August 28, 2012

John and Jane Doe v. Carnival Corp., Explora Caribe, and Pelicanos Tours

Response in Opposition to Motion to Dismiss

Many of our clients are injured not on a cruise ship, but rather in a port of call when going on a shore excursion. Passengers often do not understand that the shore excursions advertised and sold on their cruises, are partially operated by third party vendors. This can lead to unsuspecting passengers going on tours with poorly maintained or broken equipment and inexperienced tour guides. In this case, a young couple was injured on a tour in Cozumel, Mexico, when the three wheeled vehicle they were driving as part of a shore excursion malfunctioned, causing it to flip over in a ditch on the side of the road. Our team of trial attorneys brought suit in the Southern District of Florida against the shore excursion operators and Carnival for negligence. Carnival moved to dismiss the Plaintiffs’ lawsuit, claiming that Carnival cannot legally be held responsible for the injuries. In this response, our experienced maritime attorneys argue that Carnival misinterprets the law governing their culpability and the Plaintiffs’ claims. Cruise lines regularly argue that they are not responsible for injuries that happen on shore excursions. If you are injured while on a shore excursion, it is important to hire an experienced maritime attorney like those of Lipcon, Margulies & Winkleman, P.A. who understand the law governing your rights.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO. 12-22160-CIV-Seitz/Simonton
JOHN DOE and JANE DOE,
Plaintiffs,

v.

CARNIVAL CORPORATION,
EXPLORA CARIBE TOURS, S.A. de C.V.,
PELICANOS TOURS, S.A. de C.V., and
XYZ CORPORATION(S),
Defendants.

PLAINTIFF’S RESPONSE IN OPPOSITION TO CARNIVAL’S MOTION TO DISMISS

Plaintiffs, JOHN DOE and JANE DOE, by and through their undersigned counsel, hereby file their response in opposition to Defendant Carnival’s Motion to Dismiss Plaintiff’s Complaint and for good cause rely on the following:

PLAINTIFF’S COMPLAINT PROPERLY STATES A CAUSE OF ACTION BASED ON THE DUTY OF REASONABLE CARE UNDER THE CIRCUMSTANCES. THE CIRCUMSTANCES HEREIN INCLUDE CARNIVAL SELLING SHORE EXCURSION TICKETS TO THE PLAINTIFFS THROUGH THEIR CABIN TELEVISION. THE PLAINTIFFS WERE NEVER GIVEN THE CHANCE TO READ THE SHORE EXCURSION TICKET CITED BY CARNIVAL UNTIL AFTER THEY HAD PURCHASED IT. CARNIVAL PROFITS IMMENSELY BY DIRECTLY SELLING PASSENGERS THESE EXCURSIONS AND GIVING PASSENGERS THE IMPRESSION THAT THEY ARE OWNED, OPERATED, AND/OR SANCTIONED BY CARNIVAL. IN FACT, CARNIVAL ADVERTISED TO THE PLAINTIFFS THROUGH THEIR CABIN TELEVISION, THAT FOR SAFETY REASONS THEY SHOULD ONLY PARTICIPATE IN SHORE EXCURSIONS SANCTIONED AND SOLD BY CARNIVAL. CONSIDERING THESE CIRCUMSTANCES, THE PLAINTIFFS’ COMPLAINT ENUMERATES VARIOUS WAYS IN WHICH CARNIVAL ACTED UNREASONABLY. THE REMAINDER OF CARNIVAL’S MOTION TO DISMISS IS IMPROPER AT THIS STAGE AS IT PRESENTS FACTUAL ISSUES THAT NECESSITATE DISCOVERY AND REMAIN THE PROVINCE OF A JURY TO DETERMINE.

I. Introduction

Plaintiffs JOHN DOE and JANE DOE are young newly weds who chose to celebrate their wedding by going on a honeymoon aboard the Defendant’s vessel, the Carnival Legend. This one week cruise was supposed to be a wonderful vacation and Jane’s first trip outside of the United States. Instead, the Doe’s honeymoon was ruined and the couple suffered serious injuries as a result of clear negligence on the part of Carnival and its shore excursion providers.

