Committee
News
Titanic & Concordia Special Edition: AprilFall
15,2009
2012
ToxicAdmiralty
Torts and
Environmental
and
Maritime
Law
Law Committee
Committee
CARBON
NANOTUBES:
THE NEXT ASBESTOS?
The Marine
Insurance Market
MESSAGE FROM THE CHAIR
Fionna
Mowat, Exponent,
[email protected]
is Taking
the Potential
Losses
To commemorate the 100 year
Joyce
Tsuji, Exponent,
Resulting
[email protected]
the Costa
anniversary of the sinking of the RMS
Titanic, our committee had planned a
Concordia
Disaster
in Stride
Carbon nanotubes
(CNTs) hold
asbestos fibers—discussions of
First reported in 1991 , CNTs
special edition newsletter analyzing
3
promise
many1 and
beneficial
epitomize the emerging field of
parallels
between these two
2
By: James for
P. Koelzer
Glenanne Bowden
the legal fallout post-casualty. With
applications. However, there have
nanotechnology, defined by some
substances are natural. Thus, given
Congressional hearings and lawsuits
Costa
Concordia
been concerns and calls for a Thethe
as the “ability to measure, see,
legacy
of asbestos-related
years after the casualty, the history of
struck
a
rock
while
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manipulate, and manufacture
injury and the thousands of cases
the legal battles are captivating. What
she was
sailing
things usually between 1 and
evidence” that CNT may be the
litigated
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practitioners may not realize is the
Titanic lawsuits
the coast
of Italy
on many
100 nanometers.”4thCNTs are a type
“new asbestos,” 1 or at least
possible
implications
of the use of
century
into this
continued
throughout
the
rest
of
the
20
January
2012. and in consumer
deserving of “special toxicological
of carbon-based engineered
CNTs13,
in research
century.
When
the
wreck
was
discovered
in
1984,
a new
The grounding
a
attention” due to prior experiences
nanoparticle generally formed by
products istore
prudent.
round
of
lawsuits
(and
Congressional
actions)
followed.
hole in the hull of the
with asbestos.2 The shape and size
Continued on page 18
ship, causing it to sink This analysis in and of itself would have made for a
of some agglomerated CNTs are
fascinating read. But an unexpected ocurrence happened
3
Thirty people
in shallow
similar
towaters.
asbestos—the
mostdied, and many more
on the way to the 100th anniversary. The Costa Concordia
“desirable.” And because CNTs for Continued on page 14
casualty
in Italy
captivated
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Is A Product
No A Product?
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the During
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L.L.P.,Australia.
2049 Century
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jpkoelzer@ Risk
Environmental
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.....5
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Upcoming
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Of Toxicogenomic
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http://www.royalsoc.ac.uk/.
property coverage disputes, subrogation actions, reinsurance disputes, and liability
3policy
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carbon.
Nature
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354:56–58.
articleThe
on the
Titanic Intent
and theFor
Limitation
of Liability
4Suite
3400, Los
Angeles,
CA 90067-3208,
[email protected].
Burlington Northern:
Requisite
Arranger
LiabilityAct
National
Science
and Technology
Council
(NSTC).
which
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3 Stephanie
Pappas,
Costa Concordia
v. Titanic:
Do they compare?, Jan. 12, 2012,
2007.
The National
Nanotechnology
Initiative.
Strategic
.....8
Under Cercla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . incidents.
IN THIS ISSUE
http://overheadbin.msnbc.msn.com/_news/2012/01/19/10190701-costa-concordia-vsPlan.
Washington DC: NSTC, Committee on
titanic-do-they-compare.
Technology,
Subcommittee on Nanoscale Science,
2009-2010 TIPS
Engineering, and Technology. December. Available at
http://www.nano.gov/ NNI_Strategic_Plan_2004.pdf.
Continued on page 3
Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Uniting Plaintiff, Defense, Insurance, and Corporate Counsel to
Advance the Civil Justice System
Advance the Civil Justice System
Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
Chair
Law Student Vice-Chair
Holland & Knight LLP
31 W 52nd St, Fl 11
New York, NY 10019-6111
(212) 513-3307
FAX: (212) 341-7237
[email protected]
Edisto Island, SC 29438-6314
[email protected]
Christopher Nolan
Chair-Elect
Laurie J Sands
Wolff & Samson PC
1 Boland Dr, Ste 200
West Orange, NJ 07052-3687
(973) 530-2098
FAX: (973) 530-2298
[email protected]
Chair-Elect Designee
Pamela Annette Palmer
Morris Polich & Purdy LLP
1055 W 7th St, Ste 2400
Los Angeles, CA 90017-2550
(213) 891-9100
FAX: (213) 488-1178
[email protected]
Council Representative
Loren D Podwill
Bullivant Houser Bailey PC
888 SW 5th Ave, Ste 300
Portland, OR 97204-2089
(503) 499-4620
FAX: (503) 295-0915
[email protected]
Last Retiring Chair
Anne L Kulesa
Latona Law
275 Mundy St, Ste 102
Wilkes Barre, PA 18702-6818
(570) 825-9000
FAX: (570) 822-5169
[email protected]
Olivia Calhoun Palmer
Membership Vice-Chair
Anne L Kulesa
David Lee Deehl
Deehl & Carlson PA
501 NE 1st Ave, Ste 301
Miami, FL 33132-1960
(305) 448-9111
FAX: (305) 442-0441
[email protected]
Joseph Kulesa
Latona Law
275 Mundy St, Ste 102
Wilkes Barre, PA 18702-6818
(570) 825-9000
FAX: (570) 822-5169
[email protected]
Fisher & Fisher Law Offices LLC
Mount Pocono, PA 18344-1324
(570) 839-8690
FAX: (570) 839-7675
[email protected]
Vice-Chairs (Newsletter)
Troutman Sanders LLP
150 W Main St, Ste 1600
Norfolk, VA 23510-3400
(757) 687-7706
[email protected]
K. Blythe Daly
Holland & Knight LLP
31 W 52nd St, Fl 11
New York, NY 10019-6111
(212) 513-3570
FAX: (212) 385-9010
[email protected]
Harmony Iris Loube
Holland & Knight LLP
2099 Pennsylvania Ave, NW, STE 100
Washington, DC 20006-6800
(202) 469-5175
FAX: (202) 955-5564
[email protected]
Vice-Chair (Website)
Jefferson Poole
17250 W Sunset Blvd, Apt 106
Pacific Palisades, CA 90272-3005
(502) 299-2116
[email protected]
Vice-Chairs
Michael J Daly
Pierce Atwood LLP
10 Weybosset St, Fl 4
Providence, RI 02903-2818
(401) 588-5113
[email protected]
Jessica Link Martyn
Wayne Allen Parker
Horizon Lines, Inc.
4064 Colony Rd, Ste 200
Charlotte, NC 28211
(704) 973-7089
[email protected]
Scott A Richards
Fowler White Boggs PA
501 E Kennedy Blvd, Ste 1700
Tampa, FL 33602-5239
(813) 228-7411
FAX: (813) 229-8313
[email protected]
Pamela L Schultz
Severson & Werson
1 Embarcadero Ctr, Fl 26
San Francisco, CA 94111-3745
(415) 677-5627
FAX: (415) 956-0439
[email protected]
Dawn L Serafine
Troutman Sanders LLP
150 W Main St, Ste 1600
Norfolk, VA 235103400
(757) 687-7558
FAX: (757) 687-1537
[email protected]
IN THIS ISSUE:
The Marine Insurance Market is Taking
the Potential Losses Resulting from the
Costa Concordia Disaster in Stride . . . . . 1
2
Italian Tort Remedies: Are we still in
Kansas, Toto? . . . . . . . . . . . . . . . . . . . . . 9
Message from the Chair . . . . . . . . . . . . . . 1
Plaintiffs’ Issues in the Costa Concordia
Disaster . . . . . . . . . . . . . . . . . . . . . . . . . . 11
100 Years After the Wreck:
Looking Back on Limitation of Liability in
the Time of the Titanic . . . . . . . . . . . . . . 5
Statutory Framework Under Italian
Maritime Laws: Considerations about
Crew Resource Management . . . . . . . . 12
Trade Talk: Bob Kirk . . . . . . . . . . . . . . . 6
2012 TIPS Calendar . . . . . . . . . . . . . . . . 25
2
Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
MESSAGE FROM THE CHAIR
Continued from page 1
We also address Italian law issues, the plaintiff lawyer’s perspective, and the insurance industry perspective
following the Costa Concordia casualty. For those who are interested in a short summary of the Titanic litigation, I
commend your attention to the Archeological Institute of America’s website at: http://www.archaeology.org/0101/
etc/titanic2.html. We also continue our new newsletter feature “Trade Talk”. In this edition, we have the pleasure of
featuring Bob Kirk, Vice President, Maritime Legal and Medical Services for Carnival Cruise Lines. It is a perfect
addition to this special newsletter on the cruise ship industry.
On the committee business front, we will host a committee lunch during MLA week in New York (May 1-4), at
the historic New York Yacht Club, directly following the Friday morning MLA general meeting on May 4. Special
thanks to Vice Chair Blythe Daly who is a NYYC member and arranged for the venue. Please email me for further
details if you are interested in attending. All are also invited to the MLA/ABA liason meeting on Thursday, May 3
at 2 p.m. at the offices of Holland & Knight LLP.
From May 18-20, our committee will hold a business meeting during the ABA TIPS Spring Leadership meeting
in Charleston, Sought Carolina. We will meet at 1 p.m. at The Charleston Place Hotel. We have a number of events
planned during those few days, including: (1) a special reception at Vice Chair Olivia Palmer’s family mansion
which is on the Battery overlooking Charleston harbor and Fort Sumter and is truly a magnificent venue; (2) an
event with the Charleston Maritime Law Institute and Charleston School of Law; and (3) a dinner at the historic
Carolina Yacht Club. Registration for the conference is now open: http://www.americanbar.org/calendar/2012/05/
tips_joint_springmeetingwithgpsoloanduia/registration.html.
