C.H. and G.H., Plaintiffs, v. Carnival Corporation

September 29, 2015

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 14-CV-22754-SCOLA/OTAZO-REYES

C.H. and

G.H.,

Plaintiffs,

v.

CARNIVAL CORPORATION,

OUT ISLAND CHARTERS NV, and

XYZ CORPORATION(S),

Defendants.

_________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT

CARNIVAL’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

COMES NOW, Plaintiffs, C.H. and G.H., and hereby file their response in opposition to Defendant, CARNIVAL CORPORATION’S, Motion to Dismiss Plaintiff’s Complaint [D.E. 13].  In support thereof, Plaintiffs state as follows:

Brief Factual and Procedural History.

 

This matter arises out of personal injuries suffered by the Plaintiffs, C.H. and G.H., as a result of a shore excursion tour incident in connection with their cruise vacation aboard Defendant Carnival Corporation’s (hereinafter “Carnival”) M/V Carnival Breeze.  Specifically, on or about August 31, 2013, the Plaintiffs participated in a shore excursion tour in St. Maarten called “Power Rafting Adventures” (hereinafter “subject excursion tour”), which is alleged to be, among other things, offered and sold by Carnival, and owned and operated by Defendant Out Island Charters NV (hereinafter “Island Charters”).

On the date of the alleged incident, Plaintiff C.H. suffered severe injuries, such as, but not limited to, his lower back, when the subject shore excursion vessel operating at unreasonably unsafe speeds through poor and dangerous ocean conditions.  As a result of the Plaintiff C.H. incident, Co-Plaintiff/Plaintiff’s wife, G.H., suffered a loss of her husband’s services, companionship, love, affection, support and consortium. [¶ 20, D.E. 1].

Based on the foregoing incident, on July 25, 2014, Plaintiffs filed the instant negligence action against Defendants, Carnival, Island Charters, and XYZ Corporation(s).  [D.E. 1].  Then, on September 2, 2014, Defendant Carnival filed a motion to dismiss Plaintiffs’ Complaint on the general basis that Plaintiffs’ Complaint “fails to state a claim upon which relief can be granted”.  [D.E. 13].  Herein, Plaintiffs’ respond in turn to each of Defendant’s meritless arguments.

• (COUNT I – NEGLIGENCE). PLAINTIFF PROPERLY AND SUCCINCTLY ALLEGED CARNIVAL’S DUTY OF CARE.  THUS, CARNIVAL’S MOTION TO DISMISS COUNT I – NEGLIGENCE SHOULD BE DENIED IN ITS ENTIRETY.

 

Carnival asserts that Plaintiffs’ “Complaint alleges broadly that ‘[it] was the duty of Carnival to provide Plaintiff with reasonable care under the circumstances’ (DE 1, ¶ 30), but it includes multiple other grounds for negligence based on duties of care (and alleged breaches of those duties) which are completely unsupported by maritime law and cannot form the basis for a negligence action against a carrier in a claim involving a passenger injured off the vessel.”  [pg. 4, D.E. 13, Carnival’s Motion to Dismiss].  However, Carnival’s argument fails as Plaintiffs expressly alleged the correct standard of care in their Complaint.  For instance, paragraphs 30 – 31, pgs. 9-10 of the Plaintiffs’ Complaint states, “30. [it] was the duty of Carnival to provide Plaintiff with reasonable care under the circumstances.  31. [o]n or about August 21, 2013, Carnival and/or its agents, servants, joint venturers and/or employees breached its duty to provide Plaintiff with reasonable care under the circumstances.”  [¶¶ 30 – 31, pgs. 9 – 10, Plaintiffs’ Complaint].  Thus, Plaintiffs’ Complaint, on its face, pleads the correct standard of care against Carnival.

Despite this, Carnival further argues that the allegations made under paragraph 32 of Plaintiffs’ “Complaint are premised on heightened duties beyond that of warning of known dangers.”  [pg. 4, D.E. 13, Carnival’s Motion to Dismiss].  Specifically, Carnival asserts that “[n]one of these alleged duties/breaches are sufficient to form the basis for a negligence action against a common carrier in a claim involving a passenger injured while participating in a shore excursion under the general maritime law,” and that Plaintiffs “alleged incorrect and much broader duties of care owed to passengers by shipowners with regard to hazards encountered by passengers off the vessel.”  Id.  at pg. 5, Carnival’s Motion to Dismiss].  In support of this notion, Carnival relies several district court opinions which are, however, clearly distinguishable.

For instance, Carnival relies on this District Court’s opinion in Koens v. Royal Caribbean Cruises, Ltd., 774 F.Supp.2d 1215 (S.D. Fla. 2011), in support of dismissing Plaintiffs’ negligence claim, because Plaintiffs seek to create a duty which is greater than that supported by the case law.  [Pg. 4-5, D.E. 13, Carnival’s Motion to Dismiss].  However, this District Court in Koens dismissed the negligence claim on the following specified reason:

Permitting Plaintiffs to proceed on their claim of negligence against Defendant solely because of a rising crime rate in Nassau would improperly expand a cruise line’s duties to its customers.  Here, there are no allegations in either of the Complaints that RCL knew or should have known of dangerous conditions on either the Caribbean Segway Tour or on the grounds of Earth Village Nature Preserve.  Instead, the only allegations pertain to ‘actual knowledge of crimes against tourists in Nassau, as a group of passengers on a Defendant-sponsored Nassau excursion were robbed at gunpoint approximately one month prior to the subject incident.’  Such allegations are insufficient to trigger a duty under Carlisle.  And since without duty there can be no breach, Plaintiffs have failed to state a cause of action for negligence.

 

Id.  Clearly, this Honorable Court did not dismiss the Plaintiff’s negligence claim in Koens, because the Plaintiff alleged a heightened duty of care against the cruise line.  Id. 

In further support of the same proposition, Carnival relies on this District Court’s opinion in Gayou v. Celebrity Cruises, Inc., Not Reported in F. Supp. 2d, 2012 WL 2049431 (S.D. Fla. 2012).  In Gayou, this District Court, just as in Koens, dismissed the plaintiff’s negligence claim against the cruise line because plaintiff “fail[ed] to allege any facts either showing or creating an inference that Celebrity knew or should have known the zip-lining excursion was other than safe.”  Id.

