Costa Concordia Disaster

02.08.12

How Much Are the ‘Costa Concordia’ Passengers Entitled to Win—and Who Is Accountable for the Shipwreck?

As the search for bodies has ended in the deadly shipwreck, the survivors have moved on to the next phase: suing the cruise company, the captain—and anyone else who could be accountable. Barbie Latza Nadeau on how much money could be at stake.

When the Costa Concordia cruise liner sank off the coast of Italy last month, passengers lost millions of dollars’ worth of property, including expensive jewelry and high-priced electronics, not to mention goods from the ship’s many stores that were stuffed with fine jewelry, designer clothes, expensive alcohol, and pricey gadgets. But whatever treasures are buried at sea, there seems to be an even bigger fortune on dry land for survivors.

The Costa Crociere cruise company in Genova, Italy, which is owned by Carnival in Miami, Fla., has been quick to blame its erstwhile daredevil captain, Francesco Schettino, for causing the accident. The cruise company has also accepted its share of the blame and has offered uninjured passengers $14,500 for their trauma.  So far, only a few passengers have taken what is essentially a buyout. The rest are waiting for bigger compensation, even though Costa officials call their offer generous. They say the amount is already more than they have to pay “according to the international conventions and laws currently in force.”

But a handful of lawyers working on individual and class-action lawsuits say the “conventions” Costa refers to are actually null and void. Most passengers either bought their tickets over the Internet or through travel agents who did not go over the fine print and explain what rights they were forfeiting, and that lack of disclosure alone may be enough to negate the contract as a whole. The ticket fine print says all eventual lawsuits must be filed in Italy, but the legal teams involved so far agree that the United States—where Carnival is based—is a far better battleground. And because the captain is facing criminal action in Italy, passengers may also benefit from both a personal lawsuit against the parent company and from criminal justice through the Italian court system that could result in additional restitution. Prosecutors in Grosseto, where the criminal case will eventually be heard, are planning to charge Schettino with multiple counts of manslaughter, causing a shipwreck, and abandoning up to 300 passengers on the ship—and he faces an astronomical 2,967 years in prison after all the charges are tallied up. Schettino is currently under house arrest while the criminal case is pending, and prosecutors in both France and Germany have also opened criminal dossiers on behalf of their hundreds of nationals who were passengers—meaning that even if Schettino skirts the law in Italy by entering a plea bargain or otherwise bargaining a lighter prison term, he may still face additional criminal charges in France and Germany.

“There are really two separate issues,” said Mark Clark of Traverse Legal, who is consulting with a handful of clients about how to proceed with action against the company. “Passengers will be able to select their remedy, either through compensation and restitution on a civil level or justice through the criminal process.”

The Ribbeck Law Firm in Chicago, which specializes in aviation tragedies, has already filed a class-action lawsuit in the state of Illinois on behalf of crew member Gary Lobaton. Ribbeck attorney Monica Kelly told The Daily Beast that the firm is working on behalf of the passengers in hopes of nullifying the various international conventions that would restrict both jurisdiction and payout ceilings. “Ribbeck Law filed a class action not only on behalf of the crew members but also on behalf of the passengers regardless as to whether they were or not registered passengers aboard the cruise ship,” Kelly explained to The Daily Beast. “When you file a class action, you only need to name one plaintiff in the complaint, who in this case was Gary Lobaton. Our other clients and anyone else who wants to participate in this class action can be added to this suit.” She blames the obviously negligent captain for the disaster, but she says the responsibility is not only his alone. “Some of the crew members have indicated to us that this was not the first time that the cruise ship went so close to the island. It appears that Costa not only knew that the captain deviated from the navigation plan, but that Costa encouraged the captain to do it.”

Blaming Schettino for an obviously avoidable disaster is the common thread for all the pending legal cases so far, but strategies are vastly different. Italian lawyer Giulia Bongiorno is representing around 50 survivors who will file a civil suit against both Schettino and Costa Crociere in Italy and who are asking for around $150,000 apiece. Dutch lawyer Sander Lang is planning to file a similar suit in Italy for 12 Dutch passengers.  Other lawyers argue the captain can’t be sued personally because he has no means to pay compensation and that a class-action suit is not the best option.

