Follow us: Entypo-facebook Entypo-twitter

CM-web-Banner-2014-b

A Matter of Law

Lawfest over the Costa Concordia

By Milton Samuda

January 13, Giglio, Italy, and the cruise ship Costa Concordia have earned an unenvied place in the history of shipping generally and cruise shipping in particular. 

While we mourn and regret the loss of lives and the injury to so many passengers, there is no denying the fact that marine lawyers the world over have found the incident fascinating for the plethora of legal issues which arise. Indeed, the casualty Costa Concordia, represents a veritable lawfest.

Commentary

Much thought and a great deal of commentary have emanated around – or been devoted to the remedies available to passengers. However, not much thought seems to have been given to the remedies available to the crew, for example? What about the consequential losses which might arise to travel agents and tour operators, suppliers and such third parties?

In Italy, the full ventilation of the truth about the Costa Concordia incident has been postponed by the court until October 2012. Meanwhile, lawsuits in other jurisdictions are proceeding. This is perhaps the most anticipated litigation on a major ship casualty. The use of technology has made the international interest in this matter more far-reaching than ever before. Various people from a broad range of cultures are expecting to receive first-hand and instant news of developments.

Against that background, what are some of the critical issues arising in law? Why is the outcome of this case so highly anticipated?

Well, for one, the impressive range of issues reads like an extensive tutorial for even the most experienced lawyer. One could start with the very interesting consideration of the language barrier as a safety issue and particularly with respect to instructions by crew to passengers. Is there a duty to ensure that those who have to issue critical instructions in a case of emergency are able to do so in a language or manner which passengers will understand?

Jurisdiction

What of the vexed issue of jurisdiction and applicable law? What is the definitive jurisdiction and/or forum in which issues of criminal and civil liability ought to be determined?

As a separate issue from jurisdiction and forum, what ought to be the applicable law? Is it the law of the contract (between passenger and cruise ship) or the law of the jurisdiction in which the accident occurred; or the law of the domicile of an injured claimant; or of the state of a deceased passenger? Are claimants at liberty to ‘forum’ shop in search of more favourable laws and higher awards of damages?

Then, too, who are the potential claimants? Most persons, including many lawyers, focus only on passengers and their families. However, wouldn’t crew members themselves have a claim against the cruise ship? Wouldn’t those ‘independent contractors’ who provide entertainment or other specialised services also be potential claimants?

Redress

Shouldn’t third parties, exposed to possible consequential claims – for example, travel agents or tour operators – seek redress from the cruise ship in the event of such claims?

What about a potential claim for damage to the environment, even in the absence of an oil spill?

Going back to the issue of contract, courts and lawyers will be poring over each line, dissecting and interpreting exclusionary clauses; provisions limiting time for claims to be made; and, of course, liability clauses seeking to limit both the extent and quantum of damages. In fact, in many of the cases filed, regardless of jurisdiction, one may expect that the courts will be challenged to deal with preliminary points not only in relation to discovery but also in relation to points of jurisdiction and limitations.

Then there is the heart-breaking reality of missing persons – for example, the anguish of those two families whose grief is exacerbated by a lack of closure. Those families must now use the law to declare relatives dead and then seek justice on behalf of their estates. The law, so often viewed by laymen as a humbug, becomes an ally in aiding the resolution of one of the most basic human challenges – that of loss and the acceptance of loss.

In the forefront of the news and the minds of many persons is the image of an allegedly negligent captain, Francesco Schettino. I emphasise ‘allegedly’ because nothing has yet been conclusively proved and he is innocent until proven otherwise. Having said that, one must concede there is an element of res ipsa loquitur (‘the thing speaks for itself’) which would have many saying that the real issue for determination is the nature of the negligence. 

However, lawyers know only too well that the so-called ‘obvious’ is often not proved evidentially in a court of law. As a separate but not tangential issue for the cruise ship is the consideration of whether there was negligence on the part of the crew and the cruise ship.

As the causality moves to resolution, the salvage of the wreck has itself become historic. A real ‘tourist attraction’, the salvage exercise which commenced in June will continue into early 2013.

As if all the above were insufficient to have lawyers enthralled, what of the consideration of the damage to a considerable brand. 

It is true that the Costa Concordia represents but one brand in the global brand that is Carnival; however, the intellectual property lawyers would consider how to contain the damage while preserving the considerably positive reputation of the global brand.  

* Milton Samuda is managing partner of the Jamaican-based law firm Samuda & Johnson.

 

Page 17 of 17