Leslie v. Carnival Corp.
| Citation | 22 So.3d 567 |
| Decision Date | 25 November 2009 |
| Docket Number | No. 3D06-2228.,No. 3D06-2226.,No. 3D07-627.,No. 3D07-1009.,3D06-2228.,3D07-1009.,3D07-627.,3D06-2226. |
| Parties | Thomas LESLIE and Kathryn Barry, Appellants, v. CARNIVAL CORPORATION, etc., Appellee. Laurine Spivey-Ferguson, Appellant, v. Carnival Corporation, etc., Appellee. Grace Garcia, Appellant, v. Carnival Corporation, etc., Appellee. |
| Court | Court of Appeal of Florida (US) |
Appeals from the Circuit Court for Miami-Dade County, Gerald D. Hubbart, Jon I. Gordon, Margarita Esquiroz, Judges.
Romano, Eriksen & Cronin and Michael D. Eriksen, West Palm Beach; Coleman & Associates and Roderick F. Coleman, Boca Raton; Panter, Panter & Sampedro and David Sampedro, Miami, for appellants.
Mase & Lara and Rachel S. Cohen, Beverly D. Eisenstadt and Curtis J. Mase, Miami, for appellees.
Florida Justice Association and Burlington & Rockenbach and Philip M. Burlington, West Palm Beach, Amicus Curiae for appellants.
Florida Defense Lawyers Association and Stephens Lynn Klein Lacava, Hoffman & Puya and Roberta G. Mandel, Miami, Amicus Curiae for appellees.
Before RAMIREZ, C.J., and COPE, GERSTEN, WELLS, SHEPHERD, SUAREZ, CORTIÑAS, ROTHENBERG, LAGOA, and SALTER.
ON MOTION FOR REHEARING EN BANC
Subsequent to the release of the panel opinion in Leslie v. Carnival Corp., 22 So.3d 561, ___ (Fla. 3d DCA 2008), the Court consolidated this case with two others,1 and by a majority vote of the active judges of this district, see Fla. R.App. P. 9.331(a), ordered that they be considered together en banc on the issue decided in the panel opinion. Upon consideration of the matter en banc, the Court is evenly divided. Judges Gersten, Wells, Shepherd, Suarez and Lagoa voted in favor of affirming the circuit court. Chief Judge Ramirez, and Judges Cope, Cortiñas, Rothenberg and Salter voted to reverse the decision of the circuit court. The effect of the vote is that the panel opinion stands. Id.
I write further in this case only to offer the following additional considerations to balance those suggested by the dissent.2
The issue in these cases is whether the respective trial courts erred by enforcing a forum-selection clause in form contracts issued by Carnival Cruise Lines to four of its fare-paying customers, which requires that
all disputes and matters whatsoever arising under, in connection with or incident to this Contract or the Guest's cruise . . . shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida. . . .
(emphasis added). The dissent is disturbed that the natural workings of the clause deprive Florida citizens, foreign citizens, and all persons whose claims have a value of less than $75,000 of what it considers to be "a clear right to a jury trial in Florida's state courts . . . without notice or consent." See infra p. 576. The dissent finds the existence of this "right" in a federal statute—the historic Savings to Suitors Clause, now codified in the Judicial Code of the United States at 28 U.S.C. § 1333, but which has existed substantially unchanged in the Statutes of the United States since the inferior federal courts were established by the First Congress of the United States. See Judiciary Act of 1789 Ch. 20, § 9, 1 Stat. 77 (1789).3 After locating this right in federal statutory law, the dissent then argues, by reference to federal case law, that if an express contractual waiver of the right to a jury trial under the Seventh Amendment of the United States Constitution can only be enforced if made "knowingly and voluntarily," so also must the effect of a forum-selection clause in a maritime passenger cruise ticket, which, as the dissent admits, see infra p. 581, merely "inadvertently limit[s]" the ability of some passengers to obtain a jury trial. The dissent further argues the effect of the clause is simply "fundamentally unfair" within the meaning of federal maritime law as it applies to form cruise ship contracts of passage. I will treat each argument in turn.
