Earlier this week, a federal district judge in California dismissed a lawsuit filed on behalf of two cruise passengers against Carnival arising out of the January 2012 Costa Concordia disaster, ruling that the case must be pursued in Italy where Costa Crociere is located.

The name of the lawsuit is Patricia Sandoval et al. v. Carnival Corporation et al., Case No. 2:12 CV 05517, filed in the United States District Court for the Central District of California.

Judge Fernando M. Olguin applied the doctrine of forum non conveniens, where the courts determine Costa Concordia the appropriate location of lawsuits.

The Court concluded that the majority of the physical evidence and witnesses are located in Italy and the passengers can obtain an appropriate remedy in Italy. The decision is not surprising at all.  

The Costa cruise line is based in Italy where the company is incorporated.  Its principal place of business is in Genoa, Italy. It registers its ships like the Concordia in Italy. Much of the crew is Italian, including the captain, and cruise the ship departed from an Italian port and sank in Italian waters.  The Italian Coast Guard responded to the disaster and of course there is an Italian criminal trial which has been ongoing for year. The passenger ticket specifies Italy as the location where litigation must be pursued. 

Our firm advised Concordia passengers long ago not to waste time and money filing suit in the U.S. because their cases would likely be dismissed.  

We advised our clients to proceed directly to Italy and retain Italian lawyers to pursue compensation. Here is one of such articles, published back in January 2010: Are Lawyers Taking Costa Cruise Survivors Into Dangerous Legal Waters?


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Photo Credit: Wikipedia / Jean-Philippe Boulet Creative Commons 3.0

One of the proposals recommended by the International Cruise Victims (ICV) organization is having "sea marshals" on cruise ships in order to protect passengers and respond to shipboard crimes.  

Sea Marshal - Los Angeles - Cruise Ship SecuritySince 9-11 the Federal government has placed "air marshals" on airplanes.  The ICV has attempted to ensure that cruise ships have the same level of security by supporting legislation in California requiring "sea marshals" on all cruise ships entering and departing cruise ports in that state. 

Unfortunately, the cruise industry fought against an independent police force on cruise ships. The typical argument is that state law enforcement have no jurisdiction over foreign flag cruise ships on international waters.  However, there is no question that states like California have jurisdiction to place sea marshals on cruise ships once the ships reach state waters to act as a police presence and to monitor environmental  activities.  Alaska has a very effective sea marshal program designed to monitor cruise ship waste water dumping. 

The port of Los Angeles already has a sea marshal program.  By all accounts it is successful and serves the valuable purpose of protecting passengers.  As explained in an article today "Marshals Defend Port of L.A." in the Contra Costa Times, the port of Los Angeles has six sea marshals, as well as an additional eight to 10 port police officers who are trained to join the team. The L.A. sea marshal program is seperate from the sea marshal program operated by the U.S. Coast Guard  which board vessels up to 12 miles offshore. 

The sea marshal program in L.A. is geared toward addressing vulnerabilities as cruise ships and cargo vessel head into and out of the harbor.  Sea marshals board cruise ships 3 miles from port.  They are armed.  They make sure that no one forces their way into the bridge to hijack the ship and uses it as a floating bomb or a battering ram,  just as al-Qaida terrorists forced their way into the cockpits of jetliners on 9-11. 

Sea marshals also inspect various areas of the cruise ship, look for explosives, drugs, suspicious activities, and coordinate underwater inspections by port police divers once Los Angeles Port - Sea Marshal - Cruise Passenger Safetythe cruise ships reach port.  They remain on the bridge, where they keep watch as the cruise ships sail out of the Port of Los Angeles.  They return to port once the vessels reach 3 miles offshore.

The newspaper interviewed John Holmes, the deputy executive director of the Port of Los Angeles, who said: "Our most precious cargo at the port are our cruise passengers .  .  .  Anytime you get on a ship in Los Angeles and these guys come on board, I think it really gives people a sense of security."

It remains less than clear whether the sea marshals in Los Angeles have responsibility to handle reports of crime which occur at sea as the cruise ships sail back to California.  Undoubtedly, the local sea marshals can liason with the Los Angeles Port Police and the FBI.

