Survivors of a volcanic eruption that killed 22 cruise ship passengers, including 14 Australians, off the coast of New Zealand have succeeded in having back-up legal action in Australia delayed until a Florida court case is decided.
Eleven people, who were on Whakaari/White Island or aboard the Ovation of the Seas when the volcano erupted in December 2019, are suing the ship’s owner Royal Caribbean Cruises in Miami where the company is headquartered.
They argue Royal Caribbean failed to inform passengers about the risks of going on an expedition to the island and are seeking damages.
The cruise operator is attempting to have proceedings thrown out of US court on the basis of a contract clause it claims limits dispute hearings to NSW.
Federal Court Justice Ian Jackman – brother of Wolverine actor Hugh – on Monday ruled in favour of the volcano victims, putting legal action in Australia on hold until it is determined whether the Florida proceedings will be allowed to go ahead.
The Australian proceedings are only intended as “holding action” in case the US lawsuit is thrown out.
“It would be an affront to common sense and fairness if I were to force the applicants to undertake further pre-trial steps in this court in preparation for a trial which may never be needed,” Justice Jackman said.
One of the claimants, Jesse Langford, took part in the shore excursion with his parents, Anthony and Kristine, and his sister, Winona.
All three family members were killed and Winona’s body was not recovered from the island. Jesse survived the eruption but suffered burns to 54 per cent of his body, causing scarring and disfigurement.
He claims Royal Caribbean ought to have known that the volcanic alert level for the island had been raised from one to two, giving rise to “moderate to heightened volcanic unrest”.
The judge said suing the company in Florida would be more beneficial to the claims as they are likely to recover significantly higher damages than in Australia.
It would also offer greater rights to discovery, the power to depose witnesses and the right to a jury trial.
“It is well recognised in Australia that these are legitimate juridical advantages,” Justice Jackman said.
In submissions to the Florida court, Royal Caribbean argued the complaints were a “brazen” act of “forum shopping”.
The applicants are unable to sue the company in NZ because of the country’s no-fault compensation scheme.
White Island Tours – the tour operator contracted by Royal Caribbean to take passengers to the island – on Thursday pleaded guilty in a NZ court to safety failings leading up to the eruption.
It potentially faces a seven-figure fine.
In 2022, Auckland-based scenic flight operator Inflite also pleaded guilty, ordered to pay $NZ267,500 ($A243,000) in fines and costs.
A hearing into Royal Caribbean’s bid to have the lawsuit of Bianca Cozad dismissed for improper venue is due to take place in Miami on July 5.