Smith v. Carnival Corp.

• Decision Date: 27 October 2008
• Docket Number: No. 07-23363-CIV.,07-23363-CIV.
• Citation: 584 F.Supp.2d 1343
• Parties: Fitima Rowe SMITH, et al., Plaintiffs, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, and Frank's Watersports Ltd., Defendants.
• Court: U.S. District Court — Southern District of Florida

584 F.Supp.2d 1343

Fitima Rowe SMITH, et al., Plaintiffs, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, and Frank's Watersports Ltd., Defendants.

No. 07-23363-CIV.

United States District Court, S.D. Florida.

October 27, 2008.

COPYRIGHT MATERIAL OMITTED

Jerry W. Sullivan, Leefe Gibbs Sullivan Dupre & Aldous, Metairie, LA, for Plaintiffs.

Darren Wayne Friedman, Jeffrey Eric Foreman, Noah Daniel Silverman, Maltzman Foreman PA, Katalin J. Raby, Law Offices of Alan E. Weinstein, Miami, FL, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendants' Motions to Dismiss (dkt #'s 52, 53). Responses (dkt #'s 54, 55) and Replies (dkt #'s 58, 59) were also filed.¹

UPON CONSIDERATION of the Motions, Responses, Replies, pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

Plaintiffs bring wrongful death and related claims against a cruise line and snorkel tour company for the drowning of Lois Gales during a snorkel trip excursion in the Cayman Islands. In December 2006, Gales and numerous members of her family departed from Miami, Florida, on the Carnival Cruise Line ("CCL") vessel Valor. Prior to the cruise, CCL had forwarded to Gales promotional materials, some of which referred to a snorkeling excursion operated by Frank's Watersports Ltd. ("FWS"). Second Amended Complaint (dkt # 51) ("Compl.") ¶¶ 10-11. During the cruise, Gales and other family members attended a conference held by CCL in which various excursion options were presented to them, some of which were operated by FWS. Compl. ¶¶ 16-18. CCL materials distributed during the cruise stated that "shore excursions sold through Carnival are coordinated with reputable tour operators." Compl. ¶ 18. Also, CCL's internet website represented that the FWS excursion was safe. Compl. ¶ 19. Plaintiffs allege that, contrary to these representations, CCL did not "check out ... or in any way insure that the operations of FWS were safe." Compl. ¶ 20.

Relying on CCL's representations as to the safety and reputableness of FWS, Gales and other family members purchased tickets for, and participated in, the FWS Fisherman's Rock Swim & Snorkel Adventure (the "excursion"). Compl. ¶ 21. They purchased the tickets on board the Valor before reaching Grand Cayman, and CCL received a portion of the ticket price. Compl. ¶ 22. The excursion apparently involved riding a motor boat to a reef and then snorkeling around the area.

On the day of the excursion, a number of operators cancelled their tours due to bad weather—FWS, however, proceeded with its snorkel adventure. Compl. ¶¶ 24-25. The FWS crew did not provide any instructions about snorkeling or water safety, and did not warn the snorkelers about water currents in the area. Compl. ¶¶ 27, 29. When Gales and three other guests indicated that they needed life vests, the FWS crew members "incorrectly tied the life vests around [their] waists," instead of fitting them around their necks. Compl. ¶ 28. Upon entering the water, "those who had the vests tied around their waists ... tended to sink and/or turn over and were almost immediately in trouble." Compl. ¶ 30. After fellow snorkelers helped the other guests wearing life vests to stay afloat, they noticed that the current had swept Gales a significant distance away and that she was in distress. Compl. ¶ 31. When FWS crew members attempted to drive the boat to Gales to rescue her, they were unable to start the boat's motor. Compl. ¶ 32. The FWS crew was also unable to call for assistance, since the boat's radio was inoperable. Compl. ¶ 33.

Gales' daughter was able to locate her mother and bring her to the boat. Guests then assisted in trying to resuscitate Gales, but they were unsuccessful. "The crew did not assist in any attempt whatsoever to return Gales to the boat or to resuscitate her, nor did the FWS boat have any appropriate safety gear to help with the rescue and attempted resuscitation." Compl. ¶¶ 34-35.