On June 13, 2011, John and Jane Doe were in their stateroom watching television. Carnivals onboard programming included an advertisement for the “Exploration by Scoot Coupe Tour” in Cozumel, Mexico the next day [D.E. 1  22(b)]. At no point during this shore excursion presentation were the Doe’s informed that the excursion was not operated by Carnival [D.E. 1 18]. In fact, Carnival made material representations to the Doe’s that the shore excursions advertised on the stateroom television were sanctioned and/or operated by Carnival, and further that the Doe’s should only book these excursions advertised by Carnival and not provided by a third party. [D.E. 1 22(d)]. In reliance on this, the Doe’s booked the Exploration by Scoot Coupe tour directly from their stateroom, without ever being permitted to read any terms and condition of the shore excursion ticket [D.E. 1 22(a), 22(b), and 23]./p>

The next day, the Doe’s were picked up directly from the ship and taken to their Scoot Coupe to begin the tour. This was the first contact that the Doe’s had with any other entity besides Carnival [D.E. 1 22(e)]. A Scoot Coupe is a small three wheeled vehicle created by mating the back wheel of a scooter, with two front wheels and a small passenger cab. The Doe’s began their driving tour and shortly thereafter, witnesses reported smoke coming out of the back wheel of the vehicle. Before the Doe’s could be warned of the mechanical problem, the rear wheel of their Scoot Coupe malfunctioned, sending their vehicle out of control and off the road. The Scoot Coupe flipped several times and landed in a ditch on the side of the road.

As a result of the crash John Doe suffered a severely separated shoulder with ligament tears. This shoulder injury continues to limit his ability to work in his profession as a helicopter emergency medical technician and will ultimately require him to undergo a painful surgery. Jane Doe suffered a concussion as well as numerous abrasions and contusions. This crash has left her with post traumatic stress disorder and possibly post concussion syndrome.

Plaintiffs filed suit and now Carnival seeks to prevent the Plaintiffs from proving their case and to deny them their day in court. Plaintiffs have pled their complaint in accord with the requirements of the Federal Rules of Civil Procedure and despite Carnival’s contentions have stated valid claims. Accordingly, dismissal at this early stage of litigation is improper.

II. Carnival owed Plaintiffs John and Jane Doe the duty of reasonable care under the circumstances and a jury must decide whether or not Carnival acted reasonably.

Carnival’s entire motion to dismiss is predicated on the notion that it had a very limited duty to John and Jane Doe. That duty, Carnival Claims, was solely to warn the Plaintiffs of dangers about which Carnival knew or should have known in places passengers may be expected to visit. See Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248 (Fla. Dist. Ct. App. 1985). While the Defendant certainly owed the Plaintiffs this duty, Carnival as a common carrier, more generally owed the Plaintiff the duty of reasonable care under the circumstances. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). This duty extends ashore because, “where passenger or cruise vessel put into numerous ports in the course of a cruise, these stopovers are the sine qua non of the cruise.” Isham v. Pacific Far East Line, Inc., 476 F.2d 835, 837 (9th Cir. 1973). The “reasonable care” standard established by the Supreme Court in Kermarec is determined not simply by analyzing the particular situation, but also by analyzing how that situation is “different than those [situations] encountered in daily life and involve more danger to the passenger…” Rainey v. Paquet Cruises, Inc., 709 F. 2d 169, 172 (2d Cir. 1983). Hence, there is a sliding scale as to what is reasonable under the circumstances.

The circumstances surrounding the Doe’s case certainly militates towards requiring more of Carnival than simply warning of dangers about which Carnival knew or reasonably should have known. Carnival selected Explora Caribe as its partner and/or joint venturer, and/or agent, and/or apparent agent to operate this tour. Thereafter, Carnival was in control of the entire process of securing the Doe’s business by actively marketing, promoting, selling, and directing the Plaintiff’s to this shore excursion. See Introduction supra. On top of this, Carnival directed the Plaintiff’s to participation in a particularly dangerous activity. In a plain denial of these facts properly alleged in Plaintiffs’ Complaint, Carnival seeks to limit its responsibility by holding itself to a standard that is meant for passengers who venture ashore into places over which Carnival has no control. In the present case, Carnival had control over the Doe’s ill fated shore excursion before they ever set foot onboard the Carnival Legend.

Carnival’s shore excursion operator agreement demonstrates some of the control it exercised over the subject shore excursion [D.E. 10-3].[1] Carnival demands that its shore excursion operator and business partner satisfy “the highest standards of quality in the industry”, and that it, “act in a professional manner consistent with generally accepted industry standards”. Id. Carnival directs Explora Caribe to “exercise reasonable care for Excursion Guests’ safety at all times”. Id. Carnival even reserves the right at “its sole discretion”, to force Explora Caribe to provide full refunds to any passengers Carnival deems appropriate. Id.