Los Angeles has proven that a sea marshal program on a state level can work.  More ports and states need to follow Los Angeles’s lead.

This week I traveled from Miami to California to attend a hearing at the state capital building in Sacramento.  California Assemblyman Roger Hernández (D – West Covina) had introduced legislation that will permit the State of California to prosecute criminals on cruise ships which call on California ports. 

This is an important bill.  In all states except Florida, only the FBI has jurisdiction to investigate crimes outside territorial waters and the crimes must be prosecuted only by the Federal government.  Unfortunately, the FBI has a very poor track record investigating shipboard crimes and only a small fraction of such crimes are ever prosecuted. 

International Cruise Victims - Cruise Ship CrimeCalifornia has addressed this problem by introducing a bill that will permit state prosecutors to pursue criminal cases against crew members and passengers who commit crimes against passengers on cruises which begin and end in California.  In instances where the FBI or DOJ decline to become involved, the state of California can become involved and a state attorney can prosecute the crime.  

I had the opportunity to review the bill and meet with Assemblyman Hernández.  Issues were raised in opposition to the bill whether the bill was unconstitutional because it may violate the Supremacy Clause of the U.S. Constitution and impermissibly tread upon an area which was preempted by Federal law.  My analysis led me to conclude that the bill was constitutional and a valid exercise of the state of California to protect individuals sailing from its ports. 

Members of the International Cruise Victims (ICV) organization (photo left) attended the hearing.  Charmian and ICV founder Ken Carver traveled from Phoenix, Arizona to discuss the disappearance of his daughter, Merrian Carver, during a cruise aboard a Celebrity cruise ship, and the failure of the Federal government to investigate the incident or prosecute the cruise line when it engaged in a cover-up . 

Friend and former client Laurie Dishman (photo below) testified about her horrific experiences during a Royal Caribbean cruise, when a part time security guard (hired as a janitor/cleaner) raped her and then the cruise line forced her to remain in the crime scene for several hours.  When she was finally permitted to go to ship infirmary,  the ship doctor handed Laurie black garbage bags and told her to return to the cabin and collect her own evidence.  Laurie explained to the Assembly how the Federal government failed her. The FBI closed its investigation within 8 hours after the cruise ship Laurie Dishman - Jim Walker - Cruise Lawreturned to port in Southern California and the Department of Justice declined to prosecute the case despite substantial evidence which should have led to a conviction of the cruise line rapist.

ICV President Jamie Barnett, told the Assembly about the circumstances of losing her daughter, Ashley, during a Carnival cruise and the indifference demonstrated by the FBI to her family’s plight.  (You can read about Jamie’s efforts to protect the cruising public in The Compelling Story of Jamie Barnett – Living Through the Loss).

The assembly room was packed. You could hear a pin drop as Ken, Laurie and Jamie testified.   Although there were technical legal concerns with the legality of the bill, the Public Safety committee of Assembly voted unanimously in support of passing the bill.

The experience reinforced a conclusion that I reached long ago.  At the end of the day, legislators are less concerned with technical mumbo-jumbo legal arguments and more concerned with the compelling stories of victims appearing before them.  

There are additional committees which will review the bill before it is passed into law, but this was a historic event nonetheless. 

Congratulations to the ICV members and its supporting friends.  A special thanks should go to Ken, Jamie, and Laurie for taking a leadership position in supporting this important bill which will make cruising safer.         


Photograph credit:  Jim Walker (sorry for the poor quality, photos taken on my blackberry).

California Assemblyman Roger Hernández (D – West Covina) has introduced legislation that will protect the rights of cruise ship passengers when a crime is committed against them during cruises.  If passed into law, Assembly Bill 1060 will permit the State of California to prosecute criminals on cruise ships during cruises which start and end in California ports.  

