LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. DEFEAT A MOTION TO DISMISS AND/OR VACATE A RULE B ATTACHMENT IN A SHORE EXCURSION CASE WHERE 28 ROYAL CARIBBEAN PASSENGERS WERE INJURED IN A BUS CRASH ON THE WAY TO THE EXCURSION LOCATION
Steven T. ASH, et al., Plaintiffs,
v. ROYAL CARIBBEAN CRUISES LTD., RDVT Sar d/b/a Rendezvous Tour Company, and Dutch Tours Enterprises N.V., Defendants.
Steven T. Ash, et al., Garnishors,
v. Royal Caribbean Cruises Ltd., Celebrity Cruises Inc., Carnival Corporation, and Silversea Cruises Ltd. (Inc.), Garnishees. 2014 WL 2480612
Only the Westlaw citation is currently available.
United States District Court,
No. 13–20619–CIV. | Signed June 3, 2014.
This matter is before the Court following a post-attachment Local Admiralty Rule B(5)(b) hearing. In sum, Plaintiffs’ quasi in rem claim pushes the outer boundary of admiralty jurisdiction but it is nonetheless sufficient to permit the attachments to remain against Defendant Dutch Tours Enterprises, N.V. (“Dutch Tours”). The Undersigned therefore DENIES Dutch Tours’ request to vacate Plaintiffs’ Rule B attachments.
This case arises out of a bus accident that occurred on the island of St. Maarten. The twenty-eight Plaintiffs were passengers aboard the Freedom of the Stars, a cruise ship operated by defendant Royal Caribbean Cruises Ltd. (“Royal Caribbean”). While aboard the Freedom of the Stars, the Plaintiffs each purchased tickets for the “Loterie Farm Treetop Tour” (the “Treetop Tour”), an on-shore zip line excursion in St. Maarten. Royal Caribbean contracted with an on-shore excursion provider, defendant “Rendezvous Tour Company” (“Rendezvous”), to provide the Treetop Tour. Rendezvous, in turn, contracted with defendant Dutch Tours to provide bus transportation from the Freedom of the Stars to the location of the Treetop Tour. Dutch Tours has direct contracts with Royal Caribbean for other excursions but not for the one at issue here. On July 19, 2012, while en route to the Treetop Tour, the Dutch Tours’ bus carrying the Plaintiffs crashed. Plaintiffs are suing the defendants for claims related to the injuries they sustained in that crash. This Court previously dismissed the in personam claims against Dutch Tours for lack of personal jurisdiction. Plaintiffs then, with leave of the Court, filed an unopposed Verified Amended Complaint against Dutch Tours, praying for attachment pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions (“Rule B”). The Undersigned directed issuance of a summons and process of maritime attachment and garnishment on January 31, 2014. [ECF No. 104]. Dutch Tours appeared for the limited purpose of defending against the Rule B attachment and garnishment action, and argued in its Answer and Affirmative Defenses [ECF No. 106], that, among other things, this Court is without admiralty jurisdiction over any claim against it in the Amended Complaint. In its Answer and Affirmative Defenses, Dutch Tours also requested a post-attachment hearing pursuant to Rule E(4)(F) of the Supplemental Rules. That hearing was held, pursuant to Local Admiralty Rule B(5)(b), on February 20, 2014. Plaintiffs and Dutch Tours submitted briefs both before and after the February 20, 2014 hearing on whether the Rule B attachments should be vacated. Four garnishees responded to the process served upon them for maritime attachment and garnishment. Silversea Cruises, Ltd. served notice [ECF No. 129] on March 7, 2014 that it owes $4,878.00 in intangible debt to Dutch Tours; Carnival Corp. served notice [ECF No. 130] on March 7, 2014 that it owes Dutch Tours $2,856.00; Royal Caribbean and Celebrity Cruises each served notices on March 10, 2014 [ECF Nos. 131; 132] that noted that “no funds are currently owed to Dutch Tours” but that each “reasonably expects to be in possession of funds owed to Dutch Tours in the near future but is unaware of the amount at this time.” The parties disagree about whether Rule B requires an admiralty claim to exist against Dutch Tours or whether the Court can use supplemental jurisdiction as a basis to use Rule B’s quasi in rem procedure against Dutch Tours even if there is no admiralty claim against that defendant. Not surprisingly, Plaintiffs assert that they may still pursue a Rule B claim against Dutch Tours without admiralty jurisdiction over their claim against that specific defendant because “admiralty jurisdiction would be extended through the concept of supplemental jurisdiction.” [ECF No. 127, p. 3]. Plaintiffs contend that 28 U.S.C. § 1367 allows supplemental jurisdiction “over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” [Id.] Because all of the claims against all of the parties stem from the same controversy, Plaintiffs then argue, “even where admiralty jurisdiction did not independently exist over the claims against Dutch Tours, admiralty jurisdiction would be extended via the doctrine of supplemental jurisdiction.” [Id. at pp. 3–4]. The circumstances here are not overly attenuated to traditional maritime activity. To the contrary, the relevant factors are (1) the alleged negligence of an excursion transportation company (2) which knowingly and on a schedule (3) picks up cruise ship passengers for an (4) excursion they purchased (5) on board a vessel from a cruise operator which (6) promoted, marketed, and sold the excursion and was aware of the reputation of the transportation company because (7) it specifically contracted with that transportation company to provide excursions to cruise ship passengers. To be sure, admiralty jurisdiction over a purely local transportation provider, such as a taxi owner who fortuitously picks up cruise passengers traveling to port of call locations of their own choosing would not exist. While the Undersigned notes that the factors here are barely enough to confer admiralty jurisdiction for the Rule B claim against Dutch Tours, the all-important point is that it is sufficient. See generally Meyer v. Carnival Corp., 938 F.Supp.2d 1251, 1260 (S.D.Fla.2013) (cruise ship operators have “no trouble finding local excursion companies to partner with” because “partnering with a major cruise line … can be highly lucrative for the local touring companies”); Skeen, 2009 WL 117432, at *3 (“cruise line ports-of-call stops and onshore excursions are traditional maritime activities”).