• Count I. The standard of care.

To satisfy the burden of proof in a negligence action Plaintiff must show: 1) that defendant owed plaintiff a duty; 2) that defendant breached that duty; 3) that this breach was the proximate cause of Plaintiff’s injury; and 4) that Plaintiff suffered damages. Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).

In the context of admiralty torts, a shipowner’s “duty” was defined in the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). In Kermarec the Supreme Court held that “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” (emphasis added).

At paragraphs 30 and 31 of the Complaint, Plaintiffs succinctly allege that “[i]t was the duty of Carnival to provide Plaintiff with reasonable care under the circumstances.  On or about August 21, 2013, Carnival and/or its agents, servants, joint venturers and/or employees breached its duty to provide Plaintiff with reasonable care under the circumstances.”  [¶¶ 30-31, D.E. 1].

Thus, Plaintiffs pled the correct duty of care in this matter. See, i.e. Gentry v. Carnival Corp., 11-21580-JG (S.D. Fla. October 5, 2011) [D.E. 36] (“Plaintiff properly alleges that Carnival’s duty was ‘to provide Plaintiff with reasonable care under the circumstances’).

The applicable standard of reasonable care also “requires, as a prerequisite to imposing liability, that the carrier had actual or constructive notice of the risk creating condition.” Keefe v. Bahama Cruise Line., Inc., 867 F. 2d 1318 (11th Cir. 1989). Constructive notice may be established through evidence which shows 1) that the dangerous condition existed for such a length of time that in the exercise of ordinary care, the Defendant should have known of the condition; or 2) that the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). Here, Plaintiffs succinctly pled in the Complaint, [D.E. 1 ¶ 36], alleging: (“At all times material hereto, Defendant Carnival knew of the foregoing conditions causing Plaintiff’s incident and failed to correct them, or the conditions existed for a sufficient length of time so that Carnival in the exercise of reasonable care under the circumstances should have learned of them and corrected them.”  [¶ 36, D.E. 1].

• Count I. Long standing jurisprudence sets forth that Carnival, as a common carrier, owed Plaintiff a duty of reasonable care under the circumstances throughout the entire length of her cruise. This duty included Plaintiff’s visit and shore excursion at the foreign port of call. Contrary to Defendant’s assertions, therefore, the fact that Plaintiffs injury occurred off the vessel is immaterial for purposes of the standard of care. Pursuant to binding precedent, Carnival’s duty of care was the same whether Plaintiff was onboard the ship or off the ship in the port of call.

 

In its motion to dismiss, Carnival seems to be making the argument that the duty of reasonable care under the circumstances is different when incidents occur off the vessel. Carnival’s argument appears to suggest that that a ship-owner’s duty of care to a passenger onboard the vessel varies or is somehow different when that same passenger is off the vessel in a scheduled port of call. Carnival’s argument, however, is incorrect and contrary to law. As shown below, the duty of exercising reasonable care under the circumstances is owed to passengers to the extent of their entire cruise (both onboard and off the vessel).

Maritime law applies regardless of whether the Plaintiff was injured in the vessel or in a port of call. In fact, the duty of reasonable care applies even where a cruise ship passenger has been injured in a port of call outside of the ship. In Doe v. Celebrity Cruises, et. al., 394 F. 3d 891 (11th Cir. 2004), the Court explained that it is immaterial whether a tort occurred on the ship, or in a scheduled port of call. Relying on the Supreme Court in Norfolk Southern Railroad v. Kirby, 343 U.S. at 25 (“[T]he shore is now an artificial place to draw a line”), the Doe Court focused on circumstances – similar to the case herein. For instance, that the stop “was a scheduled port-of-call, and was an integral part of the ongoing cruise or maritime activity in this case” Id., and that “in many ways the particular incident effectively began and ended aboard the cruise ship.” See Doe, at 901:

… Ports-of-call not only add to the enjoyment of a cruise but form an essential function of the cruise experience. In fact, on this particular cruise, five of the seven nights were to be spent in Bermudian ports. Plainly, individuals choose cruise ship vacations because they want to visit unfamiliar places ashore. Cruises to Alaska, the New England States, Bermuda or the Caribbean offer fundamentally different experiences, not generally because of any material difference between ships, but often because of where the ship elects to stop. See Isham v. Pacific Far East Line, Inc.., 476 F. 2d 835, 837 (9th Cir. 1973) (“where a passenger or cruise vessels puts into numerous ports, these stopovers are sine qua non of the cruise”). When a passenger selects a particular cruise, ports-of-call or stopovers provide these passengers with the “cruise experience” for which they are paying … there was little practical experience between the port-of-call and other parts of the ship.  Id. (Emphasis Added).

 

More importantly, under Doe, the purpose behind the exercise of admiralty jurisdiction on torts committed on ports of call, is to “provide for the uniform application of maritime law.” Therefore, the standard of care for negligence does not vary whether the tort occurs on the ship or on the port of call:

Jane Doe was no less a crew passenger the moment she stepped of the ship at the port-of-call than she was the moment she stepped on the ship. We see no reason that a cruise line’s liability to their passengers while at a regularly-scheduled port of call … should vary from port to port … Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the gangplank in this case would upset the very uniformity that the Supreme Court has determined so important for maritime activity.

 

Id. (Emphasis Added).  See also Sullivan v. Ajax Navigation Corp., and Celebrity Cruises, Inc., 881 F. Supp. 906 (S.D. NY. 1995) (citing Isham v. Pacific Far East Line (9th Cir. 1973), Forrester v. Ocean Marine Indemnity Co., 11 F. 3d 1213 (5th Cir. 1993), and Tradewind Transportation Co. v. Taylor, 267 F. 2d 188 (9th Cir. 1959)):

It is well settled that a common carrier general owes a high duty of reasonable care to provide its passengers with safe transportation, adequate supervision to and from a dock or pier… Such duty extends at least to the point of embarkation and debarkation. It does not cease at each port of call where the passengers are free to disembark. Rather, it is owed for the extent of the voyage.

