Lawyers Vow to Defend Costa Victims
Written by: Paul Motter
Two Manhattan-based law firms vowing to defend all of the victims of the Concordia disaster may face hurdles in bringing a class action lawsuit to the U. S. court system. The two firms are (1) Proner and Proner, and (2) Napoli Bern Ripka Shkolnik LLP. Michael Bern filed a lawsuit for six passengers against Carnival Corporation, parent company of ship owner Costa Cruises, in a Miami court demanding $460 million in compensation on Saturday.
But these vociferous lawyers may be facing a Herculean battle if previous cruise line adjudication is any indication. To help clarify the situation, I spoke to Jerry Hamilton of Hamilton, Miller & Birthisel, a law firm specializing in maritime law in Florida.
The main challenge to these New York-based lawyers is the cruise ticket, which contains very specific limitations on the right to sue a cruise line. Boarding a cruise ship requires far more than a token to show you paid the fare. Your cruise voucher is actually a finely crafted legal contract, filled with some surprising and even arcane restrictions in fine print which many cruise plaintiff attorneys (those who sue cruise lines) feel are egregiously one-sided in favor of the cruise line. Unfortunately, most passengers never even read them unless something goes wrong.
The first hurdle these law firms face is the venue. The Costa cruise ticket states that Genoa, Italy, must be the venue for any lawsuit for any cruise originating from any port other than the United States, even though Costa is one of many cruise lines belonging to parent company Carnival Corp., which is headquartered in Miami.
Plaintiff attorney Mitchell Proner, on a public interview by the Miami ABC affiliate television station, said he hope to get a change of venue because parent company Carnival Corp. is based in Miami. Citing a legal concept called Forum Non Conveniens he implied that a company that earned $14.5 billion, sitting in the heart of Miami, should be able to be sued in Miami.
On the other hand, Miami maritime lawyer Hamilton pointed out to me that Forum Non Conveniens is decided based upon several distinct variables; (1) where the victims are located, (2) where the incident occurred and (3) where the evidence is located. He said that Carnival Corp. could be sued in Miami, but that it seems unlikely to be allowed in this case because Carnival is the holding company, not the company who owned the ship.
The two New York law firms hope to form a class action lawsuit for as many Concordia victims as they can find; and Proner stated he has people from Italy and every place from Peru to Shanghai. However, according to Hamilton Forum Non Conveniens would apply to American victims. And when it comes to where the incident happened and the location of the evidence; Italy is the only logical answer.
Other Legal Arguments
Perhaps even more pertinent to this case is a famous (in cruise circles, anyway) 1991 U.S. Supreme Court case; Shute vs. Carnival Cruise Lines. That decision said venue restriction in the cruise contract is fully legal. In fact, many things regarding the cruise contract were decided in that case.
Proner also hopes to pierce the cruise contract by bringing up the fine print issue. He said in the same interview that no one reads the fine print on a cruise ticket and no one should be expected to read it. I would likely agree with him on that, but once again; Shute vs. Carnival Cruise Lines. That case decided the cruise contract was not only printed in legible type, but that the language is clear and concise enough to be understood by the party signing the agreement.
Note; you can read the Costa Cruises cruise ticket contract here.
The next challenge to the idea of a class action law suit to represent all of the Concordia victims is the definition of a class action lawsuit. Proner said he hopes to get about 125,000 Euros for emotional suffering for each victim, three to four times that amount for those who were physically injured and millions for the families of those who died or are missing.
Once again Hamilton points out that by definition a class action lawsuit must represent a class of victims that suffered fundamentally the same injury, so it does not make sense to have emotional, physical and other sufferers in the same class action suit. Most likely the suit could not be brought as a class action.
Proner also said that if he could not establish a class action suit he would take on individual cases. “If you go there,” said Hamilton, “you come right back to the passenger ticket issue; meaning venue and other restrictions.” On the other hand, Hamilton did suggest that if a victim were to call Costa, he surmises the line would be more than happy to discuss the issue. 80% to 90% of all lawsuits, including maritime, end up being settled.
In the end Hamilton pointed out something that made a lot of sense. There is no greater concentration of maritime lawyers anywhere than in Miami, yet not one Miami lawyer is trying to do what these New York lawyers are trying to do. Of the better known Miami lawyers I am personally familiar with, only one has sued Costa, and he did it in Genoa.
“Furthermore, Italy has plenty of lawyers, some of which have also sued Costa,” said Hamilton.
Other Cruise Ticket Restrictions
While the conditions of the cruise ticket are arguably one-sided, there is nothing inherently illegal about them. But surprisingly many aspects of cruise tickets are based not on U.S. law, but rather upon international treaties and maritime law comprising a system of legal jurisprudence outside of U.S. law.
For example, there is the Athens Agreement, an old (1974) and often amended international treaty which limits the liability of a cruise line in cases of injury and loss of property (combined) to about $70,000 per person.
Then there is the “Death on the High Seas Act” which limits liability for loss of life to the amount a wage earner would have earned in his lifetime, and that is only available to immediate family. The DOHSA came into play with the BP Gulf oil rig disaster, and interestingly it is a United States law, and Hamilton told me it is quite possible that Italian law may be more beneficial to the families of those who died.
Bottom Line – Cruise Contracts
Now, to be clear, Carnival Cruise Lines is separate from Carnival Corp. Carnival Cruise Lines is just one of many separate and distinct cruise lines, separately incorporated, that are in the Carnival Corp. holding company, which also includes Princess, Holland America, Seabourn, and Cunard. The Concordia event involved Costa Cruise Lines, incorporated and sailing in Europe with mostly European passengers.
The bottom line is that these are very complicated legal matters and I am not an expert. The law is full of surprises and loopholes. If any experts out there care to weigh in there is a comment section below. If you have any other cruise questions email me at firstname.lastname@example.org.
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Posted: January 29th, 2012 under Paul Motter.