Finally, there remain a number of ways you can stay informed about committee efforts and get involved. Our
monthly conference call meetings are open to all. They take place the third Thursday of every month, at 12:30 p.m.
EDT. The dial in number and conference code are: Dial-In Number- 866-646-6488- Conference Code-1885350536.
Our next call is April 19, 2012 at 12:30 p.m. You can also join our LinkedIn group page http://www.linkedin.
com/groups?viewMembers=&gid=3058724&sik=1317664044449, and find a collection of information at our ABA
website, www.ambar.org/tipsadmiralty.
Best regards,
Chris Nolan
2011-2012 Chair, Admiralty and Maritime Law Committee
©2012 American Bar Association, Tort Trial & Insurance Practice Section, 321 North Clark Street, Chicago, Illinois 60654; (312) 9885607. All rights reserved.
The opinions herein are the authors’ and do not necessarily represent the views or policies of the ABA, TIPS or the Admiralty and Maritime Law Committee. Articles should not be reproduced without written permission from the Tort Trial & Insurance Practice Section.
Editorial Policy: This Newsletter publishes information of interest to members of the Admiralty and Maritime Law Committee of the Tort
Trial & Insurance Practice Section of the American Bar Association — including reports, personal opinions, practice news, developing law
and practice tips by the membership, as well as contributions of interest by nonmembers. Neither the ABA, the Section, the Committee,
nor the Editors endorse the content or accuracy of any specific legal, personal, or other opinion, proposal or authority.
Copies may be requested by contacting the ABA at the address and telephone number listed above.
Hypertext citation linking was created by application of West BriefTools software. BriefTools, a citation-checking and file-retrieving software, is an integral part of the Westlaw Drafting Assistant platform. West, a Thomson Reuters business is a Premier Section Sponsor of the
ABA Tort Trial & Insurance Practice Section, and this software usage is implemented in connection with the Section’s spon­sorship and marketing agreements with West. Neither the ABA nor ABA Sections endorse non-ABA products or services. Check if you have access to West
BriefTools software by contacting your Westlaw representative.
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
SAVE THE DATE!
TIPS Spring Leadership and Joint
Meeting with GP Solo and UIA
May 16-20, 2012
Charleston Place
Charleston, SC
The Charleston Place Hotel is located at 205 Meeting Street, Charleston, SC 29401. The
special group rate being offered is $279.00 single/double per night. Hotel reservations can
be made by calling the hotel directly at 843/722-4900 or toll free at 800/831-3490 and
refer to the ABA Tort Trial and Insurance Practice Section Spring 2012 Meeting. The room
block will be held until exhausted or until Tuesday, April 24, 2012 5:00pm (CST).
After that date, reservations will be confirmed based on availability.
Registration information will soon be
available on the TIPS website at:
www.americanbar.org/tips
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
100 Years After the Wreck:
Looking Back on Limitation of Liability in the Time of the Titanic
By: Anne L. Kulesa1
Counsel for some of the
plaintiffs in the Costa Concordia
matter have compared the recent
tragedy with the most famous
shipwreck of modern times, that
of the Titanic. Although it is a
sad coincidence that the recent
incident occurred shortly before
the centennial anniversary of the
historic wreck, the comparison
is a bit of a stretch, particularly with respect to the
litigation process and applicable laws. Should the
plaintiffs successfully pursue their claims in federal
courts of the United States instead of in Italy, however,
there is a slim chance that the same maritime law may
impact both matters.
This article is intended to be an introductory-level
overview of the procedure that allowed the owners of
the Titanic, an insured vessel with an initial value of
approximately $7,500,000, to limit its total liability to
less than $92,000.
The Titanic
One hundred years ago, the RMS Titanic struck an
iceberg and sank, resulting in the loss of more than
1,500 passengers and crew, with just over 700 people
surviving. Captain Edward J. Smith is believed to have
gone down with the ship. The ship’s crew had received
multiple reports of ice hazards and failed to slow or stop.
The Titanic was traveling at approximately 20.5 knots
at the time her starboard hull scraped along the iceberg.
The allision occurred late in the evening of April 14,
and the ship sank a few hours later, in the early morning
hours of April 15, 1912. As it was approximately 375
miles from Newfoundland, Canada, the ship was too
far from other vessels for immediate assistance. The
lifeboats, many of which were less than half full at the
time they were released from the vessel, were the only
protection from the freezing waters. Safety equipment
included the 16 lifeboats required under British
regulations and four additional collapsible boats. Even
if all 20 lifeboats were at capacity, only half of those on
board would have been saved. Forty-two lifeboats would
have been required under United States regulations in
effect at the time, theoretically enough to save everyone.
The personal injury, wrongful death, and property
claims brought against the Titanic in this country
totaled approximately $20 million. By using a common
admiralty procedure, the shipowner successfully
limited the amount of potential recovery to just under
$92,000, the approximate value of the lifeboats and
freight pending. 2 That $92,000 was distributed pro rata
among all of the claimants. Although the dollar was
worth more at the time than it is now, it is worth noting
that the donations from private citizens and companies
to a relief fund significantly exceeded the amount the
vessel owners were required to pay to the victims and
their families.
The Limitation of Shipowners’ Liability Act of 1851
The limitation procedure was promulgated as
the Limitation of Shipowners’ Liability Act of 1851
(“Limitation Act”),3 which codified a practice that
has been in effect since medieval times. The original
purpose was that, as shipping was an inherently risky
venture for all investors, a shipowner out of possession
should not be held liable beyond the value of his vessel
and the freight pending. In fact, the owner could simply
surrender the ship to the victim’s family, if the vessel
survived the casualty, along with any monies received
for the voyage.
This tradition has become law in most countries
engaging in maritime commerce. The Limitation Act was
adopted by the United States in the nineteenth century
as a result of lobbying from the shipping industry, and
the only significant change in the past 160 years is the
establishment of minimum limitation fund amounts for
personal injury or death caused by commercial seagoing
vessels. Various bills to amend or repeal the Act have
Continued on page 16
1 Anne L. Kulesa is the last retiring Chair of the AMLC and a member of the Task Force on Outreach to Law Students. She is an attorney in Stroudsburg, Pennsylvania, and can
be reached at [email protected].
2 The Titanic, 209 F. 501 (S.D.N.Y. 1913).
3 46 U.S.C. § 30501, et seq.
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
TRADETALK
For our second “Trade Talk” piece, we are pleased to spotlight new committee member Bob Kirk,
in-house counsel at Carnival Cruise Lines in Miami, Florida. It seemed fitting to feature Bob for the
special edition newsletter focusing on the cruise ship industry since he represented cruise ship lines as
outside counsel before being lured in-house by Carnival. Below are excerpts from our interview which
address his views on the maritime industry, what outside counsel need to do to get Carnival’s business,
key legal issues for Carnival, and perhaps most importantly his prediction on how well the
Miami Heat will do in the upcoming N.B.A. playoffs. 1. Bob, tell us what prompted
you to get into the maritime legal
industry.
R. Early in my career after
a judicial clerkship I returned to
my hometown of Miami. I was
practicing at a traditional insurance
defense firm when a law school
classmate called me and asked me if
I knew anyone who was interested
in a maritime liability defense
practice. I said, “How about
me?” I joined the firm and started
representing all the major cruise
lines in Miami. Most major cruise lines have their
headquarters in Miami and I always thought it would
be a very interesting area of practice. Eventually an
opportunity arose to work in-house at Carnival Cruise
Lines so I jumped at the chance. My initial position was
Maritime Claims Manager and it included an active inhouse litigation practice.
were building when I started. We
now have home ports all over North
America, have a ship in Europe,
and will soon have a ship based in
Australia. Working in-house gives
me the opportunity to use my legal
skills and experience in a dynamic
growth industry that provides
millions of guests with wonderful
vacations. I have the pleasure of
managing a very competent and
experienced group of lawyers and
find it very rewarding. I am also
involved in other areas like medical
operations which also keeps my work interesting. After
being here 20 years you would think I would have seen
everything but that is simply not the case. Working for a
company that provides cruise vacations is never dull and
never boring. 2. Can you describe your experience in-house?
R. This year marks my 20th year working for
Carnival Cruise Lines and I have to say it has been a very
enjoyable experience. When I started with the company
we only had nine ships and most of our home ports were
in Florida. We will soon have twenty four ships and seven
of the ships that were in the fleet when I started working
at Carnival have now left the fleet. The ships we are
building now are almost twice as big as the ships we
6
Photo Credit to Andy Newman/Carnival Cruise Lines
6
Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
3. What are your views on hiring outside
counsel?
R. While we do maintain an in-house litigation
practice we are not staffed to handle all of our cases and
outside counsel are an integral part of our claims and
litigation management. My views on hiring outside
counsel are fairly simple. We need outside counsel
that can efficiently handle a case from start to finish
including trial. Trial experience is a prerequisite for
outside counsel that handle our cases. Also as important
is that our cases be handled efficiently. At the end of the
day these are mostly personal injury cases so we need
cases managed and staffed effectively so that legal fees
do not get out of hand. The final thing we need is a
good but also an appropriate level of communication. Periodic reporting in general and immediate reporting
on significant issues is important. 4. What legal issues are coming across your desk
with some frequency these days?
R. Two things. The first involves our crew arbitration
clause. We implemented an arbitration clause in our crew
contract several years ago and there has been a lot of
litigation on the issue. Decisions on the enforceability
of the clause have been varied and have spawned
appeals by both sides. These cases are working their
way through the appellate courts and the issues are
being addressed as we go through the process. I look
forward to the day when everything is addressed and
we all know where we stand. The second involves the
Maritime Labour Convention, 2006. While it has not
yet been ratified by the required number of countries, it
is getting close. Our company is working diligently to
have everything in order so that we are in compliance
before the eventual effective date of the Convention.
