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Costa’s Cruise Contract Constrains Cruisers’ Claims

The 3200 passengers on the Costa Concondia, which was run aground and nearly sank in Italy, may find it tough going getting legal redress for their nightmare and suffering.

Much like airlines, cruise lines have contracts of carriage that govern the legal rights and responsibilities of both the company and the passenger. For Costa, which is owned by Carnival Cruise lines, it is called the Passage Ticket Contract (and contrary to reports by Reuters and Forbes last week, it appears that it is this Costa contract that governs, not Carnival’s as they asserted). Here are some of the key terms that protect the company at the expense of the passenger:

*MOUSE PRINT: Where Claims are to be filed — Italy!

“Voyages That Do Not Depart from, Return to, or Visit a U.S. Port –
All claims, controversies, disputes, suits and matters of any kind whatsoever arising out of, concerned with or incident to any voyage that does not depart from, return to, or visit a U.S. port, or to this Contract if issued in connection with such a voyage, shall be instituted only in the courts of Genoa, Italy, to the exclusion of the courts of any other county, state or nation. Italian law shall apply to any such proceedings.”

The good news is that the mandatory arbitration clause does not apply to this itinerary because no US port was visited.

*MOUSE PRINT: Claim Filing Deadline

“The Carrier shall not be liable for any physical or emotional injury, illness or death of a Passenger unless written notice of the claim with full particulars is delivered to the Carrier or its duly authorized agent within 185 days after the date of injury, illness or death.”

*MOUSE PRINT: Liability for Negligence

“The Carrier shall be liable only for its negligence.”

Score one for passengers!

*MOUSE PRINT: Liability for Emotional Distress

“The Carrier shall not under any circumstances be liable to the Passenger for damages for emotional distress, mental anguish or psychological injury of any kind, when such damages were neither the result of a physical injury to the Passenger, the result of the Passenger having been at actual risk of a physical injury, nor intentionally inflicted by the Carrier.”

Score another for passengers, since one could clearly argue that the passengers were at risk of actual injury, thus they can sue for mental anguish.

*MOUSE PRINT: Financial Limits on Liability

[Various international conventions] “limit the liability of the Carrier for death of or personal injury to the Passenger to no more than 46,666 Special Drawing Rights (“SDRs”) as defined therein, and all other limits for damage or loss to personal property. The value of 46,666 SDRs is equal to approximately U.S. $70,900 …”

*MOUSE PRINT: Don’t Try Suing Carnival

“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 all persons or entities who may act on behalf of the Carrier …”

*MOUSE PRINT: Property Damage Claims are Capped

“The responsibility of the Carrier for damages to or losses of the Passenger’s baggage, belongings or property, including without limitation clothing worn by the Passenger, even if temporarily in the custody of the Carrier, is limited to the maximum sum of the lower of five hundred U.S. dollars (US$500) per Passenger or one hundred fifty U.S. dollars (US$150) per piece, unless prior to the beginning of the voyage the Passenger declares a higher value in writing and pays a higher tariff equal to five percent (5%) of the declared value; provided, however, that under no circumstance shall the Carrier be liable for an amount greater than five thousand U.S. dollars (US$5,000), …”

*MOUSE PRINT: No Property Damage Claims are Allowed for…

“The Carrier does not undertake to carry, and shall not be liable for, loss of or damage to money, negotiable securities, business or other documents, jewelry, tools of trade or product samples, works of art, electronics, computers, computer disks or other electronic storage or similar device, cellular telephones, cameras, video or audio tapes, CDs, binoculars, recreational equipment, dental hardware, eyewear (including eyeglasses, sunglasses and contact lenses), hearing aids, medications, medical equipment, wheelchairs or scooters under any circumstances…”

*MOUSE PRINT: No Class Actions

“THIS CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON EACH PASSENGER’S OWN BEHALF INSTEAD OF THROUGH ANY CLASS OR REPRESENTATIVE ACTION.”

*MOUSE PRINT: As to safety… you are on your own.

“… the Passenger assumes responsibility for his or her own safety and the Carrier cannot guarantee the Passenger’s safety while on or off the Vessel.”

*MOUSE PRINT: Cancellation rights, No Consequential Damages.

“The Carrier may for any reason whatsoever, including … perils of the sea, … cancel… the voyage itinerary, and the Carrier shall not be liable for any loss whatsoever arising from or relating to such cancellation, deviation, delay, substitution or modifications. … in no event shall the Carrier be liable for any consequential damages, costs or expenses of any kind.”

*MOUSE PRINT: Refunds for the rest of the trip — only merchandise credit toward another Costa cruise.

“If the performance of the voyage is interrupted… the Passenger and the Passenger’s baggage may be landed at … any port or place at which the Vessel may call and the responsibility of the Carrier shall cease and this Contract shall be deemed to have been fully performed…. The Passenger shall not be entitled to any refund of the Cruise Fare or to compensation, damages or reimbursement of any expenses whatsoever, but will be given credit for the proportion of the Cruise Fare unused.”

