Litigation and Dispute Preparedness in Antarctic Cruising: 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. This fifth and final alert in the series is released as we count down to opening day.

Antarctic expedition cruising has a strong safety record, and the vast majority of voyages conclude without incident. However, when a dispute does arise – whether from a Zodiac transfer, delayed medical evacuation or canceled landing program – the threshold questions are rarely simple, since the answers depend on the terms of the passage contract, where the operator is organized and does business, where the vessel is flagged and the nationality of the passenger who brings the claim. Each of those variables can change where the case is heard, which law governs, which standards define reasonable care and which party ultimately bears the loss.

Earlier installments in this series examined the regulatory landscape, environmental stewardship obligations, the contractual architecture through which operators allocate risk and the insurance and contingency arrangements that fund remote response. This Holland & Knight alert considers how those frameworks converge in litigation, addressing where Antarctic claims are likely to be filed, which law and standards of care will govern, the claims operators most commonly face and the practical steps operators can take to prepare for disputes before the 2026-2027 season.

Determining the Forum

In a conventional cruise dispute, the forum is often predictable, but Antarctic voyages routinely combine a passenger booking from one country, an operator organized in another, a foreign-flagged vessel, embarkation in Argentina or Chile, and activities south of 60°S in an area governed by the Antarctic Treaty System rather than by any single sovereign. Fly-cruise itineraries through King George Island (discussed in Part 3 and Part 4 of this series) add an air carrier and potentially a separate liability regime for international air carriage. As a result, the place where litigation occurs depends less on where an incident happened than on the passage contract, operator's corporate footprint and passenger's nationality, and operators should expect that a single incident may generate claims in more than one country.

The passage contract is the operator's first line of defense on forum. Operators that maintain principal offices in South Florida commonly designate Miami as the exclusive forum, and under Shute,¹ U.S. courts routinely enforce reasonably communicated forum-selection clauses absent fraud, overreaching or fundamental unfairness. Courts in the passenger's home country may take a different view, particularly in Australia, the European Union, Latin America and other jurisdictions whose consumer protection regimes allow residents to sue at home notwithstanding a contractual forum clause. Where the contract instead requires arbitration, threshold motion practice will turn on the enforceability of the arbitration clause, any delegation provision and any class-action waiver, and foreign courts may scrutinize consumer arbitration more closely than U.S. courts do. Operators selling to a multinational passenger base should therefore expect that where a claim will be heard is often the first question to be resolved – and one that can shape the course of the dispute that follows.

Choice of Law and the Standard of Care

Once the forum is settled, the court must determine which law applies. In U.S. courts, torts occurring aboard ships on navigable waters are generally governed by federal maritime law under which a carrier owes passengers reasonable care under the circumstances and, as the U.S. Court of Appeals for the Eleventh Circuit held in Keefe,² a passenger asserting a direct negligence claim must establish that the carrier had actual or constructive notice of the risk-creating condition. The Eleventh Circuit has since clarified that the notice requirement does not apply to claims of vicarious liability for crew negligence,³ a distinction of particular relevance in the expedition context, where Zodiac drivers, guides and other expedition staff play a central role in conducting passenger activities.

Injuries ashore at an Antarctic landing site present harder questions, since a court may look to the law of the flag state, the law of the Treaty Party that authorized the expedition, U.S. maritime law or the law selected in the passage contract, and the reported case law offers little guidance. Where the Athens Convention applies, its liability regime, limits and two-year time bar may displace or supplement the passage contract altogether, making it important to identify early whether the Convention governs the voyage.

The Regulatory Framework in the Courtroom

The International Maritime Organization's Polar Code, which became mandatory through Safety of Life at Sea (SOLAS) Chapter XIV and amendments to the International Convention for the Prevention of Pollution from Ships (MARPOL), imposes requirements for ice-class certification, cold-weather survival equipment, crew training and voyage planning in ice-affected waters that bind vessels through the law of their flag states, which implement and enforce these conventions, and that gateway states may verify through port-state control inspections. A claimant may argue that a violation of these mandatory standards supports negligence per se or, in some U.S. courts, a burden-shifting presumption of causation under the Pennsylvania Rule. The Polar Ship Certificate, Polar Waters Operational Manual, ice and weather voyage plans, and crew training records are likely to be among the first documents sought in discovery, and they will often frame the plaintiff's seaworthiness theory and the operator's defense.

The International Association of Antarctica Tour Operators' (IAATO) guide-to-visitor ratios, limits on passengers ashore and wildlife-approach distances such as the Antarctic Treaty Consultative Meeting site guidelines for frequently visited locations, are voluntary or nonbinding rather than law. U.S. courts generally admit such standards as evidence of reasonable care without treating them as conclusive, so a deviation is unlikely to establish negligence by itself, and full compliance, measured against the version of the guidelines in effect on the date of the incident, is unlikely to defeat a claim where the hazard was foreseeable and avoidable. Operators that market their IAATO membership should also anticipate misrepresentation or breach-of-contract theories when a voyage allegedly falls short of those standards.