5. For our practitioners, which maritime event(s)
do you get the most out of?
R. Because of our location I do try to attend the
annual summer seminar of the Southeastern Admiralty
Law Institute. I find it very informative. Photo Credits to Andy Newman/Carnival Cruise Lines
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Admiralty and Maritime Law Committee Newsletter
Also, while I am not able to attend as much as I
would like, I do enjoy going to the Maritime Law
Association spring meeting in New York. There are
several committee meetings which interest me, not the
least of which is the Cruise Line and Passenger Ships
Committee.
6. In addition to the AMLC newsletter, of course,
which maritime publication do you find most useful?
Titanic & Concordia Special Edition: April 15, 2012
7. Thank you for taking time to speak with us
today. As a final question, which team will win more
games in May? The Miami Heat or the newly rechristened Miami Marlins?
R. Is that a trick question? Considering my place
of employment, I can easily predict it will be the Miami
Heat.
R. We do subscribe to American Maritime Cases
and get the advance sheets. This is a good way for me
to keep up with the latest developments in maritime
law and review relevant cases that might not have been
reported elsewhere.
Benefits of
AMLC Membership
Opportunities to
Become Involved
Join Subcommittees
n Publication in the AMLC
Newsletter or TIPS Law Journal
n Plaintiff
n Networking Opportunities
n Insurance
n CLE and Webinar Opportunities
n International
n Leadership Positions
n Law Students/Young Lawyers
n Mentoring Relationships
n Academic (Professors/Authors)
n Defense
n Law Student Writing Competition
Additional Information
For more information regarding the benefits that membership in the AMLC can provide to you, check out
our webpage at http://ambar.org/tipsadmiralty and join our group on LinkedIn. The Committee is open to all,
including non-lawyer maritime professionals, law students and lawyers in every practice area who want to
keep abreast of developments in the field.
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
ITALIAN TORT REMEDIES: Are we still in Kansas, Toto?
By: Attilio Costabel1
Swimming to shore followed
by her dog, the passenger could not
believe she managed to survive, far
less understand how such a giant
ship could almost sink, and the
chaos that followed. But she was
alive, thus the first thing she said
when her feet touched the sand
was: “Where is the Courthouse?”
A strange Tin Man with a funnel for a hat told her:
“I’ll take you there.” It was a small crowded room, with
lawyers wrestling over each other grabbing their docket
folders, and with a man behind a small desk intent over
papers, ignoring the crowd. “Here is your courtroom.”
said the Tin Man. “Who’s that guy?” “He is your Judge”
the Tin Man said. “Serious?” she frowned, “and where
is the jury?” “We have no juries here,” the Tin Man
explained. “So how do I get a trial?” she asked. “We
have no trials here,” the Tin Man said, beginning to
show frustration at those silly questions.
“No courtroom, no jury, no trial, how do you expect
me to get justice here? I bet you don’t even have a tort
system,” the passenger said. The Tin Man thought it was
time to educate that lady, and started a legal dissertation.
“Look Dorothy, a tort system has existed here since
286 BC, and it is statutorily enacted by the Italian Civil
Code of 1942. Article 2043 is the foundation: “any
intentional or negligent act that causes unjust damage
to others obliges him who committed it to indemnify the
damage”. It sounds pretty clear, does it not, but your
American lawyers may want me to define “negligent”,
“unjust”, and “damage”. Forget it, I know that you are
most interested on the “damage” word, that is what
remedy would you have and how much money would
you get. Therefore I will focus on this issue alone.
The Italian Civil Code grants tort victims pecuniary
and non-pecuniary damages, like at your home Dorothy.
Pecuniary damages are losses of assets, money, and
profits that are an immediate and direct consequence of
the tort.2 In the case of personal injury, the tortfeasor
must indemnify temporary and permanent physical
disability, by annuity either periodical or capitalized.3
The injured party may request restoration by specific
performance if this is possible in whole or in part.
However, the court may order that the indemnity be
made only by equivalent amount of money if specific
performance is overly burdensome for the debtor.4 If the
victim’s fault or negligence has contributed to causing
the damage, the compensation is reduced according to
the seriousness of that concurring fault or negligence
and the magnitude of the consequences that resulted.5
As you see, Dorothy, so far Italian law of tort
remedies mirrors the one at your home, including the
Italian version of Palsgraf causation and comparative
(not contributory) negligence. When it comes to nonpecuniary damages, however, that’s where the fun
begins.
One single Article of the Civil Code, Art. 2059,
made of 12 words: “Non patrimonial damages must
be indemnified only as prescribed by the law”, is the
whole foundation of Italian non-patrimonial damages,
the conciseness of which inevitably generated enormous
amount of scholarly, judicial, and statutory developments.
Italian law of non-patrimonial damages as we know it
today is the product of relentless evolution, mostly by
the Judiciary.
When the Civil Code was enacted in 1942, moral
damages were allowed as “subjective” pain and
suffering, or for violation of dignity, such as libel and
slander. Semantically, the word “moral” also meant
“dignity” or “honor”.6 Also, Art. 2059, as enacted, was
interpreted as allowing moral damages only where the
elements of a “civil” tort were also the elements of a
statutory crime. Under scholarly criticism and pressure,
the courts extended the reach of moral damages
Continued on page 18
1 Attilio Costabel is an Adjunct Professor of Law at St. Thomas University School of Law where he teaches Admiralty, Transnational Litigation and International Business
Transactions. Before assuming the position, Mr. Costabel owned his own firm, Studio Legale Costabel, Genoa and London, which handled primarily admiralty, aviation,
shipbuilding, insurance, and international contracts. Presently, Mr. Costabel practices Admiralty Law with his offices in Miami and Genoa, Italy, where he is also admitted to the
Bar. Contact at: [email protected]
2 Art. 2056, redirecting to Art. 1223 Civil Code (hereafter C.C.).
3 Art. 2057 C.C.
4 Art. 2058 C.C.
5 Art. 1227 C.C. applicable through Art. 2056 C.C.
6 See, e.g. App. Venezia, 10 giugno 1898, Giur. It. 1898, I , 2, 693. Employee unjustly fired and ashamed to appear in public.
9
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
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10
Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
Plaintiffs’ Issues in the Costa Concordia Disaster
By: Joseph F. Kulesa, Jr.1
The Costa Concordia cruise ship tragedy resulted
in the deaths of at least thirty and the injury of sixtyfour people. The remaining 3,000 passengers and
more than 1,000 crew members did not sustain serious
physical injuries, but many have described severe
emotional trauma caused by the incident. Now,
plaintiffs’ attorneys around the world are seeking the
most advantageous forums and causes of action for
their clients. The tricky part may be convincing a court
that they can do so, despite a forum selection clause in
the passage ticket contract that mandates all claims be
brought in Genoa, Italy.
The Disaster2
On the evening of January 13, 2012, two and onehalf hours after leaving the port of Civitavecchia, the
Costa Concordia cruise ship struck a portion of the Le
Scole reef, shredding a 160-foot section of the hull.
Based on the information available to date, the ship’s
captain, Francesco Schettino, was attempting a “sail-by”
of Isola del Giglio, a maneuver which he had previously
performed in August to the delight of Giglio’s mayor.
Reports conflict as to whether Costa Cruise Lines
actually knew of the prior sail-by or the plan to perform
one on January 13.
While the vessel’s bridge was equipped with an
audio and visual off-course alarm that would sound if
the vessel strayed from the programmed course, this
alarm could be manually overridden.
Thus far, it appears to be undisputed that Captain
Schettino did not initially report the incident to the Italian
coast guard, but rather attempted to continue traveling
north and instructed his crew not to notify passengers of
the situation. When the lights went out a few minutes
later, the crew told the passengers that it was a minor
electrical matter that was being addressed. A whistle
soon signaled the crew that there was a problem.
Shortly after 10 o’clock, the Italian coast guard
contacted the cruise ship to inquire about a possible
incident. Based on some reports, this was due to
passengers calling relatives and police to report the
electrical problems and the gradual listing of the boat.
Schettino instructed his crew not to explain the severity
of the situation to the officials, and he told the coast
guard that it was only a black-out.
About forty-five minutes after the initial allision,
the coast guard again contacted Costa Concordia, and
Schettino confirmed that there was water going into the
hull, but that it was not an emergency.
During this time, passengers were attempting to
return to their cabins for life vests, and many gathered
near the lifeboats trying to escape the severely listing,
sinking ship. Crew members told passengers to return
to their cabins or, if they wished, to stay in the corner by
the lounge. The ship continued north.
At 10:26 p.m., the coast guard again contacted
the vessel. Schettino told them that there was indeed
damage, but only a tug boat was needed. Passengers
continued to panic, and they remained uninformed of the
true situation.
While the details remain unclear, the ship then
proceeded south, and due to either the orders of the
master or simply the laws of physics, grounded on
its starboard side on a reef at Punta Gabbianara at
approximately 10:50 p.m.
Eventually, Captain Schettino gave the order to
abandon ship. Some passengers jumped from the ship
and attempted to swim to shore rather than wait to board
a lifeboat, and there are reports that the crew members
did not appear to know how to properly lower the boats.
Wait staff is said to have assisted more passengers than
the deck crew did.
There are many reports that Captain Schettino and
some of the officers and crew abandoned ship well
before all the passengers were able to do so. Schettino
was strongly criticized by the coast guard officials for
his actions and was instructed to return to the ship and
assist passengers, which he did not do.
