Contractual Architecture: What Operators Must Navigate

Editor's Note: The Antarctic tourist season currently runs from November through March, with demand for expedition cruises at an all-time high and travel to the Final Frontier continuing to grow at a remarkable pace. In advance of the kickoff of the 2026-2027 tourist season, Holland & Knight has developed a series of five targeted advisories, each addressing a distinct legal and operational consideration for Antarctic expedition cruising. Whether you are an operator preparing for the 2026-2027 season or laying the groundwork for the years ahead, the considerations outlined here will remain essential as the industry continues to grow. The alerts will be released weekly throughout October as we count down to opening day.

When a medical emergency occurs in the Drake Passage or at a landing site on the Antarctic Peninsula, the nearest hospital may be two or more days away by sea. Helicopter evacuation, where available, will depend on weather windows that may close for days at a time. These realities have direct consequences for Antarctic operations, as an evacuation that would be possible in the Caribbean may be difficult or impossible in Antarctic waters.

An operator's contingency planning, medical staffing, pre-voyage passenger screening and the warnings incorporated into the passenger's contract will often determine whether a delay is pleaded as negligence or breach or instead treated as an inherent risk of which the passenger was reasonably notified and contractually accepted. Passenger claims, however, rarely remain confined to the operator-passenger relationship. A single evacuation delay or landing-site incident can trigger cross-claims and third-party actions among the operator and contractors on which it depends, and the allocation of that exposure is governed by a variety of upstream agreements.

Allocating Risk Across the Contract Chain

An expedition cruise operator typically sits at the center of a web of contractual relationships with vessel owners, air-support providers, ground handlers, maintenance providers, vendors, medical and expedition contractors and, ultimately, passengers. Each of these agreements allocates performance obligations, risk and liability among the parties, and each implicates the unique risks of polar operations. When a claim arises, the interaction among these instruments, including whether their risk-allocation terms are consistent and flow down to subcontractors, frequently determines which party ultimately bears the loss.

Common provisions in operators' commercial agreements with vessel owners, air-support providers and other contractors include indemnity and hold-harmless obligations tied to the party that controls the relevant operation. These frequently include defense obligations specifying who controls litigation, selects defense counsel and may settle when a passenger claim names multiple parties. Contractual liability limits are often coordinated with applicable conventions and statutory caps, such as the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (as amended by the 2002 Protocol), Convention on Limitation of Liability for Maritime Claims (LLMC 1976, as amended by the 1996 Protocol) and, in U.S. proceedings, the Limitation of Liability Act, 46 U.S.C. § 30501 et seq., and exclusions for consequential damages are common in commercial agreements. Agreements may also address force majeure for ice conditions, weather delays and port closures, as well as voyage-deviation clauses authorizing the master to change the itinerary for safety without breaching the contract, consistent with the master's overriding authority under SOLAS Chapter V, Regulation 34-1 to make decisions necessary for the safety of life at sea.

International Association of Antarctica Tour Operators (IAATO) guidelines, passenger limits, and environmental and national authorization requirements under Article 8 and Annex I of the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) may restrict where and when landings occur. As a result, these clauses often allow itinerary changes needed to meet regulatory and safety requirements. Other terms operators frequently negotiate include contribution and indemnity rights against responsible third parties, cooperation and evidence-preservation obligations for Zodiac operational data, bridge logs and expedition-leader reports, notice-of-claim requirements, and arbitration or forum-selection clauses specifying the seat and governing law for interparty disputes, with foreign-seated arbitral awards generally enforceable in the U.S. under the New York Convention as implemented by Chapter 2 of the Federal Arbitration Act, 9 U.S.C. §§ 201–208.

The passage contract (or ticket contract) – the foundational instrument governing the operator-passenger relationship – is typically a contract of adhesion presented on a take-it-or-leave-it basis. Under general maritime law, courts apply a "reasonable communicability" test to determine whether its terms bind the passenger, examining whether the terms were physically conspicuous and whether the passenger had a meaningful opportunity to review them before travel. The operator undertakes to provide carriage, as well as the described expedition program, and owes passengers a duty of reasonable care under the circumstances, while the passenger undertakes to pay the fare, satisfy medical and fitness disclosures, and comply with the master's and expedition staff's safety directions.

Some passage contracts may also reference IAATO visitor guidelines or the Madrid Protocol's prohibition on harmful interference with native wildlife (Annex II), which can help support an operator's ability to limit a passenger's activities or, in serious cases, restrict further landings. Passage contracts commonly impose shortened notice-of-claim and suit periods, subject to the statutory minimums of 46 U.S.C. § 30508, and the U.S. Supreme Court has upheld reasonably communicated forum-selection clauses in Shute.¹ In practice, disputes over itinerary changes, canceled landings, refund and credit entitlements, medical disembarkation and personal injury frequently turn on the passage contract, and the threshold litigation battles – such as motions to dismiss or transfer, compel arbitration or enforce a time bar – are often decided by its drafting and the manner in which it was delivered to the passenger.

