I held off on sounding a Black Swan alert for the recent Costa Concordia cruise disaster, as it happened overseas. But, it seems there may be change abrewing in international law. And it involves (indirectly) Carnival Cruise Lines, Inc. v. Shute, where SCOTUS upheld the enforcement of a forum selection clause on a Carnival Cruise Lines ticket.
Anyone trying to sue Costa Concodia’s corporate parent,Carnival Cruise Lines, though, will find that the company is stoutly protected by international law and by a carefully worded contract that passengers accept when they buy their tickets.
For its part, the company is heaping blame on the ship’s captain, Francesco Schettino, calling the accident “human error” and contending that the captain diverted the ship from its authorized route. The company, based in Miami, did not respond to requests for comment for this article.
Such forceful criticism of the captain may be intended to help the company avoid liability under international agreements like the Convention on Limitation of Liability for Maritime Claims. The convention is referred to on the Web site of the International Maritime Organization as “a virtually unbreakable system of limiting liability” for the owners of ships after accidents.
That limitation on liability can be set aside in cases of egregious acts by the vessel’s owner, in the language of the convention, if “it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such a loss, or recklessly and with knowledge that such loss would probably result.”
But Vincent Foley, an admiralty lawyer in New York, said the egregious acts must be the owner’s. If the captain disregarded his duties, the company could argue that it was not responsible for his behavior. Whether Captain Schettino’s actions “can be imputed to the owner to break limitation is, I think, a key issue,” Mr. Foley said.