This section contains the nature of the case and procedural background.

D made certain disclaimers part of its contract with Ps. Paragraphs 4 and 14 contain a disclaimer of liability for negligence, a disclaimer of any warranty of seaworthiness, and a disclaimer of liability for interruption of the full performance of the cruise. Ps filed a class action suit against D seeking damages caused by the failure of the sanitary system of the TSS Tropicale during a one-week cruise in the Caribbean. Depositions and discovery revealed that the Tropicale did indeed suffer problems with its sanitary system on the cruise in question as well as on two earlier cruises. The extent and duration of the breakdowns were in dispute. The district court denied class action certification on the grounds that the class was not sufficiently numerous and Ps were not typical of the class. The court dismissed Ps' suit as barred by the disclaimers in their contract of passage. Ps appealed.

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