Schettino was imprisoned and, as of the publication
date, remains under house arrest. He has been charged
with manslaughter, causing a wreck, abandoning ship,
Continued on page 21
1 Joseph F. Kulesa, Jr., is a Past Chair of the AMLC, and a member of the Plaintiffs’ Policy Task Force. He is a Personal Injury attorney with Fisher & Fisher Law Offices in Mount
Pocono, Pennsylvania, and can be reached at [email protected].
2 The description of the incident is based on passengers’ reports, news reports, and investigation information released to date. As the investigation proceeds, additional information
may reveal portions of this description to be inaccurate or incomplete.
11
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
Statutory Framework Under Italian Maritime Laws: Considerations
about Crew Resource Management
By: Giuseppe Lorenzo Rosa1
Italy was surely not expecting
to be thrust into the worldwide
spotlight for a cruise disaster,
amid concerns for the country’s
sovereign debt, its well known
resilience to adjust to a better
tax compliance record and
costs cutting reforms in public
administration.
The grounding of the Costa
Concordia will possibly be remembered as one of the
most evitable events in maritime records, in Italy and
globally. The unique framework of events revealed in
the fact-finding hearing held early March 2012 before
the Grosseto, Tuscany, Criminal Courts, appear almost
finally set.
The key question in this case is, like it or not is:
“why did it happen?” The response being possibly the
solution of both the pending criminal case, as well as of
the several civil cases which are being set up in Italy and
elsewhere.
The only common sense answer appears to be: the
absence of any Crew Resource Management policies
onboard Costa Concordia. The concept is well known:
whoever realizes an anomaly in the course of navigation,
irrespective of his or her position, shall bring it to
the attention of the entire team, and first of all to the
Captain. The consequence of this policy being that, on
the premise that the Captain is the only commanding
authority on board, all members of the command team
are committed to fulfillment of a common goal.
Despite obvious differences in the interpretation of
events which occurred on Costa Concordia the night of
January 13, 2012, the only undisputed fact appears to be
the absence of any clear account of a recommendation,
warning, by members of the command team, such as:“
Captain, following this route will take us onto the rocks!”
While the lack of Crew Resource Management
policies is to rest possibly with the Owner of the vessel in
the Costa Concordia events, it is worth taking due note of
the key provision which the Italian Code of Navigation
(applied to both shipping and aviation) and the Italian
Criminal Code command under the circumstances, as
far as they have been made public to-date.
**********
Section 295.
The Captain of the ship is exclusively entrusted
with management of manouvers and navigation. The
Captain respresents the Owner. The Captain shall apply
all authority which is granted him by law with respect to
any party interested in the Vessel as well as in the cargo.
Section 298.
The Captain, even when he is obliged to use a pilot,
shall personally manage the manouvering of the vessel
upon entrance into, or departure from, harbours, canals,
rivers, and in any other circumstance whereby navigation
may be particularly difficult.
Section 302.
If, during navigation, circumstances occur which
may threaten the expedition, the Captain shall take
action to accomplish it by whatever means he can use,
or which he may secure, taking shelter in an harbour, or
applying for assistance from other vessels.
Section 303.
The Captain shall not order abandonment of the
vessel being in danger unless after having attempted all
measures offered by seamanship in order to save it, and
having listened to the comments of the cockpit officers,
or, in their absence, of the two most competent members
of the crew.
The Captain shall be the last one to abandon the
vessel, taking care, as long as it is possible, of the charts
as well as of the vessel books, and other valuable objects
which may have been assigned him.
Section 321.
The line of command on board sea-going vessels is
as follows:
1)
The Captain;
2)
the engineer in charge of motor depart., the
deputy-captain, the chief petty officer; the
1 Giuseppe Lorenzo Rosa, M.A. Business Law, is a member of the Milan (Italy) Bar practicing international business law at large, focusing upon commercial contracts, JVs, M&A,
commercial litigation, arbitration before the I.C.C. and CCPIT (PRC), and representation of domestic and overseas clients. He can be reached at [email protected].
12
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Admiralty and Maritime Law Committee Newsletter
doctor in charge of medical services;
3)
first cockpit officer; first engineer in charge of
motor dept.; the chaplain; the first associate
doctor; the first petty officer;
4)
second cockpit officer; second engineer in
charge of motor dept.; the second associate
doctor; the second petty officer; the first
radiooperator;
5)
other officers;
6)
boatswain; engineer;
7)
other non commissioned officers;
8)
unlisted personnel.
Titanic & Concordia Special Edition: April 15, 2012
2)
from three to twelve years in prison, if, under
the circumstances above, the vessel is for
transport of passengers.
Section 1185.
The Captain of a vessel who does not provide
assistance, or fails to attempt rescue in all cases when he
is obliged under this Code, shall be sentenced up to three
years in prison. One to six years term imprisonment shall
apply if a personal injury occurs. Three up to eight years
term imprisonment shall apply where death occurs.
Section 1218-bis.
The pilot, when on board duty, has the same rank as
first officer.
The Captain who fails to run safety exercises – unless
for specific exceptional reasons- shall be punished with
arrest up to three months, or a money penalty up to Euro
24.00.
Section 1116.
Section 422 of the Italian Criminal Code.
The Captain who, without any reason, relinquishes
the nautical management of the vessel to the extent
that management is taken over by an individual who
is not capable to replace him, shall be punished with a
prison term of one year, or with a money penalty from
Euro 206.00 up to Euro 516.00. The sanction shall be
increased up to 1/3 where the conduct occurs at any time
when the Captain has the duty to take personal care of
the manouvers.
Life sentence shall be ruled when death of one or
more persons results as a consequence of conducts
against public safety.
Section 1121.
… the sanctions shall be:
1)
from two to eight years in prison, if the
conduct causes fire, shipwreck or sinking of a
vessel;
**********
Despite apparent clearcut language in the mentioned
statutory provisions, which have been interpreted and
applied in several decades of maritime litigation, Costa
Concordia events did occur, prompting the Chief Public
Prosecutor in Grosseto to states as follows: “We are
struck by the unscrupulousness of the reckless maneuver
that the Captain of Costa Concordia made near Giglio
island. It was inexcusable.”2
2 See www.ansa.it (Mar. 2012).
VISIT US ON THE WEB AT:
http://www.americanbar.org
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Admiralty and Maritime Law Committee Newsletter
The Marine Insurance Market...
Continued from page 1
suffered injuries. As of March 22, 2012 two people
were still missing.5 Sources are currently estimating
that the losses to the hull and protection & indemnity
(“P&I”) marine insurance markets could be as high as
$1 billion.6 In addition, Carnival Corporation, the Costa
Concordia’s parent company has estimated that the
incident may result in $85 million to $95 million in lost
bookings, but there was no policy in place for loss of use
of the vessel. 7
4
The vessel and its owners will look to their P&I
insurers to provide coverage for certain liabilities
incurred as a result of the incident, including personal
injuries to passengers and crew, and any pollution
cleanup costs.8
A lawsuit filed in Florida seeks more than $78 million
in compensatory damages for personal injuries suffered
as a result of the incident.9 The Florida suit also seeks at
least $450 million in punitive damages,10 but it is far less
clear that any insurance coverage would indemnify the
vessel or its owners for such damages. One of the key
issues that has not been determined, however, is whether
the Florida court has jurisdiction over the litigation
despite an Italian forum selection clause in the ticket
contract.11
Additionally, exposure for pollution caused by the
grounding has not yet been determined. The vessel was
designed to carry 2,300 tons of diesel oil,12 which was
14
Titanic & Concordia Special Edition: April 15, 2012
stored in multiple tanks throughout the ship -- some of
which are as large as a house.13 The oil must be pumped
out of the ship before any salvage operations can begin,
and the process to pump out the oil is underway.14
Should any complications arise, the exposure to the P&I
insurers could be greatly increased.
The Costa Concordia’s owners will look to their hull
insurers to cover the value of the vessel itself.15 It was
insured for €405, which is about $513 million.16 The
hull insurers’ ultimate loss will greatly depend on the
extent to which the vessel can be salvaged.17 The best
case scenario is that the Costa Concordia can be raised
and refloated in one piece. Raising a ship of this size
and magnitude has never been done before, and it is still
unknown if it is even possible.18 Further, the process
could take up to a year.19 One company has estimated
that it may cost “far beyond” $133 million to raise the
ship in one piece.20
If it is not possible to raise the Costa Concordia in
once piece, it may be necessary to cut the vessel into
smaller pieces that would be salvaged.21 In such a
scenario, the metal from the ship could be sold as scrap,
but the costs involved to remove and dispose of the
remaining property within the ship might prove to be
costly.22 Moreover, this process could take up to two
years.23
A third option would be to sink the ship off the coast.24
Whether or not this option would even be considered by
the Italian government has not yet been determined.25
4 Catherine Hornby, UPDATE 1 – Five more bodies found in wrecked Italian ship, Mar. 22, 2012, http://www.reuters.com/article/2012/03/22/italy-costa-idUSL6E8EMCJG20120322.
5 Id.
6 See Scott Mayerowitz, Concordia Disaster Could Cost Insurers $1 Billion, Jan. 19, 2012, http://www.insurancejournal.com/news/international/2012/01/19/231831.htm; see also
Myles Negligan & Ben Berkowitz, Costa Concordia likely worst maritime insurance loss, Jan. 16, 2012, http://www.reuters.com/article/2012/01/16/us-costaconcordia-insuranceidUSTRE80F19620120116.
7 Id.
8 Id.; Neligan, supra, note 4.
9 Jane Sutton, More shipwreck survivors sue Carnival, Costa, Feb. 15, 2012, http://www.reuters.com/article/2012/02/15/uk-italy-shipwreck-florida-idUSLNE81E01C20120215;
see also Scimone, et al. v. Carnival Cruise Lines, et al., No. 12-3496, 2012 WL 256473 (Fla. Cir. Ct.).
