COSTA CONCORDIA CLAIM FILED IN THE SOUTHERN DISTRICT OF FLORIDA IS DISMISSED FOR FORUM NON CONVENIENS TO ITALY.
GIGLIO SUB S.N.C., an Italian General Partnership, and Francesco Onida, an individual, Plaintiffs, v. CARNIVAL CORPORATION, a Florida Foreign Corporation, a/k/a Carnival Cruise Lines, Carnival plc, Costa Cruise Lines, Inc., a Florida Corporation, Costa Crociere S.P.A. Company, John Does, John Does, Inc., Defendants.
United States District Court, S.D. Florida.
Sept. 26, 2012.
Putative Class action filed on behalf of Italian interests regarding the Costa Concordia. Defendants moved to dismiss for forum non conveniens.
The matter was before the Court upon Defendants’ Motion to Dismiss Based on the Forum Non Conveniens Doctrine. This case arises out of the tragic shipwreck of the cruise ship Costa Concordia on January 13, 2012. Plaintiffs Giglio Sub, an Italian corporation, and Francesco Onida, an Italian citizen, (“representative Plaintiffs”) are residents of Giglio Island. They filed this suit on May 3, 2012, as a class action on behalf of a putative class of more than 1,000 “fishermen, property owners, business owners, and wage earners on Giglio Island, as well as those working in and around the island” who claim damages to their businesses stemming from the wreck of the Costa Concordia. Plaintiffs allege causes of action for negligence, gross negligence, and nuisance, and seek $75 million in economic damages, plus punitive damages. In addition, notably, Plaintiffs ask this United States Court to issue an injunction requiring Defendants to adopt a policy to maintain a safe distance from Italy’s Giglio Island in all future travel. Defendants are four closely related, but distinct, corporations involved in the cruise industry. They include Carnival Corporation (“Carnival”), a Panamanian corporation with its principal place of business in Miami, Florida; Carnival plc, an English and Welsh corporation with its principal place of business in London, England; Costa Crociere S.p.A. (“Costa”), an Italian company with its principal place of business in Genoa, Italy; and Costa Cruise Lines, Inc. (“CCL”), an independent marketing subsidiary of Costa, incorporated in Florida with its principal place of business in Florida. Court analyzed the forum non conveniens and found that the balance weighed in favor of dismissing the claims to Italy.
Defendants’ Motion to Dismiss Based on the Forum Non Conveniens Doctrine was granted, contingent upon the meeting of all of the following conditions: 1. Defendants must consent to jurisdiction and service of process for any action refiled by Plaintiffs in an Italian court for a period of 270 days from the date of this Order; 2. Defendants must waive raising any jurisdictional or statute-of-limitations objections to these actions; 3. Defendants must make witnesses and documents in their possession, custody, or control that are relevant to these actions available upon the request of an Italian court; 4. Defendants must respect any post-appeal final judgment entered by an Italian court; and 5. Defendants must agree to the reinstatement of the suit in this Court if the Italian court refuses to recognize Defendants’ consent to jurisdiction.
ELEVENTH CIRCUIT COURT OF APPEALS REVERSED AND REMAND ORDER OF DISMISSAL ON NEGLIGENT FAILURE TO WARN CLAIMS WHERE CRUISE SHIP PASSENGER KILLED ON SHORE EXCURSION. COURT HOLDS THAT CRUISE LINE HAS A DUTY TO WARN OF KNOWN DANGERS IN PORTS OF CALL THEY VISIT.
Chaparro v. Carnival Corp., 2012 U.S. App. LEXIS 18660
United States Court of Appeals for the Eleventh Circuit
September 5, 2012, Decided; September 5, 2012, Filed
Plaintiff brother and parents, individually and as the personal representatives of the estate of their daughter, appealed the United States District Court for the Southern District of Florida’s Fed. R. Civ. P. 12(b)(6) dismissal of their complaint against defendant cruise line, for negligence and negligent infliction of emotional distress.
While the family was taking a vacation aboard a cruise ship, an unidentified employee encouraged them to visit Coki Beach upon disembarking the ship in St. Thomas. The family left the ship and traveled to Coki Beach independently of sponsored excursions. On their way back to the ship, they rode an open-air bus past a funeral service of a gang member who recently died in a gang-related shooting near Coki Beach. While stuck in traffic, gang-related, retaliatory violence erupted at the funeral, shots were fired, and the daughter was killed on the bus as an innocent passerby. The circuit court held that the cruise line owed its passengers a duty to warn of known dangers beyond the point of debarkation in places where passengers were invited or reasonably expected to visit. The cruise line’s argument that the shooting was unforeseeable was rejected because plaintiffs had alleged that the cruise line was aware of gang-related violence and crime. The negligent failure-to-warn claim was more than a mere recitation of the elements of the cause of action. The facts alleged were plausible and raised a reasonable expectation that discovery could supply additional proof of liability.
The judgment of dismissal was reversed and the case was remanded for further proceedings consistent with the opinion.
ELEVENTH CIRCUIT COURT OF APPEALS UPHOLDS FOREIGN FORUM SELECTION CLAUSE CONTAINED IN BRITISH PASSENGER’S AGREEMENT WITH BRITISH TRAVEL AGENT THAT REQUIRED LITIGATION IN BRITAIN UNDER BRITISH LAW AND FINDING THAT 46 USC 30509 DID NOT APPLY TO THIS AGREEMENT.