Polar Supply Chain and Support Contracts

Antarctic expeditions depend on gateway-port handlers in Ushuaia, Argentina, and Punta Arenas, Chile. Contracts with ice-class maintenance providers, suppliers whose goods cannot be replenished once a vessel enters the Southern Ocean, and physicians and guides who operate under the operator's brand often carry capped indemnities, narrow warranties, consequential-loss exclusions, and Argentine, Chilean or London-seated forum terms that can leave the operator bearing a passenger claim it cannot pass upstream. That exposure is heightened by the reality that air evacuations for tourists in Antarctica are rare and often impossible, constrained by severe weather and vast distances. Considerations for operators may include whether each support contract extends indemnity to passenger injury claims, imposes evidence-preservation and cooperation duties, and aligns its forum and arbitration terms with the passage contract to reduce the risk of parallel proceedings in multiple jurisdictions.

Contractual Defenses and Waivers

Most expedition operators require passengers to execute waivers, releases or assumption-of-risk acknowledgments before participating in off-ship activities, yet the enforceability of these instruments often hinges on how they are drafted, how clearly the risks are disclosed and how they are presented to the passenger. Some courts enforce well-drafted disclaimers for injuries sustained during shore excursions, particularly where the passenger voluntarily assumed a known risk. Others hold that disclaimers may not be enforceable where the passenger relied on the operator's representations regarding safety or where the activity was presented as routine rather than inherently dangerous. In assessing those questions, a court may look to IAATO operational standards, such as guide-to-passenger ratios and activity-specific procedures, as evidence of the standard of care against which the operator's conduct and disclosures are measured.

The U.S. statutory bar on limiting liability for negligence, 46 U.S.C. § 30509 (formerly 46 U.S.C. App. § 183c), applies only to voyages that call at a U.S. port and therefore generally does not reach Antarctic itineraries departing from and returning to Ushuaia or Punta Arenas. For those voyages, the enforceability of a liability limitation or release is more likely to turn on general maritime law, the governing law selected in the passage contract and quality of the drafting, although operators that sell to U.S. passengers or run repositioning voyages through U.S. ports may wish to consider whether the statute could apply to a particular itinerary. Where the Athens Convention applies, Article 18 likewise voids contractual terms that purport to relieve the carrier of liability or lower the Convention's limits, which can constrain the reach of a passage-contract release even on voyages with no U.S. nexus.

Apparent-agency allegations present a particular risk in the expedition context. When the cruise line's expedition staff leads the shore excursion, uses the cruise line's branded equipment and operates under the cruise line's itinerary, a passenger may reasonably believe the guide is an agent of the carrier, regardless of the fine print in the independent-contractor agreement. Though expedition staff are sometimes employees of the cruise line operation, this is not always the case and even if the guide is technically an independent contractor, the operator may face liability for failing to vet qualifications, training or safety records. Contractor agreements that require compliance with IAATO field staff standards and assessments, together with documentation of that compliance, may help an operator demonstrate reasonable diligence in selecting and supervising its guides.

Taken together, these considerations underscore that during Antarctic voyages, the contract chain often functions as the operator's principal risk-management tool. Where evacuation is uncertain, medical care is days away, and the governing legal regimes range from the Athens Convention to U.S. maritime statutes and South American domestic law, the passage contract and upstream agreements that support it will frequently determine where a dispute is heard, which law applies and which party ultimately bears the loss. Operators that review these instruments together, rather than in isolation, are therefore generally better positioned to respond when an incident evolves into a claim.

Before the Season Starts: Audit Recommendations

• Review and update all charter party agreements, air support contracts, medical provider agreements and shore excursion contracts to 1) ensure indemnity, defense, flow-down and contribution provisions are consistent with one another, 2) align with the operator's obligations under the passage contract and 3) reflect current operations.
• Audit passenger ticket contracts to consider current case law for enforceability of forum-selection clauses, arbitration provisions, class-action waivers, liability limitations and activity-specific waivers, and evaluate the completeness of notices regarding limited medical care and evacuation realities.
• Confirm that force majeure and voyage deviation provisions are broad enough to cover ice conditions, weather holds and emergency itinerary changes without triggering breach-of-contract exposure.

More Posts in This Series

• Environmental Stewardship in Antarctic Cruising: What Operators Must Navigate
• The Regulatory Landscape of Antarctic Cruising: What Operators Must Navigate

Notes

¹ 499 U.S. 585 (1991).

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.