Contrary to what the Defendant would have this Court believe, the Doe’s did not wander off on their own when they went ashore, the Doe’s were directed to a shore excursion operator hand selected by Carnival, for the benefit of Carnival, and controlled by Carnival. Carnival wants to profit off the Doe’s excursion, but then be treated as though the Doe’s simply found a random third party operator. This is not equitable and runs afoul of the previously discussed sliding scale of reasonable care. Further, what Carnival seeks to do is contrary to Eleventh Circuit Court of Appeals precedent, which states that one who undertakes a course of action is obligated to exercise due care in the conducting of that activity. See Pinnacle Port Community Ass’n v. Orenstein, 872 F.2d 1536, 1546 (11th Cir. Fla. 1989) citing Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932).

Herein, Carnival undertook the business of providing the Exploration by Scoot Coupe tour to its guest aboard the Carnival Legend. Carnival actively engaged in that endeavor by marketing, promoting, selling, and directing the Plaintiff’s to this shore excursion endorsed by Carnival. Further, Carnival worked hand in hand with the Excursion provider to arrange a tour for Carnival guests. By undertaking that business, Carnival undertook an obligation to ensure that the Exploration by Scoot Coupe tour was operated reasonably under the circumstances.

Carnival argues that the Plaintiffs attempt to create and impose non-existent duties in their Complaint [D.E. 1  32].[2] This is untrue. Rather the Plaintiffs’ complaint alleges the numerous ways in which the Does believe the Defendant failed to act reasonably under the circumstances. Pleadings such as these comply with the standard of review handed down by the U.S. Supreme Court in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Again, the circumstances herein involve Carnival taking it upon itself to partner with, promote, sell, and actively direct passengers to certain tours at the exclusion of all others so Carnival may profit off those tours. In those circumstances, Carnival should do more than warn passengers about any dangers it knew or should have known about.

To avoid its responsibility, Carnival seeks to remove from the Jury’s hands a critical question: what constitutes reasonable care under the circumstances outlined in Plaintiffs’ Complaint? Whether a defendant has exercised reasonable care under the circumstances is generally a question for the jury to decide. See L.A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550, 556-57 (Fla. 4th DCA 2008) citing Whitt v. Silverman, 788 So.2d 210, 220 (Fla. 2001). “The determination of negligence is ordinarily one for the trier of fact because of the necessity that the trier of fact assess the reasonableness of defendant’s conduct under all the circumstances.” Smith v. Tennessee Valley Auth., 699 F.2d 1043, 1045 (11th Cir. 1983). Thus the party seeking to have an issue of negligence withdrawn from the jury in federal court bears a heavy burden. See McPherson v. Tamiami Trail Tours, Inc., 383 F.2d 527, 528 (5th Cir.1967). Herein, Carnival fails to meet that heavy burden and a jury must decide if Carnival failed to act reasonably under the circumstances and if this failure caused the Plaintiffs’ injuries, thus Carnival’s Motion must be denied.

III. Plaintiffs’ Complaint refers to the ISM Code to further explain how Carnival breached the duty of reasonable under the circumstances care owed to the Plaintiff – not as a separate duty.

In a further extension of the argument that it had only a limited duty, Carnival claims that the Plaintiffs improperly pled a duty of care owed under the ISM Code. [D.E. 10]. As explained below, however, Carnival mischaracterizes Plaintiffs’ reference to the ISM Code.

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 to ensure safety at sea and prevent human injury or loss of life. 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.[3] 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 U.S.C. §§ 3201, 3202, 3203 , 3204, 3205 (2010).[4]

It is therefore undisputed that the ISM Code applies to the subject vessel which calls at U.S. ports. Considering that Carnival was required to follow these regulations, Plaintiff maintains that any evidence that Carnival failed to follow them is evidence that they failed to act reasonably under the circumstances. Accordingly, Plaintiff refers to the ISM Code within the negligence count to further explain how Carnival breached the duty of reasonable care owed to the Plaintiff (i.e., by “violat[ing] the [ISM] Code and fail[ing] to have a proper, adequate and safe Safety Management System Manual” [D.E. 1, ¶34]). This allegation is not being made as a separate duty nor is it the only basis of Plaintiff’s negligence claim – it is merely included as further support of such claim.

