Recovery of attorney’s fees in a admiralty cases.

Under the concept of “the American rule,” court awards of attorneys’ fees are usually not recoverable and are regarded as exceptional under maritime law.

In Reliable Salvage and Towing, Inc. v. 35’ Sea Ray, 2011 WL 1058863 M.D.Fla., March 21, 2011), the Court found that , as the defense was frivolous  – and brought in bad faith – as vessel owner acknowledged responsibility for $7,523.10 in fees, but had not paid it for over three years.

While acknowledging that attorneys’ fees in an admiralty case are generally only
available when statutorily or contractually authorized, the Court noted another circumstance  when one party “willfully and persistently refused to pay the plaintiff what was plainly owed to him.” At 13, citing Southeastern Marine, LLC v. Motor Yacht Ocean Club, 2010 WL 2540701 (M.D.Fla., June 21, 2010).

Is this an expansion of “the American rule?”

Robert L. Gardana, Esq.  –  www.BOATLAWYER.com

“Boatlawyer” is a registered trade mark of Robert L. Gardana, P.A.)

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Is The Concordia Incident Subject to Exonoration or Limiation of Liability?

Issues – FLAG and LIMITATION OF LIABILITY of the Costa Concordia:

Costa Concordia: (Flag:Italy IMO:9320544 MMSI:247158500 Type of Cargo:––– Gross Tonnage:114147 tons)

46 USC CHAPTER 305—EXONERATION AND LIMITATION OF LIABILITY does not apply nor is Italy a party to the LLMC Convention.

The Italian limitation system differs significantly and is adjudicated by Section 275 of the Italian Code of Navigation. As in most jurisdictions, Italian Courts apply Italian law as to issues of procedure and the substantial issues would be governed by the law of the ship’s flag. The applicable Italian code provision under the Italian Code of Navigation §275. “Debt limitation of the Shipowner” provides:

“For the obligations undertaken during and for the necessities of a voyage, and for the obligations arisen, from facts and acts accomplished during the same voyage, excepting those deriving from his personal fraud or grave fault, the Operator can limit the total debt to a sum equal to the value of the vessel and to the amount of the freight and of any other income of the voyage.” §275 Italian Code of Navigation

In an article of the Italian Maritime Association (2), the author observed that “Italian law grants the benefit of limitation only to the operator of the ship. Pursuant to art. 275 code of navigation the operator of a ship is entitled to limit his liability in respect of obligations assumed in the occasion and for the needs of a voyage and of the obligations arisen out of facts occurred or acts performed during the voyage,  provided the operator did not act with gross negligence or wilful misconduct. Italian  law further provides that in order to limit liability the operator of a ship must establish  a limitation fund by way of actual payment of a sum into Court. The amount of the  limitation fund is equal to two-fifths of the sound value of the ship together with the  ship’s earnings at the end of the voyage. If the value of the ship at the time when the limitation is applied for is lower than one-fifth of the sound value, then the limitation fund is equal to one-fifth. The sound value is, pursuant to art. 622 code of navigation,  the insured value.”
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(1) Convention on Limitation of Liability for Maritime Claims (LLMC)
Adoption: 19 November 1976; Entry into force: 1 December 1986; Protocol of 1996: Adoption: 3 May 1996; Entry into force: 13 May 2004
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(2) http://www.aidim.org/pdf/5Quest_LimResp.pdf

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(3) According to the Italian Maritime Law Association article “Italian Courts would apply the LLMC Convention if the ship flies the flag of a State party and the accident subject to limitation has occurred in the Italian jurisdiction. The Italian Courts have applied the 1976 LLMC Convention in one occasion (Tribunal of Sassari 22 April 2004, The “Panam Serena”, Diritto dei Trasporti 2006, 559) where limitation of liability was invoked by the owner of a ship flying the Bahamas flag.”

Robert L. Gardana, Esq. Maritime Law Association of the United States – Cruise Ship Committee

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7.2 Rule 23 Class Certification Requirements – Will Carnival/Costa Suit Survive Class Certification?

Carnival Corp. (CCL), the world’s largest cruise-line owner, was sued in the U.S. over the Jan. 13 wreck of the Costa Concordia off the coast of Italy, which killed at least 16 people and left the vessel half submerged on its side.

The complaint, alleging negligence and breach of contract, was filed yesterday in federal court in Chicago by crew member Gary Lobaton, who seeks class-action status to represent all victims of the disaster off Giglio Island. The ship’s captain, Francesco Schettino, has been accused of causing the accident and abandoning ship.

“The defendants failed to properly and timely notify all plaintiffs on board of the deadly and dangerous condition of the cruise ship as to avoid injury and death,” Lobaton, who was living in Lima, Peru, said in the complaint. They “were abandoned by the captain.”

The Carnival ship, carrying 4,200 passengers and crew for a Mediterranean cruise, struck rocks and ran aground leaving at least 16 people dead. There are still 16 people missing, according to the complaint.

The lawsuit, which also names Carnival’s Costa Crociere unit in Italy, seeks damages for alleged violation of the Athens Convention for carrying passengers at sea, breach of contract, negligence, unjust enrichment and punitive damages for passengers and crew, according to the complaint.  (Source:  Bloomberg http://bloom.bg/yoM1d3 via @BloombergNews)

Rules 23(a) and (b) of the Federal Rules of Civil Procedure govern  the requirements for class certification. Rule 23(a) sets forth four  threshold requirements for class certification, each of which must be  met: (1) the class is so numerous that joinder of class members is  impracticable (numerosity); (2) there are questions of law or fact  common to the class (commonality); (3) the claims or defenses of the  class representatives are typical of those of the class (typicality);  and (4) the class representatives will fairly and adequately protect the  interests of the class (adequacy).

