As a maritime attorney for almost 30 years, I have been watching many attorneys speak out about the Costa Concordia sinking, discussing the rights of the passengers for any claims to compensation, as well as announcements that class action lawsuits are being immediately filed.
The question becomes is it really a rush to get to the courthouse for all of these passengers who were a victim of this disaster? Is it necessary to get to the courthouse before all of the bodies have been found and accounted for? Are the passengers being given accurate information about what the best course of action is for them to take following this particular disaster?
The passenger ticket, called the Contract of Passage, is obviously the starting point for anyone considering legal claims against the cruise line company. This contract will define who the “carrier” is that the passenger has a contract with for the particular cruise. This entity will be Costa Cruise Line, not Carnival Cruise Line. There have been many reports in the papers that this case is against Carnival Cruise Lines, and therefore Miami would be the appropriate place to file a lawsuit. Although it is true Carnival Cruise Line owns Costa, Costa is a subsidiary corporation. It has a separate identity, and maintains a separate day to day base of operations in Italy. The passenger contract states clearly that Costa is the entity operating the cruise ship, and the responsible party for any incidents arising during the cruise.
The passenger ticket also contains important time deadlines, including 30 days to file a claim for any property loss. There are deadlines for providing notice of claims for personal injury and wrongful death, as well as the one year time limitation to file a lawsuit.
The most important provision in the passenger ticket with Costa is the provision that requires the lawsuit to be filed in Italy since this was a cruise that did not touch a United States port. Many attorneys have been mistakenly referring to the requirement that Costa be sued in Broward County, Florida. This is true if the cruise originates from a United States port. It does not apply to the Costa Concordia. A separate passenger contract/ticket is issued for cruises that do not originate in the United States, such as the cruise involving the Costa Concordia.
The question becomes to what extent is the forum selection clause requiring a lawsuit to be filed in Italy enforceable? I think some legal commentators have rushed to judgment that there is absolutely no chance to overcome this provision. Although I do believe it is a long shot to convince a United States court to ignore the provision in the passenger ticket requiring lawsuits to be filed in Italy, there are arguments that can be asserted. It would be a mistake commentators to conclude that there is absolutely no basis to file a lawsuit in the United States on behalf of United States passengers. There is a decision of the Eleventh Court of Appeals in a passenger case enforcing a passenger contract that required lawsuits to be brought in France. A United States passenger challenged that provision, arguing it was unreasonable and burdensome to require the lawsuit to be brought in France. This single passenger lost this argument at the lower court level, and the Eleventh Circuit Court of Appeals affirmed the dismissal of the lawsuit filed in the United States, and required the passenger to file her lawsuit in France. However this is an opinion that is listed as a “non-published” opinion. Although it reflects the reasoning of the judges at that time in the Eleventh Circuit Court of Appeals, it is not considered binding precedent.
The law that governs the enforceability of forum selection clauses in passenger contract provides for an analysis to be made by the courts, considering the unreasonableness of the selected forum. This may require an analysis of the particular facts of the Costa Concordia, and the legal rights that the United States passengers will be given if the case is required to be filed in Italy. This disaster may result in a United States court taking a closer look at these forum selection clauses, as well as the relationship between the parent company, Carnival, and its subsidiary, Costa.
Legal commentators rejecting the possibility of any action in the United States have not considered whether Carnival can be held responsible for the failure to have implemented appropriate policies and procedures for all of their fleet, including the fleet of their subsidiaries.
In addition, the prohibition against contingency fees in Italy has changed over the years, and there are Italian lawyers who will work with the United States attorneys on a contingency fee basis.
My question is why rush to the courthouse at this time before all the bodies have even been located onboard the ship? I do not personally see the necessity of that. In addition, important and critical facts are being revealed each day. There are criminal investigations taking place, as well as investigations by maritime authorities that will develop critical evidence that will benefit any lawyer who is representing any of the passengers in this case. Of course, there are short time deadlines applicable in these type of cases, but the necessity of rushing to the courthouse within a week or two of the disaster, in my opinion, needs to be questioned.
It is clear Costa will be held accountable in this case. The question is to what extent. It is a complex journey through a maze of complex maritime legal issues.
Our firm continues to act as safety advocates for passengers and crewmembers harmed at sea. We are currently representing passengers from the Costa Concordia. We are available for legal consultation regarding the Costa Concordia matter.