Costa Concordia accident cases brought in Florida must be heard in Italy

Costa Concordia accident cases brought in Florida must be heard in Italy

eTN Feature Story:

In this week’s article, we discuss the case of Abeid-Saba v. Carnival Corp., 184 So. 3d 593 (Fla. App. 2016) which involved two class actions brought on behalf of two groups of passengers who had been on the ill-fated Costa Concordia on January 13, 2012 when it “departed Cititavecchia, Italy to begin a seven-day voyage to Savona, Italy. Both complaints allege that…the Ship ran aground after her Captain, Francesco Schettino, deviated from the planned course to execute a maneuver known as a ‘bow’ or ‘sail-by’ salute. During the course of the maneuver, the Concordia collided with an underwater reef in Italian territorial waters causing catastrophic damage to her hull. This precipitated the evacuation of 3206 passengers, of whom approximately 100 were from the United States and 1000 crewmembers”. The two lawsuits at issue are “Abeid-Saba (which) involves fifty-seven plaintiffs of whom five are Unites States residents (and) Scimone II (which) involves fifty-two plaintiffs of whom seventeen are United States residents. Both groups of plaintiffs allege twelve identical counts against five named defendants…Carnival moved to dismiss both (cases)…based on forum non conveniens (which motion was granted and affirmed on appeal)”. This case is instructive on the factors to be considered in determining which jurisdiction is the most convenient forum in which to hear a travel case involving U.S. citizens injured aboard [See Dickerson, Gould & Chalos, Litigating International Torts in U.S. Courts, Chapter 10 Changing Forums, Thomson Reuters (2017)].

Terror Targets Update

In US extends European travel alert: ‘Terrorists focus on tourist sites as attack targets, eturbonews (9/2/2017) it was noted that “The alert, issued Thursday, cites ‘widely reported incidents’ in France, Russia, Sweden, the United Kingdom, Spain and Finland, adding that the State Department ‘remains concerned about the potential for future terrorist attacks’. It goes on to state that extremists are continuing to focus on ‘tourist locations, transportation hubs, markets/ shopping malls and local government facilities as viable targets”.

In ISIS supporters hail Hurricane as ‘solider of Allah’, travelwirenews (9/9/2017) it was noted that “Supporters of (ISIS) have taken to social media to celebrate Hurricane Irma, labeling it a ‘soldier of Allah’.

In Salis, State Liability For Victims Of Terrorist Attacks, internationalandtravellawblog (9/8/2017) it was noted that “The recent terrorist attacks in Barcelona and Cambris (Spain) resulted in the deaths of many people…For their part, all victims, whether personally injured or relatives of the deceased, both Spanish and foreign, are entitled to immediate assistance from the health services and…Thereafter, they will be entitled to compensation for personal injury and material losses incurred. This system of entitlement was originally established by means of Law 29/2011, of 22 September, on Recognition and Overall Protection of Victims of Terrorism”.

Hurricane Hits Caribbean Hard

In Irma Barrels Toward Cuba and Florida: Death Toll at Least 18, nytimes (9/8/2017) it was noted that “The hurricane battered the Turks and Caicos Islands early Friday as it headed toward the southeastern Bahamas…At least 18 people have died because of the storm: nine in the French Caribbean; one on the Dutch side of St. Martin; one in Barbuda; one in Anguilla; three in Puerto Rico and three in the United States Virgin Islands”.

Protecting Cruise Passengers

In Passy, Norwegian Cruise Line takes dramatic action ahead of Irma, msn (9/8/2017) it was noted that “Norwegian Cruise Line went to extreme efforts to allow passengers to get home ahead of Hurricane Irma…Two of the company’s ships…were brought back to port in Miami…to allow passengers from Florida time to return to their homes…Roughly 4,000 remaining passengers who could not return home (were) taken back out to sea to leave the region for the duration of the storm”.

Planes Fill Florida Sky

In Chokski, Planes Fill Florida Skies as Hurricane Irma Approaches, nytimes (9/8/2017) it was noted that “Airline and airport workers raced to get flights off the ground as Hurricane Irma swirled towards Florida on Friday, filling the skies above the state with planes…The (FAA) said that its air traffic control center in Miami…had managed 8,107 flights on Thursday, about 2,000 more than on the Thursday before”.

