Concordia Pax Ordered to Bring Suits in Italy

January 27, 2016

On January 27, 2016,  a 3-judge panel of the Third District Court of Appeal for the State of Florida has ruled unanimously that lawsuits filed by passengers on Costa Concordia, the infamous cruise ship that ran aground and sank in Italy in January 2012, should be heard in that country. The appellate court found that 57 plaintiffs, including five U.S. residents, should not be allowed to pursue their lawsuit against Miami-based Costa parent Carnival Corp. in Miami-Dade Circuit Court, which dismissed the case on forum non conveniens grounds.

Costa Concordia sank off the Italian island Giglio in January 2012 after its captain allegedly changed course to do a sail-by salute and hit a coral reef. More than 3,000 passengers and 1,000 crew members were evacuated--32 people died.

The court reasoned that the evidence is located in Italy. The court also noted that the wreckage, voyage data recorder, bridge voice recorder, ship cameras and the vessel's electronic navigation system are all in the custody of Italian authorities. The appellate court remanded a second set of Costa Concordia claims filed by 17 U.S. residents to Miami-Dade Circuit Court, finding that the trial judge in that companion case, which was consolidated with the first reported case, did not properly conduct a "private interest" analysis with respect to the U.S. plaintiffs. The court found that the court had to analyze the elements of the plaintiffs' causes of action. The court must then consider the necessary evidence required to prove and disprove each element and make a reasoned assessment as to the likely location of such proof. Because the trial court failed to undertake this analysis in the second case, the court reversed and remanded that portion of the trial court's ruling for further determination.

If you are interested in receiving the court's opinion or wish to contact me, you may do so by writing to me at blog@miamimaritimelaw.co.

Tour Boat Captain Implicated in Tragedy Off Nicaragua

January 25, 2016

As reported in the Daily Business Review on January 25, 2016, Nicaragua's police, army and navy will investigate the captain of a tourist boat and his assistant for the deaths of 13 Costa Rican passengers killed on January 23rd when the vessel capsized in bad weather. The Reina del Caribe, Spanish for "Caribbean Queen," was carrying 33 people when it went down Saturday amid rain and strong winds as it ferried between the Corn Islands, a popular tourist destination, off Nicaragua's Caribbean coast. The Daily Business Review article can be accessed here=> Daily Business Review article.

The government clarified on the 24th that the boat was carrying 25 Costa Ricans, two Americans, two British citizens, a Brazilian and three Nicaraguans. Previous reports had said there were 32 people on board, including four Americans. All the dead were Costa Ricans.

Nicaragua's naval commander for the southern Caribbean region said the boat's captain was detained because the vessel was not supposed to be sailing during the inclement weather that had been clobbering the region for several days. However, the captain's son has reportedly stated that the Nicaraguan Naval Force did not issue a warning to Corn Islands mariners on the day that Reina del Caribe capsized off the Caribbean coast.

The Costa Rica Star reports that statements made by the Nicaraguan Naval Force to the press on this tragedy do not indicate the issuance of any warnings. The captain's son explained that Naval Force vessels patrol the Corn Islands, and officers go ashore on Great Corn Island to issue warnings and to enforce orders to not get underway during bad weather and rough seas; but such is the not case in Little Corn Island, where mariners are reportedly on their own when it comes to marine forecasts. Nevertheless, the authorities are stating that the captain and his assistant will be "processed" for crimes of "imprudent homicide" and exposing persons to dangers.

This is a tragedy that appears could have prevented--the ultimate question is who had the information and failed to act on it to prevent it. If you are interested in contacting me, you may do so by writing to me at blog@miamimaritimelaw.co. 

South Florida Lawsuit Filed in El Faro Sinking

November 10, 2015

The first South Florida lawsuit against the owner of EL FARO, the cargo ship that sunk in Hurricane Joaquin last month, was filed on October 28, 2015 in Broward County Circuit Court. This latest lawsuit claims EL FARO's engine failure and loss of power on October 1st followed many years of lax maintenance. The lawsuit also claims EL FARO was not seaworthy in that the ship was undergoing "significant maintenance" just before it left port September 29th and had a history of losing power. 