10 Id.
11 Id.
12 Gilbert Kreijger, Costa Concordia dilemma: salvage, cut, or sink?, Jan. 27, 2012, http://www.reuters.com/article/2012/01/27/us-italy-ship-salvage-idUSTRE80Q0Q220120127.
13 Id.
14 Gilbert Kreijger, Boskalis has bid to refloat Italy cruise liner wreck, Mar. 15, 2012, http://www.reuters.com/article/2012/03/15/us-italy-shipwreck-salvageidUSBRE82E0BF20120315.
15 Neligan, supra, note 4.
16 Id.
17 Mayerowitz, supra, note 4.
18 Kreijger, supra, note 12.
19 Id.
20 Id.
21 Kreijger, supra, note 10.
22 Id.
23 Id.
24 Id.
25 Id.
14
Admiralty and Maritime Law Committee Newsletter
The hull insurers may be able to avoid coverage
completely, however. The Costa Concordia grounded
close to shore, and there is some indication that it was
common for the Costa Concordia to sail close to shore.
If the vessel’s owners instructed the Captain to sail
close to the shore, or knew of the Captain’s practice and
acquiesced to the practice, the loss may not be covered by
hull insurance. A standard provision of the Time Institute
Hull Clauses only provides coverage for “negligence of
Master Officers Crew or Pilots…provided such loss or
damage has not resulted from want of due diligence by
the Assured, Owners or Managers.”26 Consequently, the
hull insurers are likely to take a close look at the Costa
Concordia’s prior voyages, and examine the extent to
which its owners and managers knew that it would sail
close to shore.
Some commentators have blamed the Costa
Concordia disaster on the “over-reliance on electronic
Titanic & Concordia Special Edition: April 15, 2012
navigation systems and a failure of judgment by the
captain,”27 and the incident may serve to remind both
the insurance industry and the shipping industry that no
amount of technology can completely prevent accidents
caused by human error. A recent study performed by
Lloyd’s List found that while equipment failures have
drastically reduced, navigation incidents remain high.28
Despite the extraordinary exposures and many
questions yet to be answered, the marine insurance
market appears to be taking the loss in stride. Informal
research indicates that one should expect hull and P&I
premium rates to increase this year, but there does not
seem to be a drastic increase in premium rates due to the
Costa Concordia disaster. Hull and P&I premium rates
have been low for an extended period of time, and the
increases or appear to be part of a normal hardening of
the market.
26 Jonathan C. B. Gilman, Arnould’s Law of Marine Insurance and Average 477 (Sweet & Maxwell 1997).
27 Jonathan Saul, Human blunders seen at heart of Italy ship disaster, Jan. 16, 2012, http://www.reuters.com/article/2012/01/16/us-italy-disaster-ship-idUSTRE80F1AK20120116.
28 Costa Concordia: The data, the trends and what comes next, Lloyd’s List Webinar, available at http://www.slideshare.net/Lloydslistgroup/lloyds-list-costa-concordia-webinar.
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Admiralty and Maritime Law Committee Newsletter
100 Years After the Wreck:...
Continued from page 5
been proposed over the years, most recently following
the Deepwater Horizon explosion and oil spill,4 but no
noteworthy changes have been made.
The Act’s stated purpose is to encourage
shipbuilding and investment in the shipping industry.
Even in modern society, where shipowners can track
their vessels by GPS and AIS; where they can speak
to the ship’s masters via satellite telephones; where
owners are protected by corporate structures; where
insurance can be obtained for virtually any venture;
and where shipping in general is much less of a risk
than in centuries past, the Act applies.
In countries such as Great Britain, the limitation
procedure has been updated by incorporating the
Limitation Conventions of 1957 and 1976, which set
forth additional provisions to increase a claimant’s
recoverable amount. To date, the United States has
neither adopted the Limitation Conventions nor created
its own procedure for significantly increasing limitation
funds, aside from an additional limitation fund for
personal injury or death based on the vessel’s gross
tonnage.
The Limitation Procedure
Maritime law is a unique creature, and its rules would
seem absurd if applied to automobile personal injury
law or premises liability matters. A collision between a
trucking company’s tractor-trailer and a car that results in
the death of the car’s driver may result in a multimillion
dollar verdict before a jury. It would be unheard of for
the court to cap the trucking company’s liability at the
value of the smashed tractor-trailer, any fees received
for delivering the cargo, and an additional amount based
on the size of the truck. In a maritime action, however,
that is essentially what can be done.
As an aside, not all maritime law involves giant
commercial vessels, expensive cruise ships, or legendary
maritime catastrophes. A personal injury action
involving a personal watercraft in the bay, a wrongful
death action involving a sailboat in the Great Lakes, or
Titanic & Concordia Special Edition: April 15, 2012
a property damage claim involving the collision with a
raft in the Mississippi River may be maritime matters
involving a “vessel,” and general maritime law may
apply. Based on the specific facts, there is a possibility
that the recoverable amount may be limited to the value
of the vessel after the incident, which may be zero or the
scrap metal value if the vessel is lost.
An action for exoneration or limitation may be filed
by the owner of a vessel either as a defense to litigation
pending in state or federal courts, or as a preemptive
federal action where personal injury, property damage,
or wrongful death claims are anticipated. It is in no
way an admission of liability; rather, the limitation or
exoneration issues are resolved prior to the remainder of
the proceedings.
The process is set forth in Supplemental Rule F of the
Federal Rules of Civil Practice. To summarize, only an
“owner” may file the limitation action, and there must
be independent admiralty jurisdiction. Venue is proper
wherever the vessel was arrested or attached, or where
suit was filed. If these conditions do not apply, the action
may be filed in the federal district in which the vessel is
located. If the vessel was lost or is in foreign waters, the
action may be filed in any federal district court.5
Once an owner receives written notice of a claim,
it has six months to file an action for limitation or
exoneration in federal district court and deposit monies
for the limitation fund. This deposit must be equivalent
to the value of its ownership interest in the vessel and
any freight pending, or alternative approved security
such as proof that the insurance company will cover any
loss up to that value. A claimant may challenge the fund
amount and obtain an appraisal of the vessel in its postcasualty condition.
An additional amount of $420 per gross ton may
be required in some personal injury and wrongful
death matters if the initial fund would be insufficient
to cover the claims. Inland vessels and pleasure yachts
are exempt from this additional requirement, further
limiting their liability.
The limiting owner must also put on notice all known
actual or potential claimants. The court will then enjoin
4 To date, no bills to amend or repeal the Act have been successful. Proposed legislation that would expand a plaintiff’s ability to recover for injuries or the death of a family
member, which may otherwise be constrained by the Limitation Act, the Jones Act (46 U.S.C. §§ 30104-30105), or the Death on the High Seas Act (“DOHSA,” 46 U.S.C. § 30301, et
seq.), have not been successful in the Senate. In July of 2010, the House passed the Securing Protections for the Injured from Limitations on Liability Act (“SPILL Act,” H.R. 5503,
111th Cong. (2010)). The SPILL Act would repeal portions of the Limitation Act and amend both DOHSA and the Jones Act. After passing through the House, the bill stalled out in
the Senate, leaving the Limitation Act in its pre-spill form. See also the Fairness in Admiralty and Maritime Law Act (“FAMLA,” S. 3755, 111th Cong. (2010)), and the Deepwater
Horizon Survivors’ Fairness Act, (S. 183, 111th Cong. (2010)). Given the time that has passed, and as a settlement in the matter is currently being finalized, it appears likely that the
outcry for change will die down until the next serious domestic casualty.
5 See Fed. R. Civ. P. Supp. R. F.
16
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Admiralty and Maritime Law Committee Newsletter
Titanic & Concordia Special Edition: April 15, 2012
all related actions pending in state or federal court and
enter a monition order, which is similar to an order to
show cause, limiting the time for claims to be filed in
the limitation action. Any claims not asserted in the
limitation action may be barred.
damage, that amount would be retained by the owner
and not contributed to the fund. This system is somewhat
controversial, given the apparent inequity involved.
However, under the Limitation Act and modern case
law, it is the appropriate way of handling the fund.
A limitation trial has two steps. The claimants must
first prove by a fair preponderance of the evidence that
the shipowner is liable for their injuries, either due
to negligence or unseaworthiness of the vessel. If the
claimants fail, the owner is exonerated.
From the Titanic to the Costa Concordia
If such fault is found, the owner must then prove by
a fair preponderance of the evidence that it was neither
privy to, nor had knowledge of, the cause of the injury.
If the court finds that the owner had neither privity nor
knowledge, the claims will be limited to the amount
contained within the fund.
Insurance and Limitation
One aspect of limitation proceedings that is
frequently criticized is the interplay between insurance
coverage and the limitation fund. Only an owner may
limit liability for personal injury and death claims, and
most insurance policies only provide coverage to the
extent of the owner’s liability. Therefore, an insurer of a
$1 million liability policy may pay out only $500 if that
is the value of the vessel after a catastrophic incident.
Additionally, the insurance proceeds received by the
owner are generally not added to the limitation fund. If
the owner of the vessel receives the policy limits for hull
The wreck of the Costa Concordia tragically resulted
in the deaths of at least 30 people, injury to at least 64
people, and emotional trauma for thousands of other
passengers. The forum selection clause in the passage
contract tickets requires that all claims be brought
in Genoa, Italy, applying Italian law and the Athens
Convention. However, injury suits have already been
filed in Miami and Chicago, where the plaintiffs will
presumably attempt to have the forum selection clause
set aside in order to pursue their claims in a potentially
more favorable venue.
Based on a number of factors, including the situs of
the wreck and significant case law that would support
the enforcement of the foreign forum selection clause,
there is a strong likelihood that the claims will proceed
in Italy. Should a protective action for limitation or
exoneration be filed, such would become moot if the
plaintiffs’ claims were dismissed for improper venue. In
the event that claims do proceed in the United States,
however, the limitation procedure and the post-casualty
value of the Costa Concordia may prove any comparison
with the Titanic to be more appropriate than it currently
seems.