Airbnb’s Disaster Response Program

In Minsberg, Where to Evacuate: Irma Inspires a Travel Search, nytimes (9/7/2017) it was noted that “By Thursday afternoon, airlines had canceled 4,000 flights to and from airports in Irma’s path. Airbnb has activated its Disaster Response Program for counties in Northern Florida and Southern Georgia in which hosts can open their homes up to evacuees for free”.

Moose Hunting, Anyone?

In Klein, Hunting Moose in Canada to Save Caribou From Wolves, nytimes (8/30/2017) it was noted that “You like caribou. You like wolves. How do you preserve one without killing the other? Research supporting an unusual conservation approach suggests that it may have something to do with hunting moose, at least in one region of North America. Scientists spent a decade monitoring wolf, moose and endangered mountain caribou populations in the remote raid forests of southern British Columbia (and) they found that if you let people hunt more moose, you get fewer wolves and more caribou…it illustrates the complexity of conservation in natural environments”.

Mosquitoes Like California & Nevada

In McNeil, Infectious Mosquitoes Are Turning Up in New Regions, nytimes (9/7/2017) it was noted that “A mounting number of citations on a popular disease-tracking website suggests that mosquitoes may be moving into new ecological niches with greater frequency. The website, ProMED mail has carried more than a dozen such reports…for example, Aedes aegypti-the yellow fever mosquito, which also spreads Zika, dengue and chikungunya-has been turning up in California and Nevada where it had never, or only rarely, been seen”.

Nevada Burning Man

In Man dies after diving into flaming effigy at Burning Man festival, travelwirenews (9/3/2017) it was noted that “The Burning Man festival confirmed the incident in a statement. Organizers said a man broke through a safety perimeter …and into a fire…The 50-foot wooden effigy is a centerpiece of the festival, which attracts tens of thousands of people to the Nevada desert each year”.

Exploring The Paris Catacombs

In Creepy thieves pull off a massive wine heist using Paris Catacombs, travelwirenews (8/31/2017) it was noted that “If you are an exceedingly wealthy Parisian who boasts an impressive wine collection, do not erect a wine cellar that shares a wall with the city’s giant underground graveyard. According to the Associated Press, a group of very rude Parisian robbers broke into a local wine cellar by busting a hole through a wall in the Catacombs, a system of underground tunnels containing the remains of millions of French people”.

How About That Eclipse

In People who say they got blinded by the sun sue Amazon over eclipse glasses, travelwirenews (8/31/2017) it was noted that “Everyone told them not to look at the sun. Yet, a couple in South Carolina is suing Amazon over eclipse glasses that they say failed to protect their eyes during the total solar eclipse last week. Corey Payne and Kayla Harris alleged in a lawsuit filed this week that they experienced headaches, eye-watering and distorted and blurry vision after watching the total solar eclipse on Aug. 21. The couple looked at the eclipse, relying on a three-pack of glasses they bought on Amazon in early August”.

China’s Bike-Sharing Invasion

In Denyer, Why Chinese companies are dumping bikes in cities around the world, washingtonpost (8/31/2017) it was noted that “To rent a bike in China, all it takes is a phone app, and any of the millions of bicycles scattered on sidewalks everywhere can be yours. No bike stand. No drop-off point. You can scan a code, you ride, you leave and lock the bike wherever and whenever you’re done. China’s billion-dollar bike-sharing revolution has already transformed the look and feel of cities around the country, with more than 100 million apps downloaded and billions of rides taken on many millions of bikes. Now it is going global. Last month, a Chinese company called Ofo made its first foray into the United States, delivering 1,000 bicycles to the streets of Seattle, with plans to expand nationally. From Italy to Kazakhstan, from Britain to Japan, from Singapore-Asia’s greenest city-to one of the most congested, Bangkok, Ofo and its main Chinese rival Mobike are on a breakneck race to expand the globe”

The Dutch Love Bikes Too

In Schuetze, If You Build It, the Dutch Will Pedal, nytimes (9/6/2017) it was noted that “When city officials unveiled the first section of the world’s largest bike parking garage in Utrecht…the feeling of accomplishment was short-lived. While many of the 6,000 new, state-of-the-art bike parking spots filled quickly, city engineers focused on the work ahead: creating thousands more such spots and hundreds more miles of bike paths to ensure that even more Utrecht residents can comfortably commute by bike. ‘We found that if you build it, people will use it’…The city recently surpassed Amsterdam in a widely respected ranking of bike-friendly cities and is now second only to Copenhagen, which is more than twice I size”.