In fact, a class-action suit filed in the United States may not actually be certifiable in this case, since all the complainants are known. Class-action suits historically work in situations where a group of people is injured by one company, whether that group is definitively identified by name or not. In the case of the Concordia, all injured parties have been named.

The second strike against the class-action strategy is that because every surviving passenger had a different experience, each person’s suffering should be valued independently, says Marc Bern of the Manhattan-based Napoli Bern Ripka Shkolnik law firm, which negotiated a historic payout to New York City workers after the World Trade Center terrorist attacks.

Bern’s legal team is working with the personal-injury law firm Proner and Proner to file individual lawsuits with multiple plaintiffs on behalf of several hundred passengers and crew. At a press conference last week in Genova, where Costa Crociere is based, Mitchell Proner announced a collaborative effort with the Italian consumer group Codacons, which is advising passengers not to take the Costa offer. The Bern-Proner-Codocans team has already filed a lawsuit in Miami on behalf of six passengers for $460 million, and they have several hundred potential passengers under their legal counsel so far.

Bern says there is no formula or standard price tag on personal terror. Some people may have gotten back on a cruise ship the next week. Others may suffer their entire lives, unable to leave their homes or go near water. Bern says the captain’s behavior and allegations he was with his Moldovan lover is just “icing on the cake.” “We have more than enough without that already,” he says.

Bern says the survivors his team is representing each deserve “over six-figure” sums in compensation, but he insists that each case may actually warrant a slightly different payout. “This is not a question of negligence, but how much negligence,” Bern told The Daily Beast. “And how that negligence adversely impacted the passengers as they escaped the ship in pitch-black terror that will haunt them their entire life.”

The Concordia was carrying 4,200 passengers and crew, including 32 people who have been declared dead or still missing and presumed dead. Those who lived to tell their stories each suffered different degrees of trauma, but for the families of the 17 dead and 15 still missing, no monetary sum will ever replace their loss. John Arthur Eaves Jr., an American attorney who specializes in both the legal wrangling and political fallout of high-profile cases, says cash does help, especially for the missing and presumed dead. “The families who don’t have a body don’t have a resolution,” Eaves told The Daily Beast.  “Compensation is an essential part of restoring the lives of those left behind. But so is changing the system that failed them. It’s important for the survivors to know their loved ones did not die in vain.”

Eaves and his Mississippi-based legal team have won damages for injured parties in a number of high-profile cases—such as the Cavalese disaster in Italy, when a U.S. Marine jet sliced through a cable, sending a gondola full of skiers to their deaths. Regardless of legal strategies, Eaves said he hopes all the attorneys involved in the case against Carnival and Costa can form a united front with the goal of making policy changes for how cruise companies operate. And Eaves says that blaming the captain only is a mistake. “My fear is that we become so focused on one person, we forget that the institution is at fault. We need to look beyond one person to see the systems that failed. Carnival is based in the USA, and it is their systems that failed.”

Eaves plans to petition Congress to make broad changes like instituting the same kind of traffic-control systems that are in place in the aviation industry and regulating just who gets on board these massive luxury liners. Eaves, who has been a cruise passenger in the past, says it is his “duty to the future” to be a catalyst for change. He believes that compensation is one of the best ways to force companies to be accountable. “Placing a high monetary value on lives may actually force companies like Carnival to do more to prevent future accidents and save them,” he says.

“This is a wake-up call, and the general public is just now realizing how cruise-line companies really operate,” he says.  “Everybody was in the same boat when they started out, but not anymore. Everybody lost something, whether it be jewelry, clothes, a loved one, or their trust in the system they thought would protect them. Each loss was a preventable tragedy. It’s time we need to plug the holes in this boat and make the cruise industry change its course.”