VISIT US
ON THE WEB AT:
http://www.americanbar.org
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Admiralty and Maritime Law Committee Newsletter
ITALIAN TORT REMEDIES...
Continued from page 9
beyond the “abstract” elements of crimes to rights
constitutionally protected, beginning with the “right to
health”, which Art. 32 of the Italian Constitution holds
as an endowment of mankind.7
Shortly thereafter, the courts began expanding also
on the contents of the remedy. The Tribunal8 of Genoa
was the first to start the revolution of personal injury
damages, holding that remedies limited only to loss
of earning capacity consequent to disability could and
would result in injustice and discrimination.9 Tortious
injuries, the court held, may affect not only the “incomeproducing sphere of activities”, but also the “non-laborrelated activities through which individuals fulfill their
life and personalities”. A new label was born by the bold
and esoteric name of: “biological damages”.
Most Italian courts promptly embraced the new
label, however with debate on the precise cover of the
remedy and on its very nature: whether it was a form
of patrimonial damage, like a sub-category of physical
disability (Art. 2043 C.C.), or a non-patrimonial damage,
like a sub-category of moral damages (Art. 2059 C.C.).
After surviving a constitutional challenge,10 the remedy
was given several, almost identical definitions by the
courts, one of the most comprehensive and descriptive
being: “impairment of the psycho-physical integrity of
the person, considered per se, affecting the value of a
person in all his/her actual dimensions, which is not
exhausted in the mere ability to produce wealth, but is
linked to the sum of the natural functions pertaining
to the environment in which the life of the person is
expressed and which are relevant, not only under an
economic, but also under a biological, social, cultural
and aesthetic point of view.”11
The lower courts and the Supreme Court of “Cassazione”
have consistently explained that the biological damage
covers all negative effects on the victim’s health, even
absent physical trauma and/or disability.
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Titanic & Concordia Special Edition: April 15, 2012
Finally, the biological damage found legislative
recognition. Congress extended its application to
labor accidents,12 and generally as a tort remedy under
the Code of Private Insurance: “Biological Damage
is the temporary or permanent injury of psychophysical integrity of the person susceptible of forensic
investigation that exerts a negative impact on daily
activities, and dynamic-relational aspects of the life
of the victim, regardless of any impact on the victim’s
ability to produce income.”13 The biological damage is
therefore conceived as a prejudice to the health sphere at
large of a subject, capable of forensic medical evaluation.
Once unleashed, Italian legal creativity could not be
contained. Could there be consequences of a tort that
do not result in actual physical damage, or in damage to
health at large, even without physical impact, and that at
the same time are not a pure pain and suffering or loss
of honor in and by itself? In other words, something that
affects the individual, not taken in isolation but in his/her
objective relation and situation with the outside world?
Scholars and courts soon invented another category of
tortious damage, with the not less esoteric new label of
“danno esistenziale” or “existential damage”, whose
convoluted definition commonly accepted is: “any
injury (of a nature not purely emotional or intimate, but
objectively ascertainable) caused to the non-incomeproducing life involvements of the victim, which alters
the victim’s habits and society-interactive structure,
inducing the victim to make different life choices for
the expression and fulfillment of his personality in the
outside world”.14
For example, what about the consequences of an
accident that deprive a child of the “daily leisure and
pleasures” of the company of friends and classmates,
of playing favorite games, or of attending school?15 Or
an illicit termination of an employee that affects his/her
family relations or deprives the victim of the capacity
of affording his/her family a dignified life?16 Or traffic
violations illegally imposed that affect the victim’s
lifestyle?17 Or the degrading life-style consequences
Supreme Court of Italy (hereafter Cass.) 14 July 1973, n. 796.
The lower court of “first instance”.
Tribunale Genova, 25 maggio 1974, Giur. it., 1975, I, 2, 54.
Constitutional Court, 14 July 1986, n. 184, confirming the constitutional viability of biological damages.
Cass. 20 August 1984, n. 4661.
Legislative Decree n. 38/2000.
Legislative Decree 7 September 2005, n. 209 “ Codice delle Assicurazioni Private”.
Cass. Sez.U., 24.3.2006, n. 6572, www.deaprofessionale.it.
Giud. Pace Sora 30.12.2000, AGCSS, 2001, 756.
Pret. L’Aquila 10.5.1991, FI, 1993, I, 317.
Giud. Pace Bologna 8.2.2001, GPac, 2001, 192.
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Admiralty and Maritime Law Committee Newsletter
of a High School grade awarded unjustly below the
actual merit?18 The varieties of negative “existential”
consequences of a tort are too many to list.
For a long time, the existential damage was
considered a category of damage of its own, and the
Italian system of non-pecuniary tort remedies was then
organized in three categories:
1. “moral damages” (pain and suffering, lesion
of personality and dignity, as from libel and
slander)
2. “biological damages” (prejudice to the
constitutionally protected right to health, Art.
32 of the Italian Constitution)
3. “existential damages” (prejudice to lifestyle,
position, and interaction with the society and the
outside world, which are also rights protected by the
Constitution19)
The courts developed methods of calculation for
each category. Moral damages always were and still are
assessed by a strictly equitable method. For biological
damages, instead, insurance companies developed
“tables” of parameters to be used for mechanical
calculation. Different tables were industry-drafted and
court-approved at different judicial districts, some gaining
more authoritative acceptance than others.20 For existential
damages the courts generally followed a hybrid system,
combining pure equitable method and parameters taken
from the system used for biological damage.
Recent decisions of the Supreme Court of Cassazione
have ruled that the three categories are not self-standing,
but each is a component of a unified notion of nonpatrimonial damage,21 and that it is for the prudent
discretion of the judge to make separate evaluation of
the components, each through its proper method.22
Two developments of this system are worthy of notice
here: the creation of yet another “label” of damage and
treatment of wrongful death remedies.
Titanic & Concordia Special Edition: April 15, 2012
“Vacanza Rovinata” or “Spoiled Holiday” is a
damage recognized by the courts for the disruption
caused to tourists by the failure to complete all or part of
the envisaged travel plans. The interest protected is full
enjoyment of the journey purchased as an opportunity
for pleasure, leisure, and rest. This “label” is generally
treated as a subcategory of existential damage and
is premised again on constitutional grounds23 and on
European Union directives.24
Courts have awarded this type of damage for loss
of luggage by an airline,25 for a spoiled honeymoon in
Mexico due to loss of luggage,26 for cancellation and
rescheduling of a flight,27 wedding anniversary ruined
by forced cancellation due to loss of luggage,28 stressing
wait at airport due to cancellation of flight, etc.29
The awards in these cases have been generally on the
low side, but a judgment of the Genoa Tribunal supplies
interesting clues. A couple bought a 12 day cruise and
their luggage was lost during the connecting flight. The
luggage was eventually found and delivered on board
the ship, but the tourists remained six out of twelve days
of travel without personal effects. For this inconvenience
the court awarded Euros 3,000.00 for each passenger (the
rough equivalent of today’s $4,000.00). Considering the
clearly minor nature of the discomfort found in the facts
of this case, we may safely assume that facts of major
gravity, triggering also moral, biological, and existential
components, would yield a way higher and acceptable
measure of awards.
Last year the Supreme Court of Cassazione reviewed
an award by a lower court in a wrongful death case
which is instructive about Italian law of wrongful death.
The opinion reconfirmed that Italian law recognizes
both survival and wrongful death causes of action, and
touched upon the thorny issue of whether the decedent
acquires any “survival damage” if there is no appreciable
lapse of time between the accident and the death of the
victim. Defendants argued that a short time of eight
hours between accident and death could not produce in
18 Trib. Bologna 23.1.2003, RCP, 2003, 445.
19 Art. 2 and 3: right of free fulfillment of one’s personality, of diversity and of formal and substantial equality; Art. 29 and 30: right to integrity of family communion.
20 Among those: the Genoa Tables, Milan, Rome, Florence, Pisa, Naples.
21 The so called “twin opinions”: Cass. 11.11. 2008, n.26972 and n. 26975.
22 Cass. civ. Sez. lavoro, 18 January 2011, n. 1072.
23 Art. 2 and 36 of the Constitution that protect the right to rest from work.
24 Directive 90/314/CEE, implemented with Law n.11 of 1995 governing “all inclusive tour packages”. The European Court of Justice ruling 12/03/2002 held that Tour
Operators are responsible also for damages for “spoiled holiday”.
25 G. di P. di Massa, 13.112003.
26 Tribunale Marsala, 5.4.2007.
27 G. di P. di Casoria, lì 07.09.2005.
28 Trib.le Torre Annunziata,Castellamare di Stabia 29 March 2005.
29 Cass Civ. Sez. Unite, 26972 / 2008.
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the victim any appreciable loss of biological rights and
expectations, thus that no money should be awarded for
biological damage of the decedent, consequently that no
such damage survived that could be claimed by the next
of kin jure hereditatis.30
The court below rejected this argument and awarded
survival damages at Euros 693.020,00 for the decedent’s
biological damage, Euros 175.269,00 for decedent’s
moral damages, and, for the heirs as wrongful death nonpatrimonial damages of their own, Euros 158.200,00.
Although the Supreme Court found a duplication
of indemnity between the two survival damages, the
“short lapse of time” argument was rejected. The
Court reasoned that if it is true that biological damage
is a lesion of health and that health presupposes the
existence of a person alive, it is also true that loss of life
is total loss of health, thus the biological damage in that
instance is in the measure of 100%. The opinion has been
criticized for equating moral, biological, and existential
damages in the facts of the particular case, yet the
precedent is important for directing that each component
of non-patrimonial damages must receive independent
evaluation and for the amounts awarded. Plaintiff
received a combined award of Euros 851,220.00 (or
approximately $1,140,000.00) which is certainly not at
American juries’ level, but not as meager as stereotypes
about Italian law would make you believe.31
In conclusion, non-patrimonial damages in Italian
tort actions are the product of case by case evaluation
of three components, each of possible appreciable
magnitude, the assessment of which is ultimately
equitable and more an art than a science.32
One more word about a little known novelty of Italian
law, bearing on tort remedies indirectly.