Google, My Travel Agent

In Google wants to be your travel agent, travelwirenews (8/29/2017) it was noted that “Google is doubling down on its price-tracking-for-travel features. The search giant said Tuesday that its expanding the information it gives travelers looking to book airline flights and hotels. The idea is to help people find the cheapest price. With features like this, Google is putting itself in competition with other travel websites that offer similar services, like Kayak, Expedia and TripAdvisor. For airline travel, Google already shows people the lowest rates for specific routes and travel days, but now it’ll show a calendar view of date combinations with the cheapest prices in green and most expensive in red. It’ll also show a price graph so people can see how airfare changes over time”.

No Plastic Bags In Kenya, Please

In Tourists: Don’t take plastic bags to Kenya or face 4 years in prison, travelwirenews (9/1/2017) it was noted that “Four years in jail for having a plastic bag. This is the maximum penalty in Kenya. Fines are $19,000 to $38,000-and penalties are the world’s harshest. Tourists are warned: Don’t import or carry plastic bags. Kenya is adjusting to life without plastic bags after a strict ban on the carriers went into effect this week. Traders in Nairobi swapped out the cheap lightweight plastic bags for cartons, paper bags and envelopes, while grocery stores sold reusable fiber bags and cardboard boxes”.

Stop Trying To Save The Bull, Please

In Bull attacks animal rights activists who invaded bullring, travelwirenews (8/28/2017) it was noted that “Anti-bullfighting protesters who invaded a ring in France on Sunday found themselves under attack by the animal they were trying to protect. Video shows the activists being chased by the bovine, which then flings one of them into the air. They were demonstrating against the ‘novillada’, an event where novice bullfighters fight younger bulls”.

Carbon Efficient Travel, Anyone?

In Planes, Trains or Automobiles: What’s the most Carbon-Efficient Way to Travel?, travelwirenews (8/28/2017) it was noted that “Carbon dioxide remains in the atmosphere longer that other gases, so vehicles have a more harmful impact on climate change in the long term. Around a fifth of total greenhouse gas emissions worldwide come from transportation alone, ‘but close to 30 percent in most industrialized countries’…Transportation, which is responsible for 27 percent of the nation’s greenhouse gas emissions, is America’s second-most polluting economic sector, just behind electricity…the five most environmentally harmful ways to travel: (1) Large RoPax Ferry…(2) Long-haul flight…(3) Large gas/petrol car…(4) Large Diesel Van…(5) Large LPG(liquified petroleum gas) car…the five cleanest ways to travel…(1) Bicycle…(2) Electric car (with solar panels)…(3) Electric car…(4) International Rail…(5) Ferry (foot passenger)”.

Business Trip Or Vacation?

In LaGorce, Business Trip or Vacation? Travel Start-Ups Try To Blur The Line, nytimes (8/28/2017) it was noted that “Leisure travelers are naturally more selective and cost conscious than business travelers. But a new breed of start-ups that caters to corporate travelers and focuses on user behavior may be making those distinctions obsolete. The premise behind these companies, including Rocketrip, TripActions and Upside, is that if business travelers were rewarded for making choices that save their companies money, they would act accordingly… Rocketrip which has been around since 2013, is the preferred booking tool of General Electric, Twitter and 50 to 100 other Fortune 100 and midsize companies, Dan Ruch, its founder (who) got into the business of offering incentives to business travelers after learning about how Google employees travel…The Google method includes drawing up a budget for airfare and hotels before every trip. If employees come in under budget, they earn credits that can be redeemed for travel upgrades in the future …Rocktrip, like Google, allows travelers to keep half of what they save. Instead of travel upgrades, it offers gift cards to Amazon, Best Buy and other retailers through a so-called rewards store”.