The Protocol on Environmental Protection to the Antarctic Treaty binds states rather than private parties and is enforced through national legislation such as the U.S. Antarctic Conservation Act of 1978, 16 U.S.C. § 2401 et seq., and the U.S. Environmental Protection Agency's regulations at 40 C.F.R. Part 8. The Protocol itself therefore does not create a private right of action, but an operator's environmental impact assessment (EIA), permit conditions and post-visit reports may become evidence of what activities were authorized and how risks were assessed, and an environmental incident may trigger regulatory proceedings that run in parallel with private claims. Annex VI to the Protocol, which would impose liability for environmental emergencies, has not entered into force, leaving liability for environmental harm largely to national law.

Potential Claims Arising from Antarctic Voyages

Personal injury claims arising from Zodiac transfers, wet landings, kayaking or guided hikes may name not only the operator but also the vessel owner, expedition staff supplied by third parties, equipment suppliers and shoreside medical providers, in which case the indemnity and flow-down provisions discussed in Part 3 of this series will bear directly on who ultimately bears the loss. Medical negligence claims take on particular significance given the distance from shoreside care described in Part 4 of this series, as U.S. courts, including the Eleventh Circuit, now recognize that a cruise line may be held vicariously liable for the negligence of shipboard physicians and nurses under theories of actual or apparent agency, which places the operator's medical staffing arrangements and evacuation protocols squarely at issue in any such claim.

Deaths occurring more than 3 nautical miles from U.S. shores fall under the Death on the High Seas Act, 46 U.S.C. § 30301 et seq., which generally limits recovery to pecuniary losses in U.S. courts, although a foreign forum applying its own law may permit broader damages. Canceled landings, weather holds and itinerary changes may also give rise to refund and consumer protection claims pleaded on behalf of a putative class, and the enforceability of class action waivers and deviation clauses will bear on whether such disputes can proceed collectively.

Practical Litigation Challenges

Antarctic claims also present practical challenges that operators can anticipate well before an incident occurs. Service on foreign-domiciled crew may require compliance with the Hague Service Convention, and testimony from expedition leaders, Zodiac drivers and onboard medical staff – many of whom are seasonal and disperse at the end of the season – may have to be compelled through the Hague Evidence Convention or letters rogatory. Zodiac operational data, bridge logs, incident reports, photographs, weather and ice data, and passenger medical records must be secured before the vessel returns to service; failure to preserve them can expose the operator to spoliation sanctions or adverse inference instructions in U.S. proceedings.

Limitation of liability proceedings under the U.S. Limitation of Liability Act or foreign equivalents may run in parallel with passenger claims, and contractual notice of claim and suit limitation periods should be managed alongside the insurer notice obligations (as discussed in Part 4 of this series). Enforcing a resulting judgment or arbitral award against a foreign-domiciled operator or vessel owner may in turn require proceedings in the flag state, the state of incorporation or wherever assets are located, each of which applies its own recognition rules.

These challenges cannot be resolved after the voyage has begun, so the steps an operator takes in port – from aligning its contracts and preserving its records to identifying counsel in the jurisdictions where claims may arise – will often shape how effectively it can respond once a dispute begins.

Before the Season Starts: Audit Considerations

• Map the likely fora for each itinerary by reviewing the passage contract's forum, arbitration and choice-of-law provisions against the operator's corporate footprint and the nationalities of its passenger base.
• Consider implementing evidence preservation protocols for Zodiac operational data, bridge and navigation logs, expedition-leader reports, incident photographs and passenger medical records.
• Consider establishing rapid-response litigation protocols, including pre-identified counsel in Miami, Buenos Aires, London and the relevant flag-state capitals, together with procedures for coordinating with protection and indemnity (P&I) correspondents.
• Brief expedition leaders and senior officers on evidence preservation, incident documentation and initial response to passenger injury claims.
• Calendar contractual notice of claim and suit limitation periods, Athens Convention time bars and insurer notice deadlines, and ensure that incident reports are routed promptly to P&I clubs and other carriers.
• Consider structuring post-incident investigations under the direction of counsel where possible to preserve privilege and work-product protection over internal reports.
• Consider assembling a preseason compliance file for each vessel – including the Polar Ship Certificate, Polar Waters Operational Manual, EIA approvals and permits, and IAATO field staff assessments – so the record of compliance is readily available if a claim arises.

Looking Ahead to Opening Day

Expedition cruising at the ends of the earth is no longer a niche product. It is a growing, capital-intensive industry segment that operates in some of the most legally complex and logistically challenging environments on the planet. Across this series, a consistent theme has emerged: Antarctica is governed less by a single body of law than by an interlocking patchwork of treaty obligations, flag-state enforcement, voluntary industry standards, contract terms and insurance arrangements, many of which are nonbinding, revised annually or not yet in force. The regulatory gaps, environmental obligations, contract chain and insurance and contingency arrangements do not operate in isolation. Each becomes evidence when an incident occurs, and litigation is where those frameworks are tested together.

The operators best positioned for the 2026-2027 season and beyond will be those that treat regulatory compliance, environmental stewardship, contractual discipline, insurance adequacy and dispute preparedness as a single, integrated program rather than separate checklists. In a region where the nearest hospital may be days away and the applicable law may be unsettled, the preparation done in port before the season begins will often determine the outcome of a dispute long after the voyage has ended.

More Posts in This Series

• Insurance and Contingency Planning in Antarctic Cruising: What Operators Must Navigate
• Contractual Architecture in Antarctic Cruising: What Operators Must Navigate
• 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).

² 867 F.2d 1318 (11th Cir. 1989).

² 4 F.4th 1164 (11th Cir. 2021).

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.