 

… ample case law supports the notion that a carrier may have an obligation to warn of reasonably foreseeable risks that exists beyond the gangplank. Tradewind Transportation Co. v. Taylor, 267 F. 2d 188 (9th Cir. 1959). Such an obligation arises where the carrier knew, or should have known of dangers in places where passengers are likely to go. There is no indication in the record that Plaintiff was cautioned against sitting on the bollard. The fact that the dock was owned and controlled by the Mexican government is of little consequence. See Tradewind, 267 F. 2d at 188 (holding common carrier liable when passenger injured on premises owned and controlled by third party).  Id.  (emphasis added).

 

Herein, Carnival’s duty of exercising reasonable care under the circumstances extended to Plaintiff’s shore excursion at the scheduled port of call. Like Doe and Tradewind, the vessel’s visit to St. Maarten was a scheduled part of the cruise, and therefore, an integral part of the on-going cruise or maritime activity. Further, like Doe and Tradewind the particular incident effectively began and ended aboard the cruise ship. It is immaterial – as explained in Sullivan above – that in addition to Carnival, a third party may have controlled or owned the shore excursion on shore (i.e. Defendants, Out Island Charters NV and/or XYZ Corporation(s)).

All in all, contrary to Carnival’s assertions, the duty of reasonable care under the circumstances is owed to passengers to the extent of their entire cruise. This duty applies even where a cruise ship passenger has been injured in a port of call outside of the ship.

• Count I. Contrary to Carnival’s assertions, a ship-owner’s duty to warn is not a separate standard of care. Rather, it is one of the many duties owed by a ship-owner (both onboard the vessel and at the scheduled port of call) within the “reasonable care under the circumstances” standard.

 

As shown above, Carnival owed to Plaintiffs the same standard of “reasonable care under the circumstances” both while they were onboard the ship as well as while they were off the ship in the scheduled port of St. Marteen. Despite the clear weight of authority, however, in an effort to improperly limit its liability, Carnival disregards that the “reasonable care under the circumstances” standard applies to incidents in scheduled ports of call (outside the ship), arguing that its only duty to Plaintiffs (while they were off the ship) was to warn them of the dangers/conditions it knew or should have known about.

Contrary to Carnival’s assertions, however, the duty to warn is not a separate standard of care. Rather it is one of the many duties owed by a ship-owner (both onboard and at the scheduled port of call) included within the “reasonable care under the circumstances” standard. 

As succinctly explained by this Honorable Court in Goldbach v. NCL (Bahamas) Ltd., 2006 U.S. 92026 (S.D. Fla. 2006) (Huck, J.) citing Carlisle v. Carnival Corp., 864 So. 2d 185 (Fla. 3d DCA 2003), a cruise line “owes a duty to its passengers to exercise reasonable care under all the circumstances. This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should have known.” Id. (Emphasis Added). See also Balashack v. Royal Caribbean Cruises, Ltd., 2009 U.S. Dist. LEXIS 126949 (S.D. Fla. 2009) (Altonaga, J.), involving, like in this case, a shore excursion off the vessel and holding:

… The general characteristic of the activity giving rise to the incident here is, among other things, Celebrity’s alleged negligence in selecting and promoting the “Caribbean Cooking Adventure” excursion and its failure to warn its passengers of the risks thereof. Cruise lines owe their passengers a duty of reasonable care under the circumstances of each case. See Kermarec, 358 U.S. at 362.

 

Id., (emphasis added).

 

Therefore, contrary to Carnival’s assertions, Carnival’s duty to warn is not a separate standard of care. Rather, regardless of whether the incident occurs on the ship or at the port of call; the duty to warn it is one of many duties owed by a ship-owner within the “reasonable care under the circumstances standard.”

• Count I. Failure to warn: whether Carnival had actual or constructive notice of the danger presents questions of fact, not ripe for adjudication at a motion to dismiss stage. Plaintiffs should be given the opportunity to conduct discovery and develop the record regarding these factual

 

Count I of the Complaint succinctly alleges that Defendant Carnival had the duty to provide Plaintiff with reasonable care under the circumstances. [D.E. 1, ¶ 30]. Plaintiffs further allege at ¶¶ 32 (t – y) that Carnival breached that duty by “fail[ing] to warn Plaintiff of the dangers” posed by the Plaintiff in participating in the subject excursion.

It is well settled law that for a cruise line to be liable for failing to warn passengers of dangers, the cruise line must have had actual or constructive notice of the risk creating condition. Keefe v. Bahama Cruise Line, Inc., 867 F. 2d 1318, 1322 (11th Cir. 1989). Constructive notice may be established through evidence which shows that 1) the dangerous condition existed for such a length of time that in the exercise of ordinary care, the Defendant should have known of the condition, or 2) the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). Additionally, the duty to warn passengers only extends to those dangers which are not apparent and obvious to the passengers. Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40 (S.D. Fla. 1986).

All questions regarding Carnival’s “notice” are issues of fact improperly determined at a motion to dismiss stage. See Goldbach v. NCL (Bahamas) Ltd., 2006 U.S. Dist. LEXIS 92026 (S.D. Fla. 2006) (Huck, J.) (A cruise line “owes a duty to its passengers of reasonable care under all circumstances. This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should know … The question of whether Defendant knew or should have known of the danger posed is a genuine issue of fact precluding summary judgment.”) Id. (Emphasis added).

• Count I. Contrary to Defendant’s assertions, the International Safety Management Code can be used as an indicator that Carnival breached the duty of reasonable care under the circumstances.

 

Paragraph 35 of Plaintiff’s Complaint states, in its entirety:

At all times material hereto, Carnival negligently failed to determine the hazards and/or dangers that the subject excursion tour posed to Plaintiff, failed to eliminate the hazards and/or dangers, failed to modify the hazards and/or dangers, and failed to warn and/or adequately warn the Plaintiff of the hazards and/or dangers.  Additionally, Carnival violated the International Safety Management Code and failed to have a proper and adequate Safety Management System Manual.  All of the above caused the Plaintiff to be injured.

 

[¶ 35, D.E. 1].