JFK’s New Animal Center

In Newman, When the Delayed Passenger is a Potbellied Pig, nytimes (8/22/2017) it was noted that “Every traveler has a story to tell. This is just as true of the Ark at JFK, the gleaming new animal transportation center…as I is at the human passenger terminals…Eight months after its high-profile opening, the Ark-nestled along the winding back roads of Kennedy’s cargo country…is starting to live up to its name. In addition to cats and dogs and goats and horses, the Ark has hosted a potbellied pig who needed a place to wait after missing a connecting flight, 235 racing pigeons that got stranded for three days and an agouti, a giant 8-pound rodent that the Minnesota Zoo was shipping to the Bermuda Zoo. The agouti’s name was Ralph”.

Flight Delays Reimbursement App

In Ekstein, Flight Delay? Get Reimbursed With This Clever App, bloomberg (5/30/2017) it was noted that “When it launched in 2013, AirHelp at airhelp made a simple promise: Report your flight disasters to the company’s customer service agents, and they’ll litigate against airlines on your behalf. You don’t have to pay a penny-unless they manage to get you a settlement. And when they do, the service takes a 25 percent cut. Simple. On Tuesday, the three-year-old company is taking its next step towards seamless airline compensation with an expansion of its namesake app. Offered free on the iTunes and Android Play stores, the app used to require travelers fill out a short survey and provide a description of their issue to initiate a claim; now, travelers can simply scan an image of their boarding pass and let Airhelp take care of the rest. With information from your boarding pass stored in the AirHelp system, the company can track your flight for delays, cancellations and overbooking so claims can get rolling before you pick up the phone”.

Want To Be Delta Airline Captain?

In Sasso & Johnson, Delta Will Promote Pilots to Captain-if They Can Fly This Aging Plane, msn (8/29/2017) it was noted that “Since almost the beginning of the commercial airline business, junior pilots have had to toil for years in the second chair waiting to win a pair of captain’s wings. Now Delta Air Lines Inc. is offering them the chance to vault into a captain’s seat in as little as six months. The catch? The promotion requires flying an unloved, aging plane nicknamed the ‘Mad Dog’ that Delta plans to retire in three years. The McDonnell Douglas Corp. MD-88 jets are the oldest aircraft in operation at any major U.S. carrier. They come with quirks such as glare-prone skylight panels called ‘eyebrow windows’ that were common when pilots sometimes navigated by the stars. And they’re so noisy that some New York politicians…cheered when Delta recently pulled the planes from New York’s LaGuardia Airport…Senior pilots shun the MD-88s for newer Airbus SE or Boeing Co. jets, now the industry’s standard equipment. But some junior co-pilots who covet the prestige and higher salaries awarded captains aren’t so choosy”.

Travel Law Case Of The Week

In Abeid-Saba/Scimone II cases the Court noted the four-part test which guides Florida courts in resolving a forum non conveniens motion.”’ [1] As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipose or near equipose, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a…forum the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice”.

Convenience

“The hallmark of a forum non conveniens inquiry is convenience, therefore, ‘controlling weight cannot be given to any one factor in the balancing process or the doctrine would lose much of the flexibility that is its essence’…’The defendant attempting to dismiss the action on forum non conveniens grounds bears the burden of proof…Carnival stipulated to accept service f process and agreed to submit to the jurisdiction of Italian courts. Carnival also agreed to toll the statute of limitations and respect any post-appeal judgments entered by Italian courts”.

Adequate Alternative Forum

“We now turn to the question of whether Italy is an adequate forum. ‘An adequate forum need not be a perfect forum’…’An alternative forum is adequate if it provides for litigation of the subject matter of the dispute and potentially offers redress for plaintiffs’ injuries’…An alternate forum is inadequate where the available remedies are ‘clearly unsatisfactory’ or where there is ‘no remedy at all’…’[S]ome inconvenience or the unavailability of beneficial litigation procedures similar to those available in the federal district courts does not render an alternative forum inadequate’…plaintiffs argued that Italian civil courts are inadequate because the litigation will take longer in Italy and each plaintiff will be required to obtain individual counsel. (The trial court) in Abeid-Saba found that (1) ‘a delay or ‘many, many’ years is a legally insufficient standard on which to judge a foreign forum’s remedy as inadequate in a highly complex case’…and (ii) lack of a class action procedure does not render a forum inadequate (citing Giglio v. Carnival Corp., 523 Fed. App’x 651 (11th Cir. 2013))….We find the trial court did not abuse its discretion in finding that Italy was an adequate alternative forum”.

