This was an appeal by Fred Olsen Cruise Lines (FOCL) from a judgment in the Birmingham County Court where 16 claimants were successful in claiming damages from FOCL in respect of norovirus on a number of cruises in 2011.  The claimants’ case was that FOCL was at fault, within the meaning of the Athens Convention 1974, art 3.1, for failing to take reasonable steps to manage the risk of norovirus on the vessel and this failure caused or materially contributed to their illnesses.

As no argument was made that the complaint involved a defect in the ship (art 3.3) which would have resulted in a rebuttable presumption that FOCL was at fault, the burden of proof rested with the claimants.  The primary Judge held that while FOCL had an appropriate plan to deal with an outbreak of norovirus consistent with industry standards, it had not been adequately implemented.

FOCL contended that the primary Judge was wrong to find in favour of the claimants as a matter of law and on proper interpretation of the facts.

Held: The appeal was dismissed for the following reasons.

Based on the evidence the primary Judge was entitled to reach his conclusion. His process of reasoning was legitimate and dealt with the FOCL case and its witnesses in a balanced fashion while keeping in mind the burden of proof resting on the claimants. 

The primary Judge correctly identified the issues in the action. There is nothing in the judgment to suggest the Judge set the standard for breach of duty above that accepted by FOCL, namely to take reasonable steps to implement a reasonable system for the management of the risk of norovirus on board the vessel. The Judge was entitled to hold that FOCL was at fault because of material failures - not isolated failures - to implement its own plan. 

The Judge was entitled to conclude that each claimant had proved that they contracted norovirus on board the vessel and not otherwise. 

The Judge was amply entitled to conclude that the claimants’ illnesses were caused by the fault of FOCL. There were multiple failures in the implementation of the plan. These failures effectively removed the safeguards the plan intended to furnish and increased the risk and development of the illnesses.