Rule 23 Fed. R. Civ. Proc. Class Certification Requirements:

To certify a class, a court must also find that one of the  following requirements, set forth in Rule 23(b), are met: (1) that  prosecution of separate actions risks either inconsistent adjudications  which would establish incompatible standards of conduct for the  defendant or would as a practical matter be dispositive of the interests  of others; (2) that defendants have acted or refused to act on grounds  generally applicable to the class; or (3) that there are common  questions of law or fact that predominate over any individual class  member’s questions and that a class action is superior to other methods  of adjudication

Rules 23(a) and (b) of the Federal Rules of Civil Procedure govern  the requirements for class certification. Rule 23(a) sets forth four  threshold requirements for class certification, each of which must be  met: (1) the class is so numerous that joinder of class members is  impracticable (numerosity); (2) there are questions of law or fact  common to the class (commonality); (3) the claims or defenses of the  class representatives are typical of those of the class (typicality);  and (4) the class representatives will fairly and adequately protect the  interests of the class (adequacy).

Will Carnival/Costa Suit Survive Class Certification?

 

 

 

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Costa Cruise Ticket – Forum Selection – Non US Cruises

b) Voyages That Do Not Depart from, Return to, or Visit a U.S. Port –
All claims, controversies, disputes, suits and matters of any kind whatsoever arising out of, concerned with or incident to any voyage that does not depart from, return to, or visit a U.S. port, or to this Contract if issued in connection with such a voyage, shall be instituted only in the courts of Genoa, Italy, to the exclusion of the courts of any other county, state or nation. Italian law shall apply to any such proceedings.

Eleventh Circuit Court of Appeals – NINA JANET SEUNG, Plaintiff – Appellant, versusREGENT SEVEN SEAS CRUISES, INC., PAUL GAUGUIN SHIPPING LIMITED, decided August 19, 2010.

The forum selection clause at issue here provides that:

For all cruises which include a port of the United States of America, it is agreed by and between the Passengers and Owners that any dispute arising out of or in connection with this Ticket/Contract shall be determined by the United States District Court for the Southern District of Florida in Fort Lauderdale . . . . For all cruises which do not includea port of the United States, it is agreed by and between the passengers and Owners that any and all disputes and matters whatsoever arising out of or in connection with this Ticket/Contract shall be litigated and determined, if at all, before a court of competent jurisdiction in Paris, France . . . .

Seung’s cruise departed from Tahiti, and was to travel only within French Polynesia.

Nina Janet Seung appeals from the district court’s dismissal of her lawsuit arising from injuries she incurred while onboard the M/S Paul Gauguin, owned by Defendants Regent Seven Seas Cruises and M/V Paul Gauguin Shipping Limited (collectively, “Regent”). On appeal, Seung argues that the district court erred in enforcing a forum selection claim that required the lawsuit to be brought in Paris, France, instead of Ft. Lauderdale, Florida. After careful review, we affirm.

The Eleventh Circuit citing Shute, 499 U.S. at 593-94

Including a reasonable forum clause in a form contract of this kind well may be permissible for several reasons: First, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions. Finally, it stands to reason that passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued.

The Eleventh Circuit reasoned through and negated each of Plaintiff’s claims and

Thus, Seung, who chose to travel internationally, may have benefitted financially from the inclusion of the forum selection clause. The fact that she is an “elderly female plaintiff,” that Regent’s headquarters are not in Paris, or that the forum is overseas does not mean that Seung’s current financial difficulties should dictate the invalidation of the clause. . . Nor are we convinced by Seung’s reliance on her medical problems. . . Seung has also failed to show that Paris is a remote, alien forum . . .

Furthermore, even if more of Regent’s cruises depart from Ft. Lauderdale than French ports, Seung’s ship notably did not depart from Ft. Lauderdale, but from French Polynesia.  In fact, the contract expressly provides that had her cruise departed from any United States port, the appropriate forum would have been in Ft. Lauderdale. Thus, as a Florida state court has held in a forum selection suit also involving the Paul Gaugin, where “the Paul Gauguin both departed and returned from a foreign locale, never making contact with any ports or waters of the United States[,] . . . it is reasonable that Radisson selected Paris, France as a neutral location in order to dispel confusion as to where passengers from a variety of countries could bring a lawsuit.” Burns v. Radisson Seven Seas Cruises, Inc., 867 So. 2d 1191, 1193 (Fla. App. 4th Dist. 2004).

What is your best argument to overcome such a strong policy as in this and Shute?

 

 

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Supreme Court of the United States Rules in GPS Vehicle Tracking Case

On January 23, 2012 – Supreme Court ruled agreeing that admission of the evidence obtained by warrantless use of the GPS tracking device violated the Fourth Amendment, reasoning that under a privacy expectation rationale that the Forth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” For full decision, go to: http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf  Do you agree with this decision?

Do you feel you have a right to privacy of your Facebook page posts, photographs, and other items on your “private” pages?   On January 18, 2012, the United States District Court (E.D. MICH. S.D.) ruled, in an injury claim, that “If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.   Although defendant specified the type of evidence sought [access to plaintiff’s Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence.”. Moreover, the request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad. “District courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce.”  Defendant’s request for Plaintiff to sign authorizations to access her Facebook account is DENIED

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