 

Carnival argues that the International Safety Management code ( hereinafter “ISM code”) does not create or alter any duties that exist in general maritime law and, for that proposition, relies on a summary judgment order from a longshoreman’s claim against a cargo ship operator, Calderon v. Offen, 2009 WL 3429771 (S.D. Fla. 2000). Carnival is incorrect.

The ISM code, drafted by the International Maritime Organization, a United Nations body, provides an international standard for the safe management and operation of ships and for pollution prevention. The objectives of the code are to ensure safety at sea, prevent human injury or loss of life, and avoid chance of damage to the environment and to property. See ISM Code, §1.2. Further, the ISM Code mandates written documentation of a comprehensive safety and environmental program (Safety Management Plan), including training and internal auditing, and extends the traceable chain of responsibility for safety straight to the top of management. This documentation creates a paper trail of a company’s compliance (or non-compliance), and gives rise to share responsibility for all those in the company’s chain of command. See The International Safety Management (ISM) Code: A New Level of Uniformity, 37 Tul. L. Rev. 1585 (1999).

As a signatory to the 1974 SOLAS Convention and the amendatory 1978 protocol, the United States is bound to enforce the ISM code for vessels flying the United States flag and to foreign vessels calling at U.S. ports. Id. In fact, Congress enacted legislation to incorporate the code into the laws of the United States. See 46 USC §§3201, 3202, 3203 , 3204, 3205 (2010). For instance, section 3204 (a) provides that each responsible [ship-owner] must establish and submit to [the Coast Guard] for a approval a safety management plan describing how that entity and vessels of the entity comply with the regulations under the ISM code. Section 3205 (c), further provides that the Coast Guard will “periodically review whether a responsible [ship-owner] is complying with the safety management plan.” Finally. the ISM code requires each ship to “establish and implement against all identified risk.” 33 C.F.R. § 96.230(b) and to have a detailed
”written manual that outlines a Safety Management System.”

In light of this, at paragraph 35 of the Complaint, Plaintiffs allege that at all times material, “Defendant Carnival violated the International Safety Management Code and failed to have a proper and adequate Safety Management System Manual.. [which] caused Plaintiff to be injured.”

Such wrongful conduct shows that in failing to comply with these statutory requirements, Carnival breached its duty of reasonable care under the circumstances to the Plaintiffs. The ISM code is the widely-accepted international standard of maritime safety. It therefore it acts as a benchmark – whose violation can show that a ship-owner failed to provide reasonable care under the circumstances.  See The International Safety Management (ISM) Code: A New Level of Uniformity, 37 Tul. L. Rev. 1585 (1999).

Here, in the Complaint, Plaintiffs reaffirm the Kemarec standard, alleging that “[i]t was the duty of Defendant, to provide Plaintiff him with reasonable care under the circumstances.” Only then, in support of the allegation that Carnival breached that duty, the Plaintiff listed numerous different reasons, including that Carnival “violated the International Safety Management Code.” This allegation is therefore not being made as a separate duty; but rather, as additional evidence that Carnival did not provide Plaintiffs with reasonable care under the circumstances.

In other words, what is plead by the Plaintiff is not that the ISM code creates a duty separate and independent from the duty of reasonable care under the circumstances.  Rather, the Plaintiff refers to the ISM code within the Plaintiff’s negligence count in further explanation of how Carnival failed to provide the Plaintiff with reasonable care under the circumstances. All in all, the ISM code is pled in support of negligence, within the negligence count – and not as a separate and independent remedy.

The case cited by Celebrity, Calderon v. Offen, 2009 WL 3429771 (S.D. Fla. 2009), is therefore inapposite. While Calderon prohibits a seafarer from bringing a separate and independent cause of action under the ISM, it does not prohibit using the ISM code as indication that Celebrity breached the duty of reasonable care under the circumstances, and that Carnival was therefore negligent.[1]

Recently, in the matter of Gentry v. Carnival Corp., 11-21580-JG (S.D. Fla. October 5, 2011) [D.E. 36], this Honorable Court (in a cruise line shore excursion case) rejected a cruise line’s identical challenge against a Plaintiff’s ISM code allegations in support of Negligence, holding:

Here Gentry pled sufficient facts to infer that, as a paying passenger aboard a Carnival ship, she was owed a duty of care by Carnival. Carnival’s precise duty of care is a matter that is properly litigated at a later stage of this case, such as on a motion for summary judgment or in determining appropriate jury instructions. Similarly, because Gentry’s complaint contains sufficient allegations to recover under a viable theory of negligence (because Carnival owed her a duty of care under Kermarec), the fact that Gentry alleged an additional basis for Carnival’s duty predicated on the ISM is not relevant to deciding this motion to dismiss.

 

Id. (emphasis added).

 

• COUNT III. Plaintiff properly stated a claim for apparent agency and agency by estoppel. Furthermore, the disclaimers in the excursion’s “waiver and release documents” raise factual questions regarding plaintiff’s knowledge which are not capable of resolution on a motion to dismiss.

 

Count III of the Plaintiffs’ Complaint alleges that the shore excursion operator was an apparent agent of Carnival. A claim for apparent agency exists when: “1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal, 2) that such belief was reasonable, and 3) that the claimant reasonably acted on such belief to his detriment.” Doonan v. Carnival Corp., 404 F. Supp. 3d 1378, 1371 (S.D. Fla. 2005).

• It is settled that the existence of an agency relationship is a question of fact for a jury.

 

As a preliminary matter, it is well established that Federal Maritime Law embraces the principles of agency and that the existence of an agency relationship is a question of fact for the jury. See Doonan v. Carnival Corp., 404 F. Supp. 2d 1367 (S.D. Fla. 2005) (citing Archer v. Trans/American Servs., Ltd., 834 F. 2d 1570 (11^th Cir. 1988)); Borg-Warner Leasing v. Doyle Elec. Co., 33 F. 2d 833, 836 (11th Cir. 1984); Church of Scientology of California v. Blackman, 446 So. 2d 190 (Fla. 4th DCA). Thus, the agency relationship between Celebrity and the shore excursion entity cannot not be properly decided at the Motion to Dismiss stage.