The lawsuit was brought by the widow of Anthony Thomas who seeks damages for herself and for the couple's five children, ages 8 to 29. The lawsuit states the Fort Lauderdale court has jurisdiction because Tote Maritime's registered agent is in Plantation.

This lawsuit is the fourth complaint brought against ship owner Tote Maritime since the deaths of EL FARO's 33 crew members. This latest lawsuit comes just as the Jacksonville-based company seeks to prevent future lawsuits and limit the damages victims' families can collect by virtue of their filing of a limitation of liability lawsuit. 

In the limitation of liability lawsuit filed by the shipowner, Tote Maritime claimed it should not be required to pay more than about $15.2 million in total damages for losses related to the shipwreck found near Crooked Island in the Bahamas. The company claims its liability is limited under the limitation of liability act to a death claims fund of $420 per gross registered ton, or $13.2 million, with another $2 million for the freight aboard the ship. The company also asked U.S. District Judge Brian J. Davis to issue an injunction against the prosecution of future lawsuits.

The Broward County lawsuit was removed to federal court and has been assigned to U.S. District Judge William J. Zloch. However, because there are two similar lawsuits filed in Jacksonville, one in federal court and one in Duval Circuit Court and because wrongful death claims cannot proceed until the limitation court has resolved the limitation action, it is likely that Tote Maritime will move to consolidate all the actions in Jacksonville.

According to this latest complaint, the U.S. Coast Guard documented 23 deficiencies with EL FARO Faro since 2003. The 40-year-old ship also allegedly lost power and propulsion during a 2011 voyage due to faulty equipment.

If you are interested in receiving a copy of the latest lawsuit or in contacting me, you may do so by writing to me at blog@miamimaritimelaw.co.

Novel Rule B Attachment Rejected by Eleventh Circuit

October 01, 2015

In World Wide Supply OU v. Quail Cruises Ship Management, Case No. 14-14838 (11th Cir. Sept. 30, 2015), the Eleventh Circuit Court of Appeals affirmed the district court’s order vacating an attachment of legal settlement funds.  At issue in this appeal was an attachment of property made pursuant to Supplemental Admiralty Rule B. This appeal had a complicated background, involving multiple lawsuits in federal district courts, Florida state court, and a Spanish bankruptcy court. 

The common denominator of these suits was Quail Cruises Ship Management, from which multiple parties, including participants in the appeal, tried to collect money that they believed Quail owed them. This is not surprising, as there have been numerous cases against Quail due to a failed cruise venture they operated.

The money at issue arose from the legal settlement of a dispute over the purchase of a cruise ship featured on ABC Television Network’s long-running series, The Love Boat. The plaintiff-appellant advanced a novel interpretation of Rule B. The district court was unpersuaded, as was the Eleventh Circuit Court of Appeals. 

The novel interpretation of Rule B focused on the language in Federal Rule of Civil Procedure B(3)(a) which states in pertinent part:

"If the garnishee admits any debts, credits, or effects, they shall be held in the garnishee's hands or paid into the registry of the court, and shall be held in either case subject to the further order of the court."

The plaintiff's argument was that its attachment against settlement funds was improperly vacated as a result of the language of the last sentence of Rule B(3)(a). The plaintiff argued that this sentence in Rule B opened a window for its own Rule B attachment against settlement funds, as they were neither deposited into the district court's registry nor held by the garnishee of the previous Rule B action. The appellate court noted that the plaintiff cited no authority in support of its position that a Rule B attachment "lapses" or a party may assert a new Rule B attachment. The court pointed out that the parties of the previous settlement agreement were following the tenets of Rule B(3)(a) in obtaining a court order to distribute the settlement funds.

It is of note that the appellate court found fault with the plaintiff's factual characterization of the case that the settlement funds were to remain the debtor's property throughout the process.

If you are interested in receiving a copy of this decision or contacting me, you may do so via this blog or by email at blog@miamimaritimelaw.co.