The Costa Concordia Incident and Liability for Passenger Damage: An International and European Law Approach

Eduard Somers

1. Introduction

The capsizing of the cruise ship Costa Concordia on January 13, 2012 near the Isola del Giglio in Italian territorial waters of the Tyrrhenian Sea, raises some fundamental questions as to liability for passenger damage, both physical and material. The Costa Concordia is an Italian flagged 114.147 GT passenger ship with Genoa as her home port. She was built in 2005 with a length overall of 290,2 m and a beam of 35,5 m at Fincantieri Genova Sestri. On the occasion of her ill fated and last journey, she carried 3.229 passengers and 1023 crew members, all but 32 of whom were rescued. As of 25 October 2012, thirty bodies had been found, with two people known to be missing still but presumed dead. The ship is owned and managed by Costa Crociere s.p.a., a daughter company of the American Carnival Corporation & plc, which is a global cruise company including Carnival Cruise Lines, Holland America Line, Princess Cruises and Sea- bourn in North America; P&O Cruises and Cunard Line in the United Kingdom; AIDA in Germany; Costa Cruises in Southern Europe; Iberocruceros in Spain; and P&O Cruises in Australia. On 13 January 2012, at 21:45 local time, the ship hit a rock off Isola del Giglio located within a Special Protected Area of Mediterranean Importance. Approach- ing the island at a speed of 16kt, the master apparently realised too late that he was getting uncomfortably close to the shore line and turned hard to starboard where the bow found water. Unfortunately, such was the angle of the turn that the stern slammed into the rocks. A 50-metre (160 ft) long gash was made in the hull on the port side below the water line, along 5 compartments of the engine room. Taking on water, the vessel started to list to port. Without power, the ship drifted astern but was now listing heavily to starboard. The ship, pushed by winds laterally, drifted back and grounded near shore, then partly capsized onto her starboard side, in an unsteady position on a rocky underwater ledge. Almost half 342 eduard somers of the ship remained above water, but it was in danger of sinking completely into a trough 68 metres (224 ft) deep. Afterwards, the ship slid slightly towards the deep but soon she stabilised. It is the owner’s objective to have it removed by a salvage operation which will take more than a year and was originally scheduled to be finalized in the spring of 2013. The salvage contract has been awarded to Titan Salvage, which is partnering with the Italian company Micoperi. The idea is to retrieve the vessel in one piece, thus minimising the environmental impact of the operation. The cost of this operation has been estimated at more than $500 M.1 The ship’s master, Captain Francesco Schettino, had deviated from the ship’s computer-programmed route to treat people on the island to the spectacle of a close sail-past or near shore salute, a manoeuvre the ship had performed before— although not that close to the shore. The ship was on the first leg of a planned 6-port cruise from Civitavecchia.2 This contribution does not aim at analysing any criminal prosecution of the master and officers of the ship. They will have to answer to the competent Italian criminal tribunal following investigations regarding their behaviour at the time of the disaster. It is for the tribunal to reach a verdict on the basis of the relevant Italian legislation. Since the Costa Concordia sailed in Italian territorial waters at the time of the incident and since she flies the Italian flag, there is no doubt that criminal jurisdiction lies with the coastal state, i.e. Italy. Although it could be disputed whether the ship was actually in innocent passage since the objec- tive of the passage through the territorial sea was clearly not “to pass through”, it would not make any difference as to where criminal jurisdiction lies. If the ship is considered to be in innocent passage, it is a fact that the incident had serious consequences beyond the ship and disturbed the public order of the coastal state (Article 27 LOSC) and therefore that the coastal state shall exercise its criminal jurisdiction. If she were not in innocent passage, the sovereignty of the coastal state would fully extend to her anyhow.3 The basic objective of this contribution is to highlight the existing compensa- tion system for passengers’ damages on the basis of the existing liability regime

1 See Fairplay 31 May 2012, pp. 32–33. 2 It is prudent to await the official report of the Costa Concordia grounding before mak- ing any comment on the possible causes of the incident; see Tradewinds 25 May 2012. Apparently mid September 2012 the 270 pages Italian casualty report was completed but not yet released. It is expected that this official report will be discussed at IMO’s Maritime Safety Committee of November 2012 (MSC91). Following the loss of the Costa Concordia, Carnival is now facing a very serious increase in insurance premium for its fleet, which is not surprising given the fact that the combined loss that hull insurers, P&I Clubs and reinsurers are confronted with is above $1bn, see Tradewinds 1 June 2012. 3 See: E. Somers, Inleiding tot het international zeerecht, Mechelen: Kluwer, 2010, pp. 99–101.