Litigation Of The Italian Cruise Ship Disaster - Why The Location Of The Lawsuit Is So Important

The Italian cruise ship disaster: why there should be a claim possible in the United States, and why this is much more favorable to passengers
 
   This is a disaster that may ending up ranking right up there with the Titanic for the gross stupidity, recklessness and disregard for the passengers and their families.   But what are the options open to the families and survivors, so far as legal redress is concerned?  Very few, according to what the cruise line and its USA parent, Carnival, are saying.  But let us take another look at that.   
 
The offending cruise line, an Italian company Costa Crociere SpA, has issued what it calls responses to the disaster through the media.  So far they consist of (1) disavowing the captain and pretending that he was off on reckless lark of his own, thus hoping to avoid responsibility for his actions; (2) that it intends to hide behind a 6500 page small print “cruise contract,” that has been most carefully drawn up by lawyers working for its parent company, Carnival Cruise Lines (and on it, much more below), so as to  make it as difficult as possible for passenger victims and the heirs of deceased passengers obtain fair recompense; (3) trying to force any and all claims that may come out of this Titanic II Disaster into courts in Genoa, Italy, and nowhere else (comment on this also, below); and (4) trying to cover for its Parent Company, Carnival, which, for all sorts of reasons, should be ultimately responsible and pay for this debacle.
 
Let us examine these issues briefly, but in sharp focus, and detail what options are open to victims and survivors:
 
1.     Actions of the captain, first in recklessly steering the vessel too close to rocks in order to “show off” the $450 million floating palace , presumably to impress people on the shore; and then abandoning his stricken ship and the terrified passengers by pretending he slipped and fell off the ship….”
We are not sure which planet the Italian cruise line and Carnival are when they claim that they are not responsible for the actions/inactions of the captain. Apparently the pitch is that “we did not hire him to do this, but only to guide and navigate the ship on a safe course and in a safe manner…”. We are not experts on Italian law, and it indeed may be that there is something in the Navigation Code of Italy that might lend the cruise ship operators some comfort regarding this extraordinary position, but general maritime law,  the US Death on the High Seas Act (also of which more below) and the law of almost all countries is  very clear: a company or business that hires an managing agent, such as a ship captain, to further its economic aims, extends itself, that is, through the captain or other employees, to oversee the cruise and getting the paying passengers on and off safely, and where they want to go, is absolutely responsible for that captain, and what he or she does or does not do. Likewise to other members of the crew.
 
The idea behind this is very simple and very fair. When a company extends itself by hiring and acting through others, employees, or agents, those persons are the company, and their acts or omissions are those of the company. The doctrine in common law countries is called “Respondeat Superior;”   - Let the Master Answer.  Exactly so.
 
If these cases are heard in any United States court, this will not be an issue. Whatever the captain, or anyone else in the ship crew did or did not do, or if they obtained and used the wrong charts, etc,  the cruise line companies are responsible. Period.
 
2.     The “Cruise Contract,”  Companies the world over spend enormous amounts of money employing expensive lawyers to draw up “agreements, “ many paged and in fine print, which come with the cruise ticket, like it or not. They are not negotiated between the cruise company and the passenger.  On the contrary, they are called “ Contracts of Adhesion” you ride on our boat, these are the rules.The pitfalls and limitations they would impose are not explained in plain language; indeed the passenger may not even ever see or know about all the fine print until after the fact. The glossy, glamourous ads and comeons about the wonderful life style while on a cruise will always prevail.  And of course, in most all cases, the  “Cruise Contract” becomes moot, as the sail is without untoward incident.
 
These “Cruise Contracts” are a classic example of  a greedy company attempting to “paper over” its legal and moral obligations to those who have entrusted their safety and even lives to the ship[operators.  If there is negligence, or even recklessness, as here, instead of the company stepping up, accepting the responsibility it should, and paying for the damage caused, it says in effect,  “oh, no: regardless of where you live or where you were going or where you bought your ticket, you can only seek justice in courts in Miami, USA, or Genoa Italy.  You are from Germany?  Japan? Australia?  Thousands of miles from these places, but in or near a city where the cruise line regularly services? Too bad.  And these “Cruise Contracts”  especially pernicious when they set out limitations of what otherwise would be their liability in terms of the amount of money that can be paid.  Or the time limits they put for making claims (a certain number of days after the incident, or no court case can be started anywhere), and so on.
 
Moreover,  they cannot really be called “contracts” at all. Contracts are the result of a back and forth bargaining and negotiation, where both sides come to an agreement on acceptable terms. Something sent to the passenger after the cruise is booked and the money paid, some 6500 words and lots of fine print, one-sided, is not really a “contract” at all.  And it is time for the courts to recognize and deal with this reality.
 
Many of these “Cruise Contracts” have been upheld in the past by courts in various countries, including some in the United States. However, they are so unfair, so one sided, so ugly, that the time to reexamine this whole issue again is with us, in view of this disaster, and the efforts of the cruise line to hide behind its paper defenses.  The courts of the United States afford the very best chance to do this.
3.     The “Venue” clause of the “Cruise Contract;” this is the fine print that tell the passenger regardless of all the other considerations, if legal redress is sought – and in most all cases it will have to be, because the cruise lines are never going to pay fair recompense so long as they feel they can hide behind the “Cruise Contract: - it can only be found in any case were the cruise line operation in question does not touch a US port, in the courts of Genoa, Italy.  Cruises with US contacts are must go to Miami; tougher logistical considerations for many, but at least a US court.
4.      
Let us look, however at the realities of a lawsuit in an Italian court in Genoa.  Regardless of the allure of Italy in general, and its fine people, fine wines, history (especially Genoa, where maritime issues are considered ) and all the rest, the Italian courts – which we do know, do try to dispense fair and equal justice, witness the recent case with the young American overseas student recently acquitted of a murder charge – do not move quickly.  And that, sadly, is an understatement.  At the best, Italian laws of damage will control.  These can be very rigid; the amounts are often set out in tables and do not have flexibility based on the merits or extent of loss in any given case. Class Actions, one way many smaller claims and be litigated where  no one could go it alone, are not permitted. (They also are stated to be not allowed by the “Cruise Contract.”)
 
