proceedings and “put on further evidence” about the ruling in Epic Games v Apple.

“It’s not like a passive shareholder class action,” Mr Pike said. “The short point is, you’ve got real people who suffered illnesses.”

Mr McClure said the US court system could “entertain” a claim lodged on behalf of American Ruby Princess passengers under the Australian consumer law.