• The shore excursion’s ticket is a document beyond the four corners of the complaint. Moreover, the waiver is void pursuant 46 U.S.C. §30509: Carnival, a common carrier, is prohibited from contractually limiting its liability for personal injury or death caused by the negligence or fault of its employee’s or agents.

 

As an additional ground to challenge Plaintiffs’ Apparent Agency claim (Count III), Carnival relies and attaches to its Motion to Dismiss its cruise passenger ticket contract and shore excursion ticket. Citing the documents, Carnival argues that “Plaintiffs appear to allege that they reasonably believed that the shore excursion operator was Carnival’s agent, however; such a belief is patently unreasonable” due to Carnival’s cruise passenger ticket contract and Carnival’s shore excursion ticket [D.E. 13, pgs. 11-13].

First, at the motion to dismiss stage, the scope of a court’s review is limited to the four corners of the complaint. St. George v. Pinellas County, 285 F. 3d 1334, 1337 (11^th Cir. 2002).  Pursuant to biding Eleventh Circuit precedent, the general rule is that at a district court does “not consider anything beyond the face of the complaint … when analyzing a motion to dismiss.” Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F. 3d 1276, 1284 (11th Cir. 2007). Nevertheless, Carnival has attached and relied upon documents outside of the pleadings. Because the documents are beyond the four corners of the complaint – its consideration is inappropriate at this juncture.

Second, disclaimers and waivers in ticket contracts raise questions of fact premature at a motion to dismiss stage. See, i.e. Mika v. Celebrity Cruise, Inc., 2010 U.S. Dist. Lexis 49846 (S.D. Fla. 2010) (declining to consider the disclaimers in Celebrity’s marketing materials because they raise factual questions regarding Plaintiff’s knowledge of the disclaimers and the reasonableness of Plaintiff’s beliefs) (emphasis added);  see also Bridgewater v. Carnival, Case No. 10-22241-CIV-KING [D.E. 55, Ft. 3] (S.D. Fla. 2011) (King, J.):

The Court notes that Defendant Carnival advances several arguments which are more appropriate for summary judgment … 2) the effect of an exculpatory clause in Plaintiff’s passenger Ticket … Carnival contends that its contract with Plaintiff bars any claim resulting from injury suffered while on a shore excursion. Again, however, the cases relied upon by Defendant uniformly involve summary judgment. As such, these arguments are premature at this time.

 

Id.(Emphasis added).

Third, even if the documents could be considered at this early stage; any use of the shore excursion ticket as a “disclaimer of liability” makes such disclaimer void. 46 U.S.C. §30509 expressly voids language which attempts to contractually limit the liability of a common carrier for personal injury or death caused by the negligence or fault of the owner’s employees or agents. 46 U.S.C. §30509, provides, in part:

Provisions limiting liability for personal injury or death
(a) Prohibition.
(1) In general. The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting–
(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or

…

(2) Voidness. A provision described in paragraph (1) is void.

Id. (emphasis added).

Here, Carnival is clearly a master/manager transporting passengers to (and from) ports on the United States. Moreover, Carnival is attempting to use the ticket as a “disclaimer of liability” for personal injury or death. Therefore, pursuant to 46 U.S.C. §30509, use of the document as a disclaimer is null and void. See Kornberg v Carnival Cruise Lines, Inc. 741 F. 2d 1332 (11th Cir. 1984) (46 U.S.C.A. § 183c[2] expressly invalidates any contract provision purporting to limit a  ship [or its agents] liability for negligence to its passengers … even prior to 1936, the year § 183c was drafted, such provisions were held to be void under common law as against public policy”); Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308  (S.D. Fla. 2011) (Jordan, J.):

A provision in a passenger contract or disclaimer form attempting to limit a carrier’s liability as described above is deemed void. See § 30509(a)(2) …. [T]his action stems from injuries allegedly sustained during an off-shore excursion tour owned and operated by Chukka, an independent third-party company …There is no exception in the statute for claims based on events or omissions occurring in the midst of a voyage but at an offshore location or in the course of an offshore excursion. I therefore apply § 30509(a)(1)(A) pursuant to its plain language, which expressly forbids Royal Caribbean from limiting or disclaiming liability stemming from a passenger’s allegations of direct negligence against it (regardless of whether the incident occurred offshore).

 

Id. (emphasis added).

Fourth, the cruise line passenger ticket is merely one factor relevant to the reasonableness of Plaintiffs beliefs, for purposes of apparent agency. As the Honorable Judge Seitz explained, rejecting a cruise line’s identical argument in Boney v. Carnival Corp., 1:08 – 222299 (Nov. 13, 2009):

As to the reasonableness of Plaintiffs belief in Carnival’s manifestations of authority, Defendant claims that Plaintiff’s cruise line ticket precludes his apparent agency claim as a matter of law. Plaintiff’s stated that “the ship’s physician, nurse and on board concessions…are neither operated by or are independent contractors [of Carnival].” Thus, according to Defendant, Plaintiff could not have reasonably believed that the ship’s doctor was an employee of Defendant … given the language in the cruise ticket…However, the determination of agency/independent contractor status is a factually intensive issue, and the cruise line ticket is merely one factor relevant to the “reasonableness” of Plaintiff’s belief. See, e.g., Suter, 2007 WL 4662144, at 6-7 (argument that ticket language precludes apparent agency claim as a matter of law is “premature” when pleading does not establish that Plaintiff read and understood the terms and conditions concerning the ship’s doctor); Fairley, 1993 AMC 1633, 1640 (passenger contract “will not dispose of the issue of whether the ship doctor was an independent contractor on a motion to dismiss.”). As a result, Plaintiffs have adequately pled that their reliance on Carnival’s manifestations was reasonable. (Emphasis Added).

 

Id., (Emphasis Added).

Like in Boney, herein, these allegations concisely state a cause of action for Apparent Agency. Accordingly, Plaintiffs’ Apparent Agency claim (Count III) contains sufficient factual mater, which if accepted as true, draw a reasonable inference that the Defendant is liable for the misconduct alleged.” Therefore, Carnival’s Motion to Dismiss Count III should be denied.

