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News Analysis: Can Costa Concordia Guests Collect?January 30, 2012 By: Susan Young
|A Costa Cruises ship in the British Virgin Islands // Photo by Susan J. Young|
Six passengers onboard Costa Concordia during its ill-fated Jan. 13 cruise have filed a lawsuit against Carnival Corp. and its Costa Cruises brand in Miami’s federal court. They’re seeking $460 million in punitive and compensatory damages.
Court papers cited the guests’ terror when faced with catastrophic injury, drowning and death. The filing also claims that the crew didn’t respond professionally or appropriately – telling people to go to their cabins when guests themselves could clearly see the ship was in serious trouble and in danger of sinking.
In a separate action, a crew member from Peru has filed a $100 million lawsuit in federal court in Chicago, and that filing seeks class-action status. Undoubtedly, other cases will follow.
Codacons, a well-known Italian consumer group, has publicly said it plans to file a lawsuit in Miami, hoping to get between $164,000 and $1.3 million per passenger. There is no word yet, though, on whether that's officially been filed.
The big question is “Will anyone collect in a U.S. court?” That’s a big “if,” according to legal sources who say maritime law is far different than land-based law.
James M. Walker, a South Miami-based maritime and admiralty attorney who operates www.cruiselawnews.com, wrote an interesting article on his site late last week entitled: “Are Lawyers Taking Costa Cruise Survivors Into Dangerous Legal Waters?”
He notes that U.S. courts in the past have upheld the terms and conditions specified in cruise line passenger tickets. Cruise lines require all passengers who sail to accept their terms and conditions when purchasing a ticket.
One key element is what Walker calls the “forum selection clause.” In essence, this governs where a lawsuit must be filed. For cruises that call on a U.S. port, the Costa ticket specifies that any lawsuit must be filed in Broward County (Greater Fort Lauderdale), FL. But on the voyage in question, Costa Concordia did not sail from or to any U.S. port. In that case, the ticket terms clearly specify that any lawsuit must be filed in Italy.
It’s no secret that "the fine print" in documents is rarely read by passengers of any type --whether they sail on ships, take airplane flights or ride on tour buses or trains. But “God is in the details” as they say.
If the jurisdictional assignment stated in the cruise ticket fineprint is upheld by U.S. courts, then filings in North America could prove fruitless. Cruise passengers and their attorneys would need to file any lawsuits against Carnival Corp. and Costa Cruises in Italian court.
In his article, Walker cites one past case of "Seung versus Regent Seven Seas Cruises," where an injured passenger who had cruised on the Paul Gauguin in the Pacific Ocean filed a lawsuit in South Florida. A federal court agreed with the cruise line that -- based on the forum selection clause -- the lawsuit could not be filed in the U.S.
It needed to have been filed in France, as specified in the ticket terms and conditions. The case was dismissed and the passenger also lost the case on appeal.
But one factor may help passengers if they are turned down for having their cases heard in U.S. courts. In death cases, Italian law may actually provide for a more equitable remedy than the U.S. General Maritime Law and statutory law - particularly when deceased passengers are retired, according to Walker's article.
Whatever ultimately happens in the courts, though, Costa last week came to terms with several Italian consumer groups to offer $14,458 in damages to each of 3,206 uninjured passengers who were aboard. The line is also paying those passengers’ medical and travel expenses. Guests must decide if they wish to accept or pursue their own legal action.
Site Work Continues
Over the weekend, a 17th body was recovered and identified as that of Peruvian crew member, Erika Soria Molinawas. An American couple and 13 others are still missing, although officials believe there is little hope of finding anyone alive so late after the accident.
Italian officials say search work and fuel pumping preparations were halted over the weekend due to rough seas. Of particular concern? The ship reportedly shifted 1.5 inches on Sunday over a six-hour period.
It's not known if Costa Concordia is just settling on its own weight or possibly could tumble into the seabed. Worsening weather may further delay the timeline for removing the fuel; officials now say it could take several months.
Keep visiting www.travelagentcentral.com for more updates on this developing story.