Partners Thomas Scolaro and Adam Rose successfully resolved a medical malpractice case on behalf of parents whose 9-month old baby suffered catastrophic injuries as a result of cruise ship doctors’ malpractice. The important and potentially case dispositive legal issues in this case included a passenger ticket contract with restrictive forum-selection and choice of law clauses. Unlike 99% of cruise ship ticket contracts this contract called for the application of law from our clients’ home country (United Kingdom). The U.K. is a signatory to the Athens Convention and its draconian cap on damages ($540,000). After strategic local and international litigation, Leesfield Scolaro was able to multiply client’s recovery by more than ten times the cap.
Facts of case were as horrific as the cruise line’s attempt to deny an innocent child justice
In the early days of a Caribbean cruise which departed from the Port of Miami, worried parents took their nine-month-old daughter to the ship’s infirmary. She was pale and lethargic, experiencing tachycardia and dehydration; all classic signs of a life-threatening meningococcal meningitis infection. Lethargy in an infant is a significant neurological change in condition that is a hallmark symptom for meningococcal infections.
One hundred days have passed since the tragic events of the Costa Concordia which saw the confirmed death of 30 cruise passengers and the disappearance of 2 additional passengers whose bodies have yet to be found.
It took more than 100 days for the cruise industry to agree on three new safety measures. The announcement of the new policies by the cruise industry through Cruise Lines International Association (CLIA) and the European Cruise Council (ECC) is all over the print and digital media and looks more to be a public relations coup than addressing the true concerns and lessons that were learned from the events that led to the sinking and grounding of the Costa Concordia.
The first measure proclaims that cruise ships will now have more lifejackets aboard than are required by law; Limiting access to a ship’s bridge at potentially dangerous times; and requiring cruise ship routes to be planned in advance and shared with all members of the bridge team.
The second and third measures are directly addressing errors which may have contributed to the Costa Concordia’s demise. Last January, Captain Schettino had invited a female passenger to the ship’s bridge, which according to witnesses, distracted not only the Captain, but the rest of the bridge team.
One should wonder why it took over 100 days for the cruise industry to figure out that bringing passengers to the bridge of a ship when the captain and the bridge team are maneuvering the ship is a terrible idea. The third measure is equally baffling. Why did it take until April of 2012 to require a bridge team to agree the ship’s route before the ship sails and stick to the route? What has happened to common sense? Continue reading
The language contained in the Convention allow the cruise liner to limit is financial liability to a maximum of $72,000 per passenger affected by this tragedy for their personal injury or death. However, Article 13 of the Athens Convention does provide that if a passenger is able to prove that their damage resulted from an act or omission done [ . . . ] recklessly and with the knowledge that such damage would probably result, then the limits of liability of the Athens Convention would not apply.
The latest information coming out of the office of Italian prosecutor Francesco Verusio is the most damning evidence of recklessness yet on the part of Captain Schettino.
In a new audio recording released Thursday, Captain Francesco Schettino is heard communicating with Livorno port authorities after the ship had hit a reef and before the ship began capsizing. In the exchange, a port authority officer tells Schettino that they have heard from a crew member that there had been a major incident during dinner and that plates and glasses had slammed onto passengers.
Schettino was quick to reassure the officer that everything on board was fine and replied that the incident in question was caused by an electrical blackout and that the crew is “verifying the conditions on board“. Captain Schettino failed to mention that the ship had hit a reef.
New accounts by crew members are beginning to surface six days after the incident. French stewart Thibault Francois told French Television that the captain sounded the alarm too late and did not order or instruct the crew to evacuate the ship until it was too late and the ship had already begun listing on its side and taken in a substantial amount of water. Eventually, crew members started lowering lifeboats on their own.
Francois said “the captain asked us to make announcements to say that it was electrical problems and that our technicians were working on it and to not panic”. “There were no orders from the management,” he added.
Another crew member, Mukesh Kumar who was one of the many ship’s waiter said that “the emergency alarm was sounded very late,” only after the ship “started tilting and water started seeping” in. “The ship shook for a while, and then the crockery stated falling all over,” said Indian Kandari Surjan Singh, who worked in the ship’s galley. “People started panicking. Then the captain ordered that everything is under control and said it was a normal electric fault … so people calmed down after that.” As reported by the Associated Press.
For additional information about cruise ship litigation and cruise ship law, visit Leesfield Scolaro’ Cruise Ship Law Center.