Plaintiffs commenced the instant action against CCL and FWS on December 21, 2007 (dkt # 1). Following this Court's Order (dkt # 43) granting in part Defendants' prior Motions to Dismiss (dkt #'s 33, 34), Plaintiffs filed their Second Amended Complaint (dkt # 51). On July 31, 2008, Defendants filed the instant motions, seeking dismissal of that complaint (dkt #'s 52, 53).

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8 requires that Plaintiffs' complaint contains a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Furthermore, the complaint should "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (internal quotation marks omitted).

A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merit s of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984). On a motion to dismiss, the Court must accept the factual allegations as true and construe the complaint in the light most favorable to the plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988). "Factual allegations must be enough to raise a right to relief above the speculative level," Twombly, 127 S.Ct. at 1965, and a complaint must contain enough facts to indicate the presence of the required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.2007). "[C]onclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002). However, as long as the allegations rise above a speculative level, a well-pleaded complaint will survive a motion to dismiss, even if it appears "that a recovery is very remote and unlikely." Twombly, 127 S.Ct. at 1965 (internal quotation marks omitted).

III. ANALYSIS

A. Jurisdiction and Choice of Law

Although both Plaintiffs and Defendants assert that the Death on the High Seas Act ("DOHSA"), 46 U.S.C. § 30301, applies to the events surrounding Lois Gales' unfortunate death, differences of opinion persist as to what implications flow from its application. Plaintiffs contend that, in addition to DOHSA claims, they are entitled to maintain actions arising under general maritime law and the laws of the Cayman Islands. Defendants, on the other hand, contend that DOHSA's applicability precludes all other claims. In order to properly address the applicability of DOSA, general maritime law, and Cayman Islands law, the Court must first decide whether admiralty jurisdiction exists.

1. Admiralty Jurisdiction

Traditionally, where diversity jurisdiction existed and the parties agreed that admiralty law should apply, courts declined to probe the availability of admiralty jurisdiction. Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 899 (11th Cir.2004) ("[G]iven that diversity jurisdiction exists and the parties' agreement that admiralty law applies, we historically have gone no further."). This approach, however, was modified following the U.S. Supreme Court's decision in Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004). In Norfolk, the Court explained that "the grant of admiralty jurisdiction and the power to make admiralty law are mutually dependent." Id. at 23, 125 S.Ct. 385. Thus, admiralty jurisdiction is a prerequisite for applying federal admiralty law. See id.

Although the Parties in this case agree that federal admiralty jurisdiction applies to their dispute, the Court "has an independent duty to ensure admiralty jurisdiction exists before applying admiralty law." Doe, 394 F.3d at 900. "[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy the conditions both of location and of connection with marine activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

The location test simply asks "whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water." Id. The connection test requires both: (1) "assess[ing] the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on marine commerce," and (2) "determin[ing] whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional marine activity." Id. (internal quotation marks and citations omitted).

Applying the admiralty jurisdiction test to the case at hand is somewhat complicated by the fact that Plaintiffs allege multiple claims against multiple parties for conduct occurring in multiple locations. Nonetheless, based on the facts alleged, the Court has admiralty jurisdiction over Plaintiffs' claims. The location requirement is satisfied because the decedent drowned in navigable waters on a snorkeling excursion during a cruise. In addition, FWS' alleged negligence involves the conduct of snorkel tour guides while on the water, as well as the preparation and maintenance of the boat and other maritime equipment. Similarly, aside from statements contained in the materials sent to the decedent before embarking on the cruise, CCL's alleged misrepresentations about the FWS excursion were made during the cruise and on navigable waters. In addition, the decedent signed up for the excursion while on the cruise boat.

The connection test is also satisfied. Defendant CCL is a cruise line operator and thus epitomizes maritime commerce. See Doe, 394 F.3d at 900 ("[T]he cruise line industry is maritime commerce ...." (emphasis added)). Furthermore, Plaintiffs'...