• COUNT IV. THE PLAINTIFFS PROPERLY STATED A CLAIM FOR JOINT VENTURE, AND THE EXISTENCE OF A JOINT VENTURE IS AN ISSUE OF FACT TO BE DECIDED BY THE TRIER OF FACT.

 

• Pursuant to binding Eleventh Circuit Court precedent, whether or not a group of persons constitute a joint venture is usually a question of fact to be resolved by the jury. Therefore, it is premature to rule on this issue at the motion to dismiss stage.

 

In its Motion to Dismiss, Carnival’s challenges the merits of Plaintiff’s joint venture allegations (Count IV). As shown below, Carnival’s challenge is unwarranted.

Carnival’s Motion to Dismiss improperly invites this Honorable Court to make determinations concerning Plaintiffs’ Joint Venture claim. However, pursuant to Eleventh Circuit precedent, whether or not a group of persons constitute a joint venture is a question of fact to be resolved by the jury. Misco-United Supply, Inc., v. The Petroleum Corporation et. al., 462 F. 2d 75 (OLD – 11^th Cir. 1972);[3] and Rose v. M/V Gulf Stream Falcon, 186 F. 3d 1345 (11th Cir. 1999) (“[…] the district court’s finding with respect to the existence of (or lack thereof) a joint venture is a factual determination that is reviewed under the clearly erroneous standard”; see also USA Independence Mobilehome Sales, Inc., v. City of Lake City, (Fla. 1st DCA 2005) (“The existence of a joint venture presents a question of fact.”), and Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975) (same).

Therefore, as illustrated by the Eleventh Circuit in Misco-United Supply and Rose and Courts in Florida (i.e. City of Lake City, Navarro), the existence of a joint venture raises questions of fact not ripe for adjudication at a motion to dismiss stage. Resolution of these questions requires context specific inquiries necessitating development of the factual record.

• COUNT V. PLAINTIFFS HAVE SUFFICIENTLY PLED A COUNT FOR “THIRD PARTY BENEFICIARY.” PURSUANT TO BINDING ELEVENTH CIRCUIT PRECEDENT, ASCERTAINING WHETHER PLAINTIFF IS AN INTENDED THIRD PARTY BENEFICIARY IS A QUESTION OF FACT TO BE RESOLVED BY THE JURY. AT THE VERY LEAST, IT IS PREMATURE FOR THIS HONORABLE COURT TO RULE ON THIS ISSUE AT THE MOTION TO DISMISS STAGE.

 

• Plaintiffs have sufficiently pled a count for “Third Party Beneficiary.” Under Twombly Plaintiff has given Defendant NCL “fair notice of what the claim is and the grounds upon which it rests.”

 

         Intent. Carnival’s first challenge to Plaintiff’s Third Party Beneficiary Count is that “Plaintiffs failed to all to adequately allege clear intent of the parties to contract primarily and directly for the Plaintiff.” [D.E. 8, pg. 14].

The intent of the parties is the key to determining whether a third party is an intended or only an incidental beneficiary. Bochese v. Town of Ponce Inlet, 405 F. 3d 964 (11th Cir. 2005). See also Vencor Hospitals d.b.a. Vencor Hospital v. Blue Cross Blue Shield of Rhode Island, 169 F. 3d 677 (11th Cir. 1999) (A party has a cause of action as a third-party beneficiary to a contract if the contracting parties express an intent primarily and directly to benefit that third party (or a class of persons to which that third party belongs)). If the contracting parties had no such purpose in mind, any benefit from the contract reaped by the third party is merely “incidental,” and the third party has no legally enforceable right in the subject matter of the contract. Bochese, 405 F. 3d 964, 981 (11th Cir. 2005).

For the purpose of determining whether a third-party is an intended beneficiary to a contract, basic contract interpretation rules apply. Progress Rail Services Corp. v. Hillsborough Area Regional Transit Authority, 2006 U.S. Dist. LEXIS 5123 (M.D. Fla. 2006) at 4-5 quoting 28 Richard A. Lord Willinston on Contracts §70:226 (4th ed. 2005) (“Ascertaining whether the contracting parties intend to benefit a putative third party is a question of ordinary contract interpretation”). See also Bochese v. Town of Ponce Inlet, 405 F. 3d 964 (11th Cir. 2005):

The Florida Supreme Court has explained that the question whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract as a whole construed in light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish. Id.

 

Pursuant to binding Eleventh Circuit Court precedent, “[a]s a general rule, a party’s state of mind (such as knowledge or intent) is a question of fact for the fact finder, to be determined after trial.” Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F. 2d 1472 (11th Cir. 1991).

Here, since intent of the parties is the key to determining whether a third party is an intended beneficiary under the contract – it is premature to rule on this issue at a motion to dismiss stage. See BGW Design Limited, Inc., 2010 WL 5014298, pg. 5 (S.D. Fla. 2010) (The [contractual] intent of the parties is a factual matter and therefore should not be resolved on a motion to dismiss). See also American Honda Motor Co., Inc., v. Motorcycle Information Network, Inc., 390 F. Supp. 2d 1170, 1176 (S.D. Fla. 2005) (“The intent of the parties is a factual matter that cannot be resolved on a motion to dismiss). See also Whitney National Bank, 2010 WL 1270266 (M.D. Fla. 2010):

In interpreting a contract in a breach of contract claim, Florida courts look to the circumstances surrounding the contract to determine the intention of the parties and to give effect to that intent. However, courts may only look to the circumstances surrounding the contract if the language in question in the contract is ambiguous. [….]. However, at the motion to dismiss stage, it is inappropriate to decide whether language in a contract is ambiguous and then make determinations based on what one party believes the language of the contract to say. Id., at pg. 5. (Emphasis added) (internal citations omitted).

 

Further, the Court may only examine the four corners of the complaint. Matters outside the complaint are not to be considered without converting the motion to dismiss to a motion for summary judgment. St. George Pinellas County, 285 F. 3d 1334, 1337 (11th Cir. 2002). Ascertaining Carnival’s contractual intent – would require the Court to look beyond the four corners of the complaint.

