POSTED: Friday, February 15, 2013 - 12:00am
UPDATED: Friday, February 15, 2013 - 12:14am
(CNN) — Rather than getting the relaxing vacation they paid for, more than 3,000 passengers on Carnival Triumph have endured five days stranded in the Gulf of Mexico, smelling backed-up toilets and watching sewage slosh on deck.
"A floating petri dish" is how one passenger, a doctor, put it.
As tugboats bring the ship to Mobile, Alabama, on Thursday, many on board might be considering what to do next.
Could Carnival passengers sue the cruise line?
They could, CNN legal analyst Jeffrey Toobin said, but whether or not the claim has merit will depend on the paperwork they signed when they purchased their ticket.
Negligent infliction of emotional distress would be the main justification for a suit, said Jason R. Margulies, an experienced maritime lawyer based in Miami.
Tensions are high on board. There was the stress inflicted by the fire in the engine room, which began the mess, a scary experience for sure. Apart from the uncomfortable situation with bad smells, there is a risk of health problems because of poor sanitation. And passengers have reported minor fights. All of this is justification for going to court, Margulies said.
But it isn't that simple.
What can make suing a cruise liner complicated?
Carnival has a prohibition on class-action suits in its tickets, information that wouldn't be obvious to passengers who didn't read the fine print when they bought tickets.
There is a U.S. statute that prohibits ship owners and operators from putting that language on tickets. But Carnival, though headquartered in Miami, is incorporated outside the United States, partly in Panama and Great Britain, experts say.
Carnival Triumph is a Bahamian-flagged vessel, so the Bahamas Maritime Authority is the primary investigative agency.
What else is detailed on the ticket?
Carnival's ticket contract says the cruise line is not "liable to the passenger for damages for emotional distress, mental suffering/anguish or psychological injury of any kind under any circumstances, except when such damages were caused by the negligence of Carnival and resulted from the same passenger sustaining actual physical injury, or having been at risk of actual physical injury."
While no physical injuries have been reported, if a passenger contracted a significant disease, such as hepatitis, from unsanitary conditions aboard on the ship, maritime trial attorney John H. Hickey believes, physical injury could be argued.
"I think that a case can be made that everyone on that ship is at risk of actual physical injury," he said.
Will passengers file suit, and can they win? Yes and yes, Hickey said.
But again, this is complicated, right?
There's a question as to whether Carnival's prohibition on class-action suits is legally enforceable.
Hickey has never filed suit over a cruise ship stranding, but he said these circumstances, particularly the reports of sewage on decks, are exceptional.
"It's a public health disaster in the making."
What else should a passenger consider? Would it take a long time to see a resolution after filing suit?
It would be incredibly expensive for a lone plaintiff to sue. And no matter how a suit is brought, it would probably take two years for it to wind through court, Margulies said.
But it could still be done. Consider the case of Costa Concordia, the cruise liner that ran aground off Italy in January 2011. Thirty-two people were killed.
Many people from different countries sued the owners of the Concordia with varying results. In at least one example, the cruise liner reportedly offered to pay 11,000 euros to each of 235 French nationals affected.
Is there another remedy? Could passengers be compensated by their travel insurance?
Jason Clampet of travel site Skift.com said that's unlikely.
"Insurance really doesn't cover this sort of thing. Their trip wasn't interrupted and they aren't incurring extra expenses ... so they can't be compensated that way," he said.
What does a passenger have to weigh before moving forward?
"In the real world, a big company like Carnival is going to want to try to make these passengers as happy as possible as quickly as possible," Toobin said.
The cruise line said it would give each passenger $500, a free flight home, a full refund for the trip and for most expenses on board, as well as a credit for another cruise.
"Do these people want to take what Carnival is offering and get on with their lives," Toobin said, "or do they want to get into a long legal struggle that may not yield the results they want?"
CNN's Marnie Hunter contributed to this report.
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