First, the federal Savings to Suitors Clause confers no enforceable state court "right" to a jury trial or anything else on a maritime plaintiff. In fact, it is oxymoronic under our federal system of government to think that the United States Congress has the power to command a state court to exercise its jurisdiction to do anything. See U.S. Const. art. III, § 2; U.S. v. Butler, 297 U.S. 1, 68, 56 S.Ct. 312, 80 L.Ed. 477 (1936) (). Rather, history demonstrates that the Savings to Suitors Clause was inserted in the First Judiciary Act "probably, from abundant caution, lest the exclusive terms in which the [admiralty and maritime] power is conferred on the District Courts might be deemed to have taken away the concurrent remedy which had before existed." See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 444, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001) ); see also supra p. 568-69, fn. 3. More importantly for our discussion here, it also is evident, when viewed in a historical context, the insertion of the Clause in the First Judiciary Act had nothing to do with any affinity of the First Congress for juries in admiralty or maritime matters. In fact, history proves just the opposite.
During the decade before the Constitutional Convention, most Americans had little experience with any courts which had jurisdiction beyond the boundaries of their own states. See Henry J. Borguignon, The Federal Key to the Judiciary Act of 1789, 46 S.C.L.Rev. 647, 652 (Summer 1995). However, some of the participants in the Convention knew first hand that admiralty jurisdiction had international ramifications. Id. at 653. Disputes involving capture and prize4 were prevalent. See Raymond S. August, Trial by Jury in a Court of Admiralty: A Constitutional Right buried under Historical Ignorance, 13 J. Mar. L. & Com. 149, 167-68 (1982); see also 1 Steven F. Friedell, Benedict on Admiralty § 81 (7th rev. ed. 2006). In many states, cases in admiralty were treated as most other cases, which meant their trial by jury. See August, 13 J. Mar. L. & Com. at 168-69. Procedure and jurisdiction in these courts were "uncontrolled and divergent." See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law §§ 1-6 (4th ed.2004). Because juries were pre-disposed to decide these cases based upon local prejudice—rather than by law or justice—hostility, both interstate and international, manifested. David W. Robertson, Admiralty and Federalism 101 (1970). For these reasons, as the delegates to the Constitutional Convention arrived in Philadelphia in 1787, there was general agreement that a system of national admiralty courts was needed to ensure uniformity in the treatment of maritime cases involving both prize and instance. See Schoenbaum, supra at §§ 1-6.5 The delegates' method for so doing was to include in the judicial article of the proposed Constitution a provision that "[t]he judicial Power shall extend to . . . all cases of admiralty and maritime jurisdiction." U.S. Const. art. III, § 2.
Except for the establishment of the United States Supreme Court, however, the organization of the federal courts was not self-executing. See U.S. Const. art. III, § 1. Rather, it fell to the First Congress to organize the lower courts of the United States. See Judiciary Act of 1789 Ch. 20, 1 Stat. 77 (1789). In so doing, the First Congress reposed in "district courts" the "exclusive cognizance of all civil causes of admiralty and maritime jurisdiction." Judiciary Act of 1789 Ch. 20, § 9, 1 Stat. 77 (1789). To enhance uniformity, the Congress further provided that "trials of issues in fact, in the [United States] District Courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury." Id. (emphasis added). In a bow to historical custom, however, the Congress also resolved to "sav[e] to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Id. When viewed in its historical context, it is self-evident the Savings to Suitors Clause was not inserted in the Judiciary Act of 1789 as some type of federal über guarantee of a particular state constitutional right. By asserting that "the grant [by that Congress] of concurrent jurisdiction to state courts under the `savings to suitors' provision essentially afforded [the cruise line passengers in this case] a fundamental right to a jury trial when filing certain admiralty and maritime claims in state court," see infra p. 579 (emphasis added), the dissent trifles with history.6, 7 Nor have the federal jury waiver cases—Sullivan v. Ajax Navigation Corp., 881 F.Supp. 906, 908 (S.D.N.Y.1995), Ginsberg v. Silversea Cruises Ltd., No. 03-62141-CIV, 2004 WL 3656827, at *1 (S.D.Fla. Mar. 18, 2004) and McDonough v. Celebrity Cruises, Inc., No. 98 Civ. 1517(RWS), 2000 WL 341115, at *1 (S.D.N.Y. Mar. 30, 2000)—which the dissent collectively hail as "[having] considered the issue before us," see infra p. 582, done so. Unlike our case, each of these cases is a federal diversity case in which the cruise line operator, by sentient design, sought to divest each and every one of its passenger customers their absolute Seventh Amendment constitutional right to demand a jury trial on the law side of the federal court in the event of a dispute through the use of an express contractual waiver. See Sullivan, 881 F.Supp. at 908 (...
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