Cruise passengers have faced difficulty obtaining justice after they become a victim of a crime.  Historically cruise lines refused to report crimes to law authorities.  Crimes victims, particularly women who were raped during cruises, were left to report the crime themselves.  Trying to figure out who to contact when you have been victimized in the middle of international waters was a Californiadaunting task.  When cruise ships reported shipboard crimes, the reports were often late, incomplete and misleading.  When passengers complained about the non-reporting or shoddy reporting, the cruise lines’ response was to say "hey, we don’t to report crimes in the first place."

Due to the efforts of the International Cruise Victims (ICV) organization, cruise lines are now required to report shipboard crimes which occur on cruise ships which call on a U.S. port.  Last year, President Obama signed the Cruise Vessel Safety and Security Act which requires cruise lines report crimes during cruises to the FBI and U.S. Coast Guard.    

The problem remains, however, with investigating and prosecuting the crimes once they are reported.  The FBI’s track record over the past decade of investigating cruise crimes in unimpressive.  During Congressional hearings over the past five years, it has been revealed that only a very small percentage of crimes investigated by the FBI lead to arrests and prosecutions.  Many victims who contact our office complain about the FBI’s reluctance to investigate cruise ship sexual and physical assaults.        

California Assemblyman Hernández’s new bill will address this problem.  In instances where the FBI decline to become involved or the federal government chooses not to prosecute a crime, the State Attorney’s office may elect to prosecute the case.  The state of Florida has a similar statute, although it is the only state which has taken steps to address the problem of crimes on cruises going unprosecuted.   

"Cruises are intended to be a vacation at sea, and when crimes are committed on cruise ships, victims are basically held captive with their perpetrator until the ship docks," said Assembly Member Hernández.  "AB 1060 provides relief for cruise ship victims who may otherwise not be able to find justice today."

Jamie Barnett, President of the ICV, issues a statement:

"ICV commends the leadership of Assembly Member Roger Hernández with the introduction of historic legislation to further protect the passengers arriving in California ports that have been a victim of a crime on a cruise ship.  In addition to the new federal legislation passed last year, this important legislation will provide even greater protection and options for passengers to make sure that justice takes place when they are a victim of a crime on a cruise ship. ICV sees this legislation as being a guide to other states to better protect their passengers who arrive in their states on cruise ships."


Credit:  California map   Jacques Liozu

Yesterday the Ninth Circuit Court of Appeals ruled that the state of California can regulate the shipping and cruise industries and require vessels that call on the state’s ports to use cleaner  fuel.

One of the problems with the cruise industry is that cruise ship use diesel and nasty bunker fuels which spew toxic particulate matter into the air.  

Unlike most states, California requires that ships use cleaner fuel starting 24 nautical miles from California’s shore.  According to Melissa Lin Perrella, an attorney with Southern California Air Cruise Ship Pollution - Bunker FuelProject in Santa Monica:

"Over the course of six years, between 2009 and 2015, these rules will prevent 3,500 premature deaths.

Eighty percent of Californians are exposed to air pollution from large ocean-going vessels as their exhaust drifts inland. Every day, these vessels spew toxic diesel particulate matter (PM) in an amount equivalent to 150,000 big rig trucks driving 125 miles daily. While people living close to ports are particularly affected, wind patterns, geography, and meteorology transport vessel-generated air pollution well beyond our coastline and into too many of our lungs."

The shipping and cruise industries, led by the Pacific Merchant Shipping Association (which lists cruise industry giant Carnival as a member), fought against the California legislation.  Essentially, the shipping and cruise interests argued that California does have not have authority to regulate vessels more than 3 miles from its coastline (the regulations reach 24 nautical miles from shore).

It is not unusual for the cruise industry to tell the public that it stands for the highest environmental standards, but behind the scenes spend millions of dollars to lobbyists and lawyers to fight for lower standards which harm the public.

Ms. Perrella writes: "The message is clear. It is time for the shipping industry to get on board or get out the way. California is moving forward to protect its citizens, and now has the Ninth Circuit firmly behind it."

California and Alaska are ahead of the curve in protecting U.S. citizens from the harmful effects of poisonous cruise fuels.  Will states like Florida ever protect their citizens?  

A copy of the 45 page decision can be read here.



Photograph Gerardo Dominguez, UC San Diego (via UCSD Division of Physical Science)