The case cited by Carnival, Calderon v. Offen, 07-61022-CIV-COHN, 2009 WL 3429771 (S.D. Fla. Oct. 20, 2009), is therefore inapposite. While Calderon prohibits a seafarer from bringing a separate and independent cause of action under the ISM Code, it does not prohibit the use of the ISM Code in passengers’ allegations supporting a defendant’s negligence. In fact, this Honorable Court recently rejected a cruise line’s identical challenge. Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (emphasis added) (“the fact that [plaintiff] alleged an additional basis for Carnival’s duty predicated on the ISM is not relevant for deciding this motion to dismiss”)

IV. Carnival’s motion to dismiss Plaintiffs’ claims of agency by estoppel, apparent agency, joint venture and third party beneficiary should be summarily denied as it raises factual issues which necessitate discovery and determination by a jury. Plaintiffs sufficiently pled their claims and the resolution of the issues raised by the Defendant is inappropriate at this stage of the proceedings.[5]<

After attempting to limit its duty to the Plaintiffs, Carnival then tries to prevent the Plaintiffs from proving their case. To do this, Carnival raises questions which are traditionally the province of the Jury, and then asks the Court to rule on these issues before any discovery has even been conducted. Notably, the authority cited by the Defendant to argue for dismissal either stems from Motions for Summary Judgment or from claims wholly different than those the Does are presently bringing, for example medical negligence claims. See Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp. 2d 1324 (S.D. Fla. 2007); Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F. Supp. 2d 1308 (S.D. Fla 2011).

The Defendant cites summary judgment decisions because summary judgment is the proper vehicle to address the issues that have been raised. The Plaintiffs’ duty herein is to sufficiently plead their claim. Once they have passed this threshold, discovery should be conducted and then if the Defendant seeks to challenge the Plaintiffs’ claims, it may do so through a motion for summary judgment supported by competent evidence. The Plaintiffs can then respond by offering evidence in support of their claims. Instead, Carnival hopes to foreclose the Plaintiffs’ claims and prevent evidence from seeing the light of day. In essence, Carnival seeks to have the Plaintiffs prove their claims in their Complaint, this is not the standard to which the Plaintiffs are held.

As to the pleading requirements for apparent agency, the Plaintiffs do not dispute the prerequisites as laid out in Carnival’s Motion to Dismiss. These include that, (1) the alleged principal made a manifestation or representation 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 plaintiff reasonably acted on such belief to his detriment. See Goldbach v. NCL (Bahamas) Ltd., 2006 WL 3780705, at *3 (S.D.Fla.2006). Here, the Plaintiffs have properly pled these prerequisites. [D.E. 1 ¶ 46(a)-(h)].

To circumvent Plaintiff’s well plead allegations, Carnival improperly attaches the Doe’s passenger ticket contract and John Doe’s shore excursion ticket. Reliance on documents outside the four corners of the complaint is improper at this stage of the proceedings. Further, Plaintiff disputes the authenticity of the passenger ticket contract as it is presented in Carnival’s motion. Rather than providing the actual ticket contract which was received by the Does,[6] Carnival provides a form ticket contract and then a separate page acknowledging the contract that consists of the Plaintiffs’ signatures on their sign & sail account. A document not attached to the complaint may only be considered at the motion to dismiss stage if it is: (1) central to the Plaintiffs’ claim; and (2) undisputed. See Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir.1999). “Undisputed” in this context means that the authenticity of the document is not challenged. See, e.g., Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 16-17 (1st Cir.1998). Plaintiffs challenge the authenticity of the ticket contract attached by Carnival. Accordingly, this ticket contract should not be considered. If the Court does choose to consider the ticket contract and other documents attached by Carnival, then Carnival’s Motion should properly be treated as one for Summary Judgment, in which case discovery must be allowed and conducted into the issues raised by Carnival’s motion and the documents attached thereto. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).

Additionally, the language cited by Carnival on the shore excursion ticket is unpersuasive. Carnival claims that Plaintiff’s could not reasonably have believed that Explora Caribe was an agent of Carnival because the shore excursion ticket specifically states that “all excursions are operated by independent contractors”. What Carnival fails to acknowledge is that the Plaintiffs were not given their shore excursion ticket until after they purchased the subject shore excursion, essentially the Plaintiffs could not possibly have even been apprised of this language until after the detrimental reliance had already occurred [D.E. 1 ¶ 22(a), 22(b), and 23]. On the contrary, the Defendant’s website is something that was available to the Plaintiffs before they purchased the Exploration by Scoot Coupe tour. Carnival’s website does not say anything about the excursion being operated by an independent contractor, rather it describes the excursion as a “fun-filled Carnival cruise shore tour.” See xxxIsland Exploration by Scoot Coupe, attached hereto as Exhibit 1 (emphasis added).[7] This same webpage contains Carnival’s logo, but makes no mention of an independent contractor or of Explora Caribe. Upon information and belief, the programming watched by the Doe’s in their passenger cabin made similar representations.

