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Florida's Offer of Judgment Statute Not Applicable Where Parties Agree Otherwise
In the decision of Southeast Floating Docks, Inc. v. Auto-Owners Ins. Co., No. SC11-285 dated February 2, 2012, the Florida Supreme Court answered the following certified question:
Whether Florida's offer of judgment statute, section 768.79, Florida Statutes, constituted substantive law and therefore was inapplicable in instances where parties to a contract have agreed to be bound by the substantive law of another forum.
This case involved a dispute between the parties when Auto-Owners issued a performance bond in connection with the work of Southeast pursuant to a contract which provided that Southeast would build a floating dock for Rivermar. The court held that section 768.79 created a substantive right to costs and attorney's fees upon the satisfaction of certain conditions. Accordingly, under a conflict of law analysis, when parties have agreed to be bound by the substantive law of another jurisdiction, section 768.79 simply did not apply.
This is an important pronouncement from the Florida Supreme Court, particularly in maritime cases. It makes clear that Florida Statute section 768.79 is substantive and therefore, should be parties agree to be bound by the law of another jurisdiction, this statute would not apply. This means that the U.S. rule that each party pays their own lawyer regardless of outcome should apply--with the usual caveat that each case is different and the particular contract at issue should be reviewed before presuming that Southeast Floating applies.
If you are interested in reading the complete decision, you may access the decision here => http://law.justia.com/cases/florida/supreme-court/2012/sc11-285.html.
If you are interested in contacting me, please feel free to do so at miamipandi@comcast.net.
Crew Union Praises Costa Post-Concordia Tragedy
Tradewinds reports in their February 3rd edition that the local transport union Federazione Italiana Transport ("FIT") has praised Costa Cruises for their handling of the crew's welfare following the COSTA CONCORDIA tragedy. It has been described as "exemplary." FIT reports that Costa has a Collective Bargaining Agreement ("CBA") in place, which provides for compensation payments to deceased crew's family with a further EUR 60,000 (US $79,000) compensation payment to be made to families of the deceased from the union's welfare fund.
FIT also reports that Costa are applying the Maritime Labor Convention 2006 and have signed the Social Accountability standard 8000. This means that Costa are reportedly managing the situation in line with its obligations under the CBA and international crew welfare conventions. After the accident, the rescued crew were reportedly placed in hotels with pocket money provided by the company. A consolidated salary, paying crew up to the end of their employment contract, was also paid. Crew will also be paid up to another $3,570 for their personal losses and have been offered post-trauma stress counseling at the cruise line's expense. The cruise line has also paid for family of the injured crew to visit them in the hospital.
All but approximately 20 of the rescued crew have been repatriated back home. Three crew were found dead, while two more remain missing.
There has been some discussion in the local bar about the potential for crew involved in this tragedy bringing claims against Costa in the United States. Discussion of jurisdiction, choice of law and forum non conveniens defenses aside, reports such as this one should assist Costa in repelling some of the substantive arguments within individual claims of crew which may find themselves choosing to sue here in the United States.
If you are interested in receiving a complete copy of the Tradewinds article or wish to contact me, you may do so at miamipandi@comcast.net.
The 100,000-ton cruise ship became stranded off Mexico when a fire broke out Sunday in the engine room. The fire knocked out the ship's primary power source, crippling its water and plumbing systems and leaving it adrift. "During the horrifying and excruciating tow back to the Untied States, the vessel listed sharply several times, causing human waste to spill out of nonfunctioning toilets," the lawsuit claims. Terry waded through human feces to reach food lines where the wait was hours, and often the food spoiled, the complaint alleged. The suit filed by Gilman & Allison of Pearland, Texas, listed counts of fraud, negligence and breach of maritime contract.
If you are interested in contacting me, you may do so by writing to me at mov@chaloslaw.com.
COSTA CONCORDIA Developments--P&I Comments, Operator Promises and Suits Filed
Lloyd's List reports that the ship COSTA CONCORDIA is part entered in the Steamship Mutual, on a 50/50 quota share with the Standard Club. Steamship Mutual has defended Carnival, Costa Cruises’ parent company, in a letter sent to members stating that over the years, the company has more than paid its way in premium to cover the cost of this casualty.
I have been asked how liability claims will be paid. Lloyd's List reports that the first $10 million is covered by Carnival’s $10 million deductible. From there, both Clubs will reportedly pay $4 million each before claims are then taken to the International Group pool of $60 million and on to reinsurers. It is reported that there has been much market speculation over how high the eventual P&I claim will be, with some arguing it could reach $1 billion.
More on this article can be viewed at http://www.lloydslist.com/ll/sector/Insurance/article389772.ece.
Lloyd's List also reports that Costa Crociere has offered to pay uninjured passengers $14,460 for “indemnification, covering all patrimonial and non-patrimonial damages, including loss of baggage and personal effects, psychological distress and loss of enjoyment of the cruise vacation”. The cruise line also intends to reimburse passengers for the value of the cruise, travel expenses to reach the port of embarkation and to return home, medical expenses and expenses onboard during the cruise. The package is not for crew, injured passengers or families who have lost loved ones.
The cruise line claims that this compensation package is higher than the current indemnification limits provided for in international conventions and laws currently in force. However, US lawyers have already sought in a putative class action a minimum of $160,000 per uninjured passenger on the grounds of the entire trauma associated with the incident. Injured passengers or loved ones of deceased passenger will want far more in damages.
A complete copy of this article can be seen at http://www.lloydslist.com/ll/sector/Insurance/article390025.ece.
Finally, the Miami Herald has reported that six of the ship's passengers have filed lawsuits in U.S. federal court in Miami seeking hundreds of millions of dollars in damages. The lawsuit filed Friday seeking $460 million in damages names Costa Cruise Lines and its parent company Carnival Corp. Both companies have offices in South Florida.
A complete copy of the e-article can be seen here http://www.miamiherald.com/2012/01/28/2613173/6-costa-concordia-passengers-sue.html.
If you are unable to access any of these links, would like copies of these articles or you wish to reach me, you may do so by contacting me at miamipandi@comcast.net.