A Shot Across The Bow - Lawyers for German Tourist, Killed in Costa Concordia Disaster, Seize the Carnival Triumph
There is a lot of controversy today about the seizure of the Carnival Triumph cruise ship in Galveston. Lawyers in Mississippi and Texas who are representing the family of a German woman killed on the Costa Concordia filed a lawsuit against Carnival in Galveston. In addition to the lawsuit, they filed a motion to obtain an order of attachment of a Carnival cruise ship (the Triumph) which is ported in Galveston.
I have received lots of inquiries about the issue this afternoon. Can someone just fill out some paperwork and seize a cruise ship like this? Why is the Carnival Triumph being seized in Texas for something the Costa Concordia, operated by a separate cruise line, did in Italy? Is this legal?
All good questions.
Maritime attachments or writs of garnishment are not uncommon. The legal mechanism of seizing a vessel is an effective tool when the vessel owner is in default of its legal obligations, like falling behind on the payment of a ship mortgage, or refusing to pay crew member wages, or refusing to pay for provisions or services rendered on behalf of a ship.
Vessel seizures (often called "attachments" or "arrests") are necessary when the defendant is a foreign corporation, which is not subject to the jurisdiction of the local courts, and its vessel is about to leave the jurisdiction and not return. It's a good way to obtain jurisdiction and make the company post a bond. If the seizure is proper, then the company has to post a bond to cover its outstanding financial obligations and court / U.S. Marshall costs in order for its vessel to leave port.
I remember the first time I seized a ship. It was in 1983 and I was fresh out of law school. A Greek crew member was owed wages which the shipowner refused to pay. He hired me to collect around $15,000 in unpaid wages. The lawyer for the shipowner had around 30 years of experience under his belt and was not taking me or my client seriously. The defense lawyer kept saying that the shipping company was going to pay my client. But he kept stalling and making excuses.
One afternoon I learned that the ship was planning on departing the port of New Orleans late that night. If I later obtained a judgment on behalf of my client, I knew that it would not be worth the paper it was written on because the shipping company was based in Greece. I had to shut the ship down.
I quickly typed up a writ of maritime attachment, completed an affidavit and ran down to the Federal courthouse to file the writ and affidavit. My secretary meanwhile called the U.S. Marshall's office telling them that we expected to have an order seizing the Greek ship shortly, while also asking for directions for me to find the Marshall's office.
Later that evening the Marshall's office served the vessel with the attachment order. Shortly thereafter, I received a frantic call from the defense lawyer who was now motivated to do what he had been promising to do for six weeks. We met at a shipping warehouse off of Tchoupitoulas Street. After we resolved the payment issues, I called the Marshall's office which released the ship to sail down the Mississippi River into the night.
So what does this have to do with the seizure of the Triumph in Galveston? Nothing, quite frankly. Carnival owes no unpaid debt to the German family. As sympathetic as I am to the loss of life involved, the fact remains that the death occurred on another cruise ship operated by another cruise line in another country.
The proper location for lawsuits arising out of the Concordia is Genoa, Italy. The proper defendant? Costa Crociere, the operator of the cruise ship. I am no fan of cruise lines, but the facts are the facts. This is an Italian cruise ship. It is flagged in Italy. Costa is incorporated in Italy. Its principal place of business is Genoa, Italy. The cruise tickets issued to the passengers specify that all disputes must be resolved in Genoa, Italy. The accident, after all, occurred in Italian waters and is being investigated by the Italian Coast Guard. There are criminal proceedings in Italy against the Italian captain.
It may well be that seizing the cruise ship was a ploy to try and keep the case in Galveston, whose judges are friendlier to individuals than our Federal courts in Miami, and to take Carnival's home court advantage away. But there is no connection between the Concordia and Texas. These passengers are from Germany, for goodness sakes. There is no good reason to seize a Carnival cruise ship for the sins of another cruise ship operated by a different company.
Unlike the fly-by-night Greek shipping company that tried to rip off my client 29 years ago, Carnival is not going anywhere. It has tens of billions of dollars in assets here in Miami. The lawyers who don't want to sue in Genoa can file suit here in Miami, like others have done, and take their chances. There are many hundreds of lawsuits filed against Carnival here every year. It would be bedlam if a cruise ship was seized every time a lawsuit was filed.
So what is this all about?
The main lawyer for the German family is John Eaves Jr., who practices in Jackson, Mississippi. He told Bloomberg Businesseek that “We’ve not been able to get Carnival’s attention, so this is our shot over the bow to let them know we’re serious about changing the law and maritime standards,” Eaves said. “We want a uniform set of safety standards, and we won’t stop until we get it.”
Seizing a cruise ship to make a point is not a good idea. Mr. Eaves seems well intended. Yet, an attachment is not legally required nor justified in these circumstances. The public doesn't like it. The families on the Triumph don't deserve the hassle.
Stricter maritime safety laws are needed no doubt. That's what Congress is for. I know, I have attended seven Congressional hearings. The process is slow and often discouraging. But jacking up a cruise line like this is not the way to do it.
Read the lawsuit here: Kai Stumpf v. Carnival Plc, 3:12-cv-0099, U.S. District Court, Southern District of Texas (Galveston)
Photo credit: Top: Sims Travel; bottom: Eaves Law Firm
April 1, 2012 Update: The Triumph sailed on time out of Galveston. There is no indication that Carnival was required to post a bond. Newspaper accounts indicate that the issue of the vessel arrest was resolved through a "confidential agreement" between the parties. The Houston Chronicle quoted me in an earlier article about the issue which can be read here.