In the wake of the tragic terrorist attack in Tunis which killed a number of cruise ship passengers, academics, analysts and researchers have been assessing what went wrong, how can passengers be protected and the small matter of who will settle the claims which have arisen.
As the “MSC Splendida” and “Costa Fascinosa” arrived in the Tunisian capital Tunis last month, tourists spilled out and headed to the usual visitor hotspots. As so many have before the tourists from the ship were among scores who took the opportunity to visit the Bardo Museum.
Tragically, almost immediately they were caught up in a brutal massacre as jihadi gunmen disguised as soldiers burst in and sprayed bullets at the scores of Western holiday makers. In total 19 died and many more were injured.
It can perhaps be a little bewildering when stepping from the cossetted luxury of the latest giant cruise ship into a new port of call, but of course each nation has their own harsh realities which can seriously impact visitors.
Eqypt has long suffered from terror attacks in its Red Sea tourist resorts, and Mexico and some Caribbean islands have seen cruise ship passengers robbed, raped and even murdered.
The sunny, smiling image of the cruise idyll does not always sit well alongside the real conditions of the countries being visited.
Tunisia has now perhaps seen the 360 degree ripple of the effect which itself started with the Jasmine Revolution which set off the domino effect of the Arab Spring. With the collapse of regional partners and rise of Islamic State, it has perhaps been a country very close to, if not in the firing line. Something which spilled over with such tragic effects.
WHO WILL PAY?
The issues of culpability, risk assessment, liability and wrong doing have been highlighted by the media questions as to who will pay out for the loss of life and injury.
Marine insurers say the question about which insurance policy will pay for the passengers of two cruise ships who were killed and injured in the attack is far from clear.
It is understood that the cruise operators are now working with their insurers to see which policy will cover the attack, but this is a complicated issue. Indeed the complexity of the cover taken out by cruise operators means there are several potential insurers involved and the companies may also have specific insurance cover for trips by passengers on land.
WHEN TERROR HITS ASHORE
Cruise ship operators will of course have liability cover for the crew and passengers while on board the vessels with protection and indemnity (P&I) insurance in place. However, if there is a terrorist element and when attacks happen ashore, the liability for the passengers may also fall under the cruise ships' war and terrorism cover. This means that such risks could well be underwritten, not by the P&I Clubs, but by the marine hull underwriters. It is a usual stipulation that individual passengers take out their own personal travel policies, which would be expected to pay compensation injuries and/or deaths.
As such, it is unclear as to how shorebased issues affect the cover provided to vessel owners. Questions over where the liability lies will of course emerge, and the key may well contained in the terms under which a ticket is provided to cruise passengers.According to one expert, “If the ticket stipulates that the cruise operator takes responsibility for the passengers both at sea and on land then in would be a P&I matter”.
It is also understood that the relevant insurance policies in place will pay in line with the Athens Convention on passenger liability. The Convention states for a loss suffered as a result of the death of or personal injury to a passenger not caused by a shipping incident, the carrier is liable if the incident which caused the loss was due to the fault or neglect of the carrier.
The burden of proving fault or neglect lies with the claimant. The liability of the carrier only includes loss arising from incidents that occurred in the course of the carriage. The burden of proving that the incident which caused the loss occurred in the course of the carriage, and the extent of the loss, lies with the claimant.
With more and more passengers being taken to ever more potentially problematic places it seems that this issue will need to be addressed in a considered and streamlined manner.
According to the UK Government, there is a high threat from terrorism, including kidnapping. Attacks could be indiscriminate, including in places visited by foreigners. After the attack at the Bardo museum in the centre of Tunis the UK believes that further attacks are possible.
While the US advice is that, terrorism also remains a significant concern. Tunisian nationals have been involved in international terrorism, and international terrorist organizations have on multiple occasions called for attacks in North Africa, including in Tunisia.
They stress that attacks in tourist areas remain a possibility and the U.S. Embassy recommends that U.S. citizens in Tunisia continue to maintain a high level of vigilance.
Caution should be exercised when frequenting public venues that are visited by large numbers of foreigners, such as hotels, shopping centres, tourist sites and restaurants.
It is not just the view of foreign governments, the Tunisian Ministry of the Interior had previously warned of a threat to attack industrial and tourist sites. So perhaps it was foolhardy for cruise excursions to carry on regardless?
While the majority of Tunisia may be peaceful, terrorist attacks have increased in Tunisia since 2013. In October 2013, there were failed attacks at a hotel in Sousse and the Bourguiba Museum in Monastir. Since then, members of the Tunisian security forces have been targeted in terrorist-related incidents at various locations, mainly near border areas including in the Chaambi Mountains.
So was the risk of attack properly assessed by the cruise company, tour operator, and did the tourists themselves have access to sufficient information to make an informed decision?
Cruise operators have a duty of care for the passengers on board the vessel and they will organise trips on behalf of passengers. Some experts believe that it would be difficult to hold a cruise operator or the tour operator liable for events such as terror attacks as there may be no way of envisaging such a terrible event.
Given the wealth of risk analysis tools, or guidance from governments and the responsibility imposed by the International Ship and Port Facility Security (ISPS) Code, there is a real emphasis and impetus behind cruise lines analysing risks effectively and of guiding passengers accordingly.
The trust and blind faith that passengers can sometimes display means that the duty of care which cruise operators have to extend to their passengers runs even deeper than perhaps may reasonably be expected. There can be a naivety displayed by some cruise passengers, and they may need protecting not just from criminals and terrorists, but from themselves.
In taking thousands of holiday makers into potential dangerous areas, there are many risks to be considered, and they need to be taken fully into account.