Justice delayed is Justice denied, so goes the saying. When it can take six, eight, ten or even more years, as it often does, to get a final resolution and damages paid in the Italian civil justice system, and the process is not only long, but expensive,  it cannot be said that there is an adequate remedy.  Yes, if a Concordia victim stays with the case throughout the whole many year process, and wins, he or she will be awarded damages; probably much less than would have been recovered in the United States; maybe also artificially limited by provision of the “Cruise Contract” or some agreement among ship owners, something like what has been called the “Athens Convention,” and also some amount paid to his or her attorney.  This is not the case in the United States. But who pays the lawyer for all the work in Italy as they go along?  In the US, the lawyers are permitted to work on a ‘contingent’ or percentage fee; there is no charge at all unless and until the case is over and the client receives damages.
 
Based on cases that we have seen in Italy (e.g., the Linate Milan/Cessna/SAS runway collision, some ten years, and certain phases of that are still ongoing), any attempt to get full justice and fair compensation may be for a very long time, indeed.  And there would be no way to bring into the case Carnival, the parent company, with complete overseeing control over the Italian operator, and who it hires as captain and ultimately should be responsible we submit, for this disaster.
 
5.     The parent company , Carnival is a US based company, headquartered in Miami, Florida, USA. While it owns, controls and should be fully responsible for  its Italian cruise company, actually operating the Concordia, it will resist this. Already we have seen in the media disavowal by Carnival  of any connection or acceptance of responsibility.  And it will point with pride, we expect to the “Cruise Contract” the 6500 word defense by paper drawn up by its legions of expensive lawyers, to prevent any meaningful attempt at by the passengers and survivors to reach it in the US courts. Starting with the “Venue Clause.” But: Carnival may be hoisted on its own petard there:  while the “contract” in the case would mandate that venue for any legal case be Genoa Italy, not Miami, Carnival itself is not a party to that contract, such as it is. The cruise was being provided by Costa Crociere SpA, and presumably the tickets, which brought along the fine print limiting language, came from it also. Carnival is only profiting here through the cruise provided by its subsidiary. Why should it be permitted to take advantage of a “contract” to which it was not a party?
 
If it cannot, then the venue clause is moot. Miami is the only reasonable and proper place to sue Carnival. Under Maritime law this would be proper; US law would allow class actions in some cases; perhaps this one. For situations where the unfortunately passenger lost his or her life – we have a toll as of now, but surely this will rise – a United States Statue known as the Death on the High Seas Act (DOHSA) will apply. This Statute, interestingly enough enacted by Congress a few years after the Titanic disaster to disallow maritime companies such as White Star in that case to avoid its responsibilities to the families of those who froze and drowned, gives the federal District Courts of the United States jurisdiction over cases of this kind, and provides for full economic damages, and in some cases may also apply the Italian law of moral damages.  Insofar as there may be any conflict between DOHSA and the “Cruise Contract,” DOHSA must prevail.  A cruise company cannot, with a one sided contract of adhesion, circumvent a federal statute.
 
Therefore, we would suggest the following should be considered by all victims and their legal counsel, if they have retained help, even though such lawyers may not be familiar with the US legal system and proceedings:
 
With all due respect to the concept of a “Class Action” in Italy, which the media state is being undertaken by an Italian consumer interest group, to be filed in the courts of Italy, it is very unlikely that this will go anywhere there.  If the court in Genoa applies the "Cruise Contract" literally, which it has done in the past, the Class Action is doomed at the threshold.  Even if not, this is not a concept that is well recognized, if at all in Italy, and may falter along the way on that ground, worse yet, get tangled up in years and years of litigation in the Italian lower and appellate courts, with a very uncertain outcome.
 
Any case filed and prosecuted in Italy, “class action” or no, will run into serious limitations on the damages that might be recognized by the courts and the subject of recovery.  For instance, a large part of many claims will be fear and terror and the horror of trying to escape for a listing and sinking ship in the dark, and in the Titanic like confusion and chaos; swimming for one’s life; fear of death by drowning or otherwise, and more. These sort of emotional horrors, most different in kind from economic losses or serious personal bodily injuries, have not been well recognized in the Italian courts. The concept of “moral damage” indeed does exist, and would take into account some of these considerations, but the compensable amounts are low compared to what Carnival might be compelled to pay in the US courts.
 
There should be a serious effort to try to lodge and keep as many of these claims as possible in the United States, with Carnival as the prime defendant.  We understand that several legal observers have already gone on record opining that this cannot be done, because of this or that convention, or the  “Cruise Contract” or whatever.  And similar cases in the past may not have been successful.  And so on.  But the far greater potential for fair recovery, and for forcing Carnival to step up and accept its responsibility in this really unprecedented disaster – this is not 1915 with 1915 navigation equipment – will only come with giving the US courts a fair chance to hear and decide this case.
 
We hope to be working with a number of Italian lawyers in this matter. We have worked with them in the past on other cases, and it is clear the the US courts will entertain claims from overseas victims when there is a serious case against a US based defendant, and good reasons to have the case heard here.