While this contract severely limits Costa’s liability, the company may well be more generous in settling claims, if for no other reason than to try to maintain goodwill, to rebuild its public image, and to limit its legal expenses. Hopfully, some smart lawyers will figure out a loophole or two in their contract.

For a comprehensive legal analysis of cruise passengers’ rights, please read Judge Thomas A. Dickerson’s treatises: “Cruise Passengers Rights and Remedies 2011”, and “Travel Abroad, Sue at Home 2011“.

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Suze Orman: Advisor or Pitchman?

Financial counselor Suze Orman just came out with her own prepaid debit card called the Approved Card.

It is a MasterCard that you can use in retail stores to make purchases, but only up to the amount you have deposited onto the card. It is promoted as an easier, smarter way to be debt-free. Upfront she touts that it costs “only $3 a month if you use it how I tell you to.”

The card’s homepage goes on to tout nine benefits of the card including “free Transunion credit score, reports, and monitoring”, “safer than cash”, and “teach your teens financial responsibility.”

A closer look at the fee structure reveals some costly provisions besides the $3 monthly maintenance fee.

*MOUSE PRINT:

CARD PURCHASE FEE — $3
ATM WITHDRAWAL FEE — $2 (if you do not have direct deposit)
OVER-THE-COUNTER CASH WITHDRAWAL — $2

While these fees are less than other competing prepaid cards, this whole genre of card is set up to cost you money rather than save you money.

Making a deposit via direct deposit or transferring money from your checking account electronically to the car is free. (But would someone really put their entire paycheck or social security check onto a prepaid card every month? And if you already have a checking account, might not a regular debit card or ATM card be offered by your bank for free?

*MOUSE PRINT:

Conspicuously missing from their fee list is the cost to deposit money onto your card at an ATM or in person at a store.

Apparently you can only add money at locations that support either Moneygram or Western Union payments. The cost, they say, is typically $3.00 – $4.95. Whatta deal.

Here is another surprise.

*MOUSE PRINT:

If you only read the headlines about the free TransUnion credit score, report and credit monitoring benefit, you may miss the fact that the service is only free for the first year. After that, if you want to keep it, it is $143.40 a year.

Lastly, Suze proudly proclaims:

*MOUSE PRINT:

As she admits in smaller print, debit card purchase information is not part of anyone’s credit report and does not affect your credit score. She merely has a desire to see whether providing card use and purchase behavior to Trans Union will be considered in the future as a predictor of creditworthiness. Put another way, Suze has put a clever spin on the fact that she is sharing your purchase history with an outside company.

Prepaid cards have become popular as moneymakers for issuers particularly since they fall through the cracks of federal reform legislation that covers conventional credit and debit cards. If you must have a prepaid card for some reason, a better choice is the virtually fee-free American Express prepaid card. There is no monthly maintenance fee. In fact the only stated fee is $2 for ATM withdrawals after your first free one each month. Depositing money at a retail location incurs the same approximately $4.95 charge as does the Approved Card.

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Office Depot Dilemma: Multiple Rebates Require Same Original UPC

Two consumers contacted Mouse Print* and Consumer World this past week complaining that Office Depot’s current tax software promotion was misleading and a “scam.”

The offer promised $1300 in free software — 24 different titles — if you bought certain tax preparation software like TurboTax Deluxe or H&R Block Deluxe. All you had to do was pay for the free software and fill out rebate forms to get your money back. Not so simple, as it turns out because of a conflict in requirements for many of the rebates. And to add insult to injury, some rebates are debit cards instead of cash back.

For example, if you buy TurboTax, you can get a starter edition of Quicken free, as well as several Norton security products among others.

*MOUSE PRINT:

To prove you bought TurboTax and Quicken, you need to enclose:

Quicken and TurboTax UPC labels (shown below) for the eligible software products, located on the product boxes (photocopies will not be accepted).

And in order to receive a rebate on a Norton combo-pack when purchasing TurboTax, you need to enclose:

*MOUSE PRINT:

Enclose the original UPC code from Norton Internet Security 2012/Norton Utilities Premier Edition and any Turbo Tax, H&R Block, or Tax Act software or tax forms. The UPC code is a 12-digit bar code found on the bottom of box. Photocopies will not be accepted.

Oops. The same original UPC has to be included with the rebate requests for multiple companies and products. Oops. This scenario is repeated for some of the other free software products which also require the original UPC from the tax software. What is a consumer to do?

Our two consumers contacted Office Depot, but were initially given the runaround. One consumer ultimately got the store manager to lower the price of one of the software packages to compensate him for the $15 rebate card he cannot obtain. The other consumer had to jump rank and contact “executive resolutions” to get satisfaction, and was told that Symantec (Norton) was adjusting their rebates to not require the original UPC. She even followed up with Symantec and their rebate fulfillment house to ensure they would accept copies of the UPC. They said yes, but none of the PDF rebate forms have been updated to eliminate the requirement of an original UPC.

Mouse Print* asked Office Depot’s PR folks for an explanation of how they intended to handle this mess, but they did not respond.

Thanks to William-Andrew and Rebecca for contacting us about this issue.

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