Having found that admiralty jurisdiction exists for Plaintiffs’ Rule B claim against Dutch Tours, the Undersigned denies the request to vacate the attachments.
SUMMARY JUDGMENT DENIED IN JONES ACT ACTION WHERE MATE OF A FISHING SUSTAINED A BACK INJURY WHILE HAULING FISHING NETS.
2014 WL 2700854
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United States District Court,
v. OMEGA PROTEIN, INC. and ABC Insurance Company.
Civil Action No. 13–6293. | Signed June 12, 2014.
Mate of fishing vessel brought action against vessel owner to recover damages for back injury sustained while hauling in a fishing net alleging claims of unseaworthiness and negligence under the Jones Act. The vessel owner moved for summary judgment.
This case concerns a back injury allegedly sustained by plaintiff on June 12, 2013, while he was working on fishing vessel, the F/V G.P. Amelia, owned and operated by Omega. On the date in question, plaintiff was working for Omega as the mate aboard the Amelia. Plaintiff’s injury occurred on June 12, 2013, when the crew had already brought in three sets and was working on a fourth. At the end of the fourth set on June 12, plaintiff began pulling up the net while most of the crew was still engaged in other work assignments. At some point before or after plaintiff began pulling up on the net by himself, he called to a crew member, Ben Turrell, for help. Plaintiff called three times and received only a blank stare in return. Id. Plaintiff continued to pull the net until he felt his back “pop.” Plaintiff filed for damages on October 13, 2013. Rec Doc. 1. Plaintiff claims that the Amelia’s captain was negligent failing to “provide adequate assistance,” that Omega was negligent in failing to select a competent master and crew, and that the unseaworthiness of the Amelia is a proximate cause of his injury. Id. Plaintiff lastly claims entitlement to receive maintenance and cure for the injuries he suffered on June 12. Id. Omega filed the pending Motion for Partial Summary Judgment on May 6, 2013. In it, Omega argues that plaintiff can show no genuine issue of material fact with respect to the unseaworthiness of the Amelia at the time of the incident in question. Omega further contends that plaintiff solely caused his own injury by failing to wait for assistance. Omega argues that primary duty doctrine defeats any recovery for its own negligence or vicarious liability. Finally, Omega argues that the expert report of Robert Borison does not raise a triable issue of fact on plaintiff’s negligence claims. As to unseaworthiness, Omega argues that plaintiff’s seaworthiness claim must fail because plaintiff admitted throughout his deposition that the conditions on the Amelia, including the equipment, were in fine working condition. In his opposition to summary judgment, plaintiff fails to argue that any condition existing aboard the Amelia on the day of his injury rendered the vessel unseaworthy, choosing to argue instead that Omega is liable for its own and its servants’ negligence under the Jones Act. See generally Rec. Doc. 27. Against this backdrop, Omega is entitled to summary judgment on plaintiff’s unseaworthiness claim. Omega next argues that plaintiff was the sole negligent cause of his own back injury when he failed to wait for assistance before attempting to pull up the net on the Amelia. Rec. Omega points to several cases that it claims are analogous to the present case, in which employees are found to have negligently assumed risks by rushing into heavy lifting assignments when help was not forthcoming and there was no urgency attached to the task. Omega argues that plaintiff’s Jones Act claims are foreclosed by Omega’s blamelessness and plaintiff’s breach of a primary duty. The bulk of Omega’s motion for summary judgment is devoted to arguing that plaintiff’s claims of negligence are barred by his own failure to exercise to due care in attempting to pull up the net. Omega argues that a reasonable mate in plaintiff’s position would have waited for assistance to pull up the net and ultimately should have let go of the net before he got injured. Court found that the shipowner did not prove that plaintiff was negligent in failing to wait for someone other than Mr. Turrell to become available to help. Finally, court found that because the record does not establish that plaintiff breached a primary duty to ensure that the nets aboard his boat were handled safely or that Omega was completely free from fault, the application of the primary duty doctrine to bar plaintiff’s recovery is unwarranted.
Omega Protein, Inc.’s Motion for Partial Summary Judgment was GRANTED IN PART and DENIED IN PART.