Notwithstanding the weight of this precedent, Carnival’s Motion to Dismiss Count V (Third Party Beneficiary) of Plaintiff’s Amended Complaint, improperly invites this Honorable Court to resolve a factual question (Defendants’ – the contracting parties- intent) at the motion to dismiss stage.

For Plaintiff to determine whether the alleged contract obligates Carnival to do anything for the benefit of third parties, however, Plaintiff has to ascertain Carnival’s intent in entering into the contract. Mainly, Plaintiff must show that by entering into the contract, Carnival intended to primarily and directly benefit Plaintiff or a class of persons to which Plaintiff belongs (i.e. Carnival cruise passengers). Because Carnival’s contractual intent (i.e. whether by entering into the contract Carnival intended to be obliged to do something for the benefit of the Plaintiff) is a question of fact, its determination is inappropriate at a motion to dismiss stage.  See Barnett v. Carnival Corporation, 2007 U.S. Dist. LEXIS 43636 (S.D. Fla. 2007) (Hon. Judge John O’Sullivan):

The defendant seeks dismissal of the plaintiff’s third party beneficiary claim on the ground that it is not properly pled … To determine the parties intent as the defendant suggests necessarily would require the Court to look at matters outside of the complaint. As such, the issue of intent is not appropriate for resolution on a motion to dismiss. […]. Under Rule 12(b) of the Federal Rules of Civil Procedure when the District Court, as here, considers matters outside the pleadings on a motion to dismiss, the motion must be treated as one for summary judgment.” Id. As alleged, Count IX puts the defendant on notice of Plaintiff’s claim as a third party beneficiary.  See Fed. R. Civ. P. 8(a). Because the plaintiff’s allegations must be accepted as true on a motion to dismiss, the defendant’s motion to dismiss Count IX (Third Party Beneficiary) is denied.

 

Id. (Emphasis added).

 

Breach. Carnival’s second challenge to Plaintiffs’ third party beneficiary claim, is essentially that the Complaint fails to allege that “Carnival breached the contract.”  Plaintiffs succinctly allege that the “contract was breached by both Carnival and the Shore excursion Entities.”  [¶ 68, D.E. 1].  Thus, Carnival’s Motion to Dismiss Plaintiffs’’ third-party beneficiary claim should be denied in its entirety.

• Loss of consortium claims are recognized under general maritime law, and the limitations on such claims are not applicable because the Plaintiffs are not seafarers alleging wrongful death claims.

 

Lastly, Carnival seeks dismissal of Plaintiff’s claim for loss of consortium.  Carnival relies on an Eleventh Circuit case, In re Amtrak “Sunset Limited” Train Crash, for the proposition that general maritime law does not permit claims for loss of consortium.  A brief history on this area of law, however, shows that consortium claims have long been recognized under general maritime law.  It also shows that, although limitations were later placed on such claims, those limitations were only meant to apply to areas of maritime law where Congress expressly chose to limit the rights and remedies of certain classes of plaintiffs (such as seafarers) with claims under the Jones Act or the Death on the High Seas Act (DOHSA).  Those circumstances are not present herein.

In American Exp. Lines, Inc. v. Alvez, the United States Supreme Court held that a cause of action for loss of consortium was recognized under general maritime law. Alvez, 446 U.S. 274, 283 (1980). The Court noted that “a clear majority of States permit[ted] a wife to recover damages for loss of consortium from personal injury to her husband” and, by such standards, “a common-law principle… translated into maritime law.” Alvez, 446 U.S. at 284 (1980) (emphasis added).  In fact, “[t]he ability to recover for loss of consortium has been discussed in cases dating back to 1860.” Barrette v. Jubilee Fisheries, Inc., 2012 A.M.C. 1062 (W.D. Wash. 2011) (“[T]he Court finds that loss of consortium damages have long been available at common law, and that the common-law tradition allowing recovery for loss of consortium extends to general maritime claims.”).

Thereafter, in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), the mother of a seaman brought suit for the wrongful death of her son.  The Supreme Court itself explained in a later case[4] that one of the principal issues before the Court was whether general maritime law should provide a cause of action for wrongful death based on unseaworthiness and, if so, what remedies were available under same. The Court in Miles first concluded that the “unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes” authorizing maritime wrongful-death actions, supported the recognition of a general maritime action for wrongful death of a seaman. Id. at 24 (citations omitted); see also Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).

With regard to remedies, the Court ultimately found that Congress chose to limit the damages available for wrongful-death actions under DOHSA and the Jones Act by not allowing either statute a recovery for non-pecuniary losses (like loss of society). Miles, 498 U.S. at 31-33. Accordingly, the Court held that such damages should not be available under a general maritime action for wrongful death either, reasoning that they must maintain “a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.” Id. at 33 (citing Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978)) (emphasis added).[5]

The Supreme Court later made clear, however, that the reason Miles looked at the remedies available under DOHSA and the Jones Act is because “until then, there was no general common-law doctrine providing for such an action [wrongful death]”. Atlantic Sounding, 557 U.S. at 420.  Rather, “it was only because of congressional action that a general federal cause of action for wrongful death on the high seas and in territorial waters even existed.” Id. As such, “[i]t would have been illegitimate to create common-law remedies that exceeded those remedies statutorily available under the Jones Act and DOHSA.” Id.

Thus, in the interest of uniformity in admiralty law, the Supreme Court in Miles and Higginbotham limited the scope of recovery under the judicially created general maritime law to that of overlapping statutory law.  It is therefore clear that the limitation on consortium claims was only meant to apply to seafarers’ wrongful death cases.  Importantly, however, the Supreme Court in Miles and Higginbotham did not reach the issue of remedies available under the general maritime law in cases where statutory law does not overlap with a general maritime claim (which is the case here). Herein, Plaintiffs are not seafarers, and neither are raising wrongful death claims or claims under DOHSA or the Jones Act.

The case which Carnival relies on – In re Amtrak “Sunset Limited” Train Crash – has been effectively overruled for its cited holding by a more recent United States Supreme Court case.  Specifically, the Eleventh Circuit’s position in Amtrak was based on the view that personal injury plaintiffs in maritime actions did not enjoy traditional common law remedies. In re Amtrak, 121 F.3d at 1429 (“until the United States Supreme Court should decide to add state remedies to the admiralty remedies for personal injury, personal injury claimants have no claim for nonpecuniary damages such as… loss of consortium or punitive damages”)). Since that opinion, however, the Supreme Court clarified that neither the Jones Act nor the Supreme Court’s own precedents were intended to replace remedies that were previously available at common law. Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).

