In cruise ship disaster, an SOS for lawyers

NEW YORK Sat Jan 28, 2012 6:52am EST

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NEW YORK (Reuters) - Soon after Mitchell Proner, a New York personal-injury lawyer, heard about the capsizing of the Costa Concordia off the coast of Italy, he sprang into action.

Proner, who specializes in motorcycle-accident lawsuits, has never litigated a maritime case. But he has at least one advantage over other U.S. lawyers who might want to sue over the disaster: He speaks Italian. Within days of the accident, he hopped a flight to Italy.

Once there, Proner met with an Italian consumer group, Codacons, which ultimately agreed to refer potential clients to Proner's firm and listed the firm on its website. Proner also set up his own website (here), which features a photo of a gleaming, pre-disaster Costa Concordia. Proner's site claims he will file a suit seeking at least $160,000 in damages for any passenger he represents, and notes that some victims "may be able to collect multiple times that amount."

Unlike in Italy, accident victims who file suit in the United States can recover punitive damages if they can prove a defendant acted egregiously. These damages can soar above the amount of any actual loss. U.S. lawyers who bring successful cases on behalf of injured people can be awarded fees of as much as 30 percent of any recovery.

Carnival Corp, parent of the Italian company that operates the ship, Costa Cruise Lines, has not issued a statement addressing its legal liability. Costa has blamed the ship's captain for straying off course; he has said he was following instructions. On Friday, Costa offered to pay $14,500, plus a refund and costs of travel home, to the ship's 3,200 passengers. The offer does not apply to anyone who suffered physical injuries. It could not be determined how many passengers have accepted the offer.

Proner says the offer is "completely inadequate." He has teamed up with another New York lawyer, Marc Bern, whom he says he worked with on prior cases. Bern's firm, Napoli Bern Ripka Shkolnik, which has around 30 lawyers, gained attention last year when a federal judge said it and other plaintiffs' counsel would receive around $187.5 million in fees for representing Ground-Zero workers who had health claims related to the September 11, 2001, attacks.

Proner and Bern have taken to the airwaves to promote their cause. On Saturday, January 21, one week after the accident, Proner told the BBC he planned to file a lawsuit the following Wednesday against Carnival in Miami, where the company is based. The report was picked up by the Daily Telegraph, the Guardian, and UPI, among other news outlets. Proner was interviewed again by radio and television stations from Miami to Calgary, and by Reuters TV. On Tuesday Bern appeared on NBC's The Today Show, saying the "conduct of this ship" was "outrageous."

On Friday, Bern provided Reuters with a copy of a lawsuit on behalf of seven passengers that he said his firm and Proner's firm had filed in Florida state court that day against Carnival. Reuters could not immediately confirm that the lawsuit had been filed. The lawsuit provided by Bern makes allegations of maritime negligence, intentional infliction of emotional distress, and others. Bern said it was the first of many he would file on behalf of hundreds of individuals.

Proner and Bern are among several U.S. lawyers claiming to represent victims of the disaster -- and there are others in Italy, such as Giulia Bongiorno, who also represented the former boyfriend of Amanda Knox, the American college student who was acquitted of murdering her housemate in Italy.

Mike Eidson, of the Miami plaintiffs' firm Colson Hicks Eidson, said he had as many as 200 clients lined up to sue over the accident. He said the majority found their way to him through referrals from other lawyers, both in the United States and Europe. Eidson, who has not filed a lawsuit, issued a press release on January 16, saying he "believes punitive damages will be appropriate."

On Thursday, lawyers from Ribbeck Law Chartered in Chicago filed a class-action lawsuit on behalf of a crew member against Carnival in federal court in Illinois for breach of contract, negligence, and other allegations. "We are planning to file more claims today," said Monica Kelly, one of the lawyers. "We have been asked by many of the local counsel in different countries to be involved in this case."

A Carnival spokesperson said the company had no comment on the lawsuit.

U.S. legal-ethics rules permit lawyers to announce plans to file a lawsuit, and it is often done as a means of attracting attention to the case or potentially putting pressure on a would-be defendant. Advertising on the web is a common way of finding clients. Personal-injury lawyers point out that their outreach helps victims learn about their rights. There is no suggestion that any of the lawyers who sued, advertised or talked about suing Carnival in this case acted improperly.

Legal experts said the plaintiffs will face high hurdles in keeping a lawsuit in a U.S. court. They point to clauses in Costa passenger tickets requiring that claims involving cruises that don't touch a U.S. port be brought in Genoa, Italy, where the owner of the Concordia is based. Clauses specifying venue for lawsuits are widely used in the cruise-ship industry -- and typically require that cases be brought near the jurisdiction where the cruise line is based. U.S. courts have often upheld those clauses. But Proner and Bern say they will argue that this case is so egregious that those provisions should not apply.

Despite the challenges, Proner is steaming ahead. He said he is consulting with lawyers who collectively have more maritime experience than ever assembled on a single case "in the history of the world."

Bern, for his part, says the Costa Concordia disaster is unprecedented in the annals of maritime law. "How much litigation was there over the Titanic?" Bern said. "That was the last time a big ship like this went down."

(Reporting by Andrew Longstreth and Tom Hals; Editing by Amy Stevens)

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