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)!

3d DCA Watch -- "Legal Panache" Edition!

Is the right to a jury trial a question of great public importance?

That's the issue certified by the Resplendently Resplendent Ones today in Weisenberg v. Costa, which involved a forum selection clause that specifies admiralty jurisdiction but not that the legal consequence of being in admiralty is no jury trial.

Judge Cope's opinion certifies to the Supremes this question:

IS A FORUM SELECTION CLAUSE ENFORCEABLE IN CIRCUMSTANCES WHERE ITS EFFECT IS THAT PASSENGERS WAIVE THE RIGHT TO A JURY TRIAL BUT THE CLAUSE DOES NOT EXPRESSLY SO STATE?

Seems like it might be worth the Supreme's time, especially with all the cruise cases here in South Florida.

Plus it already divided the 3d, which dealt with this issue last year in Leslie v. Carnival Corp., 22 So. 3d 567 (Fla. 3d DCA 2009):

Compare id. at 574 (Shepherd, Gersten, Wells, Suarez, and Lagoa, JJ., concurring in denial of rehearing en banc) (“[U]nder federal maritime law, the passengers in these cases received the notice to which they were legally entitled. . . . There is no requirement under general maritime law that ticket recipients be advised of any unstated ramification of those limitations.”), with id. at 585 (Cortiñas, Ramirez, Cope, Rothenberg, and Salter, JJ., dissenting from denial of rehearing en banc) (“[W]e would grant the motion for rehearing en banc and find the federal court portion of the Forum Clause at issue here is unenforceable as it operates to deprive appellants of their constitutional right to a jury trial without notice and without consent.”).

Not so, says Judge Shepherd.

To be honest, this case is barely worth the electronic data it's printed on, let alone an issue to bother the mighty Supremes with, busy as they are with rule changes, disbarments and oh, that's right -- executions:

The case before us is a garden variety personal injury case with a contractual twist. As a practical matter, the clause in question affects a narrow class of Costa Crociere cruise ship customers—those with a dispute arising out of their cruise experience.

He also says something about the "ancient concepts of freedom of contract," "deduces" the true non-record selfish motivation of the appellant (juries are perceived to be more favorable to plaintiffs than federal judges) and then goes for the jugular:

This may be a case of some legal panache. However, in my opinion, it is not a case of great public importance. The former, of course, is not a basis for certification.

Ouch.

Take that, Judge Cope -- panache!

First of all, the word is French.

(I think that speaks for itself).

Further, according to Wiktionary, Judge Shepherd thinks the case either (1) resembles an ornamental plume on a helmet, or (2) exhibits flamboyant, energetic style or action; dash; verve.

I would agree with him that the former, of course, is not a basis for certification.

Not sure about the latter, though I have a question -- how can a case be "garden variety" yet also show some "legal panache"?

Guess we'll soon find out.

Relax, Facebook Just Wants to "Harvest" Your Data!

But first they want to tenderize it some, like those friendly farmers from Motel Hell:

Alana Joy, who started the Facebookprotest.com site organizing the June 6 event, said she is more upset about the way Facebook has made changes, rather than what's changed.

``Just because you post something online doesn't mean it's for the whole wide world to see,'' said Joy, a Los Angeles-based marketing strategist who doesn't use her full legal name online or professionally because of privacy issues.

Her biggest gripe?

``They also didn't explain them in changes that my 18-year-old sister and my grandmother can understand,'' Joy said.

Lior Leser, an Internet lawyer who actually writes similar privacy policies, agreed with Joy.

``The problem is they never really present what's happening,'' said Leser, who is with the Miami Beach firm Leser Hunter Taubman Taubman. ``How about, `Hey, we're a free service, but this is how we use your information to sell ads -- that's how we make money.' ''

I printed out Facebook's privacy policy: it's five, single-space pages of type that's at least half the size of these newspaper characters.

That's it? Just five single-spaced pages?

Any references buried in there to the true size of the "Olympic" pool or that your condo is not on the bay but actually in Overtown?

If so, you're screwed -- 'cause that's just how people in the real world deal with contracts.

If you're interested, ReclaimPrivacy.org will run a scan of your Facebook account and tell you how you had no clue you had agreed to all those settings (and you're a lawyer!)

Finally, to Internet lawyer Lior Leser -- I had no idea such a practice area exists btw -- will you be my friend?

The "Cocooning" Effect on Federal Judges

I've often wondered whether federal judges are sometimes treated with too much deference.

Obviously by virtue of their position and authority, and sometimes even their achievement (I kid, I kid!), federal judges deserve significant respect from practitioners and the public at large.

But a few recent examples call to mind whether there can be negative institutional effects when respect crosses the line into outright obsequiousness.

I was struck by Chief Justice Roberts and Justice Scalia's shock and dismay over actually having a question thrown to them during oral argument by Solicitor General Elena Kagan:

Two weeks ago, Solicitor General Elena Kagan, a leading contender for appointment to the Supreme Court, presented her sixth argument there. She bantered easily with the justices, and she seemed to have a special rapport with Justice Antonin Scalia, at one point responding to a question from him with one of her own.

Justice Scalia’s reply suggested she had crossed a line. “Well, I’m not making the argument,” he said, declining to answer her question.

Chief Justice John G. Roberts Jr., who has had some testy exchanges with Ms. Kagan over the last seven months, made the point more sharply.

“Usually we have the questions the other way,” he said.

“I apologize,” Ms. Kagan replied.

Is this healthy?

The American tradition -- unlike that in Europe or Japan or India, for example -- does not elevate people to position of kings or monarchs by their birth or fix them to classes by their social strata. We live in a fluid merits-based society where all are supposed to be equal and respect is typically earned, not awarded.

I wonder what effect there can be on cognitive thinking skills if you are never questioned or challenged on your viewpoints. I really can't think of another example where a public figure (in this case, a public servant) can expect never to be questioned or challenged publicly on their views. Certainly the President gets plenty of public pushback, hail he was even criticized for daring to condemn a Supreme Court decision in their presence.

The cocooning effect also seems to leave some judges out of touch with the real world or the lawyers who practice in it.

Recently we saw Supreme Court judges flummoxed by "texting" technology:

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Oy.

And I love this footnote by Justice Alito in yesterday's decision overturning the 11th Circuit in a Section 1988 fee-shifting case:

Justice Samuel Alito Jr., writing for the majority, said fee enhancements for superior attorney performance are permissible in exceptional cases. But in this case, he said, the judge did not provide "proper justification" for the enhancement under a series of factors he listed, aimed at proving that the lodestar fee alone would not have been adequate to attract competent counsel.

The federal fee-shifting law, Justice Alito wrote, "serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute's aim."

In a footnote, Justice Alito added that if the $4.5 million fee enhancement had remained in place, the lawyers for the foster care plaintiffs "would earn as much as the attorneys at some of the richest law firms in the country."

How does the Judge know this (and why does it matter anyway)?

Also, if you only compensate civil rights attorneys their lodestar when successful, how do you incentivize them to take cases and front all the costs and expenses when they may not, you know, win every time? How does that further the statute's aim?

(Lawyers who do this work, feel free to chime in.)

Then we have a recent incident that shows how contracts sometime operate in the real world:

A computer game retailer revealed that it legally owns the souls of thousands of online shoppers, thanks to a clause in the terms and conditions agreed to by online shoppers.

The retailer, British firm GameStation, added the "immortal soul clause" to the contract signed before making any online purchases earlier this month. It states that customers grant the company the right to claim their soul.

"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions."

GameStation's form also points out that "we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."

The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents.

Gee, I know of some precedent that would indicate this contract is valid and enforceable right here in the SD FL!