An Italian Judge will have to decide whether lives could have been saved had the port authority been told by Captain Schettino the true nature and potential extent of the seriousness of the incident. The judge will also have to decide whether Captain Schettino was reckless in announcing to passengers that the incident in question was only an electrical issue and that everything was under control. As a result, the evacuation was also delayed until it was clear that the ship was taking water and began capsizing.
In another sad news, the search and rescue efforts found four additional bodies in the wreckage of the ship. The number of fatalities rose to 15. There are still 17 people who remain unaccounted for, including 2 Americans, Barbara Heil and Gerald Heil.
Captain Schettino remains under house arrest. He faces up to 15 years in jail if found guilty on charges of manslaughter and abandoning his ship. Continue reading
The Athens Convention establishes a comprehensive integrated system to govern the liability of cruise ship operators for personal injuries and property damage sustained by its passengers. It contains standards for establishing liability and permissible defenses as well as its own statute of limitations and venue provisions. The Convention was primarily motivated by a series of uninsured ferry disasters occurring in a number of underdeveloped countries.
Amid the Costa Concordia tragedy, it seems very likely that cruise passengers will have to file any lawsuits in Genoa, Italy, where the cases will be subject to Italian law. Courts in the United States have consistently upheld the choice of law clauses contained in cruise passenger tickets absent evidence that “enforcement would be unreasonable and unjust”, ” the clause was invalid for such reasons as fraud or overreaching”, or “the enforcement would contravene a strong public policy of the forum in which the suit is brought”.
More importantly, as part of this comprehensive system, the Athens Convention allows the carrier to limit its liability for passenger personal injury or death in the absence of its reckless misconduct. The current monetary limitation in U.S. dollar is approximately $72,000. The operative words are “in the absence of [the carrier’s] reckless misconduct.” Specifically, Article 13 of the Athens Convention provides that the carrier will lose its right to limit liability where it is proven that the damage resulted from an act or omission done with intent to cause damage or recklessly and with the knowledge that such damage would probably result.
Can Costa Concordia Passengers prove that the carrier acted recklessly and with knowledge that damage would probably result and lift the carrier’s right to limit its liability?
Here are the pertinent facts that have come to light thus far:
The cruise ship deviated from its original course
According to court documents filed today in Italy, Captain Francesco Schettino admitted to a judge that he made a mistake in steering the ship too close to the Island of Giglio. Captain Schettino deviated from the ship’s programmed route and came 0.28 nautical miles (less than 600 yards) from the coast.
The cruise ship intentionally deviated from its original course
Head waiter, Antonello Tievolli, reportedly did not ask the captain to steer towards his native island, but he nonetheless told his family that he would be passing by that evening and his sister, Patrizia Tievoli, shared his whereabouts on her Facebook profile by posting the following wall post: “In a short period of time the Concordia ship will pass very close. A big greeting to my brother who finally get to have a holiday on landing in Savona”.
The cruise company confirmed ship’s deviation was not authorized
Pier Luigi Foschi, chairman of Carnival’s Italian unit, Costa Crociere confirmed at a press conference in Genoa on January 16, that the Costa Concordia ran aground at about 9:45 p.m. on January 13, within hours of leaving a port near Rome to continue a Mediterranean cruise. The ship’s route was set electronically before it left, and the cruise liner should not have been so close to Giglio Island. Foshi added “the fact that the ship strayed from that course can only be due to a maneuver that was not approved, not authorized nor communicated to Costa Crociere by the captain of the ship”.
The cruise company knew of the common practice to sail close to the Island of Giglio
It has now surfaced that it was common practice for the Costa Concordia to deviate from its original route and to sail dangerously close to Giglio Island. An amateur video footage was recently posted online showing the Costa Concordia sailing off the coast of the island, closer to the shore in August 2011 than it did on January 13.
Italian Prosecutor qualifies Captain’s Schettino’s behavior as reckless
In a recent interview to the media, Italian Prosecutor Francesco Verusio declared that “the unscrupulousness of this reckless maneuver that the commander of the Costa Concordia made near the Island of Giglio is something that is inexcusable. From the investigation we carried out straight off the incident, we are certain that the captain of the ship was on the command bridge and the control of the ship was in his hands. This risky maneuver that the captain performed sailing close to Giglio Island without due caution caused the impact that we all saw. The captain is in a very difficult position because we are sure that he abandoned the ship when many passengers were still waiting to be evacuated”. Continue reading