Private Interest Factors

“Generally, an examination of the private interests involves four concerns: ‘access to evidence, access to witnesses, enforcement of judgments and the practicalities and expenses associated with the lawsuit’. Abeid-Saba argues that the trial court abused its discretion with regard to private interests factors by (I) by not affording plaintiffs proper deference regarding their choice of forum; (ii) improperly accessing the sources of proof and (iii) failing to account for witness availability”.

Plaintiffs’ Choice of Forum

“‘This presumption in favor of the plaintiffs’ initial choice in balancing the private interests is at its strongest when the plaintiffs are citizens, residents or corporations of this country’…The Eleventh Circuit has held that a reviewing court ‘require(s) positive evidence of unusually extreme circumstances and should be thoroughly convinced that material injustice is manifest before exercising any…discretion as may exist to deny a United States citizen access to the counts of this country’…(However) A citizen’s forum choice should not be given dispositive weight’”.

Access To Evidence

“The trial court concluded that, on balance, litigating in Florida would result in material and manifest injustice to Carnival because the vast majority of evidence is located in Italy, as are virtually all of the witnesses. When assessing the access to evidence and the availability of witnesses, ‘the [trial] court must scrutinize the substance of the dispute…to evaluate what proof is required and whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff’s cause of action and any potential defenses to the action’…Here the trial court undertook a count-by-count analysis of the twelve causes of action brought by Abeid-Saba and found that ‘even given the heightened presumption in favor of the United States residents’ choice of forum…Defendants have presented positive evidence that litigating in this court would result in a material, manifest injustice (to Defendants)”. Each cause of action analyzed in terms of availability and access to evidence most of which is in Italy. “For example, the wreckage, voyage data recorder, bridge voice recorder, ship camera and the vessel’s electronic navigation system are all in the custody (of) Italian authorities”.

Access To Witnesses

“Further, the location of the vast majority of other potential witness (excluding the five U.S. residents) led the trial court to conclude that Italy is the more convenient forum. Of the 3206 passengers aboard the Costa Concordia, two-thirds are European citizens. None of the 1223 crewmembers are United States citizens…Just as important as the availability of potential eye witnesses is the availability of potential non-party witnesses, especially those responsible for safety inspections and certifications, manufacturing and designing the Ship and those who trained the Costa Concordia’s crew. Fincantieri-Cantieri Navali Italiani S.P.A. (The ship’s builder), the Italian Administration and Italian Classification Society RINA, S.p.A. are all located in Italy”.

Public Interest Factors

“[T]he Florida Supreme Court (has held that) ‘public interest factors, including Florida’s interest in the dispute, should always be considered as part of the forum non conveniens analysis’…The focus of the public interest factors is ‘whether the case has a general nexus with the forum sufficient to justify the forum’s commitment of judicial times and resources to it’…[H]ere, here are fifty-seven plaintiffs, fifty-two of whom are not residents of the United States. Abeid-Saba’s allegations ‘center on conduct by non-Florida Defendants in Italy’. Virtually all of the allegedly negligent conduct took place in Italy.

Additional facts make clear that this litigation has a close nexus to Italy’…The Concordia is owned and operated by Costa Crociere, S.p.A. an Italian corporation. Costa Crociere, the Concordia, its crew and Captain Schettino were regulated, inspected and certified by Italian authorities…Italian authorities are currently conducting investigations into the accident. Additionally, four of the other five cases relating to the accident have been dismissed by courts in the United States on forum non conveniens grounds…(In addition) ‘Italian law offers numerous avenues for Plaintiffs to seek and recover damages…Italian procedural law offers substantial rights and protections to litigants that ensure trials are fair, open and efficient’”.

Conclusion

“The final prong of a forum non conveniens inquiry requires the trial court to ‘ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice’…(Here) Carnival stipulated to accept service of process and agreed to submit to the jurisdiction of Italian courts. Carnival also agreed to toll the statute of limitations, respect any post-appeal judgments entered by Italian courts and make relevant evidence available in Italy”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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