By Legislative Decree n.231/2001, for the first time
in Italy corporations can be punished for certain crimes
committed by their Officers, Managers, or Employees.
Under a subsequent Law n.123 of August 3, 2007,33
such liability is imposed for death or injuries caused
by violation of safety, sanitary, and health regulations
in the workplace. Steep penalties are imposed upon
corporations, in a way somehow resembling the British
Titanic & Concordia Special Edition: April 15, 2012
Corporate Manslaughter and Corporate Homicide Act
2007. This relatively novel legislation is still in a test
phase,34 and it is very complex, but because of the many
references to regulations and to corporate and technical
plans required to implement safety in the workplace, one
day it may be the seed for the development of an Italian
theory of unseaworthiness, somehow resembling the
American one. It may even apply in this case of yours,
Dorothy.
“In conclusion, dear Dorothy, I will be happy to
assist you for redress of your losses, anxieties, moral,
biological, and existential damages” the Tin Man said.
“No way,” Dorothy answered. “Your law is a mess, I
cannot even understand it. Thank you, I am going to sue
them at my home where my jury of peers will take them
to the cleaners.” She left stiffly, hugging her beloved
dog. “And by the way, my name is not Dorothy!”
She left on the first Delta flight to Kansas City via
Atlanta and while airborne her lawyer had already
filed a complaint against the cruise line and its parent
company, asking for hundreds of millions. On the plane
she was excitingly planning to lavishly spend some of
the money she was sure to get as soon as she had landed.
At arrivals, however, her lawyer greeted her sadly and
told her that the case had been dismissed for lack of
jurisdiction. Actually the court had dismissed the case
for forum non conveniens even before addressing the
issue of jurisdiction.35
She turned back to the gate and returned to Fiumicino
International, where the Tin Man was still patiently
waiting for her with a steel smile and a legal paper
ready, sure to see her again. Nobody knows exactly
what happened after that. Rumors heard through the
thick grapevine of this extraordinary disaster have it that
she was sighted some time later at the departure terminal
of Fiumicino, shopping at the Bulgari Boutique. They
could not swear it was Dorothy, as the person sighted
was wearing a Prada dress, Ferragamo shoes, and Cartier
sunglasses. However, the dog was definitely Toto. He
was wearing a diamond-clad collar by Valentino.
But, who knows. Would you believe all the stories
that those Italians tell you?
30 Cass. civ. Sez. lavoro, Sent., 18 January 2011, n. 1072. See Supra, Note 21.
31 Notice also that the damage-duplication theory of the Supreme Court may not hold true in other cases. In the Italian procedure system, cases, even from the Supreme Court,
have practically no precedential value, and different or extreme fact patterns may well yield way higher awards for moral damages.
32 Consider that Italian case law has no “reporter” system, that there are at least 4 major private databases, that not all cases from the lower courts are reported in those databases,
and that this makes it difficult for those who are not insiders of the system to make sure that their case is optimized.
33 Art. 25 Septies.
34 At least two major multinational corporations have been condemned to heavy penalties for deaths resulting from neglect of safety measures in the workplace.
35 Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp, 127 S.Ct. 1184 (2007).
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Plaintiffs’ Issues ...
Continued from page 11
failing to report an accident to the coast guard, and
destroying a natural habitat. The criminal investigation
into the actions of Schettino and the ship’s officers
continues, and little information has been released to
date. The voyage data recordings for the entirety of the
short journey are being evaluated, and the investigation
findings are likely to be released in July. The next
hearing in the criminal matter is set for July 21, 2012.
The Passage Ticket Contract and Claims in Italy
Titanic & Concordia Special Edition: April 15, 2012
thousands of dollars in order to pursue a judgment
that could end up totaling less than the fees and costs
of litigation. As the English rule has been adopted, an
unsuccessful plaintiff may be compelled to reimburse a
defendant for litigation expenses.
In an attempt to bypass the litigation process, Costa
Cruise Lines has offered all surviving passengers
€11,000, or approximately $14,700, plus reimbursement
of expenses, as a full and final settlement of their
claims. This compromise was worked out with several
consumer advocacy groups throughout the world. Some
projections are that approximately 85% of the passengers
will accept the proposed settlement, resulting in a payout
of €42,000,000. The actual number of such settlements
is not yet known.
Cruise line passenger contracts are different from
other types of contracts, as they are generally sent to
the ticket purchaser after the agreement and payment
have been completed. The language on the ticket or any
accompanying contract is generally considered to be a
binding contract, which may serve to limit the venue,
choice of law, and time in which a claim must be filed.
Death on the High Seas Act
The tickets for the fatal cruise contained a choice of
forum provision that mandates all claims be brought in
Genoa, Italy. However, even the Italian passengers and
the victims’ families may find courts in the United States
to be more favorable and attempt to litigate the matter
under the general maritime law in federal court. Italian
law, including applicable international conventions,
imposes limits on recovery.
With respect to the Death on the High Seas Act
(“DOHSA”)4, the term “High Seas” includes not only
international waters, but also the territorial waters of a
foreign nation, provided that the incident takes place
more than a marine league away from any United States
shore.5
If the claims should move forward in Italy, or
otherwise pursuant to Italian law and the Athens
Convention Relating to the Carriage of Passengers and
their Luggage by Sea,3 which appears to have been
incorporated into the ticket, there would be a liability cap
of approximately $71,000 per injured claimant, and it is
likely only claims of physical injuries would be allowed.
However, if a plaintiff successfully proves that reckless
behavior caused the accident and the subsequent events,
they could defeat the cap and permit claims for mental
and emotional injuries.
Additionally, a plaintiff must post a judiciary tax of
a percentage of the anticipated damages and likely pay
an attorney an hourly fee. Although contingent fees are
now allowed in Italy, few Italians lawyers work pursuant
to a contingent fee agreement. Between the bond and
attorney’s fees, a plaintiff may pay out hundreds of
An exception that should be considered is for the
most serious claims, those arising from the death of
passengers. Here, Italian law may actually be favorable.
Pursuant to DOHSA, the only recoverable damages
for a victim’s family are pecuniary in nature. Where the
victim financially supported family members, damages
could include loss of future earnings, funeral expenses,
and any other financial damages sustained by the family.
However, it does not include noneconomic damages,
such as emotional distress, loss of companionship, and
other injuries relating to emotion and assistance with
daily activities. Therefore, pursuant to DOHSA, the
death of a loved one who was financially independent
and did not support other family members would likely
result only in an award for funeral expenses.
In the wake of the Deepwater Horizon oil spill in the
Gulf of Mexico, bills were proposed in the United States
Congress to modify DOHSA to allow noneconomic
damages for surviving family members, but no such
amendments have been made.6
3 Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, Dec. 13, 1974, 1463 U.N.T.S. 19.
4 46 U.S.C. 30301, et seq.
5 Howard v. Crystal Cruises, Inc., 41 F.3d 527, 529-530, 1995 AMC 305 (9th Cir. 1994) (citations omitted).
6 See, e.g. Securing Protections for the Injured from Limitations on Liability Act (the “SPILL Act”), H.R. 5503, 111th Cong. (2010); Fairness in Admiralty and Maritime Law Act
(“FAMLA”), S. 3755, 111th Cong. (2010), and the Deepwater Horizon Survivors’ Fairness Act, S. 183, 111th Cong. (2010).
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Enforceability of Forum Selection Clauses
As in matters relating to injuries sustained in the
United States, plaintiffs generally are unable to simply
choose whatever forum is most convenient or most
favorable to their claim. The same is true with causes of
action arising in other countries.
Most of the opinions relating to cruise ship forum
selection clauses relate to domestic matters. It is quite
common for tickets to contain a clause forcing any
cause of action to a state court claim filed in Florida.
Passengers seeking a refund for a ticket or recovery for
injuries often attempt to file in the venue where they
purchased the ticket, and they soon face a motion to
dismiss for improper venue.
The Supreme Court has determined that the forum
selection clauses, often found on the back of tickets,
are generally enforceable, unless they do not stand up
to judicial scrutiny for fundamental fairness.7 This has
been enforced by many lower courts.8
When evaluating fundamental fairness, the factors
considered are: whether it appears the selected forum
was chosen to discourage legitimate claims; whether
the agreement was the result of fraud or overreaching;
whether there was adequate notice of the provision; and
whether the passenger had the option of rejecting the
contract without penalty after receiving notice of the
forum selection clause.9 Plaintiffs would probably have
the best likelihood of success where the ticket and/or
contract language was provided with little time to review
and decide whether to accept the terms, particularly
where there is a penalty for cancellation at the time the
contract is received.
District courts have applied the “fundamental
fairness” assessment to different fact patterns with
varying results. Certain evaluations rest on whether
the choice of forum would be so burdensome as to
essentially preclude the plaintiff from pursuing the
claim. Some of these interpretations seem to expand the
courts’ discretion by evaluating the physical and financial
condition of the plaintiff, and others appear to constrict
it by assessing whether notice and the penalty provisions
were reasonable. In Valenti v. Norwegian Cruise Line,10
the U.S. District Court for the Southern District of New
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York dismissed the claim of an injured woman who
contested the validity of the forum selection clause, as
she had almost one month’s notice of the terms and did
not attempt to cancel the trip, despite the cancellation
penalty described in the brochure. The proper venue
was determined to be Miami.
