Australians evacuated from hantavirus cruise ship may seek compensation

A group of Australians currently in quarantine after being evacuated from a cruise ship at the centre of a deadly hantavirus outbreak could try to seek compensation under Australian consumer law, legal experts say.

But the lawyer who led the class action in the COVID-19 era Ruby Princess case warned the cruise company would likely argue Australian law had no jurisdiction over the matter.

Four Australians, one permanent resident, and one New Zealander have arrived in Perth on a repatriation flight that left the Netherlands late Thursday, where the passengers had been waiting after disembarking the MV Hondius.

They will spend three weeks in quarantine at the Bullsbrook Centre for National Resilience, about 40 kilometres north-east of Perth.

The six had tested negative for hantavirus before the flight and were asymptomatic but will undergo further health screening.

What do the T&C's say?

The Dutch-flagged MV Hondius was operated by Oceanwide Expeditions (OE) which runs cruises to Antarctica and the Arctic.

The general travel terms and conditions page on its website includes the company's exclusions and limitations from liability as part of its contract with passengers.

They state it "can not be held liable for events such as but not limited to complaints, claims, loss and damage of possessions/baggage, personal injury, death etc".

They spell out that passengers are free to use the services of the ship's doctor and medical services, "however neither the doctor nor OE can be held liable for any claims arising out of such services and does not accept any claims".

The terms and conditions also explicitly state Oceanwide Expeditions accepts no claims relating to medical evacuations.

Finally, they stress the laws of the Netherlands apply to the travel contract and all matters that arise.

What do experts say?

Several passengers on the MV Hondius contracted the rodent-borne hantavirus, and three of those people have since died.

Dr Sagi Peari, an Associated Professor of private and commercial law at the University of Western Australia, believed the Australian passengers should be able to submit a claim in Australia despite the Netherlands jurisdiction clause.

He said there was High Court case law finding Australian consumer law can still apply and Australian courts may still have jurisdiction.

"Australian consumer law, so-called consumer guarantees, which guarantee a reasonable, safe service. In this case it could be argued that there's no reasonable service," Dr Peari said.

He also believed there could be other grounds for compensation based on contract law and a claim the provider did not provide the service promised, or potentially even under tort law if there were any eventual claims of negligence.

Oceanwide Expeditions has been contacted for comment on the question of compensation for passengers.

Vicky Antzoulatos is a partner at Chambers Russell Lawyers and represented the plaintiffs in the 2023 class action win against Carnival Australia over the Ruby Princess cruise ship voyage in 2020, linked to 28 COVID-19 related deaths.

In that case, the Federal Court found Carnival had been negligent and engaged in misleading representations.

Ms Antzoulatos said legal recourse in Australia in the MV Hondius case could be limited.

"It's possible if they purchased their tickets in Australia they may have a claim under the Australian consumer law.

"But without a doubt the cruise company would argue that the proper laws to be applied to such a claim are not Australian law, they're the laws of the Netherlands or a different jurisdiction where the wrong actually occurred."

She said bringing legal action in the Netherlands from Australia would not be easy.

"They definitely should get advice from a local lawyer as to what can be done in that particular jurisdiction," she said.

Dr Peari thought European law may be helpful.

"If Netherlands law applied, there's nothing wrong with Netherlands law."

"We also know that in Europe there's significant protection of consumers rights. So possibly under Netherlands law the Australian consumers will actually have better protection than under Australian consumer law."

The five Australians are from New South Wales and Queensland.

The World Health Organisation's latest update on the hantavirus outbreak, linked to the cruise ship, said 11 cases and three deaths had been reported.

Eight of the cases had been laboratory-confirmed, while two were deemed "probable", and one was inconclusive.

The two latest confirmed cases were reported from France and Spain. Both people were passengers of the MV Hondius.