All of the foregoing simply makes more apparent what the law has already well established, that is, “[o]rdinarily, the existence of an agency relationship is a question of fact to be resolved by the factfinder.” Gillet v. Watchtower Bible & Tract Soc. of Pennsylvania, Inc., 913 So.2d 618, 620 (Fla. 3d DCA 2005) (quoting Eberhardy v. General Motors Corp., 404 F.Supp. 826, 830 (M.D.Fla.1975)). Accordingly, as Plaintiffs have made the requisite allegations to properly plead apparent agency, Carnival’s motion to dismiss should be denied.

Similarly, Plaintiffs properly pled that Carnival and Explora Caribe are joint venturers. As defined by the Eleventh Circuit in Williams v. Obstfeld, 314 F.3d 1270 (11th Cir. 2002), a joint venture may be created by express or implied contract and the contractual relationship must consist of: (1) a common purpose; (2) a joint proprietary interest in the subject matter; (3) the right to share profits and duty to share losses, and (4) joint control or right of control. A joint venture is nothing complicated. As the Florida Supreme Court in Kislack v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957) (emphasis added) stated: “the relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.” All of these elements are alleged in Plaintiffs’ Complaint [D.E. 1 61(a)-(e)]. Importantly, none of these above elements can be considered decisive, rather they are guide posts not designed to be applied mechanically. See Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978). The Former Fifth Circuit recognized in Sasportes, that it is commonplace for one joint venturer to delegate control of operations entirely to the other, creating the appearance that there is no shared control. Id. This is precisely why the analysis of whether or not two parties are joint venturers should “vary with the context”. Id.

Carnival relies on a “Standard Shore Excursion Independent Contractor Agreement” which was not attached to the complaint to attempt to exculpate itself from liability. Just as with the passenger ticket contract and the shore excursion ticket, the Court should not consider this document when reviewing the Defendant’s Motion to Dismiss. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000); See also Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005).

Regardless of this contract, it is the nature of the parties’ relationship which should determine whether or not they are joint venturers, not the written language of an agreement. The Middle District of Florida discussed this issue in the case of In Re Jean Piere Andre Cuenant¸ 339 B.R. 262 (M.D. Fla. 2006). In that case the court determined that no joint venture existed, despite the express written language of the contract between the two parties to the contrary and stated, “[r]egardless of whether the contract expressly referred to the parties relationship as a joint venture, the relationship created by the contract must still establish the four required elements”. See id. For that reason, it is well settled that questions of an agency relationship, including the existence of a joint venture present a question of fact for the jury. See USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005). Accordingly, this Honorable Court should deny Carnival’s Motion to Dismiss Plaintiff’s Joint Venture Count.

Plaintiffs’ Third Party Beneficiary claims are equally well plead where Plaintiffs allege; (1) the existence of a contract; (2) a clear or manifest intent to create rights in a third party; (3) breach of that contract; and (4) damages resulting from the breach [D.E. 1 64-68]. These are the required elements to establish a third party beneficiary claim. See Steadfast Insurance Co. v. Corporate Protection Security Group, Inc., 554 F. Supp. 2d 1335 (S.D. Fla. 2008). Carnival asserts that the Plaintiffs have failed to allege any set of facts that would satisfy the second element of these prerequisites.

To prove this assertion Carnival once again relies on the improperly attached “Tour Operator Agreement”. The Defendant believes that the language of this document is dispositive of this claim. [8] However, the Eleventh Circuit has shown that considerations outside the contract can be taken into account when determining the intent of the contracting parties. “Finally, when determining whether the parties to the contract intended to bestow a benefit on a third party, a court may look beyond the contract to the circumstances surrounding its formation”. Beverly v. Macy, 702 F.2d 931 (11th Cir.1983). See also Florida Power & Light Co. v. Mid-Valley, Inc., 763 F.2d 1316, 1321 (11th Cir.1985) (Stating that intent may be established from the “pre contract and post contract actions of the parties”) (emphasis added). In short, “[t]o determine the parties’ intent . . . would require the Court to look at matters outside of the complaint.” Barnett v. Carnival Corp. 2007 U.S Dist. Lexis 43636 (S.D. Fla. 2007). Further, “the issue of intent is not appropriate for resolution on a motion to dismiss.” Id. See also Mika, 2010 U.S. Dist. Lexis 49846 (stating that it is inappropriate to determine the parties’ intent on a motion to dismiss). As a result, Carnival’s Motion to Dismiss should be denied.

