Carlisle v. Ulysses Line Ltd., S.A., 83-2618

• Decision Date: 23 July 1985
• Docket Number: No. 83-2618,83-2618
• Citation: 475 So.2d 248,10 Fla. L. Weekly 1780
• Parties: , 10 Fla. L. Weekly 1780 Sandra W. CARLISLE, as personal representative of the Estate of William R. Carlisle, deceased; Sandra W. Carlisle, individually; Thomas D. Albright, individually and as husband of Linda K. Albright, individually and as wife of Thomas D. Albright, her husband, Appellants, v. ULYSSES LINE LTD., S.A.; and Paquet Cruises, Inc., a New York corporation, Appellees.
• Court: Florida District Court of Appeals

Page 248

475 So.2d 248

1986 A.M.C. 694, 10 Fla. L. Weekly 1780

Sandra W. CARLISLE, as personal representative of the Estate of William R. Carlisle, deceased; Sandra W. Carlisle, individually; Thomas D. Albright, individually and as husband of Linda K. Albright, individually and as wife of Thomas D. Albright, her husband, Appellants, v. ULYSSES LINE LTD., S.A.; and Paquet Cruises, Inc., a New York corporation, Appellees.

No. 83-2618.

District Court of Appeal of Florida Third District.

July 23, 1985.

Rehearing Denied Oct. 2, 1985.

Spence, Payne, Masington & Grossman, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellants.

Mitchell, Harris, Canning, Murray & Usich and C. Robert Murray, Miami, for appellees.

Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

Plaintiffs appeal an order granting defendants' motion for summary judgment on two counts of a three-count complaint. ¹

Mr. and Mrs. Carlisle and Mr. and Mrs. Albright were passengers aboard the S.S. Dolphin on a four-day cruise to Freeport and Nassau. They were attracted to this particular cruise by promotional brochures advertising the beautiful beaches of Nassau. The ship left Miami on November 10, 1980, and stopped in Freeport without event. Upon arriving in Nassau, the two couples rented a jeep and headed for the beaches. Following the advice of the ship's activities director, they traveled a perimeter road around the island until they discovered an isolated access road which they took down to a secluded waterfront site known as "Yamacraw Beach." On their return back up the overgrown dirt road, they were ambushed by three masked gunmen who opened fire on them with shotguns. All four of them were wounded. Mr. Carlisle later died from a gunshot wound to the head. After the incident, the survivors learned from members of the ship's crew that other tourists and a member of the ship's crew had been victims of violent acts perpetrated in various places on the island. Bahamian police reported that the particular beach where plaintiffs were attacked was "very bad."

The survivors instituted this action against the defendants alleging (1) negligence, (2) breach of warranty, and (3) breach of contract. On defendants' motion, the trial court dismissed the breach of warranty count. The defendants then moved for summary judgment on the remaining two counts. The court entered final summary judgment for defendants on the grounds that (1) there was no negligence as a matter of law because at the time of the criminal attack, the plaintiffs were not under the defendants' control, and further the plaintiffs were injured outside the scope of any duty of care owed by the defendants, and (2) the negligence and breach of contract actions were barred by the exculpatory provisions in the contract of carriage.

First, the disclaimer of liability contained in the contract of carriage, by its very terms, does not purport to relieve the defendants of liability for their own negligence, but only for the negligent acts of others. In fact, any attempt by the defendants to exculpate themselves from liability for injuries arising from their own negligence or that of their employees would be unlawful. 46 U.S.C. § 183c (1958); see Moore v. American Scantic Line, Inc., 121 F.2d 767 (2d Cir.1941). The cases relied upon by the trial court are clearly distinguishable. Cf. Chervy v. Peninsular and Oriental Steam Navigation Co., 243 F.Supp. 654 (S.D.Cal.1964) (persons injured were not passengers but "guests"; statutory provision held inapplicable), aff'd, 364 F.2d 908 (9th Cir.1966), cert. denied, 385 U.S. 1007, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967); Lohman v. Royal Viking Lines, Inc., 1981 A.M.C. 1104 (D.Col.1980) (suit based upon alleged negligence of others, not of the defendants). The principle applies equally to the breach of contract count, since negligence by a common carrier constitutes a breach of the contract of carriage. See Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972); Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965).

Second, the trial court granted summary judgment on the negligence count on a finding that the plaintiffs, at the time of injury, were outside the scope of any duty of care owed by defendants. Since the negligence cause of action is founded on a maritime tort, we are bound to apply controlling federal maritime law. See Kermarec v. Campagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). It is true that the cases cited by the trial court, and those additional cases cited by appellees, hold that the duty of a common carrier extends to the point of debarkation and embarkation. See, e.g., Metzger v. Italian Line, 1976 A.M.C. 453 (S.D.N.Y.), aff'd, 535 F.2d 1242 (2d Cir.1975); Lawlor v. Incres Nassau Steamship Line, Inc., 161 F.Supp. 764 (D.Mass.1958); The Valencia, 110 F. 221 (D.Wash.1901), aff'd sub nom. Pacific Steam Whaling Co. v. Grismore, 117 F. 68 (9th Cir.1902). The cases do not, however, purport to define the limits of the duty.

In fact, the Lawlor decision actually supports the proposition that a common carrier has a duty of care past the point of debarkation and embarkation. There, a passenger was injured on shore while boarding a tender which was to take him back to the vessel from a dock. In holding that the ship had a duty to transport its passengers safely to shore by tender where the vessel anchored in the harbor, the court stated:

[U]nder ordinary circumstances ... an attempt on the part of the carrier to contract out of this sphere of duty and to limit himself to protecting the passenger only while he is on the vessel is repugnant to the essence of the voyage.

Lawlor, 161 F.Supp. at 767. The court specifically declined to answer the hypothetical question whether the carrier has a duty of care past the shoreline, for example, while the passenger is in a night club. Id. at 768.

Similarly, the Metzger decision cited by the trial court does not foreclose a finding of duty here. The Metzgers were passengers on a cruiseship which put into Montego Bay, Jamaica. The Metzgers went ashore and, rather than participating in a supervised shore excursion, made their own arrangements to take a taxi to Ocho Rios. En route, the taxi in which they were riding was involved in an accident. The Metzgers brought a negligence action against the cruise line, alleging, as here, a failure to warn of known dangers ashore. The court held simply that:

[O]n the established facts the defendant is not liable for injuries sustained by a passenger on shore by reason of a negligent independent contractor with whom the defendant has no relationship, and as to whom defendant had no awareness of a risk and consequently no duty to warn. [e.s.].

1976 A.M.C. at 454. We agree with the plaintiffs that Metzger thus turns on the question of foreseeability, rather than on the scope of duty owed by a common carrier to its passenger.

In absence of constraining maritime law, we are free to embrace the reasoning of the ninth circuit in Tradewind Transportation Co. v. Taylor, 267 F.2d 185 (9th Cir.), cert. denied, 361 U.S. 829, 80 S.Ct. 79, 4 L.Ed.2d 72 (1959). In that...