Jane Doe v. Royal Caribbean Cruises, Ltd, and Cruise Ship Excursions, Inc. – Part 3

March 13, 2013

Jane Doe v. Royal Caribbean Cruises, Ltd, and Cruise Ship Excursions, Inc. – Part 3

Response in Opposition to Motion to Strike Jury Demand
The right to a jury trial is one of the most fundamental rights enshrined in the U.S. Constitution. Many passengers take this right for granted, but without the aid of an experienced nautical legal lawyer, passengers could lose this right. In this response in opposition to a motiolegal precedent prevent the Defendant from striking Plaintiff’s demand for a jury trial.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
IN ADMIRALTY
CASE NO.: 13-cv-20019 – MORENO/OTAZO-REYES
JANE DOE,
Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.,
CRUISE SHIP EXCURSIONS, INC., and
XYZ CORPORATION(S).,
Defendants.
_________________________________________________

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT CRUISE SHIP EXCURSIONS, INC.’S MOTION TO STRIKE PLAINTIFF’S DEMAND FOR JURY TRIAL

Plaintiff, JANE DOE, by and through her undersigned counsel, hereby files this Response in Opposition to Defendant, CRUISE SHIP EXCURSIONS, INC.’S, (hereinafter “CSE”), Motion to Strike Plaintiff’s Demand for a Jury Trial [D.E. 16] and as good cause therefore relies on the following memorandum of law:

MEMORANDUM OF LAW

THE SAVING TO SUITORS CLAUSE PRESERVES PLAINTIFF’S RIGHT TO A JURY TRIAL WHERE, AS IN THE INSTANT MATTER, PLAINTIFF WAS FORCED TO FILE SUIT IN FEDERAL COURT UNDER ADMIRALTY JURISDICTION BY ROYAL CARIBBEAN’S TICKET CONTRACT. FURTHER, IF THIS COURT DISAGREES, PLAINTIFF SHOULD STILL BE ALLOWED AN ADVISORY JURY UNDER DUE TO THE CIRCUMSTANCES OF THIS CASE.

I. Background Facts

This case arises out of disabling injuries sustained by Plaintiff, JANE DOE, while on a cruise vacation aboard Defendant, ROYAL CARIBBEAN CRUISES, LTD.’s, vessel, the Serenade of the Seas. [D.E. 1 19 and 22]. Plaintiff alleges that on or about January 27, 2012 while the Serenade of the Seas was in port in St. Thomas, U.S.V.I., Plaintiff participated in The Best of St. Thomas & Shopping Tour, operated jointly by Royal Caribbean and Defendant CRUISE SHIP EXCURSIONS, INC. (“CSE”). [D.E. 1 19]. During that tour, CSE’s vehicle lost control, veered off the road and crashed. [D.E. 1 22]. Plaintiff further alleges that this crash resulted due to the negligence of CSE. [D.E. 1 41].

Plaintiff filed suit and made a jury demand pursuant to Royal Caribbean’s Ticket Contract in the Southern District of Florida on January 3, 2013. [D.E. 1]. Royal Caribbean’s ticket contract calls for the exclusive jurisdiction of all lawsuits in the Southern District of Florida. Accordingly, Plaintiff could not file her case in Florida State Court, but instead was forced to file in Federal Court as no diversity jurisdiction exists herein. Thereafter, CSE filed a Motion to Strike Plaintiff’s Demand for a Jury Trial. [D.E. 17].

II. The saving to suitors clause specifically protects all remedies for Plaintiff’s who file cases under the Court’s admiralty jurisdiction. Had the Plaintiff not been forced to file her case in Federal Court, she would have been entitled to a jury in Florida State Court. Accordingly, her right to a jury should be preserved in these proceedings.

CSE is attempting to deprive the Plaintiff of her right to trial by Jury, through a backhanded waiver of that right contained in Royal Caribbean’s ticket contract. This is the same ticket contract that CSE derives specific rights from, including the selection of this forum. See Royal Caribbean Passenger Ticket Contract, attached hereto as Exhibit 1.[1] What CSE fails to acknowledge, is that Plaintiff was forced to file suit in the Federal District Court and thus cannot be deemed to have waived her right to a jury.

The ticket contract states as follows:

9. forum selection clause for all lawsuits; class action waiver:

a. except as provided in section 10 (b) with regard to claims subject to binding arbitration, it is agreed by and between passenger and carrier that all disputes and matters whatsoever arising under, in connection with or incident to this agreement, passenger’s cruise, cruise tour, RCT land tour or transport, shall be litigated, if at all, in and before the United States District Court for the Southern District of Florida located in Miami-Dade County, Florida, U.S.A.,[…]

Exhibit A, pg. 4. Subject matter jurisdiction for this case only exists in the Southern District of Florida pursuant to the Court’s Admiralty Jurisdiction, thus Plaintiff was forced to file under Admiralty Jurisdiction. Had Plaintiff not been forced to file her lawsuit in Federal Court, she would have brought her claim in State Court, where she would have been entitled to a jury. Essentially, CSE is claiming that Plaintiff has waived her right to a jury trial by filing her case in admiralty, despite having no choice but to do so. The Southern District of Florida has already ruled that a Plaintiff cannot waive their right to a jury trial due to a provision in a passenger ticket contract. See Ginsberg v. Silversea Cruises Ltd. (Inc.), 03-62141-CIV, 2004 WL 3656827 (S.D. Fla. 2004)[2].

