11th Circuit Tackles Costa Concordia Conundrum!

Can a defendant join a bunch of separate suits together as a "mass action" and remove under CAFA?

That's what Carnival did when faced with two state court suits -- each with less than a hundred plaintiffs -- brought by Costa Concordia passengers.

Judge D said that's cute but no way, and the 11th Circuit -- in a case of first impression in our Circuit -- basically agreed:

Since we know for sure that a mass action cannot be one joined on the defendant’s motion, it follows that the proposal must originate either with the plaintiffs or, perhaps, with the state court.

You know how defendant's counsel always think they know about your complaint than you do?  This takes it to a whole other level.

Guess plaintiffs are still masters of their complaint, at least for a while.

We Have All Been Here Before?

Wow, let's see -- Dow hits record high, Chavez is out in Venezuela -- is it the 90s all over again?

In other news, for those of you who remember this case involving a teenage girl on a Carnival cruise and an alleged invasive strip search, Judge Rosenbaum has denied Carnival's motion for summary judgment as to the plaintiff's punitive damages claim:

As discussed above, there are material disputes in this case as to whether Defendant’s employees conducted a strip search, including a cavity search, of a seventeen-year-old passenger and whether Defendant’s policies permit such a search. If Defendant’s employees performed such a search, the Court cannot conclude that Defendant’s policies permitting the strip search of a minor, if supported by the facts at trial, do not rise to the type of “gross and flagrant” conduct that would support the award of punitive damages.

Hey, so there's that.

But at least they take good care of their passengers when a ship breaks down unexpectedly!

Plaintiff is represented by Kimberly Lambert at Levin Papantonio, and Carnival by Curtis J. Mase.

First Carnival Triumph Lawsuit on File!

It was filed in the SD FL (of course) and is pending before Judge Graham.

Check it out here.

The lawyer on the pleading is Marcus R. Spagnoletti.

Now the Island Is Suing Over the Costa Concordia Disaster!

I suppose it was only a matter of time before the merchants and residents on little Giglio Island, near where the Costa Concordia crashed, got together to sue Carnival over their lost business.

You can read the SD FL complaint here, brought by noted kindred spirit of holographic Tupac Ernest Hemingway, Ed Ricci:

Dear Concordia Passenger: Your Discount Voucher Has Arrived!

The net was abuzz yesterday over reports that Costa was offering Concordia passengers a discount voucher for 30 percent off a future cruise.

Costa, however, disputes this and says they are in fact big shots and are refunding the entire purchase price of the cruise:

"Passengers on board the Costa Concordia on the night of the accident have not been offered a discount on future cruises. Costa is refunding the full cost of the cruise, the expenses incurred on board the ship, any transport costs incurred to reach the port of embarkation and return home if transfers organized by the company were not used. Costa Concordia guests also will be reimbursed any medical expenses they may have incurred as a result of the accident. As regards items left in the safe in the cabin, these will be returned to guests as soon as we recover the safe. Regarding the loss of personal belongings and other forms of compensation, we will be contacting guests in the very near future." 

Costa added, "you're welcome."  

I'm not sure the 15 confirmed dead passengers will appreciate this gesture.

This follows Gabby D'Alemberte's article in the Herald which basically notes that you sign away all your legal rights when you board a cruise (in exchange for an awesome buffet!):

But the U.S. passengers who survived the disaster face a legal nightmare as well. Because of the documents they signed just before boarding the ship, they have virtually no chance to argue their case in court or to receive financial compensation for their losses.

That’s because the Italian cruise line company includes a “choice of forum” clause in the fine print of its ticketing documents that any lawsuit needs to be filed in Italy, not the United States. That makes a huge legal difference in how wrongful death, personal injury and other negligence cases are handled.

First of all, the Italian court system does not allow contingency fees in these types of cases. In addition, a plaintiff is required to post a bond of 10 percent of the expected damage award simply to file the lawsuit. That means a Costa Concordia passenger who could expect a $2 million damages award, based on similar cases in the United States would need to post $200,000 right at the start and pay an Italian law firm $200,000 to $300,000 in fees over the next four or five years before the case could even go to a jury.

While the passenger may well prevail in court, based on the reported negligence of the captain and crew, very few people can afford to spend $500,000 or more in a protracted legal battle. That means the U.S. passengers and their families basically have no recourse in this tragedy.

Yay Tort Reform!!

Gabby suggests you mark out the offending venue language when you check in to your cruise:

When you come to the choice of forum clause in your ticket, take out your pen and cross out a few words, such as “I agree to…” and hand the documents back to the boarding agent. While the agent has the right to deny you from boarding, most likely you will still be ushered aboard.

