Crew Member Files Class-Action Suit Against Carnival Cruise Corp.

A crew member of the cruise ship that ran aground off Italy claims in a federal class action that Carnival Cruise Corp.'s practice of sailing too close to shore, to "present a spectacle" is responsible for the shipwreck that killed at least 16 people and endangered 4,000 more, Courthouse News Service reports.

Gary Lobaton, a native of Peru, was a crew member of the Costa Concordia, whose captain became an international pariah when he allegedly abandoned ship after grounding it on rocks off the coast of Italy.

In his suit, Lobaton seeks to represent all the passengers and employees on board the Costa Concordia on Jan. 13, when it sank near Isola del Giglio. Italian officials have called off the search for more bodies, with the toll at 17 confirmed dead and 15 missing.

"According to reports, Captain Schettino's decision to sail close to Isola del Giglio was attributed by the captain to the defendants' management in putting him under intense pressure to sail the cruise ship close to the island in order to present a spectacle to Costa Concordia's passengers," the suit alleges.

Pass by here, pass by there

"During a telephone conversation with his friend in the hours after he was arrested, Captain Schettino said: 'Management was always saying 'pass by there, pass by there.' Someone else in my position might not have been so amenable to pass so close but they busted my balls, pass by there, pass by there, and now I'm paying for it.'"

The suit says that Schettino said that sailing close to shore was "good publicity" and went down well with passengers in the increasingly competitive cruise ship business.

"Captain Schettino, instead of being the last man to leave the vessel and using all reasonable efforts to assure that all passengers and crew members are evacuated to safety, breached his duty as the master of his vessel, and abandoned his ship in the first available opportunity he had," the suit charges.

Lobaton seeks punitive damages for violation of the Athens Convention, breach of contract, negligence, and unjust enrichment.

Will it float?

But does the suit have a chance of getting anywhere?  Maritime legal experts are skeptical.

One of the most important contractual terms in any cruise contract includes what is called a "forum selection clause," notes maritime and admiralty lawyer James Walker, who is based in Miami. This clause specifies where the lawsuit must be filed, and cruise lines usually pick a locale that is convenient for them and inconvenient for the passenger.  

Walker says the cruise lines have generally been successful in enforcing these type of clauses.  In the case of Shute v. Carnival, the United States Supreme Court required a passenger who lived in Oregon, and was injured during a cruise from California to Mexico, to file suit  in Miami, he noted. 

"No the passenger terms and conditions are not fair, but they are routinely enforced," Walker said.  

For the Concordia disaster, the Costa passenger ticket contains a clause specifying Genoa, Italy as the location for the lawsuit.  For Costa cruises which call on an U.S. port, the lawsuit has to be filed in Broward County in South Florida.  If the cruise itinerary does not include a U.S. port, the lawsuit must be filed in Italy, Walker said in a blog posting on his firm's site.