By forcing the Plaintiff to file her lawsuit in the Southern District of Florida under the Court’s admiralty jurisdiction, the Defendant seeks to use admiralty jurisdiction as a sword against the Plaintiff. This usage of admiralty jurisdiction has been addressed by the Supreme Court and explicitly ruled against in the case of Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001).

The Lewis Court considered a situation wherein admiralty jurisdiction, specifically via the Limitation Act[3], was being used by the Defendant to deprive the Plaintiff of a remedy. The Court cited its decision from Lake Tankers Tankers Corp. v. Henn, 354 U.S. 147 (1957) and held that allowing this, “would transform the Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common-law rights[…]”. Id at 451. This is exactly what is being done herein.

It has long been understood that State Courts have concurrent jurisdiction with the admiralty courts for in personam claims like those brought by Plaintiff. See Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123 (1924). This understanding derives from what is commonly referred to as the saving to suitors clause which states:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of:(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

28 U.S.C.A. § 1333 (emphasis added). It is understood that “the saving to suitors clause preserves remedies and the concurrent jurisdiction of state courts over some admiralty and maritime claims.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001) citing Madurga v. Superior Court of Cal., County of San Diego, 346 U.S. 556, 560-561 (1953). “Trial by Jury is an obvious, but not exclusive example of the remedies available to suitors.” Id at 454-455 citing Lake Tankers, supra, at 153, 354 U.S. 147 (1957) (emphasis added).

As the Supreme Court makes clear, the Plaintiff both has a right to bring her case in State Court and a right to a jury trial. Under the Court’s admiralty jurisdiction, the Plaintiff’s remedy of a jury trial is “saved” pursuant to the saving to suitors clause. Since Royal Caribbean and CSE have forced Plaintiff out of State Court and into the admiralty jurisdiction of the Federal Court, the right to a jury trial is even more important to preserve because the Defendant is attempting to use admiralty jurisdiction as a sword against the Plaintiff.

III.Even in admiralty, Plaintiffs can be afforded the right to an advisory jury. If the Court is inclined to grant CSE’s motion, then Plaintiff asks that in the alternative, she be afforded an advisory jury for trial.

Federal Rule of Civil Procedure 39(c) grants the court discretion, upon its own initiative or a party’s motion, to try this case before an advisory jury. Rule 39(c) states as follows:

In an action not triable of right by a jury, the court, on motion or on its own:

(1) may try any issue with an advisory jury; or
(2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial.
Federal Courts regularly try cases to an advisory jury where entitlement to a jury does not exist as a matter of right. See Wilson v. City of Aliceville, 779 F.2d 631, 635 (11th Cir. 1986). If the Court finds that no right to a jury trial exists in this case, then Plaintiff requests that in the alternative she be provided an advisory jury due to the peculiar nature of these facts, i.e. where Plaintiff lost her right to a jury trial as a result of Royal Caribbean’s passenger ticket Contract.

IV. Conclusion
Plaintiff’s jury demand should not be stricken. The Supreme Court has held that a jury trial is one of the remedies expressly saved to her in admiralty under the saving to suitors clause. What the Defendant has attempted to do is force to Plaintiff into a constructive waiver of her right to trial by jury. This back handed waiver should not be permitted. In the alternative and due to the circumstances of this case, Plaintiff should be permitted to try her case to an advisory jury.

WHEREFORE, Plaintiff respectfully request this Honorable Court enter an order denying CSE’s Motion to Strike Plaintiff’s Jury Demand.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Eric C. Morales ­­­­­­­­­­­­­
ERIC CHARLES MORALES
FLORIDA BAR # 91875

 

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[1] The Definitions section of the passenger ticket contract makes clear that CSE is covered by the cruise ticket contract and retains the rights therein.. “’Carrier’ shall include: (i) the Vessel, or any substituted ship; (ii) the Vessel’s Operator; and (iii) with respect to the RCT Land Tour portion of any CruiseTour, Royal Celebrity Tours Inc. (“RCT”) together with the owners, managers, charterers, affiliates, successors and assigns of the entities identified in subsections (i), (ii) and (iii) of this sentence. Carrier also shall include the officers, directors, employees, agents, crew or pilots of the entities identified in the preceding sentence. The exclusions or limitations of liability of Carrier set forth in the provisions of this Ticket Contract, as well as all rights, defenses or immunities set forth herein, shall also apply to and be for the benefit of agents, independent contractors, concessionaires and suppliers of Carrier, as well as owners and operators of all shoreside properties at which the Vessel or the Transport may call, as well as owners, designers, installers, suppliers and manufacturers of the Vessel or Transport, or any component parts of either, together with the employees and servants of each of the foregoing, and/or any launches, craft or facilities of any kind belonging to or provided by any of the parties identified in this paragraph.” (emphasis added)

[2] Finding that waiver of a jury trial in a passenger ticket contract is not knowing and voluntary and thus unenforceable as to this constitutional right.

[3] 46 U.S.C. § 181