Q: If our agency had clients on the Costa Concordia, and if they survived but were so terribly traumatized by the accident that they wanted to sue somebody, what are the odds that our agency would get sued? What are the odds that we would win such a suit? If we won, could the court order the plaintiffs to pay our attorney's fees?
Your odds of being sued depend on what lawyer the plaintiffs consult. Some personal injury lawyers automatically sue all companies involved in a sale; otherwise, the statute of limitations might run out before the plaintiff realizes that a company that wasn't sued might also be liable.
Other personal injury lawyers would want to focus particularly on your agency, since the Costa ticket states that if the cruise did not depart from, return to or visit a U.S. port, the passenger must sue the cruise line only in Genoa, Italy. Therefore, a U.S. lawyer would take aim at your agency instead, as it can be sued anywhere it does business.
Even if Costa could be sued in a U.S. court, the plaintiffs could not get damages against Costa for any sort of injury exceeding about $70,000, by virtue of a treaty's limitation of liability, and their damages for being traumatized without physical injury may well be even more limited. So it is very likely that the plaintiff would try to get money from your agency, as well.
Even if the suit against your agency is frivolous, it will still take thousands of dollars in legal fees and months of frustration to get the case dismissed. In most cases, the judge does not have the power to order the plaintiff to reimburse you for legal fees.
Worse, it would be fairly easy for a creative plaintiff's lawyer to construct a possibly plausible-sounding claim against your agency for negligence in the Costa Concordia case. Since it now appears that Costa might have had a pattern of letting captains sail too close to islands for "salutes," the plaintiff could allege that you should have known about this danger and should have warned the clients about it.
Although such a claim might seem outrageous to you and me, it might not seem so to a local judge or jury. By the time you win, you may have spent tens of thousands of dollars and several years in litigation.
On the other hand, one factor that makes a suit less likely is that any defense available to Costa under the ticket contract is also available to your agency. Costa's contract states: "All of the defenses, limitations and exemptions of whatever kind relating to the responsibility and liability of the Carrier that may be invoked by the Carrier by virtue of this Contract or by law are fully extended to and may also be invoked by [the Carrier's] agents."
Although some cruise lines deny that a travel agency is the line's "agent," Costa does not do so. Its standard agency agreement calls you an "agency" and sets up an agency relationship.
Finally, if the plaintiffs signed or at least received your agency's disclaimer of liability, the odds of a suit are much less likely. So it is a good idea to get all leisure clients to use disclaimers such as the ones at www.pestronk.com/free.html
. Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at firstname.lastname@example.org.