The ESTATE OF Tore MYHRA, Plaintiff–Appellant, v.
ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, a foreign corporation d.b.a., Royal Caribbean International, Defendant–Appellee.
United States Court of Appeals, Eleventh Circuit.
Sept. 21, 2012.
Estate of cruise ship passenger who fell ill during cruise and died sometime later brought action against cruise ship operator, seeking damages for passenger’s injuries and death. The United States District Court for the Southern District of Florida granted operator’s motion to dismiss for improper venue. Estate appealed.
In the fall of 2009, Tore Myhra and his family vacationed on a cruise ship operated by Royal Caribbean Cruises, Ltd. The ticket was purchased in Britain through a British travel agent which had their own forum selection clause calling for litigation in Britain under British law. During his voyage, Mr. Myhra fell ill, and he died sometime later. His Estate instituted this action against Royal Caribbean, seeking damages for his injuries and death. It alleged that a bacterial infection that he had acquired while on board Royal Caribbean’s vessel had caused these tragic events. Royal Caribbean moved to dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3); it relied upon a forum-selection clause among the conditions in Mr. Myhra’s travel agent contract. That clause required that all personal injury claims be litigated in the courts of England and Wales and be governed by English law. At all times relevant to this litigation, the United Kingdom was a party to the Convention Relating to the Carriage of Passengers and Their Luggage by Sea (the “Athens Convention” or the “Convention”). The district court agreed with Royal Caribbean and dismissed the case. The Estate appealed and contended that the forum-selection clause should be invalidated both because it is against the statutorily expressed public policy of the United States, see 46 U.S.C. § 30509(a), and because its terms were not reasonably communicated to the Myhras. Eleventh Circuit concluded that 46 U.S.C. § 30509(a) did not prevent Royal Caribbean from using the forum-selection clause in the Myhras’ travel agent contract, and court found no procedural or substantive error in the district court’s conclusion that the clause was reasonably communicated to the Myhras.
The decision of the district court to dismiss the case was correct, and its judgment must be affirmed.
in jones act wrongful death case, virginiA supreme court reinstates pre-death pain and suffering jury award and holds that while the recovery of nonpecuniary damages is not permitted in actions for the wrongful death of a seaman, whether under [the Death on the High Seas Act, the Jones Act, or general maritime law, such damages may be recovered in a general maritime survival action, provided they represent damages suffered during the decedent seaman’s lifetime.
John Crane, Inc. v. Hardick
Supreme Court of Virginia
September 14, 2012, Decided
Appellees petitioned for rehearing, in which they argued that the court should reinstate the jury’s $2 million award of damages for the deceased’s pre-death pain and suffering, an award the court vacated.
The supreme court found that while the recovery of nonpecuniary damages was not permitted in actions for the wrongful death of a seaman, whether under the Death on the High Seas Act (DOHSA), 46 U.S.C.S. § 30301 et seq., the Jones Act, or general maritime law, such damages could be recovered in a general maritime survival action, provided they represent damages suffered during the decedent seaman’s lifetime – as the award of damages for the deceased’s pre-death pain and suffering does in this case. Because the Jones Act provided that a seaman’s right of action for injuries due to negligence survived to the seaman’s personal representative, and because the Jones Act’s survival provision limits recovery to losses suffered during the decedent’s lifetime, a decedent seaman’s estate could recover damages for the decedent seaman’s pre-death pain and suffering in a general maritime survival action.
The judgment was affirmed in part, reversed in part and remanded.
WHERE CRUISE LINE FAILED TO TIMELY APPEAL ORDER REGARDING MODIFICATION OF MAINTENANCE AND CURE BENEFITS, THE APPELLATE COURT AFFIRMED THE LOWER COURT’S REQUIRING MAINTENANCE AND CURE BENEFITS TO INJURED SEAMEN.
Royal Caribbean Cruises, Ltd v. Rigby, 2012 Fla. App. LEXIS 15238
Court of Appeal of Florida, Third District
September 12, 2012, Opinion Filed
Appellant maritime employer sought review of an order of the Circuit Court for Miami-Dade County, Florida, that modified a pretrial order requiring maintenance and cure benefits to appellee seaman.
Although the seaman had previously received maintenance and cure (MC), it had been discontinued after a physician determined the seaman had reached MMI. The seaman sought additional MC after an examination by another doctor. In July 2009, the trial court granted the seaman’s emergency motion for MC, ordering the employer to pay the MC for a ten day period during which the employer was to investigate the seaman’s complaints and send him for a medical evaluation. No evidentiary hearing was held, although further continuation of MC was to be determined after a hearing. The employer paid the emergency MC, continuing to pay for it after the ten day period elapsed. The employer did not appeal from the July 2009 order. It appealed only after the trial court entered its order reducing the amount of MC. As the trial court had already determined that the seaman was entitled to renewed MC, the appellate court affirmed the reduction order. As the employer failed to appeal the July 2009 order, its remedy was in the trial court, not the appellate court.
The appellate court affirmed.