V. Carnival’s passenger ticket contract should not even be considered since it was not attached to the Plaintiffs’ complaint. Regardless of this, if the Court deems the ticket contract as incorporated by reference, binding precedent is clear that this ticket contract cannot limit Carnival’s liability herein.

Lastly the Defendant seeks to dismiss Plaintiffs’ Complaint on the basis of an exculpatory clause in the cruise ticket contract. This argument legally fails for two reasons. First, the argument is inappropriate for a motion to dismiss. The ticket was not attached to the Plaintiff’s complaint and as previously made clear, a motion to dismiss should be evaluated on the basis of what is found within the four corners of the complaint. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).

More importantly, even if this Court considers the exculpatory clauses within Carnival’s cruise ticket contract, this Court should find that Carnival’s argument is wholly contrary to the law. “It is well settled that the owner of a passenger vessel may not contractually limit its liability for its own negligence.” Fojtasek, 613 F. Supp. 2d at 1355 (emphasis added). Any attempt by a shipowner to contractually exculpate or limit liability for its own negligence resulting in personal injury is void under United States law. Similarly, any attempt by Carnival to contractually exculpate or limit its liability for personal injury caused by the negligence of its agents is also void. 46 USC § 30509, states in relevant part:

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 – –

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

(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction.

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

Plaintiff properly alleged that Carnival was negligent and that Explora Caribe, as Carnival’s agent was negligent. Accordingly, under Federal Statute and case law, Carnival’s provision in their passenger ticket contract, which limits liability of the owner for personally injury or death is void.

Furthermore, with regard to the effect of the prohibition of a cruise line’s contractual limitation of liability for the negligence of its agents, it is well settled in Florida that whether an agency relationship exits is a question of fact reserved to the trier of fact. Borg-Warner Leasing v. Doyle Elec. Co., 733 F. 2d 833, 836 (11th Cir. 1984); Cleveland Compania Maritima, S.A. Panama v. Logothetis, 378 So. 2d 1336, 1338 (Fla. 2d DCA 1980); Bernstein v. Dwork, 320 So. 2d 472 (Fla. 3d DCA 1975), cert. denied, 336 So. 2d 599 (Fla. 1976); Amerven, Inc. v. Abbadie, 238 So. 2d 321, 322 (Fla. 3d DCA 1970). Given this established law, the issue of the agency relationship between Carnival and the other Defendants is for a jury to decide, based on evidence, and not properly disposed of on a motion to dismiss.

Conclusion

Carnival’s attempt to limit its liability and deny the Plaintiffs their day in Court cannot be allowed. Plaintiffs properly plead all of their claims against Carnival and now discovery is necessary to explore the merit of those claims so they may ultimately be decided by the trier of fact. Since Plaintiffs’ claims are properly pled and Carnival’s Motion to Dismiss is premature, it must be denied.
Wherefore, Plaintiffs respectfully request this Honorable Court issue an order denying Carnival’s Motion to Dismiss.

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 Charles Morales
ERIC C. MORALES
FLORIDA BAR # 91875

 

[1] Notably, this agreement is improperly attached to the Defendant’s motion to dismiss [D.E. 10], as are the Plaintiff’s passenger cruise ticket contract and the shore excursion ticket. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). This issue will be addressed later in this response. Nonetheless, since the Defendant attaches these documents, Plaintiff will address them and respond in kind.

[2] This issue is further addressed in heading three of the present response.

[3] This documentation creates a paper trail of a company’s compliance (or non-compliance), and gives rise to shared 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).

[4] For instance, § 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.”

[5] Limited only to the present motion, Plaintiffs will not challenge Carnival’s assertion that it had no duty to provide adequate medical care to the Plaintiff’s while they were on the subject shore excursion.

[6] If any ticket contract was ever even provided.

[7] Of course this document cannot be considered by the Court when deciding a motion to dismiss, but neither can the Court consider the documents presented by the Defendant. Rather this document is attached to demonstrate that there is a clear question of fact as to whether or not Carnival made sufficient representations to create an apparent agency. That question must be resolved by a jury.

[8] The terms used in the Shore excursion operator agreement are far from determinative. However, reviewing the shore excursion agreement demonstrates that the Plaintiffs were intended beneficiaries of this contract, particularly where the contract commands the shore excursion provider to remain a high level of service, exercise due care towards the Plaintiffs and provide passengers refunds on Carnival’s command [D.E. 10-3].