Some of the plaintiffs, trying to defeat the forum
selection clause of the Costa Concordia tickets, claim
that the full terms of the contract were not listed in the
terms of the agreement provided on the cruise line’s
website. It is true that the forum selection clause does
not appear in the online Terms and Conditions section, at
least as of this writing, although the cancellation policy
and refund information are quite clearly explained.
The current Terms and Conditions page has a section
for Additional Limitations of Liability, which specifically
explains that liability of Costa Crociere, CCL, and other
parties, is limited:
for personal injury, death, damage to or theft of
luggage or personal property, delay, and other
events whether occurring on board the cruise ship
or elsewhere. In addition, your right to recover
in a legal proceeding will be based upon the
applicable law and forum stated in the Passage
Ticket Contract. Guests may request a copy of
the Passage Ticket Contract by calling 1-800-GOCOSTA.11
If this language was identical to the provisions
present to those who purchased the subject tickets,
Carnival, Costa, and Crociere are more likely to succeed
in enforcing the Italian forum clause.
In Effron v. Sun Line Cruises, Inc.,12 the U.S. Court
of Appeals, Second Circuit, evaluated a situation similar
to this, which occurred on a South American cruise on
a Greek-owned ship. The plaintiff in Effron lived in
Florida, purchased the ticket through a Florida travel
agent, and the cruise package included her airfare
from Florida to Brazil. The marketing brochure, that
the plaintiff entered into the record, indicated that the
Passenger Ticket Contract, which was available for
review at the cruise line’s offices, contained all of the
terms and conditions for the transportation agreement.
Carnival Cruise Lines v. Shute, 499 U.S. 585, 1991 AMC 1697 (1991).
See Stobaugh, et al. v. Norwegian Cruise Line Ltd., 5 S.W. 3d 232, 2001 AMC 215 (Tx. App. 1999).
Carnival Cruise Lines, 499 U.S. at 595.
No. 04 Civ. 8895 (RWS), 2005 WL 927167 (S.D.N.Y. Apr. 21, 2005).
See http://www.costacruise.com/B2C/USA/Before_you_go/term/2012/generalconditions_2012.htm (last visited Mar. 30, 2012).
67 F.3d 7, 1996 AMC 253 (2d Cir. 1995).
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The Court found that the Passenger Ticket Contract
clearly stated that the cruise line was based in Greece
and that any claim must be brought in Greece. Further,
the court noted that the plaintiff’s arguments related
more to convenience than issues of contract, and nothing
was introduced to indicate that she would not receive a
fair determination in Greece. Under the Carnival Cruise
Lines v. Shute standard, the forum selection clause was
held enforceable.
Such foreign forum clauses are difficult to defeat. For
example, Seung v. Regent Seven Seas Cruises, Inc.,13
in An elderly woman who was injured on a cruise
from Tahiti to French Polynesia sought to bring suit
in Los Angeles. The forum selection provision of the
contract required all claims to be brought in Paris. In
an unpublished opinion, the choice of law and forum
selection clauses contained in a cruise passage ticket
contract were held enforceable, as she failed to make
a “strong showing” that the forum selection clause
should not be enforced. Additionally, the court held
that the fact that her cruise package flight left from Los
Angeles was insufficient to constitute the inclusion of a
United States port in her cruise. Her financial hardship
and potential health complications were recognized,
but were deemed an insufficient reason to set aside the
clause. To put it simply, fighting a forum clause in a
passage ticket contract is an uphill battle.
Foreign forum selection clauses in maritime
commercial contracts have been evaluated by the courts
on many occasions. Although the analysis for a private
individual does not depend on cargo arbitrations, the
courts’ analysis can be helpful.
One such claim involved a shipment of oranges that
were sent from Morocco to New York, where $1 million
damage to the oranges was discovered.14 The plaintiff
attempted to file suit in the United States, but the ship and
owner sought to compel arbitration in Tokyo, pursuant
to the provision in the bill of lading. The plaintiff argued
that the bill of lading was a contract of adhesion, but
the Court determined the contract was appropriate under
the Carriage of Goods by Sea Act (“COGSA”). The
Court further cited Carnival Cruise Lines v. Shute, and
explained that it would be unreasonable to weigh the
Titanic & Concordia Special Edition: April 15, 2012
hardship of a foreign forum, or an inconvenient domestic
forum, in every case.
The plaintiff further argued that enforcing the forum
selection clause would effectively lessen the defendants’
liability due to the costs of travel and attorney fees it
would incur in Tokyo, in contravention of COGSA. The
Court reviewed COGSA, as well as the Hague Rules on
which it was based, and determined that nothing in the
relevant section of COGSA prevented parties to contract
regarding the forum in which disputes should be brought.
It further found that it would be improper to interpret
COGSA to mean that the additional costs would be a
lessening of liability sufficient to void the clause.
Other contract provisions, such as a one-year limit
on filing a claim against the cruise line, are generally
enforceable if the provisions have been reasonably
communicated to the purchaser of the ticket.15 When
the injuries are sustained by a minor, most state courts
provide that the time limit does not toll until the age
of majority. Under general maritime law, however,
the time limit may only be tolled for a minor or other
incompetent passenger until a legal representative has
been appointed, so long as that appointment occurs
within three years of the incident.16
Although some attorneys have now recommend
simply crossing out provisions with which they don’t
agree when boarding, in an attempt to refuse the
clauses that are unfavorable to them, this seems a risky
practice. The contract language may indicate that any
such modifications are not valid, or the cruise line may
simply refuse to accept the ticket, turning the potential
passenger away. Further, the employee accepting the
ticket is unlikely to be in a position to approve unilateral
attempts to modify the contract, and a passenger should
not assume that such acceptance may permit them to
avoid unfavorable clauses.
Claims Pending in the Courts of the United States17
Several passengers are seeking to assert their claims
in the United States, hoping that the courts may be more
favorable, and with the assurance that their attorneys
will work pursuant to contingency fee agreements.
Currently, only a few actions have been filed in the
13 393 Fed.Appx. 647, 2010 WL 3273535, No. 10-10810, Docket No. 0:08-CV-60695-MGC (11th Cir. August 19, 2010). 14 Vimar Seguros y Reaseguros, S.A., v. M/V Sky Reefer, 515 U.S. 528, 1995 AMC 1817 (1995).
15 Marek v. Marpan Two, Inc., 817 F.2d 242, 245, 1987 A.M.C. 2193 (3d Cir. 1987).
16 Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 2003 AMC 179 (3d Cir. 2002) (citing 46 U.S.C. app. § 183b(c)).
17 Special thanks to Christopher F. Hamilton, a student at Stetson University College of Law, for his assistance. He can be reached at [email protected].
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Admiralty and Maritime Law Committee Newsletter
United States on behalf of injured parties. At the time
of this publication, none of these actions have stemmed
from a wrongful death claim.
Given the differences between each passenger’s
experience and injuries, any attempt to have a class
certified seems unlikely to succeed. The plaintiffs’
attorneys in Scimone v. Carnival Cruise Lines have
stated they are handling the claims, currently on behalf
of 39 plaintiffs, as a mass tort rather than seeking class
certification.18 The Amended Complaint, filed in state
court in the 11th Judicial Circuit in Miami, contains
claims for Maritime Negligence, Gross Negligence,
Intentional Infliction of Emotional Distress, Negligent
Retention of the Captain, Fraudulent Misrepresentation,
and Fraudulent Inducement.
Attorneys for Hector Perez, and a number of other
passengers, also filed their Complaint in Miami, with
similar allegations of Negligence, Negligent Retention,
and Negligent Training.19
A somewhat different Complaint has been filed
in Chicago by Gary Lobaton, a former crew member,
and several passengers.20 His Complaint seeks class
certification. It includes counts that contain specific
allegations regarding the passengers and other allegations
regarding the crew, making class certification even more
unlikely than it would be if it were restricted to either
passengers or crew.
Titanic & Concordia Special Edition: April 15, 2012
According to the Complaint, those plaintiffs are
pursuing a cause of action for Violation of the Athens
Convention, regarding the alleged failures of safety
procedures and reckless or intentional behavior.
Additional counts are made for Breach of Contract
regarding an alleged express warranty that the trip would
be safe for both passengers and crew. It is worth noting
that, under general maritime law, warranties of safe
passage or seaworthiness may not apply to passengers on
a cruise ship.21 The Complaint also contains counts for
Negligence, Unjust Enrichment, and Punitive Conduct.
It appears that no Answers have been filed in
response to any of the Complaints at this time. Based
on the information released to date, it seems likely that
Costa Cruise Lines, parent company Carnival Cruise
Lines, and any other corporate defendants will attempt
to place all blame on Captain Schettino and will deny
any knowledge of inappropriate or unsafe behavior,
failure to establish appropriate policies, failure to train
employees, or any other facts that may give support
claims for Negligence or Recklessness.
Should the forum selection clause be set aside and
the plaintiffs allowed to pursue claims domestically, it
is likely that any successful, surviving passengers may
obtain a greater award or settlement than they would in
Italy. However, it will be quite a challenge for counsel
to establish that, under a fundamental fairness analysis,
the forum selection clause should be ignored.
18 Scimone, et al. v. Carnival Cruise Lines, et al., 2012 WL 256473, No. 12-3496 (Fla. Cir. Ct.).
19 Perez, et al. v. Carnival Corp., et al., 2012 WL 872118, No. 12-09163 (Fla. Cir. Ct.).
20 Lobaton, et al. v. Carnival Corp., et al., No. 12 CV 00598, 2012 WL 246569 (N.D. Ill).
21 Bird v. Celebrity Cruise Line, Inc., 428 F. Supp. 2d 1275, 2005 AMC 2794 (S.D. Fla. 2005).
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Titanic & Concordia Special Edition: April 15, 2012
2012 TIPS CALENDAR
April 2012
14–18 TIPS National Trial Academy
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10-11 Fidelity & Surety Committee Spring Meeting Westin Hilton Head
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