Cruise Passenger Bill of Putative Rights

The International Cruise Line Passenger Bill of Rights may be worth more than the Web page it’s posted on, but only if there’s going to be some kind of enforcement mechanism. And there’s no sign of that.

Please excuse my skepticism but when a segment of the travel industry repeatedly mistreats its customers and then, under threat of outside regulation (see the Cruise Passenger Protection Act), adopts a voluntary and self-enforced code of conduct, well I get this deja vu feeling all over again.

Flash back to the summer of 2009. Forty-seven passengers were held aboard a Continental Express flight overnight in Rochester, MN, without food or water. The toilet gave out after three hours. There was no reason to keep the passengers on board, except that the sole airline employee on duty at the airport, a gate worker for Mesaba Airlines, refused to help get them off.

It was far from the first time something like this had happened. A debate about passenger rights and so-called tarmac delays had been going on for at least 10 years, since Northwest Airlines stranded thousands of people, some of them for as long as 10 hours, on dozens of airliners in a snowstorm in Detroit in 1999.

The debate would reignite with every new and egregious stranding. In December 2006, hundreds of passengers were stuck aboard diverted American Airlines flights for up to nine hours in Austin, TX. In February 2007, hundreds of passengers sat on stranded JetBlue flights on the ground at JFK, some for more than 10 hours. And so on and so on.

Calls for an airline passenger bill of rights would inevitably follow, and sometimes legislation would be introduced. But it never passed. The Air Transport Association and its member airlines alway advanced the same argument: a time limit on tarmac delays would cause more cancellations and delays and, besides, we can police ourselves. Some airlines set their own passenger rights policies, and then violated them.

“We keep hearing from the airlines that they can handle this themselves,” Sen. Amy Klobuchar, D-Minn., said in 2009. “And then we keep having moms with babies on their laps for six hours in the middle of the night.”

But after that stranding of Continental Express Flight 2816 in August 2009, something extraordinary happened. For the first time ever, the U.S. Department of Transportation fined an airline for holding passengers on the ground. In fact, it fined four airlines: Continental and its ExpressJet subsidiary as well as Mesaba and its parent, Delta Air Lines, on the grounds of “unfair and deceptive practices in air transportation.”

The message was clear: airlines must make every effort to ensure that passengers aren’t held hostage and there will be consequences if they fail to try. Shortly afterward the DOT codified that idea into its regulations, doing what Congress had repeatedly refused to do. The new rules effectively created a passenger bill of rights, requiring airlines to release passengers after three hours on the tarmac, unless doing so would endanger their safety.

The result of this has been pretty spectacular. In the first year after the rule took effect, tarmac delays of more than three hours dropped from 693 in the previous year to 20. Sure, a study by the Government Accounting Office found that after the rule took effect, flights were 24 percent more likely to be canceled before they left the gate and more than three times more likely to be canceled after two hours on the tarmac. The GAO blamed those increased cancellations on the airlines’ fear of being fined for holding passengers for longer than three hours.

To which I say, so what? Going back to the gate, letting the passengers off and canceling the flight was the outcome we wanted. When airlines were free to gamble with passengers’ well-being, at no risk to themselves, look what happened.

So back to the present day, when a series of unfortunate events aboard cruise ships has the industry on the defensive. It’s been more than a year since the first real disaster involving a modern mass-market cruise ship — the sinking of the Costa Concordia off the coast of Italy, which killed 32 people. In February 2013 a fire aboard the Carnival Triumph disabled the ship and left the passengers to endure five hellish days without power. This was followed by several lesser disasters and then a frightening fire aboard Royal Caribbean’s Grandeur of the Seas in May.

And the response from the Cruise Lines International Association is what it calls the International Cruise Line Passenger Bill of Rights, which has been adopted by all 26 member cruise lines with great fanfare and some approving media coverage. And it’s all very nice, a step in the right direction, everyone agrees. If the cruise lines violate this new “bill of rights,” they’ll have to answer to the press and the public.

Only there is no regulatory oversight and no penalty for violating these “rights,” which means they aren’t rights at all. These are merely guidelines, a set of aspirations that comes with a set of built-in excuses: we were doing our best, we won’t do it again, regulations would only inconvenience our customers. It sounds so familiar.

And even as government regulations, these would be a little slippery. Passengers may disembark from a docked ship “if essential provisions such as food, water, restroom facilities and access to medical care cannot adequately be provided on board, subject only to the Master’s concern for passenger safety and security and customs and immigration requirements of the port.” So what’s the essential level of food and who decides whether the master’s concern is reasonable?

Much of the rest follows standard practice for the cruise lines right now — they must refund passengers for canceled cruises (though not necessarily for their associated air transport or hotel costs) and they must transport passengers back to their home cities if a cruise is interrupted by mechanical failures (though when they must be transported is not defined.) But how much of an advance is that? Any cruise line that failed to do those things now would be sued quickly, thoroughly and very successfully.

Maritime lawyer James Walker, who files those sorts of lawsuits, was notably unimpressed.

“The cruise Bill of Rights is a strategic move to preempt Sen. Charles Schumer from introducing a more stringent bill before the U.S. Senate and to avoid a bill which may be enacted into law with penalties and fines,” he wrote on his Cruise Law blog.

Yup, that rings a bell.

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