867 F.2d 1318 (11th Cir. 1989), 88-3334, Keefe v. Bahama Cruise Line, Inc.

Docket Nº:88-3334.
Citation:867 F.2d 1318
Party Name:Rita Patricia KEEFE, Plaintiff-Appellee, v. BAHAMA CRUISE LINE, INC., a Foreign Corporation, Defendant-Appellant.
Case Date:March 15, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1318

867 F.2d 1318 (11th Cir. 1989)

Rita Patricia KEEFE, Plaintiff-Appellee,

v.

BAHAMA CRUISE LINE, INC., a Foreign Corporation, Defendant-Appellant.

No. 88-3334.

United States Court of Appeals, Eleventh Circuit

March 15, 1989

Page 1319

[Copyrighted Material Omitted]

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David F. Pope, Tampa, Fla., for defendant-appellant.

Edward F. Gerace, Kass, Hodges & Massari, Tampa, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, HATCHETT, Circuit Judge, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

On June 2, 1984, plaintiff-appellee Rita Patricia Keefe boarded the S/S Vera Cruz, a cruise ship owned by defendant-appellant Bahama Cruise Line, Inc. ("BCL"), embarking on a two-day "Cruise to Nowhere." During the early hours of June 4, while dancing at the ship's outdoor discotheque, Keefe slipped and fell on a wet spot, sustaining personal injuries. Though unable to straighten her back, she did not report the incident or the slippery condition on the dance floor to any member of the ship's crew, nor did she seek medical treatment while at sea. Instead, she quietly debarked later that morning, several hours after the ship had docked in Tampa, Florida.

Continuing to experience pain as a result of her spill, Keefe visited first a chiropractor and later an orthopedic surgeon. In the fall of 1984, she retained an attorney. The lawyer, Saxton Gaskin, III, wrote to BCL on May 14, 1985, demanding a settlement of Keefe's damages. In response, BCL's claims manager, Allison Styskal, called Gaskin, informing him that Keefe had executed a release of liability in favor of BCL and that the company had paid Keefe's medical bills in full. In addition, Styskal assured Gaskin that she would send him copies of the release and the checks.

The passage contract ticket for the voyage--which Keefe had carried during the cruise and subsequently retained--contained a consensual limitation of actions against BCL or the Vera Cruz. Specifically, the contract provided that suits against the carrier or cruise ship would be maintainable only if brought within one year of the date of injury. Although Gaskin knew that Keefe continued to hold the passage contract and was mindful of its time restriction for filing suit, he had neither obtained the ticket from Keefe nor filed a lawsuit when the time for instituting an action expired on June 4, 1985. Instead, Gaskin investigated Styskal's statements to determine the status of his client's claim. Unable to verify either that Keefe had signed a release or that BCL had paid any bills on her behalf, Gaskin sent Styskal a second letter, dated July 26, 1985, describing the outcome of his inquiry and repeating the earlier demand for settlement. Gaskin threatened to file suit within three weeks unless he received a favorable response from the carrier.

Months passed without a word between the parties. Finally, by letter dated October 31, 1985, Styskal informed Gaskin that Keefe's claim against BCL was barred by virtue of the contractual limitation. On November 15, 1985, Keefe initiated this action in a Florida state court. Shortly thereafter, BCL removed the case to the United States District Court. The district court conducted a bench trial on March 15, 1988. It found in favor of Keefe and awarded her $7,000.00 in damages. 682 F.Supp. 1191.

On appeal, BCL challenges the district court's determinations that (1) the carrier negligently maintained the ship's dance floor and (2) Styskal's conduct estopped BCL from asserting the contractual limitation period as a defense to this action. For the reasons that follow, we vacate the judgment and remand this action to allow the district court to make further findings of fact essential to the resolution of the issues presented.

As a preliminary matter, we note that the substantive law applicable to this action, which involves an alleged tort committed aboard a ship sailing in navigable waters, is the general maritime law, the rules of which are developed by the federal courts. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550, 553 (1959); Kornberg v. Carnival Cruise Lines, Inc.,

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741 F.2d 1332, 1334 (11th Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1357, 84 L.Ed.2d 379 (1985); see U.S. Const. art. III, Sec. 2, cl. 1; 28 U.S.C. Sec. 1333 (1983). The same principles would have governed the outcome of this case had it remained in the state court in which it originally was brought, 1 or had the parties invoked the district court's original maritime jurisdiction, rather than alleging diversity of citizenship as the jurisdictional basis for the suit. Kermarec, 358 U.S. at 628, 79 S.Ct. at 408, 3 L.Ed.2d at 553.

Keefe contends that we are constrained by Rule 52(a), Fed.R.Civ.P., to restrict the scope of our review of the district court's finding of negligence, setting it aside only if clearly erroneous. The rule protects findings of fact made by a district court in any case tried without a jury. In this circuit, whether a party was negligent constitutes a question of fact. Gassman v. United States, 768 F.2d 1263, 1266 (11th Cir.1985); Hercules, Inc. v. Stevens Shipping Co., 765 F.2d 1069, 1073 (11th Cir.1985); see Doe v. United States, 718 F.2d 1039, 1042 (11th Cir.1983) ("Foreseeability is a question of fact."). Nonetheless, BCL urges us to review de novo the district court's finding, because negligence is an ultimate fact. See Alabama Power Co. v. Local Union No. 1333, Laborers' Intern. Union of North America, 734 F.2d 1464, 1468 (11th Cir.1984) (reviewing court may independently determine ultimate facts). The Supreme Court's interpretation of rule 52(a) compels us to reject BCL's request. According to the Court,

Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous. It does not divide facts into categories; in particular, it does not divide findings of fact into those that deal with "ultimate" and those that deal with "subsidiary" facts.

Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66, 78-79 (1982); see Doe, 718 F.2d at 1042...

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