Keefe v. Bahama Cruise Line, Inc.

• Decision Date: 15 March 1989
• Docket Number: No. 88-3334,88-3334
• Citation: 867 F.2d 1318
• Parties: , 12 Fed.R.Serv.3d 1249 Rita Patricia KEEFE, Plaintiff-Appellee, v. BAHAMA CRUISE LINE, INC., a Foreign Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

867 F.2d 1318

1990 A.M.C. 46, 12 Fed.R.Serv.3d 1249

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.

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. 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. Therefore, we apply the clearly erroneous standard to the district court's finding of negligence. But we must first ascertain, as a legal matter, the correct standard of care against which a shipowner's conduct must be measured. See Complaint of Paducah Towing Co., 692 F.2d 412, 422 (6th Cir.1982). In determining the appropriate standard of care, we are free to review the district court's conclusion. Id.; Daley v. United States, 792 F.2d 1081, 1085 (11th Cir.1986); see Hercules, 765 F.2d at 1074.

We begin our analysis by consulting Kermarec, 358 U.S. at 632, 79 S.Ct. at 410, 3 L.Ed.2d at 555, in which the Supreme Court, expounding on maritime law, 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." (Footnote omitted.) In refusing to relax the standard of care owed by a shipowner to a social guest who had boarded the vessel to visit a member of the crew, the Court declined to introduce into admiralty law the common law concepts of status--licensee and invitee--long used to define a landowner's duty. However, the Court did not discard status concepts from the law of maritime torts, carefully qualifying its holding with the observation that in admiralty "the meaningful categories are quite different." Id. at 632 n. 9, 79 S.Ct. at 410, n. 9, 3 L.Ed.2d at 555, n. 9. Thus, Kermarec left open the question whether the shipowner's duty of reasonable care in all the circumstances--instead of a more exacting standard--would be applicable in passenger cases as well.

The former Fifth Circuit Court of Appeals found that passengers too fell within the scope of the shipowner's duty of reasonable care. Gibboney v. Wright, 517 F.2d 1054, 1059 (5th Cir.1975). The Second Circuit Court of Appeals followed the Fifth, rejecting the historical rule that obligated ocean carriers to exercise a "high," a "very high" or the "highest" degree of care to ensure the safety of their passengers. Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2d Cir.1983). Rainey is practically indistinguishable from the present case. There, the plaintiff tripped over a stool while dancing "exuberantly" in the cruise ship's discotheque. The district court trying the case entered a judgment in favor of the carrier, because the plaintiff had not proved "how the stool got where it was or how long it had been there." On appeal, the plaintiff attacked the district court's finding that the shipowner had not been negligent, contending that it should have held the carrier to a higher standard than that of reasonable care under the circumstances. But the court of appeals affirmed, elaborating on the reasonable care formula as follows:

The extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger, will determine how high a degree of care is reasonable in each case. In the absence of any proof that [the shipowner] had actual or constructive notice of the presence of the stool, a condition in no way peculiar to maritime travel, the district court did not err in dismissing the complaint.

Id. at 172.

The Second Circuit recently decided another case strikingly similar to the case at bar. In Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63 (2d Cir.1988), the court of appeals reversed the district court's judgment in favor of the plaintiff, who had tripped over a protruding screw and tumbled down a flight of stairs aboard the cruise ship Vera Cruz....