Specifically, the Court in Atlantic Sounding arrived at its conclusion to allow a non-pecuniary damage (i.e., punitive damages) in a maintenance and cure claim by addressing three legal principles. “First, punitive damages have long been available at common law. Second, the common-law tradition of punitive damages extends to maritime claims. And third, there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule.” Atlantic Sounding, 557 U.S. at 414-15.

Like punitive damages, recovery for loss of consortium has long been available at common law and extends to maritime claims, as demonstrated above. See Alvez, supra; see also Barette, supra.  Also like punitive damages, Congress has not enacted any legislation to limit a passenger’s right to recover damages for loss of consortium in a personal injury action under general maritime law.  Therefore, to the extent that Amtrak foreclosed a plaintiff’s right to recover damages for loss of consortium in a personal injury case under general maritime law, it is inconsistent with the principles of law espoused by the Court in Atlantic Sounding and is no longer the correct rule of law. See Barette, 2012 A.M.C. 1062 (applying the above analysis and concluding that Atlantic Sounding “drastically limited the scope of Miles” and that loss of consortium claims were, and continue to be, available under general maritime law).

The United States District Court for the Southern District of Florida recently agreed that “[t]he exceedingly narrow standard… annunciated in Amtrak… is no longer viable in view of the broad reasoning in Atlantic Sounding that, as a rule, common law remedies extend to federal maritime actions.” Doe v. Royal Caribbean Cruises, Ltd., 11-23323-CIV, 2012 WL 920675 (S.D. Fla. March 19, 2012) (emphasis added). The federal courts have announced the overruling of Amtrak in several other cases as well. See Lobegeiger v. Celebrity Cruises, Inc., 2012 A.M.C. 202 (S.D. Fla. 2011) (“Amtrak… is no longer the correct rule of decision”); see also Boney v. Carnival Corp., No. 08–22299–CIV, 2009 WL 4039886, at *1, n. 1 (S.D. Fla. Nov. 20, 2009) (“While the Eleventh Circuit Court of Appeals stated in Amtrak that it looks ‘disfavorably’ on the availability of punitive damages under maritime law, the Supreme Court has now suggested that punitive damages are available in general maritime claims unless Congress has expressed otherwise.”).

Accordingly, Carnival’s Motion to dismiss the claim for loss of consortium should be denied as 1) the limitation of non-pecuniary damages does not apply to this case because the plaintiffs are not seafarers alleging wrongful death claims under DOHSA or the Jones Act; and, 2) the preclusion of consortium claims in Amtrak is no longer valid based on the Supreme Court’s holding in Atlantic Sounding because consortium claims have in fact long been recognized under general maritime law.

WHEREFORE, Plaintiff respectfully request that this Honorable Court enter an Order denying Carnival’s Motion to Dismiss Plaintiff’s Complaint. Alternatively, in the event this Honorable Court grants Carnival’s Motion to Dismiss, or any part thereof, Plaintiff respectfully moves this court for leave to file an Amended Complaint.

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that on September 29, 2014, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some electronically Notices of Electronic Filing.

LIPCON, MARGULIES,

ALSINA & WINKLEMAN, P.A.

Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida  33131

Telephone:  (305)  373-3016

Facsimile: (305) 373-6204

 

By:  /s/ Michael Winkleman

MICHAEL A. WINKLEMAN

Florida BAR NO 36719

 

SERVICE LIST

C.H. and G.H. v. Carnival Corp., et al.

Case No. 14-CV-22754-RNS

 

Jeffrey E. Foreman, Esq.

Noah D. Silverman, Esq.

Tyler J. Tanner, Esq.

Foreman Friedman, P.A.

One Biscayne Tower, Ste. 2300

2 South Biscayne Blvd.

Miami, Florida 33131

Telephone:       (305) 358 – 6555

Facsimile:        (305) 374 – 9077

Attorneys for Defendant, Carnival Corporation

 

Jerry D. Hamilton, Esq.

Carlos J. Chardon, Esq.

Hamilton, Miller & Birthisel, LLP

150 Southeast Second Avenue, Suite 1200

Miami, Florida 33131

Telephone:       (305) 379 – 3686

Facsimile:        (305) 379 – 3690

Attorneys for Defendant, Out Island Charters NV

 

Michael A. Winkleman, Esq.

David A. Villarreal, Esq.

Lipcon, Margulies & Winkleman, P.A.

One Biscayne Tower, Ste. 1776

2 South Biscayne Blvd.

Miami, Florida 33131

Telephone:       (305) 373 – 3016

Facsimile:        (305) 373 – 6204

Attorneys for Plaintiffs, Craig and G.H.

 

 

[1] Negligence per se. Moreover, in failing to comply with the ISM requirements Carnival’s conduct could also constitute “negligence per se.” Negligence per se is based on the violation a federal safety statute which in itself creates ‘an actionable wrong’. See Kelly v. Keystone Shipping Co., 281 F. Supp. 2d 313, 317 (D. Mass. 2003) (citing O’Donnell v. Elgin, 338 U.S. 384 (1949).  It is demonstrated by 1) a violation of an applicable statute or regulation, 2) when the Plaintiff is within the class of persons sought to be protected and 3) the harm is of a kind sought to be prevented by the statute of regulation. Plaintiff has pled all of these elements and alleged sufficient facts, arising from Defendant’s failure to comply with the ISM code.

[2]              46 U.S.C. §30509 was formerly codified as 46 U.S.C.A. § 183c.

[3]              Fifth Circuit decisions prior to September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

[4] Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).

[5] The need to maintain uniformity is not an issue in this case because the Claimant is not alleging causes of action under an admiralty statute. See Emery v. Rock Island Boatworks, Inc., 847 F.Supp. 114 (C.D. Ill. 1994) (explaining that the “the concerns of uniformity addressed in Miles do not exist where the statutory law does not apply”).