Then, if a tragedy does occur, you have a strong argument for filing your case in the United States, and receiving a fair and equitable outcome. 

I hope she is right about that, but I have my doubts.  If you are checking in with a large group and you hand alter the terms of the contract I have a feeling the boarding agent is going to be pretty ticked off, but maybe I'm wrong?

The bigger point of course is that no one -- including lawyers -- reads these adhesion contracts and even if they do they often just sign because there really is no meaningful alternative (especially where your bargaining rights are so limited).

That's why the judicial doctrines that have developed over the last century to protect consumers from unconscionable or drastically unfair contract terms are so important -- there's simply no other available method to address such poison pills in 6400-page corporate documents when all you want to do is slide down into the pool safely.

Read more here: http://www.miamiherald.com/2012/01/22/2602456/how-not-to-sign-away-your-rights.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/01/22/2602456/how-not-to-sign-away-your-rights.html#storylink=cpy

Good Luck Suing Carnival!

Local maritime geek Jack Hickey is fighting the good fight in trying to help victims of the Concordia disaster, but Carnival is not making it easy:

Anyone trying to sue Costa Concodia’s corporate parent, Carnival Cruise Lines, though, will find that the company is stoutly protected by international law and by a carefully worded contract that passengers accept when they buy their tickets.

For its part, the company is heaping blame on the ship’s captain, Francesco Schettino, calling the accident “human error” and contending that the captain diverted the ship from its authorized route. The company, based in Miami, did not respond to requests for comment for this article.

Such forceful criticism of the captain may be intended to help the company avoid liability under international agreements like the Convention on Limitation of Liability for Maritime Claims. The convention is referred to on the Web site of the International Maritime Organization as “a virtually unbreakable system of limiting liability” for the owners of ships after accidents. 

But Jack says there still might be something there:

To Jack Hickey, a maritime lawyer in Miami who is working with an Italian lawyer to represent Costa Concordia passengers, the cruise line’s responsibility is obvious. Referring to the captain, Mr. Hickey said that the company had “nobody with more authority or responsibility than him” on the ship, and that it was not as if a janitor had somehow steered the ship onto a rock formation. Besides, he noted, in an age when ships are in constant communication with their owners, the company should not be able to argue that it had no idea what was going on. “You mean you can’t track it?” he asked. “You mean if it gets that far off track, you don’t know?”

The issues in the case could be shaped by the highly restrictive terms of the contract that every passenger gets with his or her ticket, said Gerald McGill, an admiralty lawyer in Pensacola, Fla.

Cruise contracts are notoriously restrictive regarding the rights of passengers, and Costa’s 6,400-word contract is no exception. The Costa contract sharply limits the kinds of lawsuits that can be brought, where those suits can be brought and how much the company can be made to pay. All such provisions have been upheld in the courts of the United States, he said.

Costa’s contract states that the line will pay no more in cases of death, personal injury and property loss than about $71,000 per passenger. It allows no recovery for mental anguish or psychological damages. It bars class-action suits.

“If you read this cruise line ticket, and it doesn’t make your stomach turn, it should,” Mr. McGill said. 

 6400-word contract?

That's longer than most short stories (and probably not as interesting)!

Judge Cooke Voids Carnival Arbitration Clause.

This is a pretty interesting opinion from Judge Cooke, voiding an arbitration clause in a Carnival Cruise line employee contract.

She finds the arbitration provision to be null and void because it violates the statutory remedies provided to seamen by the Jones Act:

The Jones Act confers seamen the statutory right to sue their employers for the negligence of fellow crew members. 46 U.S.C. § 30104; Thomas, 573 F.3d 1115 n. 1. In the event of personal injury or death of a seaman, the personal representative of the seaman may elect to bring a civil action at law, with a right to trial by jury, against the employer. 46 U.S.C. § 30104. There is no dispute that the law governing the Agreement and the arbitration clause is Panamanian law. Panamanian law, however, does not provide a seaman a reasonable equivalent to the statutory rights conferred by the Jones Act. Accordingly, the arbitration clause violates public policy, operates as “prospective waiver” of a Plaintiff’s right “to pursue statutory remedies” under the laws of the United States, and is “null and void” under the Convention.  Absent a valid arbitration clause under the Convention, this Court lacks subject matter jurisdiction over this action. 9 U.S.C. § 205.

Hmm, this has pretty broad implications, no?

Any guesses on how the 11th will handle this?