Ordinary negligence and gross negligence are the same save for a vituperative epithet. Basically it is not as facile as you're making this out to be because different jurisdictions apply the substantive law diffetently. Nonetheless, if I were defending this company against a state court action, I would remove it to federal court based upon admiralty jurisdiction. In an admiralty case, a pre-accident waiver absolves a defendant of liability for recreational activities on navigable waters if the exculpatory clause is (1) clear and unambiguous; (2) is not inconsistent with public policy; and (3) is not an adhesion contract. Thus the flavor or degree of negligence is not the issue in an admiralty case.
Actually, I may be wrong on this:
Furthermore, an exculpatory clause is enforceable if it is not “plainly inconsistent with public policy.” Id. at 689. In addition, both admiralty law and New Jersey law provide that exculpatory clauses which disclaim liability for conduct beyond negligence or carelessness are inconsistent with public policy. See Charnis, 2009 WL 2581699, at *5 (noting that “[u]nder federal maritime law [ ], owners of recreational boats may disclaim liability for negligence, but they may not do so for gross negligence” and that “[g]ross negligence goes beyond ordinary negligence and is the willful, wanton, or reckless infliction of harm” (internal quotation marks and citation omitted)); see also Stelluti, 1 A.3d at 694-95 (applying New Jersey law and stating that defendant “could not exculpate itself from [ ] reckless or gross negligence,” but could exculpate itself from “injuries sustained as a matter of negligence”)
Never done Admiralty Law.
Frankly I doubt if this company has any assets or liability insurance. The passengers may have paid in advance and the checks deposited, but other than getting their money back, I don’t think the families have any recourse. And good luck with that.
You need money to go after money. If there is no pot of gold at the end of the rainbow, then chasing rainbows is a fools errand.