As rescue and recovery attempts continue to try and locate the bodies of passengers missing from the Costa Concordia disaster, law firms in the United States are moving forward to file class action lawsuits against Costa Cruises and its parent company, Carnival Corporation, in Miami, Florida.
One of the firms advertising for such cases and taking a high profile position is the New York firm of Proner & Proner. On its page "Costa Concordia Passengers: We Are Here for You," the Proner firm states that it intends to seek "at least $160,000 on behalf of each of the passengers aboard the ship at the time of the wreck. Those who were injured, as well as those with wrongful death claims, may be able to collect multiple times that amount."
In a telephone interview with a local reporter in Miami, the Proner firm said it intends to represent passengers of "all nations" from "Peru to Shanghai." It will be seeking to recover "millions" on behalf of the dead or missing passengers. During the interview, the New York lawyer said a lawyer was flying to Miami to file the class action lawsuit and would include Carnival as a defendant.
Whoa Nellie! Lets slow down and collect our thoughts for a second.
Cases against cruise lines are governed by a specialized area of maritime law which is different than land based law.
The courts have applied maritime law to uphold certain contractual limitations set forth in the passenger ticket issued by the cruise lines. These terms and conditions of the cruise passenger ticket are quite draconian in nature. Take a minute and read one of our articles about this issue: Top 10 Shocking Clauses In Your Cruise Contract.
One of the most important contractual terms includes what is called a "forum selection clause." This clause specifies where the lawsuit must be filed. The cruise lines identify a location that it convenient for them and inconvenient for the passenger. The location is usually where the cruise line is located, which gives the cruise line a home court advantage so to speak. It is inconvenient, time consuming, and expensive for passengers injured during a cruise to travel to the location chosen by the cruise line to file suit.
The cruise lines have been successful in enforcing these type of clauses. In the case of Shute v. Carnival, the United States Supreme Court required a passenger who lived in Oregon, and injured during a cruise from California to Mexico, to file suit here in Miami. No the passenger terms and conditions are not fair, but they are routinely enforced.
For the Concordia disaster, the Costa passenger ticket contains a clause specifying Genoa, Italy as the location for the lawsuit. Most tickests issued by cruise lines based in Miami like Carnival and Royal Caribbean select Miami as the place where the lawsuit must be filed. But Costa’s ticket is different. For Costa cruises which call on an U.S. port, the lawsuit has to be filed in Broward County in South Florida. If the cruise itinerary does not include a U.S. port, the lawsuit must be filed in Italy.
Last year, we wrote about a similar situation. In Seung v. Regent Seven Seas Cruises, a passenger was injured while cruising on the Paul Gauguin cruise ship, operated by Regent Seven Seas Cruises, in the Pacific Ocean. After Ms. Seung filed suit in South Florida where the cruise line is based, the defense lawyers moved to dismiss the case arguing that the forum selection claim required the lawsuit to be brought in France. The federal court here dismissed her case. The 11th Circuit Court of Appeal affirmed the dismissal and held that the passenger, from California, had to travel to Paris to pursue her remedies. Our article is entitled Cruise Forum Selection Clauses: Do You Speak French?
As soon as lawsuits are filed against Costa in this jurisdiction, the cruise line will move to dismiss the cases and will cite the Shute and Seung cases discussed above.
The cruise line defense lawyers will argue that the lawsuits cannot be filed here. The Costa company is incorporated in Italy and based in Genoa. The cruise ship is flagged in Italy. The disaster occurred in Italian waters. The Italian Coast Guard responded. The Italian authorities are investigating the cause of the crash and the casualties. The criminal proceedings are taking place in Italy. The lawyers for the passengers will be hard pressed to explain why the cases should not be filed in Italy.
The Costa cruise ticket has another curious twist. It specifies that Italian law should apply. For death cases, Italian law may actually provide for a more equitable remedy that the U.S. General Maritime Law and statutory law – particularly where the deceased passengers are retired.
In the U.S., wrongful deaths on the "high seas" (non U.S, territorial waters, including territorial waters of other countries) are governed by a federal statute called the Death On The High Seas Act ("DOHSA"). There is no recovery under DOSHA for pre-death pain and suffering or emotional losses of the surviving family members such as grief and bereavement. The only recovery is for financial losses such as lost wages of the decedent. If the decedents are retired or children, then there are no recoverable damages except for burial and funeral expenses assuming the bodies are located.
So if the wrongful death cases are filed in the U.S., and the court applies U.S. law, there may be no recovery in certain death cases. Yet if the cases were filed in Italy, there could be recovery under Italian law. A passenger could conceivably file suit in a more convenient forum in the U.S. yet receive no recovery; whereas if the passenger filed suit in a less convenient location in Italy there may be greater recovery in some cases.
Then there is the matter of Carnival. Yes it is the parent company of Costa. And yes, as the Proner lawyers mention to the news reporter, it collects over 14 and 1/2 billion dollars a year. But that does not automatically give anyone a basis to sue it in Miami every time one of its subsidiary company’s cruise ships around the world suffer a casualty.
There are often severe consequences of filing suit in the wrong location or against the wrong party, including the assessment of costs and in some circumstances attorney fees.
We hope that the lawyers who are working faster than the recovery teams in Italy to file suit here in Miami know what they are doing and are not navigating their clients into dangerous legal waters.