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Latin for “inconvenient forum,” forum non conveniens is a term that causes lawyers to cringe — one with the power to conjure up memories of civil procedure classes brimming with fun cases such as Erie Railroad and International Shoe.But for Miami lawyer Michael S. Olin, it just evokes anger. Olin and his clients, three elderly couples who were injured while traveling the South Pacific in 1994 on an Italian cruise liner, were forced to go to federal court after a Florida appeals panel cited the obscure legal concept in moving their negligence lawsuit to Italy. A common-law principle, forum non conveniens allows a judge to dismiss a case if the venue is inconvenient or unjust. Despite the plaintiffs’ being Americans — from Washington state and California — and the Florida business contacts of the Genoa, Italy-based defendant — Costa Crociere S.p.a. — Olin said, the court was intent on keeping a “provincial” attitude toward out-of-state litigants.But the U.S. district court in Miami recently ruled for Olin’s clients, saying that the plaintiffs’ private interests, when taken with Costa’s part-ownership by Miami-based Carnival, bar a move to Italy. Bestor v. Costa Crociere, No. 99-1914.”This case stands for the notion that it is unreasonable for a cruise line … to get away with saying that a country that has nothing to do with the cruise should be the venue,” said Olin, a partner at Miami’s Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin.Olin admitted, though, that these days most tickets have forum selection clauses that are usually enforced — a point noted by Costa lawyer Stephanie Hurst Wylie. Wylie, of Miami’s Horr, Linfors & Skipp, said that the federal court should have followed the state court ruling because both were applying the same federal balancing test. In her motion to reconsider, filed on March 27, she argued that the court was also wrong to make Costa’s ownership by Carnival part of the equation because insurance coverage protects Carnival and its shareholders from liability.SWORD OR A SHIELD?”The Florida court system is exhausted,” said Wylie, who said that the state court’s acerbic ruling reflected judicial frustration with travel industry litigation. “Judicial resources are being expended on cases that have nothing to do with Florida,” she said.But Olin argued that forum non conveniens has been used as a sword by the travel industry to send tort suits to foreign jurisdictions — and oblivion.Olin’s clients, who were injured during a 1994 stopoff in Vietnam while on a Hong Kong-to-Singapore cruise aboard Costa’s Ocean Pearl, alleged that Costa was liable for the injuries caused them by the Vietnamese driver who put their van in a ditch near Da Nang. “[Costa] arranged the van tour through the tour director, who made all the arrangements and even introduced them to the driver,” said Olin, who is seeking $1 million. Wylie countered that the driver was an independent contractor, and thus not an agent of the cruise line for purposes of liability.But the trial court first had to deal with Costa’s attempt to move the case to Italy. Although that court rejected Costa’s motion, the appeals court granted it because the defendant is based in Italy and the plaintiffs are not from Florida.”[There is] no meaningful relationship to Florida whatever … maintenance of this case involves the epitome of the abuse of our courts.” Pearl Cruises v. Bestor, 678 So. 2d 372.The importance of staying on U.S. soil cannot be understated, said David W. Robertson, an expert on forum non conveniens. “When a plaintiff loses a forum case, generally that means the case has gone to zero value. No juries, no contingency fees,” said Robertson, of Baton Rouge, La.’s Due, Caballero, Price & Guidry. “Mostly plaintiffs just give up at this point.”

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