In the wake of the COSTA CONCORDIA disaster, there is much discussion on what rights injured passengers and the families of those unfortunate passengers who perished may have against the cruise line. The gamut of "advice" has run from excellent to downright wrong. Commentary by established Miami cruise accident attorneys has been both precise and well informed. The same cannot be said about some land based attorneys who haven't a clue about the many nuances of cruise line personal injury and wrongful death law. This article intends to separate fact from fiction, concerning those unfortunate passengers, seamen and crew personnel who were seriously injured or lost their lives aboard the ill fated COSTA CONCORDIA.
Many commentators have tried to link the fact that Costa has a registered agent in Hollywood, Florida and that Costa's parent corporation, Carnival Corporation, is headquartered in the Miami, Florida as justification for lawsuits arising from this tragedy to be filed in Miami, Florida. In our opinion, this analysis is flawed. Costa, like every major cruise line, issues a ticket which explains the rights and obligations of the passengers. Costa's ticket has a forum selection clause that states personal injury and wrongful deaths occurring on a cruise which does not depart from or return to a United States port must be filed in Genoa, Italy. Specifically, the Costa ticket states:
Voyages That Do Not Depart from, Return to, or Visit a U.S. Port -
All claims, controversies, disputes, suits and matters of any kind whatsoever arising out of, concerned with or incident to any voyage that does not depart from, return to, or visit a U.S. port, or to this Contract if issued in connection with such a voyage, shall be instituted only in the courts of Genoa, Italy, to the exclusion of the courts of any other county, state or nation. Italian law shall apply to any such proceedings.
THIS "FORUM SELECTION CLAUSE" APPLIES TO AMERICAN CITIZENS. The United States Supreme Court in Shute v. Carnival required a passenger who lived in Oregon, and was injured during a cruise from California to Mexico, to file suit in Miami. This case is the foundation for the enforcement of forum selection clauses. In September of 2010, the Maritime Law Blog in an article entitled Injured Cruise Passenger Required to Sue Cruise Line in Paris reported on the Federal Eleventh Circuit holding of Seung v. Regent Seven Seas Cruises, Inc. In this case the Eleventh Circuit (the same court which will be reviewing any COSTA CONCORDIA case filed in the Southern District of Florida), held the trial court was proper in dismissing a personal injury claim by and an American citizen who was injured on a European cruise where the cruise ticket contained a Paris, France forum selection clause. The Eleventh Circuit paid no mind to the argument that the case could be filed in Florida because Regent Seven Seas Cruises, the owner of the cruise ship, maintains its corporate headquarters in Ft. Lauderdale, Florida. The court also rejected the argument that the injured woman did not have the financial resources and was too ill to maintain a lawsuit in France.
Attorneys filing CONCORDIA lawsuits in Florida will have an uphill battle convincing the court not to dismiss the claims based upon the Genoa, Italy forum selection clause given the prior decisions by the Supreme Court and Eleventh Circuit.
Assuming the court invalidates the Genoa, Italy forum selection clause and keeps the claim in the United States, the next issue is what law is to apply. Again, many non-maritime attorneys have taken the view that since Carnival owns Costa, American maritime law will apply. Despite what has been said by some commentators, as shown above Costa's ticket incorporates the law of Italy as the law, which will govern the dispute.
Courts have found choice of law provisions enforceable in maritime contracts especially where one of the contracting parties is from the country of the selected law, the voyage departed from and was to return to a port governed by the selected law, the injury or death occurred within the waters governed by the foreign law and the subject vessel was registered and flagged under the selected law. In the situation of the COSTA CONCORDIA disaster, Costa is an Italian company, the voyage was between two Italian Ports, the shipwreck occurred in Italian waters and the vessel is Italian flagged. A court deciding the issue will most likely enforce the Italian choice of law clause despite the fact that Costa is owned by a company headquartered in Miami, Florida.
Difference Between United States and Italian Personal Injury Damages
United States Maritime law allows for an injured cruise passenger to receive compensation for lost earnings, medical bills as well as pain and suffering. The Unites States Supreme Court in Atlantic Sounding v. Townsend has recently held injured persons are allowed to bring claims for punitive damages under maritime common law. The Maritime Law Blog recently reported that a Florida Federal court applied Townsend to allow the possibility of punitive damages by a passenger against a cruise line in the article Punitive Damages Available for Cruise Passenger Personal Injury Claims.
Like United States maritime law, Italian law allows for the recovery of pecuniary losses (danno patrimoniale), which is loss of income and medical expenses arising from the injury and for two forms of non-pecuniary damages: injury to the victim's personal integrity (danno biologic) and pain and suffering experienced as a result of the harmful event (danno morale). The one major difference between United States and Italian maritime law is that Italian law does not allow for punitive damages. The Italian Supreme Court in 2007 stated in the Corte di Cassazione decision, "tort law aims at re-establishing the economic integrity of persons who sustained a loss suffered... the objective of punishment and of sanction is alien to the system and for the purpose, the examination of a wrongdoer's conduct is irrelevant." As such, Italian jurisprudence does not allow for punitive damages in personal injury or wrongful death claims no matter how egregious the conduct. Consequently, should the court apply Italian law to the COSTA CONCORDIA cases, punitive damages will not be recoverable.
Costa's ticket also seeks to limit its liability for its non-United States voyages in accordance with the Athens Convention. Specifically, Costa's ticket provides:
Notwithstanding any provision of this Contract or law to the contrary, as to any voyage occurring wholly outside the United States, the Carrier claims the benefit of all restrictions, exemptions and limitations of liability set forth in the "Convention Relating to the Carriage of Passengers and Their Luggage by Sea of 1974" as well as the "Protocol to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea of 1976" ("Athens Convention"), and the "Convention on Limitation of Liability for Maritime Claims" of 1976 ("LLMC Convention") which limit the liability of the Carrier for death of or personal injury to the Passenger to no more than 46,666 Special Drawing Rights ("SDRs") as defined therein, and all other limits for damage or loss to personal property. The value of 46,666 SDRs is equal to approximately U.S. $70,900 at the time of printing of this Contract...
The Athens Convection, though never formally ratified by Italy, is a part of the law of the European Union which Italy is a member. The dollar limitation of the Athens Convention is, however, not absolute. In situations where the conduct leading to injury was intentional or reckless, the limitation clause may be deemed unenforceable. It can most certainly be argued that the actions of the COSTA CONCORDIA's captain were reckless which may break the limitation provision.
In conclusion, the COSTA CONCORDIA problem is very complex. The survivors and the families of those who perished in the disaster should be very careful and very selective in following the advice being put forth in various media. For those passengers, crew and seamen affected by this terrible event we strongly recommend you contact a qualified maritime attorney to discuss your rights.
Photo Credit: The Sun